A disposition that deducts input tax amount by deeming it as a false tax invoice (a prohibited amount)

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 of KRW 2,319,70,890 for the first term of 2003, the second term of 2003, the second term of 4,477,982,380 for the second term of 2003, the first term of 3,64,815,070 for the second term of 204, and the second term of 2004, the second term of 2004, each disposition of KRW 46,986,920 for the second term of 204 is revoked.

1. Details of the disposition;

A. The Plaintiff was established on October 1, 1997 for the purpose of running the current export and import business of precious metals and wholesale and retail business, and reported the purchase price and supply price of value-added tax during the taxable period from January 1, 2003 to February 2004 as follows:

Taxation Period

Purchase and supply price

Sales Price

1, 2003

41,161,286,017

39,965,136,413

2 2003

133,92,175,566

135,102,854,465

1, 2004

187,789,174,781

188,736,878,878

2, 2004

16,910,926,169

16,854,131,037

Total

379,853,562,533

380,659,00,793

B. The Defendant, in collusion with the importer of gold bullion exempt from value-added tax, the company that purchased and sold the gold bullion and closed the value-added tax collected from the other party (the company that purchased and sold the gold bullion as seen in the front and rear), the distributor of gold bullion from value-added tax, and the importer and exporter of foreign gold bullion, made an unfair refund of value-added tax (the exporter is not obliged to pay value-added tax and the exporter is entitled to refund the value-added tax) by pretending the purchase and sale of gold bullion as follows (hereinafter referred to as the "gold bullion of this case"), and received or delivered the tax invoice different from the fact, on January 10, 2006, deemed the purchase tax invoice and sales tax invoice (hereinafter referred to as the "tax invoice of this case") received by the Plaintiff in relation to the transaction of the gold bullion of this case as the tax invoice of this case (hereinafter referred to as the "tax invoice of this case"). On February 10, 2006, the Plaintiff issued the first period portion of value-added tax in 1,319,74,7084,284,208

Classification

Reversion

Purchase

Quantity of gold bullion (g)

Value of supply (cost)

Purchase

1, 2003

101

3,157,229

41,141,068,106

2 2003

274

8,921,500

124,202,127,120

1, 2004

237

12,551,000

186,464,470,800

2, 2004

67

1,191,000

16,880,601,310

Total

1,120

25,140,229

368,929,862,059

Sales

1, 2003

391

2,688,755

35,365,961,714

2 2003

306

9,068,046

130,362,673,000

1, 2004

204

12,352,315

187,613,620,136

2, 2004

219

1,031,113

15,587,607,209

Total

679

25,790,729

368,688,267,336

Facts without any dispute, Gap's 3-1 through 3-4, 4, Eul's 1-1 through 2-2, and 14, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, in fact, paid the purchase price when purchasing the instant gold bullion from the purchaser as the supply price entered in the purchase tax invoice, and received the sales price as the supply price entered in the sales tax invoice, and paid the value-added tax in good faith, and did not fully know that the instant gold bullion was traded by the method planned in advance from the import to the export for the purpose of evading value-added tax. Accordingly, the instant disposition that was made on the premise that the instant tax invoice is false tax invoice or the Plaintiff knew or could have known of such fact is unlawful.

(b) Fact of recognition;

The following facts may be admitted, either in dispute between the parties or in the entry of the evidence of heading 4-1 to 13-4, 15, 16-1 to 16-8, by integrating the purpose of the whole pleadings:

(i) an irregular form of transaction for the purpose of tax evasion in the transaction of gold bullion;

A) The case holding that the value-added tax was exempted for the portion of gold bullion imported by wholesalers and refiners on July 1, 2003 through June 30, 2005 through the recommendation of tax-free gold bullion import, where export-related documents were purchased gold bullion from other wholesalers on the basis of a purchase approval certificate (Article 11 (1) 1 of the Value-Added Tax Act) since the zero-rate tax rate is applied to the input tax (Article 11 (1) 1 of the Value-Added Tax Act); on the other hand, as regards the transaction of gold bullion which is not less than 995/1,00 of which net value-added tax is offered by wholesalers and refiners who currently received the recommendation of tax-free gold bullion import from the person who has received the recommendation of tax-free gold bullion import; on the portion of gold bullion imported from the person who has received the recommendation of tax-free gold bullion import to June 30, 2005 (Article 106-3 of the former Restriction of Special Taxation Act (amended by Act No. 75757 of July 13, 2000).

