Seoul High Court 2008Nu1138 ( October 23, 2008)

Any act of transferring the right to consume goods, regardless of the existence of any profit derived from the supply of goods.

The supply of goods is an act of transferring the authority to consume the goods, regardless of the existence of any profit accrued, and gold bullion transactions are conducted only a day, and it cannot be deemed a nominal transaction without the supply of goods on the ground that it is a single transaction included in the entire transaction of this case opened by the company.

The contents of the decision shall be the same as attached.

Article 6 (1) of the Value-Added Tax Act

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The judgment below is reversed and the case is remanded to Seoul High Court.

쇠鹬 쇠鹬 3000 쇠鹬 3000

The grounds of appeal are examined.

Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as taxable subject to value-added tax" and Article 6(1) provides that "the delivery or transfer of goods is a delivery or transfer of goods on all contractual or legal grounds." In light of the characteristics of value-added tax as multi-stage transaction tax, delivery or transfer under Article 6(1) of the Value-Added Tax Act includes all acts of causing the transfer of authority to use and consume goods, regardless of the existence of actual profits (see, e.g., Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 2001; 99Du9247, Mar. 13, 2001; 200.1) In such a case, the issue of whether a specific transaction among a series of transactions constitutes the supply of goods as provided for in the Value-Added Tax Act shall be determined by taking account of all the circumstances, such as the purpose and attitude of each transaction, and payment of profits, and payment relationship between two parties.

According to the facts duly established by the court below and the records, the plaintiff purchased the gold bullion of this case from Do, Do, Seoul Special Metropolitan City (hereinafter referred to as "Gu, Do, Do") on September 16, 2004 and February 20 of the same month, and received the transfer of the gold bullion of this case on the date of purchase (hereinafter referred to as "the transaction of this case"), and received the tax invoice for the transaction of this case from Do, Do and Do. The plaintiff was exported to Hong Kong on the date of purchase of the gold bullion of this case. In light of the legal principles as seen above, the plaintiff is difficult to conclude that all the series of transactions (hereinafter referred to as "the whole transactions of this case") from the date of import and export of the gold bullion of this case are all made only one day, and after purchasing the gold bullion of this case at the intermediate stage, it is difficult to prepare and deliver the tax invoice for value-added tax to a person who is exempted from the tax exemption and to pay the amount equivalent to the value-added tax on the whole transactions of this case.

Nevertheless, the court below held that the tax invoice of this case constitutes a different tax invoice from the fact on the ground that the transaction of this case was merely a nominal transaction without supplying goods, on the ground that the transaction of this case was a single transaction included in the entire transaction of this case where the so-called wide coal company was opened. Such judgment below erred in the misapprehension of legal principles as to "supply of goods" and "tax invoice different from the fact", and failure to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.