Cho High Court Decision 201Do1450 ( October 18, 2011)

Provisions of a double exclusion of penalty tax apply to the taxpayer of the transaction that is subject to taxation.

Where a branch office issues a tax invoice with the sales of its head office, if an entrepreneur has already imposed an unregistered additional tax on the branch office for the same transaction, the head office shall not impose an additional tax on insincere of the tax invoice, etc., and if an additional tax on non-delivery of the tax invoice was imposed on the branch office, the additional tax on such transaction shall not be levied again

Article 22 of the Value-Added Tax Act

2012Guhap1761 Revocation of Disposition of Imposition of Value-Added Tax

XX Stock Company

Mapo Tax Office et al.

August 17, 2012

August 24, 2012

1. The imposition of value-added tax imposed on the Plaintiff on February 1, 201 on the first term portion of 2006, KRW 000 for the second term portion of 2006, KRW 000 for the second term portion of 2007, KRW 000 for the second term portion of 2007, KRW 00 for the first term portion of 2008, KRW 000 for the second term portion of 2008, KRW 00 for the second term portion of 2008, KRW 00 for the first term portion of 209, and KRW 00 for the first term portion of 2009 and KRW 00 for the first term portion of 2010 shall be revoked.

2. The plaintiff's claim against the defendant Mapo Tax Office is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant Mapo Tax Office is borne by the Plaintiff, and the part arising between the Plaintiff and Defendant Mapo Tax Office is borne by the head of XX tax office.

The part of the imposition of value-added tax for the second term of 205, the first term of 2006, the second term of 2000, the second term of 2007, the second term of 2007, the second term of 2007, the second term of 2000, the first term of 2000, the first term of 2008, the first term of 2000, the first term of 2008, the second term of 2000, the second term of 2008, the second term of 2000, the second term of 2000, and the first term of 200, the first term of 2009, and the first term of 200, which are imposed on the Plaintiff on January 3, 201, which exceeds 00, shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a foreign-capital invested company established at XX 144-17, Gangnam-gu, Seoul on October 30, 1989, whose main business is manufacturing and importing computer hardware and software. On September 20, 2010, the Plaintiff’s head office transferred to XX 159-1 Trade Center XX 159-1, Gangnam-gu, Seoul (hereinafter “head office of this case”).

B. On February 4, 2002, the Plaintiff established the “Korea Education Center” (hereinafter referred to as the “instant branch”) as the head office and a separate place of business of the instant branch office in Yeongdeungpo-gu Seoul, Seoul. The Plaintiff provided educational services to the Plaintiff’s employees and the general public. The instant branch office was not registered separately on May 1, 2009. On May 1, 2009, the instant branch transferred the instant branch office to the head office of the instant branch office, but transferred to the red library located in the Mapo University located in Mapo-gu, Seoul, Seoul, Seoul, as of May 1, 2010.

C. The Plaintiff issued sales tax invoices for approximately KRW 000 of the supply value of the instant branch during the taxable period from the second to the first period from 2005 to the first period from 2010, under the name of the headquarters of the instant case, and reported and paid value-added tax on the Samsung Tax, including the buyer’s tax invoice, in which the location of the instant headquarters is located.

D. On January 3, 201 with respect to the instant branch, the head of Mapo District Tax Office, on January 3, 201, determined and notified the Plaintiff of KRW 200 for the second term portion of value-added tax year 205, KRW 000 for the second term portion of year 2006, KRW 000 for the second term portion of year 2006, KRW 000 for the first term portion of year 2007, KRW 000 for the second term portion of year 2007, KRW 00 for the second term portion of year 2008, KRW 200 for the second term portion of year 208, KRW 100 for the second term portion of year 2008, and KRW 100 for the first term portion of year 2009, and KRW 100 for the first term portion of year 2010 for the Plaintiff, respectively, and notified the Plaintiff of the tax invoice as follows.

