Seoul Administrative Court 2007Guhap5424 ( November 06, 2007)

Whether a processed tax invoice without actual transaction related to gold bullion has been received

It is difficult to deem that only a tax invoice is issued and received without a real transaction solely on the basis that there are circumstances that the transaction of gold bullion is conducted within a short period of time and there is a wide carbon company's involvement in the middle stage of the transaction of gold bullion and other circumstances that make it difficult to obtain in the transaction process

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

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition disposition of KRW 2,594,73,600 on October 1, 2005 against the Plaintiff of KRW 2,59,733,60 on October 1, 2004 and KRW 294,459,810 on the second term value-added tax for the year 2004, and KRW 528,830,310 on the corporate tax for the business year 204 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

It is the same as the disposition (the plaintiff changed the purport of the claim that "the disposition of refusal of refund of value-added tax 299,985,946 won for the second term portion of value-added tax 294,459,810 won among the claims for the second term portion of 2004" and "the disposition of revocation of the disposition of refusal of refund of value-added tax 29,985,946 won for the second term portion of 2004" and then changed the purport of the claim by eliminating

1. Circumstances of imposition;

가. 원고는 2004. 2. 5. 서울 ☆☆구 ☆☆3가 175-4 ★★아파트 1110동 2호를 소재지로 하여 금지금 도매 및 무역업을 영위할 목적으로 설립된 회사이다.

B. From February 14, 2004 to November 14, 2004, the Plaintiff purchased gold bullion amounting to KRW 24,037,741,50 (hereinafter referred to as “the gold bullion of this case”) from 7 companies such as ○○, etc. (hereinafter referred to as “the supplier of this case”), and received the payment of the gold bullion of this case on the day of delivery, and received 64 copies of the purchase tax invoice of this case as listed below from the supplier of this case (hereinafter referred to as “the tax invoice of this case”).

C. The Plaintiff exported the gold bullion in KRW 24,193,845,557 in total to the importer located in Hong Kong on the day of the purchase of the gold bullion in this case or on the following day (hereinafter referred to as Doum Doum Doum Doum Doum Doum Doum Doume

D. The Plaintiff calculated the output tax amount based on the above export as zero tax rate, and deducted the input tax amount under the tax invoice of this case, and filed a return on the first and second portions of the value-added tax for 2004 with the Defendant.

E. The director of the Seoul Regional Tax Office: (a) conducted a tax investigation on the ground that there was a suspicion of tax evasion and unfair refund, abusing the tax exemption system, deeming the instant tax invoice as false; and (b) notified the Defendant thereof.

F. On October 1, 2005, the Defendant issued a revised and notified the input tax amount on the instant tax invoice of 2,594,733,600 won for the first term of 1,925,660,750 won for the first term of 2004 (the sum of 1,925,660,750 won for the tax invoice of this case plus 669,072,853 won for the second term of 2004), and the value-added tax 294,459,810 won for the second term of 2004 (the sum of 178,127,45 won for the tax invoice of this case plus 116,32,365 won for the second term of 2,99,985,946 won for the second term of 204 and the Defendant refused to pay corporate tax for 20538,000 won for each of the above corporate tax (the amount of corporate tax to be imposed).

G. On June 13, 2006, the plaintiff was dissatisfied with the disposition of this case and requested to the National Tax Tribunal for a trial on June 13, 2006, but the National Tax Tribunal dismissed the disposition of this case on December 6, 2006.

[Ground of Recognition] A 1-3, Gap evidence 1-2, Gap evidence 3-1-2, Gap evidence 5-1-3, Gap evidence 5-6, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2-3, Eul evidence 14,

The purport of the entire argument

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff confirmed the existence of the actual business entity in purchasing the instant gold bullion from the instant sales entity without any omission, and did not omit the procedure of receiving relevant documentary evidence, and did not engage in ordinary transactions, such as remitting the purchase price via the Internet, and received the instant tax invoice.

The reason behind the fact that the Plaintiff purchased the instant gold bullion through a bombane company, a value-added tax embezzlement company without any specific evidence on the Plaintiff’s unlawful act is not a fact that it is entirely acknowledged that the Plaintiff was issued a tax invoice different from the fact by prior recruitment with the bombane company, etc., or that the Plaintiff was issued the instant gold bullion without any grounds.

Therefore, the Defendant’s disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) From around December 2002 to December 31, 2004, among the precious metal companies located in Seoul Special Self-Governing Province prior to the amendment of the Restriction of Special Taxation Act, gold bullion is imported and distributed through various stages of zero-rate tax or tax exemption. The so-called large carbon business is limited to the so-called large carbon business (a business that evades the value-added tax by purchasing gold with tax exemption and selling it with tax exemption, and then withdrawing the total amount of profit within the short period of time and closing the business) and then distributing it to taxation through various stages of wholesalers. While exporting the gold bullion, the exporter did not pay the value-added tax, and the exporter exported the gold bullion as zero-rate tax and then paid the value-added tax as the input tax amount.