B) In appearance, gold bullion is distributed through the stages of ‘foreign enterprises ? ? importer ? ? ? 2 (Omission) company ? ? so-called Kushion Enterprise ? ? ? export company ? ? foreign company ? the transaction price is paid in the reverse direction from the export company to the import company. However, among the above distribution companies, it is limited to the issuance of a tax invoice from the large coal company to the floor wholesale company, to the specific person or the specific company, and there are many cases where gold bullion is not actually traded or transported.

C) After purchasing gold bullion, which has been distributed at the pre-sale stage as zero-rate or tax-free, and selling 10% of the value-added tax to the cushion company as an additional tax amount, the amount of the value-added tax cannot be collected by the State by withdrawing the profit within the short period in cash and closing the business. The amount equivalent to the value-added tax paid by the cushion company from the cushion company is successively transferred by each of the pre-sale companies through the tax invoices issued by the immediately preceding stage companies to deduct the input tax amount. Ultimately, the exporters export gold bullion and then refund the gold bullion to the State through the zero-rate tax application. Accordingly, the portion equivalent to the value-added tax refund amount paid by the bomh business is the ultimate source of the profits from the bomh (bkharin) business. The above profit is distributed separately to the domestic company involved in the bomh business in the bomh business, and the difference between the export price and the import price (the export price is lower than the export price in the form).

D) In order to maximize its profit, a wide amount of gold bullion can be distributed within a normal and short period of time. ① In order to prevent disputes between involved companies, which may arise therefrom, or accidents such as loss of prices, most of the same states (referred to those who prepare for the import and settlement of gold bullion first from the outside of the wide carbon business network) operate simultaneously with an exporting company and an importing company; ② the former State shall place the former State to directly deal with the bomban company; ③ the former State shall determine the volume, unit price, and margin of the transaction at each stage of transaction; ④ the series of transactions from the importing company to the exporting company is made at a very short time, and ⑤ the actual transport of gold bullion immediately through the exporting company beyond the trading stage (limited to the formal transport of gold bullion, even if it is transported every stage of transaction).

2) Type of the Plaintiff’s trading

A) The instant gold bullion was converted into a taxable gold, which was most imported from a foreign country and distributed as a tax-free gold by an importer. It is treated as being exported directly or through a wholesaler and an exporter via the Plaintiff on the date of import or within 2,3 days from the date of import after the import from a foreign country, or within the date of import, or within 6,00 days from the date of import from a foreign country. In the instant gold bullion transaction, there is a heavy carbon company, and most gold bullion export prices were lower than the import company’

B) Examples of variable trading (in the case of November 12, 2004 trading)

Details

Jinay

Value of Supply (won/30km)

Benefits (including value-added tax, sources);

Revenue (U.S.)

(m)○○

Imported Enterprise

483,300,000 (tax exemption)

-1,680,000

(ju)Manock

481,620,000 (tax exemption)

1,530,000

(State)Recognition

483,150,000 (tax exemption)

810,000

(State) △;

Raban Enterprise

483,960,000 (tax exemption)

14,119,890

(주)♧♧

452,799,900 (tax)

800,100

(주)♡♡

453,600,000 (tax)

1,200,000

(주)♤♤

454,800,000 (tax)

2,211,000

456,810,000 (tax)

3,180,000

(State) Do Governor

Exporter

459,990,000 (tax)

4,102,448

Export ( Hong Kong)

464,092,448 (Decree)

In the above transactions, the benefit of △△ (ju) is caused by the evasion of value-added tax of KRW 45,279,990 to be paid.

