Whether a tax invoice constitutes a false tax invoice (gold);

Since the instant transaction is merely a nominal transaction and cannot be deemed to have been transferred the actual ownership, the issue is that the tax invoice is prepared without a real transaction or is prepared differently from the actual transaction by at least the supplier, and constitutes a “tax invoice different from the actual transaction.”

Tax amount paid under Article 17 of the Value-Added Tax Act

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 1,483,185,10 for the first term portion of 2004 against the Plaintiff on October 4, 2005, and the imposition of KRW 264,650 for the second term portion of 204, and KRW 253,849,240 for the second term portion of 204, and KRW 264,650 for the corporate tax of 204 for the business year.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each statement in Gap evidence 1-1-2, 3, 1-2, 2-4, 1-1, 2-2, and 2-2, and 1-2:

가. 원고는 2004. 2. 10.부터 귀금속 무역업 및 금지금(金池金 : 이 사건에서는 '금괴, 골드바 등 원재료 상태로서 순도가 1000분의 995 이상인 금'을 일컫는다) 도매업 등을 영위하여 온 법인사업자이다.

B. During the period from March 16, 2004 to September 15, 2004, the Plaintiff received 29 copies of the tax invoice on the purchase of gold bullion 900 km (hereinafter “instant gold bullion”) equivalent to the total value of KRW 13,232,00,000 (hereinafter “instant gold bullion”) from ○○○ Company (hereinafter “○○ Company”). From March 16, 2004 to September 30, 204, the Plaintiff exported gold bullion totaling KRW 13,142,00,000 (hereinafter “instant tax invoice”). From March 16, 2004 to September 30, 2004, the Plaintiff exported gold bullion totaling KRW 13,142,000,00 from export value to ○○○ Company (hereinafter “○○ Company”).

C. Based on the instant tax invoice and the above export facts, the Plaintiff reported to the Defendant each of the value-added tax for the first and second years of 2004 and the corporate tax for the business year 2004.

D. However, from October 8, 2004 to July 11, 2005, the Commissioner of the ○○ Local Tax Service recognized the instant tax invoice as a tax invoice different from the facts and notified the Defendant of the investigation. On October 4, 2005, the Defendant imposed the Plaintiff the amount of KRW 264,650,600 for the second period of value-added tax of 1,483,185,110 for the first period of 2004 and value-added tax of 2,53,849,240 for the second period of 204 as corporate tax of 204 for the business year of 204 (hereinafter “instant disposition”).

E. On November 15, 2005, the Plaintiff was dissatisfied with the instant disposition and requested to the National Tax Tribunal for a trial on November 15, 2005, but the National Tax Tribunal dismissed the Plaintiff’s request on August 11, 2006.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

As the Plaintiff actually traded the same content as the tax invoice of this case, the tax invoice of this case does not correspond to the tax invoice of this case, and even if so, the Plaintiff did not know it without negligence. The Defendant’s disposition of this case, which was based on a different premise, was unlawful.

(b) Related statutes;

The relevant laws and regulations at the time this case's taxation requirement is established.

○ Application of Article 11 of the Value-Added Tax Act

(1) zero tax rates shall apply to the supply of goods or services falling under any of the following subparagraphs:

1. Exported goods;

○ Tax amount paid under Article 17 of the Value-Added Tax Act

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as the “paid tax amount”) shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as the “purchase tax amount”) from the tax amount on the goods and services supplied by him (hereinafter referred to as the “sales tax amount”): Provided, That where an input tax amount exceeds the output tax amount, it shall be a refundable tax amount (hereinafter

1. The tax amount for the supply of goods or services used or to be used for his own business;

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The following input tax amounts shall not be deducted from the output tax amount:

1-2. An input tax amount, in case where the tax invoice as provided in Articles 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be excluded.