E. On April 4, 2011, the Plaintiff dissatisfied with each of the above dispositions filed a request for a trial with the Tax Tribunal. On October 18, 2011, the Tax Tribunal ruled that the Defendant Marpo Tax Tribunal excluded the Plaintiff from the application of additional tax 000 won for failure to pay for the second period of 2005, and that the additional tax for failure to pay for the second period of 2007 and the additional tax for failure to pay for the second period of 2007 (20/100 of the supply price) is the application of additional tax for failure to pay for failure to pay for failure (10/100 of the supply price) and dismissed the remainder of the Plaintiff’s request.

F. According to the decision of the Tax Tribunal, the head of Mapo District Tax Office revoked the additional tax amount of KRW 000 in 2005, KRW 000 in 2007, and KRW 000 in 2007. Accordingly, the imposition of the value-added tax imposed on the Plaintiff by the head of Mapo Tax Office shall be KRW 200 in 2005, KRW 00 in 200 in 207, and KRW 00 in 207 in 2007, and the imposition of the additional tax in this case shall be as follows (hereinafter referred to as “each of the instant dispositions”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 5, and Eul evidence 7, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) Violation of jurisdiction

The instant branch was located in the Odong in Yeongdeungpo-gu Seoul Metropolitan Government, and was located in the Gangnam-gu Seoul Metropolitan Government, where the instant head office was located from May 1, 2009 to April 30, 2010, and from May 1, 2010 to the Seoul Mapo-gu, Seoul. The place of payment of value-added tax for the instant branch is the jurisdiction of Yeongdeungpo-gu, the first, the second, the second, the second, the second, the second, the second, the second, and the first, the second, the second, the first, the second, the second, the second, the second, the second, the second, the second, the second, the second, the second, the second, the second, the second, the second, the second, the second to the first, 2009 of the disposition of Defendant Mapo-gu head of the tax office related to the instant branch was unlawful as it violated his/her jurisdiction and without any disposition.

2) Illegality of imposition of non-reported penalty tax and non-tax invoice issuance penalty tax

The penalty tax without filing a return is only a sanction against the failure of the taxpayer to report the tax base itself, and it is not a sanction against the erroneous filing of the return. The Plaintiff cannot be deemed to be a case where the Plaintiff filed and paid all the value-added tax on the sales of the instant branch by using the instant head office as the place of business. In addition, even though the Plaintiff erred in indicating the place of business, it cannot be deemed that the Plaintiff did not issue the tax invoice, as it issued the tax invoice. Accordingly, the imposition of penalty tax without filing a return and the penalty tax without issuing a tax invoice is unlawful.

3) Violation of the provision of double exclusion

In the event that the head of Mapo Tax Office imposes on the Plaintiff the non-registered penalty tax for the period from the second period to the second period in 2005, and the non-paid penalty tax for the period from the first period to the first period in 2008 to the first period in 2010, the imposition of the non-compliant penalty tax, including the tax invoice, imposed on the Plaintiff by the head of the defendant XX Tax Office, is unlawful in violation of the provisions of the Value-Adde

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the violation of jurisdiction is violated

Article 4 (1) of the Value-Added Tax Act provides that "value-added tax shall be reported and paid at each private shop, and Article 44 of the Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same) provides that "the determination or revision of the tax base and amount of national tax shall be made by the head of the tax office having jurisdiction over the place of payment of the national tax at the time of the

According to the above provision, the head of a tax office having jurisdiction over the place of business at the time of the disposition shall be deemed to have the authority to impose the value-added tax. In addition, the interpretation of the tax law shall be interpreted as the law, barring any special circumstances, and it shall not be permitted to expand or analogically interpret it without any reasonable grounds (see, e.g., Supreme Court Decision 2008Du11372, Aug. 20, 2009). As long as Article 44 of the Framework Act on National Taxes clearly provides that the place of business at the time of the disposition is "the time of the establishment of the obligation to pay the value-added tax", it shall not be interpreted that the head of a tax office having jurisdiction over the place of business at the time of the establishment of the obligation to pay the value-added tax has the authority to impose the value-added tax. Therefore, the concept of "the first disposition authority" cannot exist

On January 3, 201, when the head of Mapo Tax Office imposes value-added tax on the Plaintiff regarding the instant branch on January 3, 201, the location of the instant branch at the time of imposing value-added tax on the Plaintiff. As such, the said disposition by the head of Mapo Tax Office cannot be deemed as a disposition by the non-competent person. The Plaintiff’s above assertion is without merit.

