Supreme Court Decision 2008Du14616 ( February 12, 2009)

Seoul High Court 2008Nu2134 (Law No. 22, 2008)

Even if there is doubt about distribution procedures, it shall not be readily concluded as a nominal transaction as long as gold bullion is distributed.

It cannot be readily concluded that gold bullion actually distributed is not a supply of goods solely on the fact that gold bullion has been actually distributed within a short period from the time it was imported and exported, and that there was a wide carbon company that did not pay the value-added tax after conversion to the interim stage of taxation.

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

1. The lawsuit on the part of the claim for revocation of revocation of refund of value-added tax amounting to KRW 459,250,830, added at the trial for the second period of 2004 shall be dismissed;

2. Revocation of a judgment of the first instance; and

The defendant revoked the imposition of value-added tax of KRW 1,326,127,910 for the first period of October 10, 2005, and the second period of value-added tax of KRW 141,591,100 for the second period of 2004, and the corporate tax of KRW 316,071,450 for the business year of 2004.

3. Of the total litigation costs, 80% is borne by the Defendant, and the remainder by the Plaintiff, respectively.

The judgment of the first instance is revoked. The defendant revoked the judgment of the court of first instance. On October 10, 2005, 141,591,10 won of value-added tax for the first term of 1,326,127,910 won of value-added tax for the second term of 204, and 316,071,450 won of corporate tax for the second term of 2004, and 459,250,830 won of value-added tax for the second term of 204 were revoked [the plaintiff's revocation of the disposition of revocation of imposition of value-added tax for the first term of 1,381,825,270 won of value-added tax for the second term of 204, including surcharge 39,783,830,15,913,530 won of value-added tax for the second term of value-added tax for the second term of 204, respectively.

1. Details of the disposition;

The following facts are not disputed between the parties, or each entry in Gap evidence 1-1-3, Eul evidence 2-1-3, Eul evidence 1-2-2, Eul evidence 2-3, and the whole purport of the pleadings may be acknowledged.

A. From January 19, 2004, the Plaintiff is a corporate entity that has engaged in the wholesale business, etc. of gold bullion (referring to gold bullion (in this case, “gold bullion” with the net level of at least 995/1,000 in the state of raw materials, such as gold dura and dura, etc.) from Jongno-gu Seoul Metropolitan Government 168 Gold Building 402.

B. From the time of its establishment to December 31, 204, the Plaintiff received the instant tax invoices for the purchase of gold bullion equivalent to KRW 14,428,00 (hereinafter referred to as “instant 1 transaction,”) total supply value from 7 gold bullion wholesalers, and the instant tax invoices for the purchase of gold bullion amounting to KRW 17,00,00 (hereinafter referred to as “the instant 2nd purchase”). From February 11, 2004 to April 16, 2007, the Plaintiff traded gold bullion export gold bullion (hereinafter referred to as “the instant 1 purchase tax invoices”) to 20,000, the total export price of gold bullion 6,684,804,591, the total export price of gold bullion 27,57,000,000 from 20,07,000 from 30,000,000 from 27,07,000 gold bullion purchase price.

D. Based on the first purchase tax invoice of this case, the second tax invoice of this case, and the above export facts concerning the gold bullion of 1,139 g above aggregate (hereinafter referred to as the "gold bullion of this case"), the Plaintiff reported each tax base and tax amount of the value-added tax for the first period of 2004 and the second period of 2004 and the corporate tax for the business year of 2004 to the Defendant.

E. However, from October 8, 2004 to August 23, 2005, the head of Seoul Regional Tax Office conducted a criminal investigation with respect to the plaintiff, and recognized that the first purchase tax invoice of this case constitutes "the tax invoice of this case" (the difference between the actual gold bullion seller and the person who issued the tax invoice), and notified the defendant of the fact that the second tax invoice of this case constitutes "processing tax invoice" (the tax invoice of this case is received only without real transaction)". Accordingly, the defendant did not recognize the deduction of the input tax amount as to each purchase tax invoice of this case, without deducting the output tax amount from the tax base of this case, 1,326,127, 910 won for the first period of 1, 204 to 305, 2004 to 305, 301, 405, 301, 405, 504, 501, 504, 501, 506, 1405, 105

2. As to the legitimacy of the legal action as to the amended part of the claim (the addition of the claim and the expansion of the purport of the claim) in the trial

On June 3, 2009, the Plaintiff sought revocation of the disposition of imposition of value-added tax of KRW 140,736,850 for the second term portion of the value-added tax in 2004, and revised the purport of the claim on June 3, 2009 to seek revocation of the disposition of imposition of KRW 141,591,100 for the second term portion of the value-added tax in 2004 and KRW 459,250,830 for the second term portion of the value-added tax in 204.