○ Decision and Correction Article 21 of the Value-Added Tax Act

(1) The Commissioner of the competent Regional Tax Office or the Commissioner of the National Tax Service having jurisdiction over the place of business shall determine or correct the tax base and amount of value-added tax paid or refunded for the taxable period:

2. Where there are any mistakes or omissions in details of the final tax return;

3. Where the list of the total tax invoice by buyer or the total tax invoice by buyer is not submitted in the final tax return, or all or part of the submitted list of the total tax invoice by buyer is not entered or

Corporate Tax Act (amended by Act No. 7838 of Dec. 31, 2005)

Article 66 (Settlement and Correction)

(2) Where a domestic corporation files a report under Article 60, the head of the district tax office having jurisdiction over the place of tax payment or the Commissioner of the competent Regional Tax Office shall correct the tax base and amount of corporate tax on the income

1. Where there are errors or omissions in the contents of the report;

Article 76 (Additional Tax)

(5) In case where a corporation (excluding such corporation as prescribed by the Presidential Decree) is supplied goods or services with an entrepreneur as prescribed by the Presidential Decree in connection with its business and fails to receive the evidential documents falling under any of subparagraphs of Article 116 (2), the chief of the district tax office having jurisdiction over the place of tax payment shall collect as corporate tax the amount calculated by adding an amount equivalent to 2/100 of the amount not received, except for the case where the proviso of

§ 116. Documentary evidence of expenditure (receiving and keeping)

(2) In cases of paragraph (1), where any corporation receives goods or services from a business operator prescribed by the Presidential Decree and pays the price therefor, it shall receive and keep the evidential documents falling under any of the following subparagraphs: Provided, That the same shall not apply to cases prescribed by

2. Tax invoice under Article 16 of the Value-Added Tax Act;

Restriction of Special Taxation Act (amended by Act No. 7577 of July 13, 2005)

Article 106-3 (Special Taxation of Value-Added Tax on Gold Metals)

(1) The value-added tax shall be exempted until June 30, 2005 pursuant to the classification under paragraph (3) for the supply of gold bullion falling under any of the following subparagraphs (hereafter referred to as "tax-free gold bullion" in this Article), which is bullion equipped with the form, degree, etc. prescribed by Presidential Decree (hereafter referred to as the "gold bullion" in this

1. Gold bullion supplied by the wholesalers and refiners of gold bullion as prescribed by the Presidential Decree (hereafter in this Article, referred to as the “gold bullion wholesalers, etc.”) to the gold craftsmen, etc. as prescribed by the Presidential Decree (hereafter in this Article, referred to as the “gold craftsmen, etc.”) who have received the tax-free recommendation from the person as prescribed by the Presidential Decree (hereafter in this Article, referred to as

2. Gold bullion wholesalers, etc. and financial institutions prescribed by the Presidential Decree (hereafter in this Article, referred to as "financial institutions") supply gold bullion or financial institutions supplied to the financial institutions which have received tax-free recommendation for the trading of tax-free gold bullion or receive a refund

3. Gold bullion supplied under the futures trading under the Futures Trading Act: Provided, That the same shall not apply to the case where any person other than the gold craftsmen, etc. (including the financial institutions) takes over the actual objects

(2) The value-added tax shall be exempted until June 30, 2005 on the gold bullion imported by the gold craftsmen, etc. and financial institutions after receiving a tax-free import recommendation from the persons prescribed by the Presidential Decree (hereafter referred to as "the head of the tax

(3) Special cases under the Value-Added Tax Act shall apply to the tax-free gold metals under paragraph (1) pursuant to any of the following subparagraphs:

1. Where a financial institution supplies tax-free gold metals, Article 12 of the Value-Added Tax Act shall apply;

2. Where any entrepreneur, other than financial institutions, supplies the tax-free gold bullion, the relevant entrepreneur shall be deemed the value-added tax taxable entrepreneur and the Value-Added Tax Act shall apply. In this case, the value-added tax amount borne at the time of purchasing the relevant gold bullion in connection with the supply of the tax-free gold bullion shall not be deemed the input tax amount eligible for the deduction under Article 17 of the Value-Added Tax Act, and the tax-free gold bullion wholesaler, among the gold bullion wholesalers, etc. and the value-added tax amount borne by the relevant entrepreneur in connection with the purchase of the