다) 원고는 이 사건 금지금의 운송에 관하여, 금지금 운송업체인 주식회사 △△(이하 '△△'라 한다) 등이 작성한 운송장을 제시하고 있는데, 2004. 2. 11.자 운송장 내역에 의하면 △△의 차량번호 '1234'인 운송차량은 같은 날 14:45경 (주)☆☆(인의동)을 출발하여 (주)●●(영등포구 당산3가), (주)★★(숭인동), (주)◆◆(종로3가), (주)▲▲(봉익동) 등 네 군데의 거래처를 경유한 후 원고에게 17:05경 도착한 것으로 기재되어 있고, 한편 위 '1234' 운송차량은 같은 날 16:30경에는 (주)▲▲(봉익동)와 (주)▼▼(묘동)에 동시에 도착한 것으로 기재되어 있는 운송장이 발견되었으며, 16:35경에는 (주)▲▲(봉익동)와 (주)■■(봉익동)에서 동시에 출발한 것으로 기재되어 있는 운송장이 발견되었다.

3) Rabane companies involved in the transaction, etc. of the gold bullion of this case

Name of the Enterprise

Representative

Opening date of business

Closure

○ ○ (State)

○ ○

on June 30, 2003

on June 30, 2003

(주)★★

door-○

April 17, 2002

April 26, 2004

(주)◁◁

○ ○

January 9, 2002

April 17, 2004

(주)◀◀

○ ○

March 2, 2002

April 16, 2004

▷▷(주)

○ ○

October 10, 2002

June 30, 2004

(주)▷▷

○ ○

October 1, 2003

December 12, 2003

(주)▶▶

○ ○

April 24, 2001

April 24, 2004

(주)♠♠

South ○

November 20, 2001

April 17, 2004

♠♠(주)

door-○

April 7, 2003

November 17, 2003

(주)♥♥

○ ○

January 10, 2003

March 31, 2004

(주)♣♣

○ ○

September 18, 2002

February 13, 2003

⊙⊙(주)

○ ○

April 1, 2003

March 10, 2005

4. Price, etc. of gold bullion;

In the case of gold bullion, a large-scale wholesaler, etc. provides the market price for gold bullion every day in consideration of the international market price and exchange rate. However, regardless of gold bullion, the Plaintiff always exported gold bullion at a price lower than the domestic market price and international market price at a price lower than the domestic market price and international market price. If the Plaintiff or each of the instant traders did not export gold bullion and distributed gold bullion in the Republic of Korea, the Plaintiff or each of the instant traders could have much more profit than export.

5) Non-existence, etc. of inventory receipt book

In the process of the instant disposition, the Defendant requested the Plaintiff to submit to the Plaintiff a report on the receipt and payment of stocks and materials to specify gold bullion traded by the Plaintiff. However, the Plaintiff submitted only the annual purchase sales place and balance sheet, and the Plaintiff’s inventory quantity based on the annual purchase sales place and the balance sheet submitted by the Plaintiff does

6) The plaintiff's representative director's status

The representative director of the Plaintiff was a representative of ○○○○, an incorporated association, and a member of ○○○○○, and the above ○○○○○ was respectively a member of the importing company, a tax-free company, a taxation-free company, a representative director of an exporting company, or a representative director of an exporting company. In addition, the Plaintiff’s purchasing partners (ju), ○○○○, ○○○, ○○○○, ○○○, ○○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○○, ○○, ○○○, and ○○○, ○○, ○○, ○○, ○○, and ○○○, who are the representatives of ○○○○○○, ○○, ○○, ○○, ○○, ○○, and ○○○, respectively, was either final and conclusive in Seoul District Court.

