Suwon District Court 2009Guhap2369 (2010.08)

Quarrying who was issued false tax invoices from mid-term service providers;

Since the tax invoices delivered from individual mid-term operators, which are engaged in quarrying business, fall under a false tax invoice stating the entries differently from the facts, the non-deduction of input tax amounts is legitimate, and it is difficult to view that the non-deduction of input tax amount was paid as the user fee for the mid-term period,

2010Nu35427 Revocation of administrative disposition

XX Industry Corporation

O Head of tax office

Suwon District Court Decision 2009Guhap2369 Decided September 8, 2010

May 20, 2011

June 17, 2011

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The decision of the court of first instance shall be revoked. The defendant's disposition of imposing corporate tax of KRW 443,607,920 for the plaintiff on March 27, 2008 exceeds KRW 277,927,747 among the disposition of imposing corporate tax of KRW 443,607,920 for the plaintiff on March 27, 2008, the first term portion exceeding KRW 72,578,127 among the disposition of imposing KRW 117,902,358 for the first term in 2002, and the part exceeding KRW 49,675,974 for the second term in 202 shall be revoked.

1. Details of the disposition;

A. The Plaintiff, as a corporation engaged in quarrying business under XX 39-10 in Gwangju City, included KRW 2,002,929,000, such as mid-term user fees and transportation expenses, at the time of filing corporate tax in 2002, and submitted purchase tax invoices equivalent to the above mid-term user fees and transportation expenses to deduct the input tax amount.

B. However, the Defendant, who traded with the Plaintiff, was provided with tax evasion information from GAA and GB on December 2007 and conducted a tax investigation on the tax investigation around December 2007, recognized the transaction of KRW 883,857,00 as a processing transaction, and notified the Plaintiff of KRW 443,607,920 as corporate tax for the year 2002 for the Plaintiff on March 27, 2008 (hereinafter referred to as the “instant first disposition”), and for the same reason, notified the Plaintiff of the correction and notification of KRW 202,980,925 (the value-added tax for the year 2002, 117,902, 358, 2008, 202, 20857, 2085, 207, 20857, 207, 20757, etc.).

[Ground of recognition] Facts without dispute, Eul evidence Nos. 1, 2, 3, Eul evidence No. 2, all pleadings

Purport

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) In 2002, the Plaintiff received mid-term services from AB, a major business entity, and received only tax invoices under the name of the other mid-term business entity. Among each transaction listed in the separate sheet of denial of the attached Table recognized by the Defendant as a processing transaction, the Defendant’s total of KRW 351,790,520 listed in the following table (hereinafter “instant key transaction”) is not a processing transaction, but an actual transaction. Therefore, the instant key transaction is a processing transaction, and each of the dispositions of this case based on the premise that the corresponding tax invoice is false is illegal.

(The following table omitted):

2) Even if the entire key transaction amount in the instant case cannot be recognized as losses, the fact that the Plaintiff paid 219,750,000 won to YA and YB as mid-term rental fees in 2002 is recognized, and thus, at least the amount should be recognized as losses.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) In around 2002, the Plaintiff was engaged in the business of producing and selling the sub-net sand with stone powder, and used heavy machinery in the process.

2) Among the books on which the Plaintiff entered into the account of the AA (Evidence A 3) and the AB account (Evidence A 5) from among the books on which the Plaintiff leased the BJ as above, the Plaintiff is deemed to have used the BJ as follows (including value-added tax) and paid mid-term user fees after the lapse of 1-2 months.

(The following parts of each of the table are part of the transaction with a business operator listed in the A and YB account prepared by the Plaintiff, which is recognized as only a tax invoice received and delivered without the fact that the Defendant actually leased the key part. The lower part of the table is the key part of the transaction in this case. In addition, the Defendant recognized only a part of the transaction recorded in the account book as a processing transaction in the case of KimD E, KimF, and KimG.

