Whether a tax invoice received from data is a processed tax invoice received without a real transaction

It is difficult to regard that the tax authority has proved that the purchase tax invoice was prepared in a false manner without real transaction, and the disposition of this case on the premise that it is false is illegal.

Article 17 of the Value-Added Tax Act and Article 27 of the Income Tax Act

1. The defendant's appeal is dismissed.

3. The costs of appeal are assessed against the defendant.

1. Purport of claim

The Defendant’s imposition of value-added tax against the Plaintiff on August 10, 2005 of the second term portion 7,467,750 won for the year 201, the first term portion 1,751,500 won for the year 202, the second term portion 3,318,820 won for the year 202, the second term portion 1,994,370 won for the year 203, the first term portion 2,229,720 won for the year 204, the second term portion 2,229,720 won for the year 204, the second term portion 628,070 won for the year 201, the global income tax for the year 201, the amount of 7,887,710 won for the year 202, and the amount of 3,340,970 won for the year 203.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The following facts do not conflict between the parties, or evidence A1, A2-1, A6-1

Any entry of No. 13, No. 1 through 12, No. 2, No. 1 through 13, and No. 3 may be recognized by virtue of each entry of No. 3.

가. 원고는 ○○시 ○○동에서 ｀○○당＇이라는 상호로 귀금속 판매업을 하면 서, ○○ ○○구 ○○동에서 지금(地金) 도매업을 영위하는 주식회사 ○○골드(이하 ｀○○골드＇로 줄여 쓴다)로부터 아래표 기재와 같이 2001년 제2기 과세기간부터 2004년 제1기 과세기간까지 사이에 지금거래에 관한 공급가액 합계 195,996,000원의 매입세금계산서 30매를 수취하여 각 과세기간에 대한 부가가치세 신고를 함에 있어 위 공급가액 전부를 매입세액으로 공제하였고, 2001년, 2002년, 2003년 귀속분 각 종합소득세 신고를 함에 있어 위 각 세금계산서 중 당해 과세연도의 공급가액 합계 상당액을 그 과세연도의 필요경비에 산입하였다.

No.

Taxation Period

Value of supply (total value) of a tax invoice;

Purchase of Tax Invoice

1

201

45,000,000 won

3

2

1, 2002

10,000,000 won

2

3

Second 2002

19,99,00 won

4

4

1, 2003

40,000,000 won

7

5

203

27,998,00 won

5

6

1, 2004

27,000,000 won

5

7

204 Second Period

25,99,00 won

4

Total

195,996,00 won

30

B. Meanwhile, the head of the ○○ Tax Office, upon conducting a tax investigation on the ○○○ Alley, filed an accusation with the ○○ Police Station on suspicion that the ○○○○○○○○ and its representative director had received the tax invoices from the 1st half to the 2nd half-year period from January 8, 2001 to September 30, 2004, for the total amount of KRW 34.348 billion and the total purchase amount of KRW 37.58 billion from the 37.6 billion from the 2004 without the real transaction, and filed an accusation against the ○○○○○○○ Tax Office (the details of the tax invoices issued in the above accusation include 25 copies of the tax invoices received from the 202nd to the 2nd half-year period from the 2004th 204). According to the Plaintiff’s notice that the Plaintiff had received the tax invoices from the ○○ A, the total purchase amount of KRW 16.370 million from the 7000.

다. 피고는 위 통보에 따라 원고가 ○○골드로부터 수취한 위 각 세금계산서 중 원고로부터 ○○골드 명의의 계좌로 직접 입금된 내역이 확인되는 금액 합계 48,840,000원(2003. 8. 25. 550만 원, 2003. 12. 12. 924만 원, 2004. 2. 27. 1,100만 원, 2004. 7. 29. 660만 원, 2004. 10. 19. 1,100만 원, 2004. 12. 28. 550만 원)을 제외한 나머지 거래에 해당하는 세금계산서들(이하 ｀이 사건 세금계산서＇라 한다)에 대하여는 이를 실물거래 없이 발행된 허위의 것으로 보고 매입세액을 불공제함과 아울러 그 매일금액을 필요경비에서 부인하여 2005. 8. 10. 청구취지 기재와 같이 2001년 제2기분부터 2004년 제2기분까지의 부가가치세와 2001년 귀속분부터 2003년 귀속분까지의 종합소득세를 경정 · 부과하였다(이하 위 각 부과처분을 합하여 ｀이 사건 처분＇이라 한다).

D. On November 7, 2005, the Plaintiff filed an appeal with the National Tax Tribunal on the instant disposition, but was dismissed on April 7, 2006.

2. Determination on this safety defense

The defendant asserted that the part of the lawsuit of this case is unlawful, since the plaintiff filed the lawsuit of this case without going through legitimate pre-trial procedure as stipulated in the Framework Act on National Taxes regarding value added tax for the first period of 2004 among the disposition of this case.

As to whether a lawsuit seeking revocation of a taxation disposition goes through a prior trial procedure as prescribed by the Framework Act on National Taxes, even if the parties concerned have any tax imposition disposition or collection disposition based on a collection procedure under the National Tax Collection Act disputing its legality, and as long as there is an objection, a request for examination, or a request for adjudication, etc. containing the content of objection against it, it shall be reasonably interpreted by comprehensively assessing the intent of the parties concerned dissatisfied with and seeking correction (see, e.g., Supreme Court Decision 85Nu635, Sept. 20, 198).

