Early High Court Decision 2015west 4784 (02.09)

It is a false tax invoice because it is not a real transaction, and it is difficult to recognize it as a justifiable reason that is not attributable to negligence of duty.

It is difficult to see that there is an actual supply act corresponding to the matters stated in the tax invoice, and it is reasonable to conclude that there is a false ratification, and that there was an neglect of duty to verify the processing transaction or an implied acceptance of the processing transaction.

Article 16 (Tax Invoice)

Article 17 (Payable Tax Amount)

2015Guhap62514 Revocation of Disposition of Imposition of Value-Added Tax

○○○○ Corporation

○ Head of tax office

March 25, 2016

April 15, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant 20 x. 】. 】 20 】 (20 】 (year value-added tax ○○○, and 20 】 (year) 】 The imposition disposition of value-added tax ○○○○○) shall be revoked.

1. Details of the disposition;

A. The Plaintiff: (a) x. 20 x. 】. 】 (b) 】 (c) 】 20 by a wholesaler of the semiconductor parts established in light of the background 】 (20 】 (b) 】 (c) 】 (d) 】 (e.g., purchase tax invoice equivalent to approximately KRW 000,000 from a stock company AA (hereinafter referred to as “AA”) during the taxable period of value-added tax until the date 】 (hereinafter referred to as “purchase”), and (e) issued sales tax invoice equivalent to approximately KRW 00,000 (hereinafter referred to as “instant sales tax invoice”) to BB (hereinafter referred to as “CC”).

B. As a result, the head of the D Tax Office conducted an investigation related to transaction order on computer parts, etc. between the Plaintiff, AA, BB, andCC during the period of taxation 】 (20 】 (10 】 (20 】 (20 】 (20 】 year 】 20 】 】 20 】 (20 】 】 20 】 (20 】 】 】 20 】 】 】 】 00 】 】 0 】 0 】 0 】 0 】 0 】 00 】 ○ ○○○○ 】 ○ ○ ○ ○ ”the instant disposition”). The Defendant decided that the purchase and sales tax invoice in this case was not a real transaction and reduced the purchase and sales tax amount. The disposition in this case is based on the following findings:

(c) The plaintiff has filed an objection with the director of the Seoul Regional Tax Office x 20 x. 26 x 20 x. x.. 】. The decision on dismissal of the plaintiff x 20 x. x. 】. Although the plaintiff filed an appeal with the Tax Tribunal, 20 x x 20 x. 】.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff paid advance payment to AA as ordered by BB andCC (hereinafter “B, etc.”) designated by AA (hereinafter “B, etc.”). Since the Plaintiff received goods from AA and received them from the latter, and received details of transaction and certificates of receipt, then the instant transaction is a real transaction. Accordingly, the instant disposition made on a different premise is unlawful.

2) Even if the instant transaction was a processed circular transaction, the Plaintiff did not know of it and did not have any circumstances to suspect it, and there is a justifiable reason not to mislead the Plaintiff into the failure to perform his duty. Therefore, the instant disposition imposing additional tax on nonperformance of duty is unlawful.

(1) The Plaintiff asserted that the Plaintiff is a bona fide trading partner based on the Supreme Court decision that no disadvantageous measure such as decision of correction or punishment under the Punishment of Tax Evaders Act cannot be taken when the Plaintiff can be seen as a bona fide trading partner even if the Plaintiff was determined as a disguised trading partner (Supreme Court Decision 84Nu136 Decided July 10, 1984). However, the aforementioned legal principle cannot be applied to the instant disposition based on the premise that there is no real transaction itself as it applies to a case where the supplier on the tax invoice and the actual supplier are different from the supplier on the tax invoice. However, the instant disposition is a penalty tax in full, and thus, the Plaintiff’s assertion is determined as above).

B. Relevant statutes

It is as shown in the attached Form.

C. Whether the instant transaction constitutes a real transaction

1) Relevant legal principles

Article 17(2)2 of the former Value-Added Tax Act provides that an input tax amount shall not be deducted from the output tax amount if the necessary entry of the tax invoice is different from the fact. Article 22(2)2 of the same Act provides that an entrepreneur shall impose an amount equivalent to 1% of the value of supply when the whole or part of the necessary entry of the tax invoice is different from the fact. Here, the meaning of the aforementioned difference refers to a case where the necessary entry of the tax invoice is inconsistent with the actual supplier of the goods or services and the price and time of the goods or services, regardless of the formal entry of the transaction contract, etc. made between the parties to the goods or services (see Supreme Court Decision 96Nu617, Dec. 10, 196). In addition, if a person who actually supplies the goods or supplies the goods bears the burden of proving the ownership of the goods or services, such as the sale of the goods or services, that person who actually supplies the goods or supplies them should reasonably be deemed to have been entitled to the ownership of the goods or services, 20.