In regard to this, the defendant asserts that the claim for revocation of the refund refusal disposition of value-added tax for the second term of 2004 was unlawful because it was filed without going through the previous trial procedure, and that it was filed without going through the previous trial procedure.

Where the tax authority has issued a decision of correction that reduces the amount of tax payable or increases the amount of tax payable, etc. under Article 21(1) of the former Value-Added Tax Act (amended by Act No. 8826, Dec. 31, 2007; hereinafter the same shall apply) on the grounds that a taxpayer had an omission or error in the tax base, amount of tax payable, or amount of tax refundable originally declared by the tax authority, the confirmation of tax liability arising from the initial return cannot be maintained. As such, the taxpayer’s objection to the determination of tax authority’s correction and the initial return are required to file a lawsuit seeking cancellation of the determination of tax amount. Since additional tax is a kind of administrative sanction that imposes on the taxpayer who violates the tax law without justifiable grounds to facilitate the exercise of the authority to impose taxes and the realization of tax claims, it is a kind of national tax imposed under the relevant tax law and its nature is different in nature from the amount of principal tax calculated under the relevant tax law. Thus, the disposition of imposition of penalty tax is separate from the principal tax (see Supreme Court Decision 2000Du756, Dec. 27, 200006.

The disposition of imposition of value-added tax of KRW 140,736,850 for the second term portion of 2004 of this case is a combination of the disposition of refusal of refund and the disposition of imposition of additional tax corrected under Article 21(1) of the former Value-Added Tax Act, on the ground that the defendant had an omission or error in the original return amount. The disposition of imposition of value-added tax for the second term portion of 2004 of this case is separate taxation from the disposition of refusal of refund of principal tax, and where the defendant has refused to refund, the confirmation of tax liability arising from the plaintiff's return cannot be maintained. Thus, the plaintiff shall file a separate lawsuit for revocation

Therefore, the part of the Plaintiff’s claim for revocation of the imposition of value-added tax of KRW 140,736,850 for the second quarter of 2004 should be deemed to have sought revocation of the imposition of value-added tax for the second quarter of 2004. An amendment to the claim on June 3, 2009 should be deemed to have extended the scope of the claim for revocation of the imposition of value-added tax to KRW 854,250 ( KRW 141,591,100 - 140,736,850) and separately added a new claim seeking revocation of the revocation of the imposition of value-added tax.

First of all, regarding the extension of the scope of the claim for revocation of the disposition imposing the value-added tax for the second period of 2004, the plaintiff of the administrative litigation can modify the claim or the cause of the claim to the extent that it does not change the basis of the claim pursuant to Article 235 of the Civil Procedure Act applied mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, and the extension of the claim constitutes a modification of the lawsuit without changing the basis of the same disposition

Furthermore, with respect to the legitimacy of the claim for revocation of the refund refusal disposition of value-added tax amounting to the second period portion of value-added tax 459,250,830 won in 2004, a separate taxation different from the imposition disposition of value-added tax is as seen above, and the lawsuit for revocation is also subject to a prior trial procedure and compliance with the period for filing the lawsuit. Since the second period of value-added tax correction resolution (No. 1-2) was submitted on March 28, 2007 by the court of first instance in 2004, the plaintiff was aware of the above rejection disposition at least around that time. The plaintiff filed a lawsuit for revocation of the refund rejection disposition of this case, which must be filed on June 3, 2009, more than one year after the plaintiff had passed, and it is obvious that the plaintiff had received a lawsuit for revocation of the refund refusal disposition of this case, and it is unlawful for the defendant's assertion that this part of the lawsuit is unlawful.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff actually traded the same contents as the purchase tax invoice 1 of this case and the second tax invoice 2 of this case, and there was no collusion for the purpose of unfair refund of value-added tax. The Plaintiff conspired with the so-called so-called "exploitan enterprise" to unlawfully refund value-added tax is merely the Defendant's trend without any evidence. The Plaintiff did not intend to evade taxes jointly with other gold bullion enterprises and did not know the other companies' actions. Accordingly, the instant disposition was unlawful on the premise that the first purchase tax invoice of this case and the second tax invoice of this case were false, or that the Plaintiff knew or could have known of them.

(2) According to the Defendant’s assertion, since the Plaintiff’s transaction of the gold bullion in this case constitutes a transaction of entire processing (in the absence of actual goods, etc.), no value-added tax shall be levied on the Plaintiff on the grounds that there is no supply of goods or services

(3) The instant case does not constitute “the case where goods or services are supplied and the evidential documents are not received” under Article 76(5) of the Corporate Tax Act, and thus, the disposition imposing additional tax upon the evidence not received is unlawful by applying the aforementioned provision.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts may be acknowledged either in dispute between the parties or in combination with the whole purport of the pleadings in each of the statements in Eul evidence Nos. 2 through 11, 14 through 18, Eul evidence No. 19-1 through 7, Eul evidence No. 20-1 through 16, Eul evidence No. 21-1 through 13, Eul evidence No. 22 and 23:

