Whether gold bullion constitutes a false tax invoice or not.

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. All of the plaintiff's claims are dismissed.

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

The Defendant’s imposition of value-added tax against the Plaintiff on December 10, 2005, of KRW 7,98,898,960 for the second term of 2003, the first term of 2004, the first term of 11,173,341,920 for the second term of 204, the second term of 1,57,262,850 for the second term of 204, and the imposition of value-added tax of KRW 2,89,782,398 for the nine months shall be revoked, respectively.

1. Details of the disposition;

A. The Plaintiff is a legal entity that has run the trade business and gold bullion wholesale business from June 20, 2003 (referring to gold with the net level of at least 995/100 in the status of raw materials, such as gold dud, dud, etc.).

B. During the period from July 1, 2003 to December 31, 2004, the Plaintiff received 160 tax invoices on the purchase of gold bullion amounting to KRW 179,840,00,000 in total from 15 gold bullion wholesalers. During the same period, the Plaintiff exported gold bullion amounting to KRW 173,645,00,000 in total of the export price to ○○○○ (○○○ Limited) which is a foreign company located in Hong Kong for the same period. From July 1, 2003 to June 30, 2004, the Plaintiff issued six gold bullion tax invoices on the total supply price of KRW 9,101,000 in total to six domestic gold bullion wholesalers and issued them (hereinafter referred to as “instant tax invoices”).

C. Based on the purchase tax invoice, sales tax invoice, and the above export facts, the Plaintiff filed each return on the tax base and amount of value-added tax for the second period of 2003, the first period of 2004, and the second period of 2004, and the amount of value-added tax for the August, 2004, and the amount of refundable tax for KRW 2,89,782,398, respectively.

D. However, from October 7, 2004 to August 23, 2005, the director of ○○ Regional Tax Office recognized the purchase tax invoice of this case as a false tax invoice, and notified the Defendant of the fact that the purchase tax invoice of this case was issued without real transaction. On December 10, 2005, on the premise of the result of the investigation of this case, the Defendant issued the purchase tax invoice of this case to the Plaintiff as a "processed sales tax invoice issued without real transaction." On December 10, 2005, on the premise of the result of the investigation of this case, on December 10, 2005, the Defendant issued the purchase tax invoice of this case to the Plaintiff 1,173,341,920 won for the first period of 204, the second period of 2004, the second period of 1,57,262,80 won for 204, and rejected the disposition of this case as the refund of value-added tax for each year 2009,898.

Facts that there is no dispute over recognition, Gap evidence 1-1-3, Gap evidence 2-1, 2, Gap evidence 3, 4, and Eul evidence 1-3, respectively.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, as indicated in the purchase tax invoice of this case, actually traded contents, and thus, the instant disposition based on the premise that the purchase tax invoice of this case is “unlawful tax invoice” is unlawful as it violates the principle of no taxation without the law, the principle of good faith, the principle of basis taxation, the principle of protection of private property, and the principle of substantial taxation

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) After graduating from ○ University’s law college, ○○○, the representative director of the Plaintiff, performed duties related to gold bullion in ○ Metal Co., Ltd. from 1987 to 2003, and had maintained considerable friendship with the Plaintiff’s gold bullion wholesalers since 1987.

(2) The gold bullion on the purchase tax invoice of this case (hereinafter collectively referred to as the "gold bullion of this case") was all imported from a foreign country by an importing company and distributed as a tax-free gold, and all of which were converted from the importing company to the Plaintiff. The above wholesalers' business places are located adjacent to the Plaintiff's business place. All of these wholesalers' business places are located adjacent to the Plaintiff's business place, and all of these stages of transactions were conducted on the date of the import of the gold bullion of this case (ordinaryly within 6 hours after the import) or on the following day. The Plaintiff exported all the gold bullion of this case on the date of its purchase (ordinary purchase within 1 hours after the purchase). The export price of the gold bullion of this case was lower than the import price of the importing company.

