Cho High Court Decision 2010Du0625 ( October 10, 2011)

Any disposition by a tax authority that a tax invoice is issued without a real transaction is legitimate

The disposition taken by the tax authority that the tax invoice is a false tax invoice issued without a real transaction because there is no data on special circumstances to deny the value of the certificate that accepts a tax invoice without a real transaction, and the tax invoice is not submitted at all in relation to the supply of the product, etc.;

2011Guhap15961 Revocation of Disposition of Imposing Corporate Tax, etc.

XX Co., Ltd

Head of Geumcheon Tax Office

April 17, 2012

May 10, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition disposition of KRW 00 on June 16, 2009 for the second term portion of the value-added tax for the year 2002 against the Plaintiff, KRW 000 for the first term portion of the value-added tax for the year 2003, KRW 000 for the corporate tax for the business year 2006, and KRW 000 for the corporate tax for the business year 2007 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a legal entity that runs software development business, etc. on November 17, 200. The Plaintiff: (a) during the second period of 2002 and the first value-added tax period of 1, 2003; (b) during the supply price of KRW 00 (hereinafter “first tax invoice”); (c) on November 1, 2002, the supply price of KRW 00 (hereinafter “the second tax invoice”); (d) on June 10, 2003, the supply price of KRW 00 (hereinafter “the third tax invoice”); and (e) on June 30, 200, the supply price of KRW 30 (hereinafter “the third tax invoice”); and (e) on June 30, 200 (hereinafter “the value-added tax invoice”) the total supply price of KRW 4,000,000, including the supply price of KRW 5,000,000 for each of the supply price of KRW 30 through 5,200 (hereinafter “O”).

B. As a result of the tax investigation conducted on the Plaintiff, the Defendant revised the pertinent tax base and denied the depreciation costs corresponding to the processed assets, on June 16, 2009, the Defendant corrected and notified the Plaintiff of KRW 000 of value-added tax for the second period of 2002, KRW 000 of value-added tax for the first period of 2003, KRW 000 of corporate tax for the business year of 2006, and KRW 000 of corporate tax for the business year of 2007 (hereinafter “instant disposition”).

C. On February 11, 2010, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal, but the Tax Tribunal dismissed the Plaintiff’s appeal on February 10, 201.

[Reasons for Recognition] Gap evidence 1, 2 (including branch numbers; hereinafter the same shall apply), Eul evidence 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff alleged that the disposition of this case, based on the premise that the tax invoice of this case was received without real transaction as follows, was unlawful (the plaintiff, from April 11, 2005 to July 15, 2005, issued 4 tax invoices of 000 won in total of the supply value of the applied software development project, and the defendant regarded it as a processed sale, but the defendant alleged that the disposition of this case was unlawful. However, the defendant considered it as a processed sale and paid the value-added tax only by modifying the relevant tax base, and it did not regard it as not related to the disposition of this case, as the part related to the value-added tax of 1st and 2nd in 2005, which was related to the second in 205.)

1) As to the first tax invoice of this case

원고는 2002. 10. 8. QQQ-Component 개발을 위해 XX로부터 컴퓨터 서버 3대(이하 '이 사건 제1제품'이라 한다)를 000원에 매입하였고, 이를 이용하여 QQQ-Component 개발을 완료하여 2003. 3. 26. 프로그램증을 교부받았으며, 위 000원은 2004. 12. 27.경 □□ 김AA에 대한 매출채권 000원을 XX에 양도함으로써 변제하였다. 한편 이 사건 제1제품은 2007년 6월경 폐기 처분하였다.

2) As to the second tax invoice of this case

On November 1, 2002, the Plaintiff purchased computer hardware and software (hereinafter referred to as “instant secondary product”) from XX, and paid 000 won to XX on January 28, 2003, and sold part of the instant secondary products to △△△△.

