Cho High Court Decision 2008west0439 (No. 17, 2008)

A disguised purchase tax invoice for computers and peripheral devices;

It is true that the other party issued a disguised tax invoice, and the representative is prosecuted as a charge, and thus constitutes a false tax invoice.

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

1. The plaintiff's claim is dismissed.

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

The rejection disposition made by the Defendant on October 16, 2007 against the Plaintiff’s application for rectification of value-added tax on August 17, 2007 shall be revoked.

1. Details of the disposition;

A. The Plaintiff Company is a business entity that from April 23, 1999, Seoul AAAB-3 runs a wholesale and retail business of computers and peripheral devices from R Terminal 5-37.

B. From February 1, 2007 to May 11, 2005, the Defendant conducted a special investigation on the value-added tax of the Plaintiff Company from the first to the second period of 2006 from 2003 to 2006. The Defendant sent to the Plaintiff Company a notice to the effect that, instead of reporting the retail sales during the above period, the Plaintiff Company issued a false sales tax invoice of KRW 2,481,612,209 to the same type of wholesale company and the 111 companies, the supply price of KRW 2,481,612,209 to the same type of business instead of filing a false report on the retail sales during the above period, the Plaintiff Company unjustly omitted taxes by receiving the disguised sales tax invoice of KRW 952,646,367 from the supply price of DD (hereinafter referred to as “DD”) from January 1, 2004 to March 31, 2005.

C. On May 25, 2007, the Plaintiff Company filed a revised return on value-added tax for each of the above periods in accordance with the Defendant’s notification purport, and paid value-added tax amounting to KRW 171,653,923. The details of transactions between DD and DD among the contents of the revised return are as listed below (hereinafter “instant DD”).

D. On August 17, 2007, the Plaintiff Company filed a request for correction with the Defendant to the effect that “each of the tax invoices for the instant DNA transactions (hereinafter “DD tax invoices”) was arising from actual transactions with DD rather than a disguised tax invoice, and even if DD was named, the Plaintiff Company constitutes a bona fide trading party, and thus, the Plaintiff Company constitutes a bona fide trading party, and thus, the Plaintiff Company should refund total value-added tax of KRW 154,278,778 from the value-added tax paid after filing a revised return on the pertinent DD transactions until the first of 2005, the value-added tax amount of the value-added tax paid by the Plaintiff Company after filing a revised tax return on the pertinent DD transactions.” However, the Defendant did not issue a decision on the above request for correction until October 16, 2007 under Article 45-2(3) of the Framework Act on National Taxes (hereinafter “instant rejection disposition”), / [Grounds for recognition], Gap’s evidence Nos. 1, 3, 4, 5-1 to 7 evidence No.

2. Whether the rejection disposition of this case is legitimate

A. The plaintiff company's assertion

1) The other party who actually purchased and sold goods on the tax invoice between the Plaintiff company and the Plaintiff company in connection with the instant DD transaction is DD, and the transaction amount was deposited into DD’s account, and the Defendant’s claim that the other party to the instant transaction is the actual party to the instant transaction only performed the role of the Do Governor in relation to the transaction between the Plaintiff company and DD in accordance with the direction of EM, which is the actual representative of EM. Thus, the instant refusal disposition under the premise that the other party to the instant DD transaction is not DD but (State) GG ballast is illegal.

2) Even if the actual supplier of the goods is not DD, the Plaintiff Company was unaware of the disguised name of DD and was negligent in not knowing that DD was involved. Thus, the instant refusal disposition on different premise is unlawful.

B. Relevant statutes

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

(c) basic facts;

1) On April 1, 1998, thisM was established and operated with the head office of HH-dong 156-2, Busan, Busan, the main office of which was HH-dong 156-2, and on July 23, 2001, Seoul AAAB-2 established and operated DDA A-dong 21 Dong 21 and 183, and closed on December 31, 2002.

2) 이MM은 DDD와는 별도로 2002. 12. 2. 위 JJ상가에서 공KK을 명의상 대표자로 하여 GG밸리를 개업한 후 2003. 12. 31. 폐업하였고, 2003. 7. 18. 위 JJ상가 21동 2층 73호에서 전LL을 명의상 대표자로 하여(이후 2004. 5. 21. 명의상 대표자가 김QQ으로 변경되었다) (주)GG밸리를 설립하여 2006. 7. 31.경까지 운영에 관여 하였다.

[Ground of recognition] Evidence No. 1, Evidence No. 4, Evidence No. 18, and Evidence No. 19, and the purport of the whole pleadings

D. Determination

1) Determination on the first argument

According to Article 17(1) and (2)1-2 of the Value-Added Tax Act, where necessary entries, such as the name of a business operator who supplies goods under Article 16(1) of the Act, are entered differently from the facts, the input tax amount shall not be deducted. The burden of proving that the tax invoice is false is, in principle, the defendant who is the tax authority, but where the defendant proves that the tax invoice is not accompanied by the real transaction based on direct evidence or overall circumstances to the extent that it reasonably acceptable, such as that the tax invoice is not accompanied by the real transaction, the plaintiff company claiming that the tax invoice is not false need to prove its assertion, considering that it is easy to present relevant evidence and materials (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

The following circumstances, which are acknowledged as comprehensively taking account of the overall purport of the pleading No. 5 and No. 7 evidence No. 9-1 and No. 9-2, i.e., the representative director of the Plaintiff Company: (a) at the time of the investigation of the instant DNA transactions, the actual transaction of the instant DNA transactions was made with respect to the instant DNA transactions, and only the tax invoice was issued in the name of D; (b) thisM stated that it was operated separately from the DA store in the form of the reason for the closure of the GG ballast, and (c) this would not be deemed to have been charged with the Plaintiff Company’s purchase of the pertinent DNA products under the name of 3,163,265,031 in the name of DG from October 25, 2003 to June 30, 2005.

Therefore, since the DoD tax invoice of this case was prepared falsely as to the other party to the transaction, the first party's assertion on this different premise is without merit.

2) Determination on the second argument of the Plaintiff Company

Comprehensively taking account of the overall purport of the arguments in the statement No. 14-1 through No. 14 of the evidence No. 14-1, the plaintiff company did not have any details of transactions with DD from the first to the second period of 2003 to the second period of 2004, and since 2004, if the transaction with DD was commenced with (ju)G Ballast during the two or more years as above, it is reasonable to deem that the plaintiff company was the party to the transaction, and even if he was unaware of the snow, it cannot be said that there was no negligence on the part of the party to the transaction.

Therefore, this part of the plaintiff company's assertion is without merit.

3. Conclusion

The claim of this case by the company is dismissed as it is without merit.