(c) Fact of recognition;

The following facts may be acknowledged by taking into account the following facts: (a) there is no dispute between the parties; (b) evidence Nos. 4, 5-1 through 4; (c) evidence Nos. 6-1 through 12, 7, 8, 9-1, 2, 3, 10 through 16; (c) evidence Nos. 17, 18, 19; (d) 1, 20; (e) evidence Nos. 21-1, 22, 23; (e) evidence Nos. 24; (e) evidence Nos. 25-1, 25-1 through 15, 26, and 27-27:

(1) The Plaintiff’s establishment process, etc.

(가) 원고의 대표이사인 허○○는 서울 ○○고등학교를 졸업하고 약 4년 동안 핸드폰 소매업체인 ○○네트웍에서 근무하다가 퇴직한 후 휴직상태에 있던 중, 2004. 2.경 동서관계에 있는 정○○의 권유에 따라 2004. 2. 10. 정○○ 등과 함께 원고를 설립하였다.

(B) ○○○ was a person with experience in the wholesale business of gold bullion, who abused the “tax-free gold scheme” as seen below, and was well-known with the “○○○,” a person leading the “bombing business,” and ○○, his wife, has made a financial transaction with the company ○○ and the non-party company whose representative is ○○○.

(2) Type, etc. of the gold bullion transaction

(A) The Plaintiff exported the gold bullion of this case to ○○○○○ through ○○○○ Korea. However, ○○○ Company was at the same time managing another importer and the exporter with another importer, and did not present the relevant account books on the specific documents related to the import and export of the gold bullion of this case.

(B) All transactions with respect to the instant gold bullion were conducted from a foreign country and distributed as tax-free gold by an importing company, which was converted from an importing company to a total of 6-8 stages from the importing company up to the Plaintiff. At the same time, the date of import and the date of export do not vary to the extent that they were identical or otherwise different. In addition, some of the instant gold bullion were repeatedly imported and exported without any processing.

(C) On the other hand, the wholesalers converting the gold bullion of this case into the tax-free gold bullion during the distribution, who sold the gold bullion that they purchased at a lower price than the purchase price (However, the amount added to the value-added tax amount, i.e., the value-added tax amount, which is higher than the purchase price), and did not fulfill the liability to pay value-added tax by closing the business. The representatives of the above companies have no business experience in the precious metal field, most of them do not have family or ownership property, and some parts do not

(D) The export price of the instant gold bullion was lower than the import price, and was considerably low compared with the domestic market price (the wholesale price of the gold bullion publicly announced daily by the stock company or automatic response telephone) and the international market price.

(E) At the time of the export of the gold bullion, the Plaintiff did not file an application for refund of customs duties (3% of the import price was imposed) under the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export on the customs duties paid at the time

(F) The Plaintiff knew that the instant investigation had commenced, and immediately suspended the export of gold bullion, and thereafter did not export gold bullion thereafter.

(3) Transaction and status of gold bullion by the non-party company

(A) The representative director of ○○○○○○○○○○, a corporation operating the gold bullion wholesale business and export business (hereinafter referred to as “○○○○○,”) pretended the gold bullion (hereinafter referred to as “refinite gold bullion wholesale business”), the source of which is unclear, without being issued a tax invoice, as normal gold bullion (after establishing a multiple processing gold bullion wholesale company in a successive order from 6 months to 1 year unit, it did not actually engage in gold bullion transactions and made financial basis data through Internet banking, etc., and issued a false tax invoice by issuing a false tax invoice, and subsequently, set up the ○○○○○, in collusion with the data merchants, etc. to sell or export the gold bullion to the customer, and thereby establishing the ○○○○○, a representative director with the name of the representative director as the ○○○.