(3) Meanwhile, all of the wholesalers who converted the gold bullion of this case into a tax-free gold in the course of its distribution, 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 for value-added tax payment by closing the sales, and all of the above companies were accused of the fact that a considerable number of the previous companies were accused of the

(4) Of the purchase tax invoices of this case, ○○○○○, Inc. (hereinafter referred to as “○○○○,”) which issued 53 (the largest number of the tax invoices issued by a single company among the purchase tax invoices of this case) to the Plaintiff had always confirmed the wholesale price of gold bullion publicly announced by a major domestic gold bullion wholesaler (hereinafter referred to as “○○○,”) through automatic response telephone at least 10:0 a.m. on a daily basis. The three of the purchase tax invoices were identical to the above wholesale price at the time, and the remaining 50 supply prices were lower from 27 to 213 won from the above wholesale price at the time. Moreover, ○○, from November 23, 2003 to January 5, 2004, 160 won per 26:

(5) At all times, the Plaintiff confirmed the quantity, manufacturing company, serial number, etc. of gold bullion and stored the materials on which it was stated.

(6) The only export source of the Plaintiff, ○○○ Libered, the only export source, is a company that engages in transactions, such as re-exporting the gold bullion imported from Korea to Korea, and a considerable of the gold bullion exported by the Plaintiff, which was re-exported into the domestic import company after 3 to 7 days.

(7) 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 ○○ gold bullion wholesalers have been used in the same form to evade value-added tax by abusing the above system and to gain unjust profits from the National Treasury, and have already been widely known in the gold bullion wholesale business around 2003, as follows:

(1) In appearance, gold bullion is distributed through the stages of ‘foreign companies ? ? importer companies ? ? ? ? second (defluence) companies ? ? floor wholesale companies ? ? export companies ? foreign companies’, and the transaction price is paid in sequence from the exporters to the importers in the reverse direction, but at least a large number of distributors from the above distributors to the floor wholesalers are issued tax invoices in the order of a specific person or a specific company, and in fact, they do not trade or transport gold bullion.

(2) A heavy coal business entity: (a) purchased gold bullion that were distributed as tax-free gold at the previous stage of its transfer and sold the amount equivalent to the value-added tax equivalent to 10% thereof to the ccushion business; and (b) closed its business within the short period, thereby making it impossible for the State to collect the value-added tax; and (c) subsequently, the amount equivalent to the value-added tax paid by the ccushion business entity from the ccushion business entity is successively transferred to each other by means of deducting the input tax by using the tax invoice issued by each company in the immediately preceding stage; and (d) ultimately, after the exporter exported the gold bullion, the amount equivalent to the value-added tax refunded by the State through applying the zero-rate tax rate. The ultimate source of profit is the portion equivalent to the value-added tax paid by the ccushion business entity. The above profit is distributed to the domestic business entity involved in the bomban business in each stage of the transaction, or the amount paid separately by the import price is lower than the import price of the domestic and foreign business entity.

③ 폭탄영업은 그 이익을 극대화하기 위하여 통상 단기간 내에 최대한 많은 물량의 금을 유통시키는 바, 그에 따라 발생할 수 있는 관여업체 사이의 분쟁이나 대금유실 등의 사고를 예방하기 위하여 ㉠ 대부분 동일한 전주(錢主; 폭탄영업망의 외부에서 최초에 금지금의 수입결제대금을 준비하는 자를 일컫는다)가 수출업체와 수입업체를 동시에 운영하고, ㉡ 전주가 자신이 실질적으로 지배하거나 신뢰하는 업체를 폭탄업체와 직접 거래하도록 배치하며, ㉢ 전주가 각 거래단계마다 거래물량, 단가 및 마진 등을 실질적으로 결정하고, ㉣ 수입업체부터 수출업체까지의 일련의 거래가 대부분 하루 이내의 매우 짧은 시간에 이루어지며, ㉤ 금지금 실물이 거래단계를 건너 뛰어 수출업체로 곧바로 운송되는 경우가 대부분인(설령 각 거래단계마다 운송되더라도 이는 정상적인 거래로 위장하기 위한 형식적인 운송에 불과하다) 등의 특징을 가진다.

Each statement of evidence Nos. 4, 5, 3, 4 of evidence Nos. 1, 2, 7 through 9, 28, 29, 34-1, 2, 35 of evidence Nos. 36, 1, 2, 37, 38 of evidence Nos. 36, 37, and 38 of evidence Nos. 4, 5, 3, 3, and 4 of the grounds for recognition, and the purport of the whole testimony and arguments of E.O. of E.