(ii) the facts of recognition

A) Details of the instant transaction

The representative EE of the AA x 20 x (20 x (3) x (3) x (4) x (3) x (3) x (4) x (3) x 10 x x 20 x x x x x x x x x x x x x x (3) x x (4) x (3) x (3) x (4) x 10 x fF x x 10 x 10 x x 10 x 10 x 10 x 10 x 10 x 10 x 10 x 10 x

B) Form of the instant transaction

(1) The instant transaction between A, Plaintiff, and B was conducted in the following forms:

① Order B, etc. to the Plaintiff: (2) Order B, etc. to place an order for goods with the same quantity as A; and (3) Conclusion of a contract for goods supply between the Plaintiff and AA; (4) Plaintiff’s advance payment to A; and (5) Issuance of a detailed statement of transaction to the effect that AA supplied to the Plaintiff; (5) B B, etc. prepared and issued a certificate of receipt of goods; and (6) issuance of a sales tax invoice to B, etc. by the Plaintiff.

(2) The Plaintiff, as an advance payment, x 20 x (20 x (1) x (20 ○○○, and 20 x. x. x. x. (2) x ○○○, 20 x. x. x. (3) x. x 20 x. x. x. (3) x. x (4) x (4) x (4) x (4) x the details of transactions over four times on the basis of the advance payment as set forth in the following table:

(3) The main contents of the first supply contract concluded between the Plaintiff and AA are as follows (hereinafter “A” and “A”).

A contract for the supply of goods (purchase agency);

Article 2 (Term of Contract)

(1) The term of validity of this contract shall be 20 ¡¿. ¡¿. ¡¿ 20 ¡¿ ¡¿ (20) ¡¿ ¡¿ ¡¿ (3).

Article 5 (Supply and Sale of Goods)

(1) Eul shall supply the FF computer peripheral devices (a model name: ○○○/capacity: ○○○○/Quantities: ○○○○/Quantities: hereinafter referred to as “products”) to Gap, and Eul shall purchase them.

(2) A shall add A's Packing and babel work to the acquired product.

(3) A shall order the goods by sending a written order specifying the quantity, place, method of supply, packing method, etc. of the goods in accordance with the method agreed separately by the parties.

(4) Eul shall supply the ordered goods to the enterprises designated by Gap and the designated places.

(5) When a person sells goods he/she purchases or a logistics center designated by him/her by entrustment to a logistics center designated by B, a logistics center designated by B or B shall deliver them only by the form instructed by A.

6. Eul is responsible for keeping and maintaining the goods owned by Eul as a good manager, and the logistics expenses for keeping, shipping out, returning, re-delivery, etc. from customers during the term of validity of this contract shall be borne by Eul, and the management expenses incurred after the term of validity specified in Article 2 shall be agreed upon by both sides in a separate manner.

Article 6 (Prices for Goods or Advance Payments)

○○○-(including surtax)

The purchase amount of the Seoul Guarantee Insurance shall be 00 won.

Article 7 (Deposit of Funds and Purchase Agency)

(1) A shall pay the amount of goods supplied specified in the preceding six Articles in cash after issuance of the Seoul Guarantee Insurance Policy. A shall deposit the amount to be paid to B in the bank account of the bank designated by him/her, and thereby, A's obligation to pay the amount is fully fulfilled.

Deposit account - Corporate Bank (Serial omitted) AA

(2) Eul shall, to the extent of the amount deposited to Gap, proceed with a purchase agency for the goods to be supplied to the designated delivery unit by Eul.

(3) Eul shall ensure that the total sales amount of the sales amount and profits under paragraph (2) ○○○○ (including value-added tax) shall be deposited in cash to Gap on the designated date and the designated account pursuant to paragraph (4) below.

(4) Settlement of sales proceeds and profits.

The date of deposit, 20 】 (20 】 year 】 month 】 deposited account of ○○○○ (including additional tax) deposit - Plaintiff of an enterprise bank (number omitted)

(5) The amount exceeding the amount guaranteed by the Seoul Guarantee Insurance Co., Ltd. out of the amount to be paid to A shall be guaranteed by the joint guarantor.