(B) The Kim○, a representative director in the name of the non-party company, lent only the name of the non-party company without having invested in the non-party company. The non-party company's ○○ and Korea-○○○, who was the children of the non-party company, was the shareholder of the non-party company, and the non-party company's business establishment

(C) The Kim○○ did not work at the place of business of the non-party company (○○○○○○○○, 98 ○○○○○○○○○, 20). A part of the gold bullion was delivered to the customers under the direction of the non-party company, under the name of “the head of ○○○○ Office (○○○○○○, 19-1 ○○ building 502)”.

(D) The transaction partners of the non-party company ordered the issuance of the tax invoice under the name of the non-party company and the approval of the transaction price was made by the non-party company Lee ○, the accounting staff of the ○○○○○○ (the ○○○○○○). The written characters recording the transaction volume or transaction amount on the non-bank transfer, Internet banking transaction statement, tax invoice, and outer sign of the deposit passbook were written by the ○○○○.

(E) The amount that ○○○○ received from the Nonparty Company and paid was remitted to ○○○○, a processing company established by ○○○, etc., a processing company established by ○○, etc., as the purchaser of the Nonparty Company. The amount that was deposited in cash by the said company was delivered to ○○, etc. via ○○, etc.

(F) On April 6, 2007, 2006Kahap1196, the ○○ District Court sentenced ○○○○ to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and the violation of the Punishment of Tax Evaders Act, and sentenced 6 years of imprisonment and 74 billion won to the violation of the Punishment of Tax Evaders Act. The ○○ District Court sentenced 5 years of suspension of execution to the ○○○○○○ in imprisonment and 2007No896 (the ○○ High Court appealed to the above judgment and was sentenced to 5 years of imprisonment and 74 billion won of fine).

(4) A general form of variable transaction for the purpose of tax evasion among gold bullion transactions.

On the other hand, since July 1, 2003, when the "tax-free gold bullion system" was implemented under Article 106-3 of the Restriction of Special Taxation Act, some of the gold bullion wholesalers in paper used the same form to evade value-added tax and gain unfair profits from the National Treasury by abusing the above system, and use the following tax-free gold bullion system in the same manner (before June 30, 2003, it was widely known in the gold bullion wholesale business around 2003; hereinafter referred to as "bomb gold business").

(A) In appearance, gold bullion is distributed through the stages of foreign companies ? ? importer companies ? ? ? ? 1 (s) ? 2 (defluence) ? Domination companies ? floor wholesale companies ? export companies ? foreign companies ? the transaction price is paid in sequence from export companies to import companies. However, among the above distribution companies, at least the distribution companies from large coal to floor wholesale companies are issued tax invoices according to the orders of specific persons or specific companies, and in fact, it is most cases where gold bullion is not traded or transported at each of the above stages.

(B) A company that purchased gold bullion, which is distributed as tax-free gold at the previous stage of its transfer, and sold it as tax-free gold by adding 10% value-added tax to the company that participated in the business, and then closed its business within a short period, thereby making it impossible for the State to collect value-added tax. The amount equivalent to the value-added tax that the company received from the company that received from the company that received from the company that received from the company that received from the previous stage of its transfer is successively transferred to the country through the method of deducting the input tax by using the tax invoice received from the company that received from the previous stage of its purchase. Ultimately, the exporter's return of the value-added tax is ultimately the ultimate source of profit from the business that the company did not pay the value-added tax. The above profit is either distributed in the form of Magin in each transaction at the domestic company that received from the company that participated in the business, or distributed the difference between the import price and the export price of the company that received from the foreign company that participated in the business in the export price.