C. Determination

1) Principles of determination

The burden of proving that a tax invoice is false is, in principle, against the Plaintiff, who is a tax authority. As such, the Defendant must prove that the tax invoice is false on the basis of direct evidence or overall circumstances. If the Defendant proves that the tax invoice is not accompanied by real transactions, to the extent that it reasonably acceptable, the Plaintiff, who is a taxpayer disputing the illegality of the Defendant’s disposition, by asserting that the tax invoice is not false, needs to prove that it conforms to one’s own assertion (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997). In addition, Articles 6(1), 7(1) and 16(1) of the Value-Added Tax Act provides that the person who actually supplied or provided goods or services is not aware of the fact that the taxpayer was not aware of the fact that the supplier was not aware of the fact that the supplier was not aware of the fact that the supplier was not aware of the fact that the supplier was not aware of the goods or services, and that the supplier was not aware of the fact that the supplier or the supplier was not aware of the fact.

2) Whether the instant tax invoice constitutes “illegal tax invoice”

As to the instant case, the following circumstances revealed in the above recognition: (i) the so-called “explosion business” at the time of the Plaintiff’s transaction of gold bullion had been widely known to the gold bullion wholesale business; (ii) it appears that the Plaintiff’s representative director, the representative director, could have easily known the fact that the Plaintiff’s transaction type was part of the bomb business; (iii) it was distributed through various stages of wholesalers within a very short period of time from the import to the export; and (iii) it was continuously being exported under the transaction structure where the export price of gold bullion was lower than the import price, and the export price of gold bullion was lower than the price at the time of the import; and (iv) it appears that the Plaintiff’s trade parties were subject to refund of value-added tax for the export price of gold bullion without generating value-added taxes by entirely processing gold bullion in the process of the sales transaction; and (v) it was considerably low compared to the international market price and domestic market price of gold bullion sales; and (v) it appears that the Plaintiff’s trading parties, including the Plaintiff, were more likely to receive value-added sales proceeds from the instant transaction.

The plaintiff asserts that the tax invoice of this case is a tax invoice consistent with the facts since it is clear that gold bullion was delivered from the purchaser, and since it was exported each time with the goods transport certificate, export declaration certificate, and transport securities, etc., the transportation securities presented by the plaintiff are actually carried out according to the contents of the tax invoice. However, even if the transportation securities were actually carried out in domestic form and the tax invoice was issued and delivered in accordance with the transaction, it is hard to believe that the above transaction method is a structure that can not be seen as losses on the premise of the payment of legitimate tax from the beginning, and eventually, it can be seen that the tax authority is the sole source of profit and the motive of the transaction that the amount equivalent to the value-added tax exempted from the payment by the report of business closure is the only source of the transaction, which can be presented to the above transaction, and in reality, the reduction of the tax revenue or the national treasury loss, if the value-added tax was received by the transaction only for the purpose of refund of value-added tax, it is difficult to collect the value-added tax as a whole or it is difficult (see Supreme Court Decision 2005Da.

3) Whether the Plaintiff acted in good faith and without negligence

In addition, the plaintiff argued to the effect that he did not know and did not know about the transaction prior to each transaction of this case. However, in light of the mode of the transaction of this case and the status of the plaintiff, etc. as revealed in the above facts, in order to complete illegal collusion between the parties in a series of transactions from the importing company to the exporting company in order to obtain a refund of value-added tax, by abusing the zero-rate tax system and the refund system of value-added tax related to the export and import of gold bullion, the prior public offering relationship between the parties in a series of transactions from the importing company to the exporting company is essential, and as long as the plaintiff seems to have conducted a transaction with an extremely short time period of time according to the unit price set in advance without any special negotiation with the individual transaction party, it is difficult to view that the plaintiff was unaware of the transaction of gold bullion, and there is no other evidence to acknowledge the plaintiff's

4) Sub-determination

Therefore, the instant tax invoice is prepared without any actual transaction, or prepared differently from the actual transaction by at least the supplier or the recipient, and thus, it constitutes a false tax invoice. Therefore, the Defendant’s disposition based on such premise is lawful.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.