(The following table omitted):

[Ground of recognition] Facts without dispute, Gap evidence No. 3, Gap evidence No. 5, and the purport of the whole pleadings

D. Determination

1) Type of transaction with the Plaintiff and the mid-term business operator

The plaintiff asserts that in 2002, YA and YB directly provided the plaintiff with mid-term services during the process of producing sub-net sand by stone.

However, under the following circumstances, Gap evidence 3, Eul evidence 5, Eul evidence 5, witness of the court below, witness of the court of first instance, and witness of the court of first instance based on the overall purport of arguments, i.e., ① the plaintiff asserted that the plaintiff arranged to arrange for the mid-term project operator at the tax judgment stage to the first trial stage, and consistent from the first trial stage to the first trial, and ② the plaintiff made the accounts in the books and entered the details of transactions with many mid-term project operators in each account. ② The plaintiff appears to have entered the mid-term project operator in each account. ③ The court below testified that the witness of the court of first instance arranged the parties to arrange the parties with the mid-term project, ③ The witness of the court of first instance to the effect that the plaintiff's testimony was reasonable to view that the plaintiff's offering the up-term project operator's own funds to the effect that the plaintiff's witness of the court of first instance was being distributed to the plaintiff's up-to-date project operator's own account, etc.

Therefore, we cannot accept the Plaintiff’s assertion that the Plaintiff was directly provided with mid-term services from A and YB in the process of producing tin sand in 2002.

2) Whether the instant key transaction constitutes a processed transaction

이 사건 쟁점거래 중 자신들에 해당하는 부분이 실제로는 중기용역을 제공하지 않은 채 세금계산서만 원고에게 교부한 것이라는 취지의 안KK, 김DD, 홍LL, 김MM, 최EE, 강NN, 김PP, 김FF 작성의 각 사실확인원(을 제3호증), 원고의 직원인 한HH가 매월 1천만 원에서 2천만 원의 가공자료를 요구하여 굴삭기 임대료를 정산하는 윌말이면 가공세금계산서를 교부하여 주었다는 취지의 임AA에 대한 전말서(을 제 4호증의 1), 실거래 없이 매입세금계산서를 수수하였으며 가공매입이나 매출누락후 현금으로 수금하여 이OO의 처 유QQ, 이RR 등의 계좌로 한HH, 김SS을 시켜 입금 하는 것을 목격하였다는 취지의 원고의 전 대표이사 안TT에 대한 전말서(을 제4호증 의 2)의 각 기재, 이 사건 쟁점거래의 사업자 중 사실확인원이 제출되지 않은 조UU, 김GG, 유VV으로부터 자신들은 일한 적이 없는데 세금계산서가 발부되었다는 얘기를 들었다는 당심 증인 임AA의 증언에 변론 전체의 취지를 종합하면, 이 사건 쟁점 거래가 실제로는 중기용역이 원고에 제공되지 않았음에도 세금계산서만 발급된 가공거래인 사실을 인정할 수 있다{실제세무조사를 하는 과정에서 거래당사자로부터 장부상에 기재된 일정한 부분의 거래가 가공거래임을 자인하는 내용의 확인서를 작성받았다면, 그 확인서의 증거가치를 쉽게 배척할 수는 없다(대법원 1992. 11. 13. 선고 92누 1438 판결 참조)}

In addition, each statement of Gap evidence Nos. 3 through 16 (including each number) against the above facts of recognition and each testimony of HH, HaBB, and YA by the witness of the court below, which are the witness of the court below, is the account book of the plaintiff which can be easily fabricated, or the contents of the confirmation statement submitted to the existing tax office are reversed, so it cannot be trusted, and there is no other counter-proof.

Of course, as seen in paragraph (3)(a) above, the Plaintiff’s delivery of KRW 219,750,000 in total to NA and NAB in 2002 is recognized, but it is difficult to view that the above amount was granted as a mid-term rental fee in connection with the key transaction of this case, as seen in sub-paragraph (3)(b), and such circumstance does not interfere with recognizing that the key transaction of this case is a processed transaction.