D. Determination

(1) Whether the purchase tax invoice of this case constitutes “unlawful tax invoice”

(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 is consistent with his/her own assertion in view of the position in which it is easy to present evidence and materials related to the plaintiff, who is the taxpayer claiming the illegality of the defendant's disposition, who is the taxpayer (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

In addition, in Articles 6(1), 7(1) and 16(1) of the Value-Added Tax Act, a tax invoice is delivered to an entrepreneur who supplies or receives goods or services, such as a person who delivers or provides services due to contractual causes, etc.; and a person liable to pay value-added tax is a person who actually provides goods or services to an entrepreneur who is not a person establishing a nominal legal relationship with an entrepreneur who actually supplies or receives services, but a person who actually provides goods or services to an entrepreneur who actually supplies or receives services (see Supreme Court Decision 2002Do4520, Jan. 10, 2003). Other tax invoices of the actual supplier and the supplier under the tax invoice cannot be deducted or refunded, unless there is any special circumstance that the supplier was unaware of the disguised fact in the name of the tax invoice, and that the person who received the goods or services was not negligent in not knowing the above nominal fact (see Supreme Court Decision 2002Do4520, Jun. 27, 2002).

(B) Comprehensively taking account of the foregoing facts, the following circumstances can be inferred in relation to the instant case.

① At the time of the purchase of the instant gold bullion by the Plaintiff, the Plaintiff was widely known in the industry, and the Plaintiff’s representative director was in a position to fully know the Plaintiff’s career and the job bombing business.

② The Plaintiff’s transfer of all of the instant gold bullion from a foreign country into a taxable gold (the Plaintiff’s conversion of the gold bullion from a foreign country into a taxable gold (the Plaintiff’s “domestic gold market is mix and distributed without being well-known, i.e., normal taxable gold, tax-free gold, tax-free gold converted from a tax-free gold, and so, the Plaintiff’s purchase of the gold bullion was not known to what constitutes it, and even in light of the above assertion, it is very unusual that all of the instant gold bullion constitutes one type).

③ Within a very short period of time from importation to exportation, the instant gold bullion was distributed via a wholesaler located adjacent to one another at a total of six to eight levels, and the export price was lower than the import price.

④ In the distribution process of the gold bullion of this case, the company engaged in the same behavior as a typical bombane in the bombing business.

⑤ The domestic gold bullion wholesale market tax is announced daily, and the domestic gold bullion of this case was completely processed or modified in the Republic of Korea, or only minor modifications were made in the form of fladb, etc. to be made into fladdb, and the domestic trade of the gold bullion of this case was made at a different price even if all of the transactions were conducted on a day or within a different framework, all of which were made at a different price, and the participating companies have a considerable margin in each of them.

6) It is difficult to find reasonable grounds for the sales of gold bullion to the Plaintiff at a price lower than the wholesale price confirmed by the Plaintiff at almost all times by the ○○○○oid that delivered the largest part of the purchase account statement of this case.

7) Although the Plaintiff kept sufficient data to specify the instant gold bullion, the Plaintiff did not specifically reflect the Defendant’s assertion as to the details of distribution of the instant gold bullion by submitting such data, etc.

8. At all times, the Plaintiff’s export place is fixed, and the Defendant submitted materials to the effect that the said export place differs from an ordinarily exported or importer in terms of business place, human composition, business method, etc. (Evidence No. 10). The Plaintiff did not present any materials concerning the size of the export place that has traded a large amount of gold bullion for a long time, transaction performance, credit rating, etc.

9) The purport that a considerable number of the gold bullion exported by the Plaintiff was re-imported to the domestic importer within the short period, and that the Plaintiff himself/herself exported part of the gold bullion (Article 15%) to the price lower than the domestic wholesale market price (see, e.g., Supreme Court Decision 2007Da327, Jan. 8, 20

In light of the above legal principles, in the transaction of the gold bullion in this case, as so-called data, the company involved in the transaction between them and the business before and after it is merely a nominal transaction that only issues a tax invoice to convert the transaction into a tax-free transaction. Since then, the company involved in the transaction from the plaintiff to the purchaser, it is not deemed that each sales contract of the gold bullion in this case was concluded between them and the plaintiff, and it was actually made such transaction as transfer of ownership by delivery and payment of the price, and it is reasonable to deem that the plaintiff knew or could have known such circumstances in the process of the transaction. Accordingly, it is reasonable to deem that the plaintiff, without any actual purchase tax invoice in this case, was made or prepared differently from the actual transaction.