According to the evidence No. 1, No. 1, and No. 3, the plaintiff asserts to the effect that the whole disposition of this case, including the value-added tax for the first term of 2004, was unlawful, upon filing a request for adjudication with the Director of the National Tax Tribunal for adjudication as stipulated in the Framework Act on National Taxes. However, it can be recognized that the total value-added tax was erroneously stated as KRW 15,160,510. Even if the plaintiff erroneously stated the total amount of value-added tax, it is reasonable to view that the plaintiff had gone through the procedure of the previous trial as to the whole disposition of this case, and therefore, the defendant's defense was groundless.

3. Whether the disposition is lawful;

A. The parties' assertion

(1) The plaintiff's assertion

The Plaintiff actually purchased and received tax invoices from ○○○○○○○ through bank remittance or cash transaction. Although all the tax invoices, including the instant tax invoices, received from ○○○○○○○○ through normal transaction, it is unlawful to take the instant disposition on the ground that there was no evidence to acknowledge that there was no actual transaction with respect to the instant tax invoices received by the Defendant for cash transaction, other than the portion paid by bank account transfer as to the transaction between ○○○ and the Plaintiff, in addition to the portion paid by bank account transfer.

(2) The defendant's assertion

○○○○ World is a business operator who filed an accusation with the National Tax Service on the so-called data, and in light of the Plaintiff’s place of business, type of transaction, details of bank transfers, etc., it is evident that there was no actual transaction between the Plaintiff and ○○○○○○○○, and thus, the instant tax invoice corresponding thereto is a tax invoice different from the fact, and thus, the instant disposition that denied the instant tax invoice without deducting the relevant input tax amount from necessary expenses is legitimate.

B. Relevant statutes

Value-Added Tax Act

Article 17 (Payable Tax Amount) (1) The amount of value-added tax payable by an entrepreneur (hereinafter referred to as the “paid tax amount”) shall be the amount obtained by deducting the tax amount under each of the following subparagraphs (hereinafter referred to as the “purchase tax amount”) from the tax amount on the goods or services supplied by him (hereinafter referred to as the “sales tax amount”): Provided, That where an input tax amount exceeds the output tax amount, it shall be the refundable tax amount (hereinafter referred

1. Tax on the supply of property or services used or to be used for his own projects; and

Amount

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The following input taxes shall not be deducted from the output tax amount:

1-2. The input tax amount in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a “necessary entry items”) is not entered on the delivered tax invoice, or they are entered differently from the fact;

(Income Tax Act)

Article 27 (Calculation of Necessary Expenses) (1) In calculating real estate rental income, business income, temporary property income, other income, or forest income, the amount to be included in the necessary expenses shall be the sum of the expenses corresponding to the total amount of income in the current year and generally accepted.

(Enforcement Decree of the Income Tax Act)

Article 55 (Calculation of Necessary Expenses for Real Estate Rental Income and Business Income) (1) The necessary expenses commensurate with the total income amount of each year shall be considered as follows:

1. Purchase price (excluding a purchase reduction or a purchase discount) of the raw materials for the commodities or products sold and the incidental expenses thereto. In this case, the original purchase price and incidental expenses thereto shall be applicable, if the relevant business operator has consumed such ones for a business purpose, as have been purchased for other purposes;

C. Determination

(1) In the administrative litigation seeking the revocation of a taxation disposition on the grounds of illegality, the tax authority has the burden of proving the legality of the taxation disposition and the existence of the taxation requirement fact, and the burden of proving that the tax invoice is false, in principle, to the defendant who is the tax authority. Thus, the defendant must prove the falsity of the tax invoice, such as that the tax invoice is not accompanied by the real transaction based on the direct evidence or overall circumstances. However, only when there are special circumstances such as where the tax authority proves that the tax invoice on some of the expenses reported by the taxpayer was falsely prepared without the real transaction, it is disputed whether it is an actual cost or not, and the taxpayer's burden of proving that it is difficult for the taxpayer to present the books and documents, such as evidence, if there are special circumstances such as the use of the expenses claimed by the taxpayer and the other party to the payment,

(2) We examine whether the instant tax invoice was issued without real transaction in this case.

According to the above evidence and evidence No. 1-2 through 7, No. 4, No. 7-1, No. 2,3, 4, and No. 10 of the evidence No. 1-2 and evidence No. 1-7, No. 7-2, and No. 7-2, No. 3, and No. 4, and No. 10, a tax official’s investigation into the ○○ Aggregate, did not hold a substantial portion of the actual stock stock that he/she should hold, but account for the purchase exceeding the sales amount, but the source is not clear. There is no original market book proving the actual transaction. There is no other business operator who received four tax invoices from ○ Aggregate, and filed a revised tax return without deducting the supply amount from the input tax amount. The ○○ Aggregate is still under business suspension as of the date of the closing of argument at the trial. When the Plaintiff filed a false tax invoice for 2004, the Plaintiff’s assertion that the Plaintiff received the false tax invoice from ○○○ was not accepted as a cash transfer.

However, in light of the above evidence and evidence, the Plaintiff’s ○○○○○○○○○’s sales of the instant tax invoices, and the Plaintiff’s ○○○○○○○○○○○’s sales of the instant tax invoices, based on the following facts: (a) ○○○○○○○○○’s sales of the instant tax invoices, which was difficult to receive through a false tax invoice; (b) 1 through 2, 7, 8, 10-1, 2, and 3, the entire purport of the pleadings was as follows; (c) ○○○○○○○○○○○○○○’s sales of the instant tax invoices, which did not appear to have been carried out by the Defendant’s ○○○○○○○○○○’s sales of the instant tax invoices; and (d) 6, which did not appear to have been carried out by the Defendant’s ○○○○○○’s sales of the instant tax invoices, based on the fact that it was difficult for the Plaintiff to receive the instant sales of the instant tax invoices.

(3) Therefore, the instant disposition based on the premise that the instant tax invoice was issued without real transaction is unlawful.

4. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.