(C) In order to maximize its profit, it distributes a large quantity of gold in a short term. In order to prevent disputes between participating companies, which may arise therefrom, and accidents such as loss of the price, ① most of the same former owners (this refers to those who prepare for the import and settlement of gold bullion for the first time from the outside of the heavy carbon business network) operate simultaneously with the exporting company and the importing company. ② The former owners shall be placed in direct transactions with the bombing company. ③ The former owners shall determine the volume, unit price, and margin of the transactions at each stage of transactions. ④ The former owners shall determine the volume of transactions at each stage of transactions, ④ The series of transactions from the importing company to the exporting company is very short time, ④ The gold bullion shall be transported immediately with the exporting company. ⑤ The latter is the most characteristic of transportation, such as transportation, where gold bullion is transported immediately through the opening of the trading stage, and it is a mere formality for disguised trade).

(5) Reduction of trade volume after implementation of the tax payment security system (Article 106-3(11) of the Restriction of Special Taxation Act);

The trade volume of gold bullion before and after the implementation of the tax payment security system on April 1, 2005 shall be as follows:

Classification

203. 203

204.

205.

206.

Export volume (metric tons)

165

233

19

45

Import volume (metric tons)

238

268

56

10

(D) Determination

(1) Whether the instant tax invoice constitutes “unlawful tax invoice” and whether the Plaintiff was unaware of it without negligence

(A) The burden of proving that the tax invoice is false, in principle, to the defendant who is the tax authority, and the defendant must prove that the tax invoice is not accompanied by real transactions on the basis of direct evidence or overall circumstances. If the defendant proves that the tax invoice is not false and that it is not accompanied by real transactions, it is necessary to prove that it conforms to his/her own assertion in light of the position that it is easy to present evidence and materials related to the plaintiff who is the taxpayer who disputes the illegality of the defendant's disposition, by asserting that the tax invoice is not false (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

In addition, under Articles 6(1), 7(1) and 16(1) of the Value-Added Tax Act, an entrepreneur who supplies or receives goods or services, such as a person who delivers or provides services due to a contractual cause, is entitled to receive a tax invoice from the supplier, and the person liable to pay value-added tax is the one who actually supplies or receives the goods or services from the supplier, not from the supplier or the person who establishes a nominal legal relationship with the supplier, but from the supplier (see, e.g., Supreme Court Decision 2002Do4520, Jan. 10, 2003). Other tax invoices of the actual supplier and the supplier under the tax invoice are prohibited from being deducted or refunded unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the name of the tax invoice, and that the person who received the goods or services was not negligent in not knowing the above fact, a person who claims the deduction or refund of the input tax amount shall prove the fact that the supplier was not negligent (see, e.g., Supreme Court Decision 2002Du2727.

(B) In light of the foregoing facts, the following circumstances may be inferred on the instant case.

1) At the time of the transaction of the Plaintiff’s gold bullion, the breadth business had already been widely known in the gold bullion wholesaler, and the ○○○, who recommended the Plaintiff’s representative director, was in a position to fully know about the Plaintiff’s experience and personal relation.

2) The non-party company was established by ○○ and ○○○, etc., leading the so-called “bombing business,” which abused the “tax-free gold scheme.” The gold bullion transaction in the name of the non-party company was practically conducted by ○○, and the customers of the non-party company were well aware of this fact.

3) The instant gold bullion was distributed through various stages of wholesalers within a very short period from importation to exportation. Moreover, some of the instant gold bullion were repeatedly imported and exported without any processing.

4) The export price of the instant gold bullion was lower than the import price, and was considerably lower than the domestic market price and international market price.

5) During the distribution process of the gold bullion in this case, the companies showing the same characteristics and behavior as the bombane in the typical bombing business were necessarily involved.

6) The domestic wholesale market tax for gold bullion was announced daily, and the gold bullion of this case was not processed or modified domestically, and the domestic trade of the gold bullion of this case was conducted within 200 days, but all of the said trade was conducted at different prices, and the relevant trade took place at different prices, respectively.

7) The Plaintiff asserts to the effect that the Defendant’s assertion as to the details of distribution of the gold bullion of this case is not specifically reflected by submitting data that could specify the gold bullion of this case, and that he did not confirm the quantity, manufacturing company, serial number, etc. of the gold bullion of this case. In light of the fact that the characteristic of the object of transaction is important in relation to the trade of gold bullion of this case, the Plaintiff’s above assertion is difficult to obtain.