(1) From around December 2002 to December 31, 2004, the Special Tax Treatment Restriction Act was amended to abuse the value-added tax rate or tax exemption system between EMM and distribute gold bullion after importing it through various stages of zero-rate or tax exemption. The so-called wide-scale carbon business (an enterprise evading value-added tax by purchasing a prohibited amount with a tax exemption, selling it with a tax exemption, withdrawing and concealing the profit within a short period after selling it with a tax exemption, and closing the business within a short period of time) has been converted into the taxation amount, and then, if it is exported to distribute it as a taxation amount through a variety of stages of wholesalers, the exporter did not pay value-added tax, and the exporter did not pay the value-added tax, and there was so-called wide-scale carbon business in the form of receiving the value-added tax which the exporter did not pay

(2) According to the flow and remittance of the tax invoice, all gold bullion on the 1 purchase tax invoice of this case were purchased by the so-called "large coal company" through the 2-3-level free wholesale after the import of all gold bullion in the 1st purchase tax invoice of this case by the importer, such as PPPC, and were converted into the tax amount and exported after the purchase to the plaintiff through the 1-8-stage wholesale. Most of the revenue were traded from the import to the export. When the plaintiff transfers the purchase price to the purchaser, the price was remitted to the importing company via the string in the adjacent time zone through the string off coal company. The gas supply companies involved in the above gold bullion transaction did not pay the value-added tax by arbitrarily closing their sales on the supply price lower than the purchase price (However, the value-added tax plus the value-added tax is higher than the purchase price, i.e., the total amount of 14 companies, unpaid amount of value-added tax, 14.36 billion won).

(3) 한편, 원고가 이 사건 제2매입세금계산서 기재와 같이 매입하여 이 사건 매출세금계산서 기재와 같이 국내 업체에 매출한 금지금 165kg에 대하여 조사된 결과에 의하면, ① 2004. 8. 10.자 매출세금계산서(금지금 5kg)와 관련하여서는 '폭탄업체인 AA금은 주식회사→주식회사 BB골드→주식회사 CC금은→주식회사 DDD골드→원고→EE금은 주식회사-→주식회사 FF쥬얼리→GG귀금속 주식회사'의 순서로, ② 2004. 9. 1.자 및 같은 달 3.자 각 매출세금계산서(각 금지금 20kg)와 관련하여서는 '폭탄업체인 주식회사 HH골드→주식회사 KK골드→주식회사 LLL골드→주식회사 MMM골드→ 원고→GG금은, 주식회사 NN골드→주식회사 PPP쥬얼리→주식회사 RRRRR상사→SSSS 주식회사'의 순서로, ③ 2004. 10. 7.자, 같은 달 8.자, 같은 달 11.자 각 매출세금계산서(각 금지금 20kg)와 관련하여서는 '폭탄업체인 주식회사 금마골드→주식회사 TTTT골드→주식회사 MMM골드→원고→GG금은, 주식회사 NN골드, EE금은 주식회사, UU사'의 순서로, ④ 2004. 9. 2.자 매출세금계산서(금지금 20kg) 및 같은 달 14.자 매출세금계산서(금지금 40kg)와 관련하여서는 '원고→GG금은→주식회사 PPP쥬얼리→주식회사 QQQQ쥬얼리'의 순서로 각 세금계산서가 수수되었다.

(4) The export price of the gold bullion traded as indicated in the first purchase tax invoice of this case and the second tax invoice of this case was lower than the import price, and it was considerably low compared with the domestic market price (the wholesale price of gold bullion publicly announced by the main gold bullion wholesaler, etc. via the Internet or automatic response telephone every day) and the international market price.

D. Determination

(1) As to whether the 1st purchase tax invoice and the 2nd tax invoice of this case constitute “illegal tax invoice”

(A) Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as one of the goods subject to value-added tax" and Article 6(1) provides that "the delivery or transfer of goods shall be deemed to have been made on all contractual or legal grounds." In light of the fact that value-added tax has characteristics 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 rights 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, 201; 9Du9247, Mar. 14, 2001; 200.1). In such a case, the issue of whether the goods constitute the supply of goods under the Value-Added Tax Act shall be determined on the basis of the purpose and type of each transaction, and the owner of profits accrued prior to the payment.27.1.

In light of the above legal principles, as acknowledged earlier, the Plaintiff actually distributed gold bullion from the importer to the exporter, and from February 11, 2004 to October 11, 2004, the Plaintiff purchased the gold bullion of this case from 8 business operators, including the international corporation, and received the gold bullion of this case on the date of purchase, and paid the price in full, and received each purchase tax invoice of this case from the supplier of this case. The Plaintiff exported 974 km out of the gold bullion of this case from the Hong Kong on the date of the trade of this case to 3 business operators including EE corporation, which are domestic corporations, and sold gold bullion of this case to the exporter, and it is difficult to conclude that a series of transaction transactions from the supplier of this case to the export of the gold bullion of this case (hereinafter referred to as "the entire transaction of this case") were conducted within the supply period of the gold bullion of this case without any specific tax invoice of this case, and thus, it is difficult to conclude that the Plaintiff was exempt from the supply of the gold bullion of this case.