(7) The types of sales shall run as determined by A from among the revenues from purchase by proxy or sales.

Article 8 (Duty to Provide Information on Goods)

(3) Eul shall always present the inventory status of commodities sold in shopping mall operated by Gap, and shall notify Gap without delay in cases where the inventory of the relevant commodities is likely to cause disruptions to the delivery due to the shortage of inventory of the relevant commodities.

(5) Where an accident, such as cancellation of purchase, termination of a purchase contract, exchange, request for return, etc., occurs with respect to an order of the relevant product by delaying the delivery of accurate information on the product information and inventory status, etc. in violation of this Article, the expenses incurred therefrom and compensation, etc. to the customer shall be borne entirely, and settlement shall be made at the time of payment of the price of the product under Article 10.

Article 9 (Delivery of Goods)

(4) B shall deliver the goods by using the stuffs of Party A, when packaging the goods.

The termination date of the contract period for each type of contract and the settlement date of profits;

(4) Each contract for the supply of goods related to the second or fourth transaction in the instant transaction shall be the same as the contract for the first transaction in paragraph (3) above, but there is a difference in the following parts:

(5) Examining the flow of funds related to the sales price received by the Plaintiff from BB, etc. for each transaction as follows.

The first transaction - AA x 20 x. 】. 】 18:11:34 BB paid approximately KRW ○○○○○○ on the same day to the Plaintiff. B paid approximately KRW 18:17:28 on the same day to the Plaintiff, approximately KRW ○○○, and KRW 18:21:03 on the same day, andCC paid approximately KRW 18:22:08 on the same day to the Plaintiff.

The second transaction - AA x 20 x. 】. 】 18:23:53 BB paid approximately KRW ○○○○○. B paid approximately KRW 18:27:45 on the same day to the Plaintiff, and approximately KRW ○○○○○, and KRW 18:27:44 on the same day.CC paid approximately KRW 18:31:21 on the same day to the Plaintiff.

○ 3rd transaction - AA 20 x 20 x. 】. 】 20 :50 BB paid approximately KRW 00 ○○○○ on the same day. B paid approximately KRW 20:02:26 to the Plaintiff on the same day.

○○ 4th transaction: AA 20 x. 】. 】 17:47:02 BB paid approximately KRW ○○○○○○○ on the same day. B paid approximately KRW 18:01:20 to the Plaintiff.

3) Determination

Upon examining the case’s review in light of the following circumstances, it is difficult to view that the Plaintiff, as a party having an independent interest in the transaction of this case, acquired the ownership or de facto right to dispose of the goods subject to the transaction of this case and transferred it again to a third party. In other words, since it is difficult to deem that there exists an actual supply act consistent with the matters indicated in the purchase and sale tax invoice of this case, each of the above tax invoices can be ratified as false, and the evidence submitted by the Plaintiff, including evidence No. 00 and No. 00, is insufficient to reverse the recognition, and there is no counter-proof. Accordingly, the Plaintiff’s assertion on this part is rejected.

A) According to the fact that B, etc. appears to have not concluded a separate contract with the Plaintiff as the Plaintiff’s seller designated by AA at the beginning of the Party, and the aggregate of sales amount and profits under Article 7 of the instant contract for the instant transaction-related goods supply (hereinafter “instant contract”) between the Plaintiff and AA, etc. is in comparison with the sales amount received by the Plaintiff from B, etc., and the actual payment date of the said contract is in accord with the termination date of the said contract and the actual payment date of the said sales amount, the Plaintiff appears to have not been involved in the determination of the above transaction terms.

B) As seen earlier, the Plaintiff did not directly secure the customer, and the Plaintiff did not perform any contractual obligation except for advance payment, and the Plaintiff did not perform the duty to deliver goods supplied by A under Articles 5(2) and 9(4) of the instant contract to the stuff with the trademark attached thereto. Ultimately, the Plaintiff assumed all risks arising from the instant transaction, while the Plaintiff did not either additionally supply services or goods that may create added value or bear independent risks while selling them to BB, etc.