(2) 원고가 매입하여 수출한 이 사건 금지금 또한 모두 수입업체에 의하여 외국으로 부터 수입되어 면세금으로 유통되던 중 과세금으로 전환된 것으로, 수입업체로부터 원고에 이르기까지 총 8-9단계의 도매업체들을 거쳤는데, 각 거래단계에는 ◇◇골드, ◆◆주얼리 등 부가가치세를 무신고 또는 무납부하고 도주하는 소위 폭탄업체가 반드시 관여되어 있으며, 원고는 매입한 이 사건 금지금을 아무런 가공 없이 전부 홍콩에 소재한 수출업체들에 수출하였는데, 위 모든 단계의 거래는 대부분 해당 금지금의 수입 당일 또는 다음날까지 사이에 이루어졌다.

(3) The Plaintiff purchased most of the instant gold bullion on credit and exported it to Hong Kong, and immediately upon receiving the transfer of the export price, payment was made in sequence within 1-2 hours from the instant supplier to the first importer. In the case of a considerable number of transactions, the Plaintiff did not receive a security or guarantee contract for the payment of the export price, even though it had received a remittance of the export price within 3-4 days after export.

(4) The Hong Kong Hong Kong’s ○○○○ is designated as an importer of gold bullion from a large number of domestic gold bullion companies related to the wide coal business. When conducting on-site investigations, the operator of the National Tax Service refused to submit all documents and account books related to the transaction, and the china did not confirm the actual existence of the company when conducting on-site investigations by the National Tax Service

(5) Although the domestic market price of gold bullion was higher than the international market price, the Plaintiff exported the gold bullion at a price of USD 0.96 perg above the domestic market price, and there was no application for refund of customs duties equivalent to 3% of the amount of import under the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied to Raw Materials for Export with respect to customs duties paid at the time of import.

[Reasons for Recognition] Unsatisfy, Gap evidence 7-1 through 38, Eul evidence 3-1, Eul evidence 4-2, Eul evidence 5-1, Eul evidence 5-3, Eul evidence 6-1, 2-2, Eul evidence 7, Eul evidence 8-1 through 6, Eul evidence 9, 10, 12, 13, 14, 16, 17, 18, Eul evidence 23-1, 2, 25-2, Eul evidence 26, 27, and the purport of the whole pleadings

D. Determination

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 shall be 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 or consume goods, regardless of the existence of profit gained (see, e.g., Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 2001; 9Du9247, Mar. 13, 2001). 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 into account all the circumstances such as the purpose and circumstance of each transaction, ownership of profits, and payment relationship between two parties.

In this case, as acknowledged earlier, the Plaintiff purchased and received the gold bullion in this case and paid all the price, and received the tax invoice of this case. After purchasing the gold bullion in this case, the Plaintiff exported it to Hong Kong again, and made a series of transactions from the import of the gold bullion in this case to the export of the gold bullion in this case within a short period of time. In light of this, the fact that the gold bullion exempted from value-added tax at the interim stage is supplied after converting it into taxation, and there are various circumstances where it is difficult to obtain the amount of value-added tax as seen earlier in the transaction process of the gold bullion in this case, it cannot be concluded that the supply of goods is not value-added tax, solely on the ground that there are circumstances such as the fact that the gold bullion is involved in the so-called wide-scale carbon company that did not pay the amount of value-added tax, or that the gold bullion is received without a real transaction or that the gold bullion is received only in order to disguise it into the real transaction and the appearance of the gold bullion is not a value-added tax invoice.

The defendant asserts that the gold bullion transaction of this case was conducted in collusion with a bombing company for the purpose of refund of value-added tax, and thus, it is invalid under Article 103 of the Civil Act. However, in light of the above circumstances, the gold bullion transaction of this case cannot be deemed null and void, and there is no evidence to acknowledge it differently, and the above argument is without merit.

In addition, the defendant argues that the plaintiff's export of the gold bullion of this case merely constitutes a formal disguised export aimed at acquiring national tax revenue through zero tax rate system and input tax deduction, and furthermore, it is necessary to re-calculated the amount of tax by imposing 10% value-added tax as it constitutes abuse of the zero-rate system. However, for the above reasons, it cannot be deemed that the export transaction of the gold bullion of this case constitutes a disguised transaction or abuse of the zero-rate system, and therefore, the above assertion is without merit.

Therefore, the imposition of value-added tax and the imposition of corporate tax, which was made without deducting the input tax amount on the instant tax invoice on the premise that the instant tax invoice falls under a “unlawful tax invoice”, shall be deemed unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.