(2) Judgment on the plaintiff's other assertion

As a result of the investigation of this case, the plaintiff did not reveal the direct evidence of the plaintiff's participation in the business of breadth. ② The plaintiff was not subject to criminal punishment for the suspicion of participation in the business of breadth. ③ The difference between the purchase price and the export price of the gold bullion of this case was not specified by company and date, and the plaintiff's export price was based on international market price, and the plaintiff was not specified once the plaintiff reported and exported the deficit. ④ The plaintiff borrowed and procured operating funds normally, ④ the plaintiff was not only was not aware of the width company directly involved in the distribution of the gold bullion of this case, but also was not able to negotiate with all the distribution companies at the distribution stage. ⑤ Part of the gold bullion of this case was sold in Korea using the sales tax invoice of this case. ② The plaintiff actually traded the contents of the gold bullion of this case as indicated in the sales tax invoice of this case. ② The plaintiff was not recognized as the processing transaction of the gold bullion of this case, and the plaintiff owned the actual gold bullion of this case at the time of exportation, and made the plaintiff keep all sales documents related to the gold bullion.

However, the above individual circumstances asserted by the Plaintiff are ① because of the characteristics of the bomb business conducted by the organized public offering, it is difficult to secure direct evidence for a specific person’s involvement in the bombing business. ② The fact-finding is not necessarily premised on the Plaintiff’s crime; ③ the Plaintiff can sufficiently participate in and gain profits from the bombing business even if it exports gold bullion at a considerable price determined by the Plaintiff in light of international market prices; ④ the fact that the Plaintiff’s fund raising was normal, is merely an objection to the indirect fact supporting the Plaintiff’s involvement in the bombing business, not an objection to the Plaintiff’s involvement in the bombing business; ⑤ there was no need to invite the Plaintiff to participate in the bombing business, ⑤ the fact that part of the gold bullion was sold domestically through the bombing business’s bombing business’s bombing business’s bombing transaction, and it seems that the Plaintiff actually purchased the bombing business’s bombing transaction’s 20.

(3) Sub-decisions

Therefore, the disposition of this case which did not deduct or refund the input tax amount corresponding to the purchase price by deeming the purchase tax invoice of this case as a false tax invoice is legitimate, and all the plaintiff's assertion that caused the error is groundless.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Related Acts and subordinate statutes

Article 14 of the Framework Act on National Taxes

(2) The provisions concerning the calculation of tax base in tax-related Acts shall apply according to the substance, notwithstanding the name or form of income, profit, property, act or transaction.

Article 11 of the Value-Added Tax Act

(1) The zero tax rates shall apply to the supply of the following goods or services:

1. Exported goods;

Article 17 of the Value-Added Tax Act

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

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 taxes shall not be deducted from the output tax amount:

1-2. An input tax amount, in case where the tax invoice as provided in Article 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 (hereinafter referred to as a “necessary entry item”) 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

Article 21 of the Value-Added Tax Act

(1) The head of a district tax office having jurisdiction over a place of business, the Commissioner of the competent Regional Tax Office, or the Commissioner of the National Tax Service shall determine or correct the tax base of value-added tax or tax amount

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

Special taxation of value-added tax on gold bullion under Article 106-3 of the Restriction of Special Taxation Act (amended by Act No. 7577 of July 13, 2005)

(1) The value-added tax shall be exempted until June 30, 2005 pursuant to the classification under paragraph (3) with respect to the supply of gold bullion falling under 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 "gold bullion" in this Article):

1. Gold bullion supplied by the wholesalers and refiners of gold bullion prescribed by the Presidential Decree (hereafter in this Article, referred to as the "gold bullion wholesalers, etc.") to the gold craftsmen, etc. prescribed by the Presidential Decree (hereafter in this Article, referred to as the "gold craftsmen, etc.") after receiving tax-free recommendation from a person prescribed by the Presidential Decree (hereafter in this Article, referred to

2. Gold bullion supplied or redeemed by the gold bullion wholesalers, etc. and financial institutions prescribed by the Presidential Decree (hereafter in this Article, referred to as "financial institutions") to the financial institutions recommended for tax-free gold bullion trading;

3. Gold metals 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 of

(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 gold metals manufactured and supplied by the gold bullion refiner and the value-added tax amount borne by the relevant entrepreneur in connection with the purchase of the tax-free