3) Regarding the third and fourth tax invoices of the instant case

On June 10, 2003, the Plaintiff purchased the computer server 1 unit (hereinafter referred to as the “third product of this case”) from XX, 000 won, and on June 30, 2003, 1 unit (hereinafter referred to as the “fourth product of this case”) from the computer server 1 unit (hereinafter referred to as the “third product of this case”) for 000 won, and paid to XX for 5.00 won on August 5, 2003, 200, and 00 won on October 24, 2003, respectively, and the remaining 00 won was replaced by the KimA. On June 30, 2003, the Plaintiff sold the third and fourth product of this case to the Kim Jong-dong of this case for 00 won.

4) As to the fifth tax invoice of this case

The plaintiff purchased and paid 000 won a computer server 4 (hereinafter referred to as "5 products of this case") from the OO, and the two of the above computer servers were used for the development of the plaintiff, and the remaining two were sold to 00 won a Dog KimA.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

1) As to the first tax invoice of this case

가) 'QQQ-Component 개발연혁'에는 원고가 2001년 1월 YY 주식회사(이하 'YY'이라 한다)로부터 중고 서버 1대를 기증받아 2002년 1월 시제품 개발을 완료하고, 2002년 10월 이 사건 제1제품을 매입하여 2003년 3월 프로그램등록증을 교부받은 것으로 기재되어 있다.

B) On September 9, 2002, the contract for the supply of the system of this case entered into with the Plaintiff on October 8, 2002 that XX is to supply the first product of this case to the Plaintiff with the contract amount of KRW 000 and the delivery completion date of October 2002.

다) '프로그램등록증'에는 2003. 3. 26. 프로그램 심의조정위원회 위원장이 원고에게 QQQ-Component 프로그램등록증을 교부한 것으로 기재되어 있다.

D) The Plaintiff’s “specification of depreciation expenses” on December 31, 2004, the Plaintiff depreciated the instant products by applying the service life of 5 years after acquiring them on October 18, 2002, and the fixed rate method. The amount of the final accumulated depreciation amount is KRW 00,00, and the appropriated amount of the depreciation costs per month is KRW 00,000.

E) On April 21, 2009, YY’s confirmation prepared by Y representative director, stated that Y was disposed of upon receipt of a request from the Plaintiff for the destruction and delivery of the products of this case from the Plaintiff on June 2007.

F) The Alternative Settlement Agreement dated December 27, 2004 states that the substitution settlement agreement shall be offset against the payment of KRW 000,000 to the Plaintiff that the Plaintiff shall pay to the Plaintiff, and that the remainder 00,000,000,000,000,000,000,000 won, should be paid to the Plaintiff.

2) As to the second tax invoice of this case

A) The supply contract for the software package on September 1, 2002 stated that XX is providing the Plaintiff with the amount of KRW 000 of the contract price and October 25, 2002 on the completion date of delivery.

B) On January 28, 2003, the Plaintiff transferred KRW 000 to the national bank account in XX.

C) Each of the 'foreign documents prepared by the Plaintiff as of August 12, 2003, November 16, 2004, May 10, 2005, and March 8, 2007, respectively, stated that the Plaintiff requests the settlement of the goods supplied by the Plaintiff to △△△△ (00 won on November 4, 2002, KRW 000 on November 30, 2002, KRW 000 on November 30, 2002, and KRW 000 in total).

D) The letter of promise to repay the price of the server and software products purchased from the Plaintiff on June 22, 2009, prepared by △△ representative director and △△B, stated that 50% by the end of December 2009, and 50% by June 2010, prepared by △△△△△△△△△, shall be repaid for 00 won of the price of the server and software products purchased from the Plaintiff on November 2002.

E) On August 26, 2009, the Plaintiff received a provisional attachment order with the Seoul Southern District Court 2009Kadan9667 as the Seoul Southern District Court’s 2009Kadan967 as to AAAdong 000 AAado 000 owned by Gangseo-gu Seoul Metropolitan Government.