Therefore, we cannot accept the plaintiff's assertion that the issue transaction of this case is not a processing transaction, because the plaintiff was provided with mid-term services from the actual mid-term business operator and paid the price for such services.

3) Whether the money paid to AA or AB is a mid-term royalty

A) Comprehensively taking account of the overall purport of the pleadings in each statement of evidence Nos. 22 through 37 (including each number), the fact that the Plaintiff issued KRW 62,00,000 in total to Pacific from March 28, 2002 to December 3, 2002, and KRW 157,750,000 in total to Voluntarily by cashier’s checks is recognized.

B) On the other hand, since the tax authority bears the burden of proving the legality of a taxation disposition, the tax authority bears the burden of proving necessary expenses, in principle, as well as the burden of proving necessary expenses. However, since the tax authority is in most areas under the control of the taxpayer, most of the facts constituting the basis of necessary expenses, which are the basis of the tax disposition, are difficult to prove. Thus, if it is reasonable to require the taxpayer to prove by taking into account the difficulty of proof or equity between the parties, it is necessary to return the burden of proof to the taxpayer (see Supreme Court Decision 91Nu10909, Jul. 28, 1992), Eul evidence 3, Eul evidence 4-1, and Eul evidence 4-2, and each of the following circumstances, it is difficult to deem that the Plaintiff paid 219,750,000 won to YA and YB as the mid-term royalty in relation to the instant transaction.

(1) According to the evidence evidence No. 20, HA may recognize the fact that HA transferred to H, who is an employee of the Plaintiff, KRW 3 million on Feb. 23, 2002, KRW 300 million on July 22, 2002, KRW 1 million on Aug. 21, 2002. In light of such circumstances, the possibility that part of the money paid to HA and HB may be returned to the Plaintiff cannot be ruled out (the Plaintiff asserted that HA was the money lent to LA individually, but there is no objective evidence that the above amount was borrowed, such as the loan certificate, and there is no evidence to prove that HA was repaid. Accordingly, the Plaintiff’s assertion is difficult to accept).

(2) As seen in the above facts, there is also a transaction that the Defendant did not regard as a processed transaction among the transactions listed in the AA and Y account of the Plaintiff’s account (as seen above, the part excluding the sound portion in each of the above table) and the total amount is KRW 119,321,40 in the case of the AB account, and KRW 102,656,378 in the case of the NAB account, and KRW 102,656,378 in the case of the NAB account and KRW 102,656,378 in the case of the NAB account, and there is a high possibility of including the mid-term user fee to be distributed to the NA and the NA

(3) According to the statement in Eul evidence 4-1, the plaintiff received false tax invoices from the mid-term enterprisers and paid to mid-term enterprisers an amount equivalent to value-added tax. As seen in the above facts, the total amount of processed transactions, including the issues of this case, is 138,79,100,000,000,000,000,000,0000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00.

E. Sub-committee

As seen above, since the key transaction of this case is a processed transaction without any actual transaction relationship, the tax invoice delivered by the Plaintiff in relation to the key transaction of this case from an individual mid-term business operator is a false tax invoice with the entries entered differently from the facts. Therefore, the second disposition of this case, which deducts input tax amount related to the key transaction of this case, is lawful.

In addition, the key transaction of this case cannot be deemed to have actually been paid by the Plaintiff due to the processing transaction. Moreover, it is difficult to deem that the Plaintiff paid the total amount of KRW 219,750,000,000, which the Plaintiff delivered to AA and YB, as the mid-term rental fee in connection with the key transaction of this case. Therefore, the first disposition of this case, which did not recognize the entire key transaction amount as losses related to the Plaintiff’s business, is

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and since the judgment of the court of first instance is just in its conclusion, the plaintiff's appeal is dismissed, and it is so decided as per Disposition.