C) In fact, the sales price paid by B, etc. to the Plaintiff is the source of the purchase price paid by AA from the Plaintiff; the Plaintiff’s sales statement and BB’s transaction partner director compared with the Plaintiff’s sales transaction statement and BB’s transaction partner director, the total sales amount is only identical to the total sales amount, and the composition quantity and unit price of the items supplied on the same day are different; and BB’s logistics warehouse is the same as B’s ○○○ Dong-dong, Seoul, ○○○○, which is the business place of AA, and thus, it is difficult to view that the transaction statement, transaction statement, and receipt certificate, etc., which can be deemed as evidence of the instant transaction, are sufficiently reflected in the substance of the

D) The head of the GG Tax Office determined that B and A were issued and received a false tax invoice without a real transaction in order to increase the appearance of sales to AA, taking into account the following: (a) 20 】 (b) year 】 20 】 (b) year 】 】 (c) 】 (i) H and the representative director of H and AE in the B’s representative director H and the EE in the B’s representative director 】 (b) when the goods sold to the Plaintiff were sold to B; and (b) A sold the goods to the Plaintiff at a price lower than the re-purchase price at a lower than the re-purchase price; and (c) 2 and A were issued and received a false tax invoice in order to increase the appearance of sales to BA. If the instant transaction was a normal real transaction, it is difficult to view the instant transaction as a normal real transaction separately from the instant transaction.

E) The head of the DNA tax office x 20 x (20 x. x. 20 x (20 x (20 x N) notified that there was no abnormal transaction during the period of value-added tax period x 20 x x x. x x. x. x x. It is true that the instant disposition was issued by the MM prosecutor's office on charges of violating the Punishment of Tax Evaders Act by issuing and receiving false tax invoices. However, it is true that the instant disposition was conducted x 20 x x. x x. x 20 x. x. x. x. x. 】 The fact that the prosecution's non-prosecution decision was conducted, the administrative trial cannot be granted the same value of evidence as the final and conclusive criminal judgment by the prosecutor, and the court is not bound by the prosecutor's non-prosecution, but can not be readily concluded as a result of the instant disposition by the prosecutor's office and the head of the competent tax office based on the results of the instant tax investigation (Supreme Court).

D. Whether there is a justifiable reason that does not cause any negligence on the part of an obligation

1) Relevant legal principles

Under the tax law, penalty taxes are administrative sanctions imposed in accordance with the provisions of the tax law in cases where a taxpayer violates a tax return and tax liability without justifiable grounds in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, and the taxpayer’s intention and negligence is not considered. However, in cases where there is a circumstance where the taxpayer cannot be deemed to have been aware of his/her duty, or where there is a circumstance where it is unreasonable for the taxpayer to expect the performance of his/her duty to pay taxes, or where there is a justifiable reason to believe that it is unreasonable for the taxpayer to do so (see Supreme Court Decision 2004Du930, Nov. 25, 2005).

Meanwhile, in the event that an entrepreneur registered as a taxpayer supplies goods or services, a tax invoice refers to the provision of a tax receipt to a person provided with such goods or services during the transaction period, not only value-added tax, but also income tax and corporate tax are used as data for taxation, and thus, the relevant taxation system may be threatened if a tax invoice is not issued or falsely issued. Therefore, the Value-Added Tax Act operates a multiple additional tax system for the appropriate issuance of the tax invoice. As such in this case, even if a tax invoice is issued as in the instant case, additional tax is imposed on a taxpayer for insincere in good faith. In such a case, in light of the function of the tax invoice and purpose of the additional tax, the determination of whether to grant

2) Determination

In the instant case, the instant transaction constitutes a processing transaction that pretends as if the goods were distributed without the actual supply of the goods. Considering that the Plaintiff offered to A and A a a condition of directly remitting the instant transaction to the FF head office at the time of commencement of the instant transaction, there is room to deem that the instant transaction was unaware of the fact that it was a processing transaction.

However, in light of the following circumstances as seen earlier, i.e., the Plaintiff did not bear any obligation except for the obligation to pay advance payment pursuant to the instant contract, while AA not only guarantees 0% profit at the time of proposing the Plaintiff to conduct the first business, but also issues performance guarantee insurance policy to secure the return of principal, the instant contract provides that if the Plaintiff pays the purchase price of goods to A under certain conditions differently from the ordinary terms and conditions, AA pays the purchase price for a certain period of time, and then the Plaintiff would have agreed to return the purchase price with interest added thereto for a certain period of time. In substance, the Plaintiff would have been deemed as having agreed similar to the loan for consumption that the Plaintiff would have failed to secure the place of sale, and the Plaintiff would have been negligent in performing the transaction from the beginning of the 0th transaction to the 20th transaction, which appears to have been paid from the 0th transaction to the Plaintiff under the terms and conditions of the instant contract x the Plaintiff’s payment of the purchase price of goods in the form of sale x the Plaintiff’s payment of the goods in question.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.