3) Regarding the third and fourth tax invoices of the instant case

A) The Plaintiff remitted the total of KRW 000 on August 5, 2003, and KRW 000 on October 24, 2003 to the national bank account in XX, respectively.

B) On December 31, 2003, the head of the business partner’s office on December 31, 2003 stated the balance of the credit purchase amount 000 won in XX.

4) As to the fifth tax invoice of this case

A) In the supply contract for the system of May 1, 2003, the O stated that the Plaintiff supplies the instant product 5 to the Plaintiff at the contract price of KRW 000 (including VAT) and May 30, 2003 on the completion date of delivery.

B) The Plaintiff transferred 00 won in total to the Industrial Bank of Korea account of the OO on June 28, 2005, KRW 000 on July 1, 2005, and KRW 000 on July 22, 2005, respectively.

5) As to the instant confirmation

At the time of the investigation of this case, Korea-CC, the representative director of the plaintiff, prepared and submitted a written confirmation (No. 3, hereinafter referred to as the "written confirmation of this case") as follows:

[Based on the recognition] The evidence Nos. 2, 3, 8, Eul's evidence No. 3, and the purport of the whole pleadings

D. Determination

1) The burden of proving that the tax invoice is false, in principle, to the tax authority. However, in the event that the tax authority conducted a reasonable verification to the extent that it reasonably acceptable on the basis of the direct evidence or overall circumstances, it needs to prove that the taxpayer who is dissatisfied with the tax invoice is not false (see, e.g., Supreme Court Decisions 2007Du1439, Aug. 20, 2009). Meanwhile, in the course of the tax investigation conducted by the tax authority, unless there are special circumstances, such as the taxpayer’s signature and seal on the confirmation document, or the fact that it is difficult for the tax authority to easily deny the value of the evidence of the confirmation document as evidence for specific facts against the author’s will (see, e.g., Supreme Court Decisions 98Du2928, May 22, 1998; 2001Du25660, Dec. 6, 2002).

2) In full view of the following circumstances with regard to the instant case, comprehensively considering the facts acknowledged earlier and the statements in the evidence Nos. 2, 5, 6, 7, 9, 11, 12, 13, 15, and 16, the instant tax invoice is deemed to have been proved to a considerable extent that it was a false tax invoice issued without a real transaction. The Plaintiff asserted that the instant tax invoice was issued after a real transaction and received the instant tax invoice. However, in light of the following circumstances, it is insufficient to acknowledge the instant tax invoice only by the testimony of the evidence Nos. 3, 5, 10, 11, 15, 18, 20, 21, and 21, and each testimony of the witness Kim K, and ChoB, and there is no other evidence to acknowledge it.

A) Concerning the instant confirmation

The confirmation of this case contains specific descriptions of the trade name, transaction date, and supply value of the purchasing and selling company confirmed by HanCC, the representative director of the Plaintiff, as the processing and selling company. Furthermore, it is difficult to deem that the confirmation document of this case, which provides that the person who receives a tax invoice without real transactions, was prepared contrary to the intent of HanCC, or cannot be deemed as supporting material due to lack of its contents, and there is no other special evidence to deny the value of evidence of the aforementioned confirmation. Meanwhile, the purchase and selling company in the confirmation document of this case was dismissed even if they were not dissatisfied with the tax authority's disposition under the premise that the purchase and sale is processed, or they were dissatisfied with it.

B) Regarding the first tax invoice of this case

(1) According to the Plaintiff’s assertion, since the value of the instant first product is up to KRW 200 million, without paying the price, such as the down payment, and the price was not paid at all for more than two years after the receipt of the product, and even though they did not take any measures to recover the claim, they substitute for the payment by taking over the claim against △△ in the insolvency crisis without collecting the price from the Plaintiff in cash, which is very exceptional in light of the general commercial practice. Accordingly, the Plaintiff’s delayed payment due to the arrival of the instant first product and delayed payment, and there was a debt to settle with △△ even if there was no legal problem, the Plaintiff did not accept the substitute payment, and did not provide any reasonable explanation that is acceptable with regard to the payment.