2) Whether the imposition of penalty taxes without filing a return or non-issuance of a tax invoice is legitimate

As seen earlier, value-added tax should be reported and paid for each workplace. Since the workplace is an independent place of business, so even if the same person concurrently runs a branch office or workplace, sales and input tax should not be added to the supply value of the main office. If the supply value of the branch office or workplace is not registered as a branch office or workplace, and the expected and final return of value-added tax calculated as the supply value of the main office is submitted to the head office or the head office having jurisdiction over the head office, the said report is invalid as it is the planned and final return of the branch office or the main office (see, e.g., Supreme Court Decision 84Nu502, Jun. 11, 1985). Accordingly, even if the Plaintiff filed and paid all value-added tax on the sales of the branch office of this case on the basis of the main office of this case, it shall be deemed that the Plaintiff fulfilled its duty to report the value-added tax on the sales of the branch office of this case, and the issuance of the tax invoice as the main

In addition, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under the tax law is an administrative sanction imposed by a taxpayer who violates various obligations, such as a return and tax payment, as prescribed by the Act without justifiable grounds, and the taxpayer’s intent or negligence is not considered, and it does not constitute justifiable grounds that do not constitute a violation of the duty (see, e.g., Supreme Court Decision 2008Du12986, May 13, 201). Therefore, it cannot be deemed that the Plaintiff did not report the value-added tax base for the branch of this case or that there is justifiable grounds for not issuing a tax invoice. Ultimately, the imposition of additional tax and the imposition of additional tax not to be issued are legitimate.

3) Whether the overlapping exclusion clause violates the provision

A) On or before January 1, 2008, Article 22 of the Value-Added Tax Act, which applies to the instant case, and Article 22 of the Value-Added Tax Act, are as follows.

(Contents omitted)

B) Subject matters of double exclusion provisions

Defendant XX Head of the tax office seems to impose a tax in bad faith, such as a tax invoice, on the premise that the instant branch and the instant head office are separate taxpayers of value-added tax. However, regardless of the imposition of value-added tax on the transaction of the instant head office, the taxpayer is ultimately the Plaintiff, and it is reasonable to interpret the overlapping exclusion clause to apply to the taxpayer of the transaction as a unit of transaction subject to value-added tax.

C) Whether the provision from 1st to 2nd 2006 violates the overlapping exclusion provision

As long as the business operator’s non-registered penalty tax (paragraph (1) is imposed on the Plaintiff in relation to the instant branch, the disposition imposing penalty tax (paragraph (2)) on the Plaintiff in relation to the instant head office from the first to the second period from 2006 to the Plaintiff is unlawful.

D) Whether the provision from 1st to 1st 2010 violates the overlapping exclusion provision

In relation to the point of this case, if the additional tax is imposed on the plaintiff as a sanction for the fact that the tax invoice has not been issued for any transaction, the additional tax may not be imposed on the non-delivery of the tax invoice, such as the tax invoice, on the ground that the tax invoice has been issued differently from the fact (the double exclusion clause seems to be excluded in the case of the application of paragraph 3). Thus, the imposition of additional tax, such as the non-payment of the tax invoice, on the ground that the non-issuance of the tax invoice was issued differently from the fact that the tax invoice has not been issued for any transaction, is also unlawful. (The imposition of additional tax, such as the non-payment of the tax invoice, on the first and second terms of 208, 209, and 1) of 2010, which

E) Sub-decisions

Therefore, the imposition of penalty taxes, such as each tax invoice, which Defendant XX Head of the tax office made to the Plaintiff, is unlawful, and the Plaintiff’s above assertion is justified.

3. Conclusion

Then, the plaintiff's claim against the head of XX tax office is accepted on the ground of its reason, and the claim against the head of Mapo tax office is dismissed on the ground of its reason. It is so decided as per Disposition.