(B) As to this, the Defendant: (a) evaded the amount equivalent to the value-added tax by promptly closing the gold bullion business after the transaction of gold bullion; (b) the Plaintiff, the exporter, while being aware of such circumstances, conspired with the Plaintiff to purchase and export gold bullion from them; and (b) received the value-added tax from the State and committed an act of tax evasion divided into the company and divided it into the company, and thus, the State has the liability for damages arising from the tort against the Plaintiff; and (b) therefore, the Defendant may not recognize the input tax deduction against the Plaintiff in the purport of offsetting the claim for damages. However, even according to all the Defendant’s proof, it is insufficient to recognize that the Plaintiff committed the act of tax evasion in collusion with the company and there is no sufficient evidence to acknowledge it. Therefore, the Defendant’s remaining grounds for appeal

Then, the Defendant argues that the Plaintiff’s taking the gold bullion of this case out of Korea is merely a formal disguised export for the purpose of acquiring the input tax revenue through the method of converting the tax-free gold bullion into the tax-free gold bullion by abusing the zero tax rate system and the input tax deduction system which are recognized for exporters rather than normal goods export, and merely merely using the wide-scale coal industry to convert the tax-free gold bullion into the tax-free gold bullion, but it is insufficient to recognize that the Plaintiff’s taking the gold bullion of this case out to foreign countries only for the purpose of refunding the value-added tax by abusing the zero rate system and the input tax deduction without the intent to export the goods normally. However, the Defendant’s assertion is not acceptable without the need to further review.

In addition, the Defendant asserts that since the Plaintiff purchased the gold bullion as a tax exemption and sold it to a taxation-free company, it is clear that the tax-free company actually entered the amount equivalent to 10/11 of the purchase price as the supply price, and that the amount equivalent to 1/11 of the purchase price as the value was entered as the value-added tax, and that the Plaintiff who purchased the gold bullion thereafter also entered the amount equivalent to 10/11 of the purchase price as the supply price in each of the purchase tax invoices in this case without being aware of the aforementioned circumstances, as well as the amount equivalent to 1/11 of the purchase price as the value-added tax, and the amount equivalent to 1/11 of the purchase price as the value-added tax is entered as the supply price as the value-added tax, each of the purchase tax invoices in this case constitute 200 different from the supply price of the gold bullion in this case, and thus, it shall not be deemed that the Plaintiff is exempt from the supply price of the gold bullion separately from the supply price of the goods or the value-added tax in this case.

(2) As to the additional tax due to the failure to pay corporate tax

Meanwhile, according to Articles 76(5) and 116(2)2 of the Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006), “the chief of the district tax office having jurisdiction over the place of tax payment shall collect an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount to corporate tax in cases where a corporation is supplied goods by an entrepreneur in connection with its business and fails to receive a tax invoice under Article 16 of the Value-Added Tax Act.” Article 16(1) of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 206; hereinafter the same) provides that “where an entrepreneur registered as a taxpayer supplies goods, a tax invoice shall be issued to the person who receives the goods, including the registration number, name or title, registration number, supply value, value, value, etc. of the supplier.”

However, as seen earlier, so long as it cannot be concluded that transactions Nos. 1 and 2 of this case are not the supply of goods subject to value-added tax, each purchase tax invoice of this case received accordingly shall not be deemed a legitimate tax invoice under Article 16 of the former Value-Added Tax Act.

E. Sub-committee

Therefore, the 1st purchase tax invoice of this case is different from the actual supplier on the invoice, and the 2nd purchase tax invoice of this case is merely received without the supply of goods, and thus, it does not deduct the input tax amount or is unlawful in all of the disposition of this case that applied the provision on the additional tax for receiving evidence.

4. Conclusion

Therefore, the part of the plaintiff's claim for the revocation of the refund refusal disposition of value-added tax of KRW 459,250,830 for the second term of 2004 added in the trial among the claims of this case is unlawful and dismissed, and all of the remaining claims including the claims expanded in the trial are justified. It is revoked by accepting the plaintiff's appeal, and the judgment of the first instance court is revoked. The defendant, including the claims extended in the trial, against the plaintiff on October 10, 2005, imposed value-added tax of KRW 1,326,127,91,90 for the second term of 204 for the second term of 204 and value-added tax of KRW 141,591,10 for the second term of 204 and corporate tax of KRW 316,071,450 for the business year belonging to the court. It is so decided as per Disposition.