(2) 원고의 2004. 12. 31.자 감가상각비 명세서에는 원고가 이 사건 제1제품을 2002. 10. 18. 취득하였다고 기재되어 있는데, 이는 2002. 9. 9.자 시스템공급계약서상 납품완료일인 2002. 10. 8.과 일치하지 않고, 원고가 주장하는(원고의 2011. 12. 19.자 준비서면 참조) 이 사건 제1제품 도착일인 2003년 1월경과도 일치하지 않는다. 뿐만 아니라 원고는 이 사건 제1제품을 사용하여 QQQ-Component 개발을 완료하였다고 주장하는데, 원고의 주장대로라면 이 사건 제1제품의 취득가액은 QQQ-Component 개발 원가에 포함되어 해당 계정에 계상되어야 할 것인데, 이 사건 제1제품은 위 2004. 12.31.자 감가상각비 명세서상 단순한 '집기비품'으로 계상되어 있다. 또한, 위 2004. 12.31.자 감가상각비 명세서상 전기 말 감가상각누계액과 당기 감가상각비 계상액은 일반적으로 인정된 회계원칙에 따라 이 사건 제1제품에 관하여 내용연수 5년, 정률법을 적용하여 감가상각한 금액(전기 말 감가상각누계액 000, 당기 감가상각비 계상액 000원)과는 상당한 차이가 있어 보인다.

C) Regarding the second tax invoice of this case

(1) On January 28, 2003, when the Plaintiff remitted 000 won to Telecommunication Co., Ltd. on the same day, TE transferred KRW 000 to the Plaintiff, and on the same day, Telecommunication Co., Ltd. (hereinafter referred to as “DD System Business”). Meanwhile, EE, the representative director of the DD System Business, at the time, is the Plaintiff’s shareholder, and Korea Exchange, a director of DD System, transferred KRW 00 to the Plaintiff’s representative director and DD Business’s auditor KimF, who was the representative director of OO, was the Plaintiff’s representative director, and the above money was immediately withdrawn in cash, and it appears to be a financial transaction to avoid a normal transaction. The Plaintiff’s payment for the products of this case, which was settled by the Plaintiff, was difficult to accept in light of the fact that the Plaintiff paid part of the sales profit to the Kim system, which was the original developer of the products of this case, and that it was difficult to view the Plaintiff’s deposit to the Plaintiff’s 20D and 27.

(2) Although the Plaintiff alleged that part of the second product of this case was supplied to △△△△, it is difficult to submit an order or a contract, etc., and the second product of this case was delivered without receiving the payment such as the down payment, since the supply price is up to 000 won, and it was very unusual that it was not paid at all until the last ten years. Accordingly, the Plaintiff asserted that the second product of this case had continued to pay the payment to △△△△△△△ and the provisional attachment of the real estate owned by △△△△△△△ was made, and the provisional attachment was made at approximately seven years or more from the delivery date of the product of this case.

(3) If △△△ is supplied with a product equivalent to KRW 000 won from the Plaintiff and did not pay the price, the balance of the purchase debt on the balance sheet of △△△ shall be at least 000 won. The balance of the purchase debt on the balance sheet as of the end of 2003 that △△△ reports to the tax authorities shall be at least KRW 000, and the balance of the purchase debt on the balance sheet as of the end of

D) Regarding the third and fourth tax invoices of the instant case

(1) On August 5, 2003, when the Plaintiff transferred 00 won to XX, the Plaintiff remitted the same amount to Luxembourg, and on the same day KimA transferred the same amount to Luxembourg, and on the same day, the said money was immediately deposited in cash on the same day. Likewise, on October 24, 2003, the Plaintiff transferred the same amount to Luxembourg on the same day, KimA, which was on the same day, remitted to Luxembourg the same amount to Luxembourg, and on the same day, KimA wired the same amount to Luxembourg, and immediately deposited the said money in cash on the same day, it appears that this was very exceptional. Accordingly, the Plaintiff paid the price for the 3 and 4 products of this case to Luxembourg, and that the Plaintiff transferred the money to Luxembourg, as above, to Luxembourg, and that the Plaintiff transferred the money to 3 and 4 products of this case, in light of the fact that the money was transferred to 3G from her normal account, and that the money was transferred to 3G from her own account.