8) The Plaintiff’s export place is always fixed as ○○○○, and the Plaintiff does not present any data on the size of the above export place, transaction performance, and credit limit, etc. of a large amount of gold bullion traded for a long time.

9) While exporting the gold bullion of this case, the Plaintiff renounced enormous profits by failing to apply for the refund of customs duties, and the Plaintiff cannot find a reasonable ground therefor.

10) Since April 1, 2005, after the implementation of the tax payment security system, the export volume of gold bullion sharply decreased, and the Plaintiff also completely suspended the export of gold bullion immediately after being aware of the commencement of the investigation in this case. If the Plaintiff has run the export business normally, there is no reasonable ground to do so.

(C) In light of such various circumstances, the company converting the gold bullion of this case into the taxable gold is so-called so-called so-called so-called company, and the business entity before and after it is only the nominal transaction that only issues a tax invoice to convert the transaction into the tax-free transaction, and then transfers the price received from the plaintiff to the purchaser, and then acquires the tax invoice in the form of the difference between the sales price and the purchase price of the value-added tax to be evaded in return for such intervention. It is reasonable to view that each sales contract for the gold bullion of this case was concluded between them and the plaintiff, and that the corresponding gold bullion was transferred by delivery, and it is difficult to view that the plaintiff traded the gold bullion of this case through these business entities was actually aware or known of such circumstances in the course of the transaction.

(D) Therefore, the instant tax invoice was prepared without a real transaction or prepared by at least the supplier differently from the actual transaction, and it cannot be deemed that the Plaintiff was unaware of it without any negligence.

(2) Judgment on the plaintiff's other assertion

(A) On this issue, the Plaintiff did not reveal the direct evidence of the Plaintiff’s participation in the distribution of the gold bullion at each stage of distribution. ② At the same time, the gold bullion was separated from part of the gold bullion imported by the importing company at each stage of distribution, and was traded or divided into multiple companies, etc.; ③ The Plaintiff’s export price was based on international market prices, and not only the profit margin was reached, but also the Plaintiff reported and exported losses. ④ The Plaintiff is an exporter who is in a passive position to receive value-added tax refund, and thus, there was a risk of bearing the Plaintiff’s participation in the distribution of the gold bullion. ⑤ The Plaintiff was unable to directly inform the Plaintiff of the width coal company involved in the distribution of the gold bullion at each stage of distribution, and the Plaintiff was in possession of the real gold bullion at the time of exportation, and all transport documents, etc. related to the sales were also kept, and the investigation of this case was carried out by the tax authority to avoid its liability for tax exemption.

(B) However, the above individual circumstances asserted by the Plaintiff are ① due to the nature of the wide carbon business that is created by the organized public offering, it is difficult to secure direct evidence of a specific person’s involvement in the wide coal business. ② If the Plaintiff’s ordinary commercial transactions are highly likely to cause complicated trade lines; however, since the Plaintiff’s trade participants need to operate complicated trade lines in order to conceal the wide coal business, the Plaintiff’s trade does not support the Plaintiff’s trade. (iii) In light of the international market price, the Plaintiff could have sufficiently participated in and gain profit from the wide coal business even if it exports gold bullion with considerable export price determined by the Plaintiff’s decision, and thus, it does not necessarily need to raise a fixed export price or profit margin. However, it is difficult to find that the export price was higher than the purchase price, but the Plaintiff’s own loss related to the ordinary opportunity for purchasing gold bullion by itself is likely to be more complicated than the domestic and international market price, ④ it seems that the Plaintiff’s involvement in the Plaintiff’s trade of the gold bullion is more likely to be involved in the Plaintiff’s participation in the aforementioned business.

(3) Sub-decisions

Therefore, there is no error of law as asserted by the plaintiff in the disposition of this case on the premise that the tax invoice of this case is "unlawful tax invoice."

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.