(2) The Plaintiff purchased the instant products of KRW 000 on June 10, 200 and KRW 000 on June 30, 2003, the Plaintiff asserted that he sold the instant products of KRW 4 in KRW 000 on June 30, 200, to KimA on June 30, 2003, but the Plaintiff did not submit an order, a contract, etc. related to the above sale. However, it is very exceptional that the Plaintiff sold the products it purchased without receiving any payment such as the down payment, etc., directly (or immediately after the same day, or after the same) without paying the down payment, even though there are no special circumstances. Accordingly, the Plaintiff asserted that it would be sufficiently able to consider damages to the extent of KRW 00 for the relationship between the other party and the other party to continue the transaction, and did not present any reasonable grounds for acceptance.

(3) As seen earlier, since the first tax invoice of this case is deemed to be a false tax invoice issued without real transaction, it is difficult to believe that the content of the substitution settlement agreement of December 27, 2004, which was concluded to the effect that the Plaintiff would offset the amount of the first tax invoice of this case to be paid to the Plaintiff by the amount of KRW 00 (including KRW 000 for the third product of this case and KRW 000 for the fourth product of this case) that the Plaintiff should pay to the Plaintiff.

E) Regarding the tax invoice No. 5 of this case

(1) On December 27, 2007, KimF, the representative director of the OO, under investigation conducted by the Guro Tax Office on December 27, 2007, issued and received a false tax invoice with the same company (IT companies) to meet the requirements for listing on KOSDAQ from 2001 to 2003, which is the method used by the same company for the same purpose as at the time. At the time, IT companies at the time received tax invoice from the purchaser without real transaction by using related equipment and services, such as the electronic system server, and then sold them to the DD system, which would result in purchasing at the first purchasing agency through the process of resale. Ultimately, only one or two companies participating in the circular transaction without real cause. During this process, the O stated that the supply price of some constituent items and the transaction amount of the traded items was changed. In the taxable period of 10th 203 of the value-added tax without real transaction, the O stated that the Plaintiff was the Plaintiff during the taxable period of 10th 200.

(2) According to the Plaintiff’s assertion, the value of the 5 product of this case was at least 000 won, without paying the down payment, etc., and the 00 won was paid on or around June 2005, which was later than 2 years after the delivery of the product. This is very unusual in light of the general commercial transaction practices, and the Plaintiff transferred the 5 product of this case to the O, immediately after the date when the Plaintiff transferred the 000 won price for the 5 product of this case (including VAT) to the O, and it appears to be a financial transaction to lead a normal transaction. Accordingly, the Plaintiff alleged that the 00 won was irrelevant to himself, but the Plaintiff’s transfer from the O’s account to O was difficult to accept in light of the fact that the Plaintiff received 00 won from △△ on the same day, and the O directly transferred the 000 won from the above 100 won to the her spouse, the Plaintiff’s spouse, the son’s husband of this case.

(3) The plaintiff alleged that some of the products of this case 5 of May 30, 2003 in this case sold to △△△△, and then the sales claim was replaced by a substitute settlement agreement on December 27, 2004. However, the plaintiff failed to submit an order or a contract related to the above sale, and as seen above, the contents of the substitute settlement agreement as of December 27, 2004 are difficult to believe.

3) Therefore, the Defendant’s disposition that deemed the instant tax invoice to be a false tax invoice issued without real transaction is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.