early 2010 Heavy2131 (Law No. 105.09)

The fact that he was unaware of the fact that he was unaware of the fact that the person who claimed the deduction of the input tax amount should prove it.

If a person who received a tax invoice from a supplier and a supplier of a tax invoice have received another tax invoice, the input tax amount cannot be deducted or refunded unless there is any special circumstance that there is no negligence on the part of the supplier, and that the person who received the tax did not know the fact that he/she was unaware of the name of the tax invoice, and that the person who claimed the deduction or refund of the purchase tax amount is not negligent

Article 17 of the Value-Added Tax Act

2011Revocation of disposition imposing value-added tax, 3818

AAA Special Compact Co., Ltd.

The director of the Southern Incheon District Office

December 29, 2011

February 16, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax of KRW 19,850,00 for the second term portion in 2006 against the Plaintiff on January 11, 201, the imposition of value-added tax of KRW 60,278,00 for the first term portion in 207, and value-added tax of KRW 446,601,00 for the second term portion in 207 shall be revoked.

1. Details of the disposition;

A. The Plaintiff, a company established on August 11, 1978, engaged in the manufacturing, processing, and sales of non-metallic metals from 000-0, Nam-gu, Incheon Metropolitan City OOdong-gu.

B. In February 2006, 2007, and 2007, the Plaintiff received from BB enterprise Co., Ltd. (hereinafter “B enterprise”) a tax invoice amounting to KRW 3,08,170,780, and reported and paid value-added tax to the Defendant including the input tax amount subject to deduction.

C. On January 11, 2010, the Defendant decided not to deduct the input tax amount of value-added tax from the output tax amount on the ground that the instant tax invoice was written differently from the fact, and issued the instant disposition imposing the Plaintiff the value-added tax amount of KRW 19,850,00 for the second term portion in 2006, KRW 60,278,000 for value-added tax for the second term portion in 2007, and KRW 446,601,00 for the second term portion in 207.

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on June 15, 2010, but the Tax Tribunal dismissed the appeal on May 9, 201.

[Reasons for Recognition] Evidence No. 5, Evidence No. 1-1, No. 2, and No. 3, and the purport of the whole pleadings

A. The plaintiff's assertion

The Plaintiff is not a tax invoice different from the facts, since it was actually supplied to BB enterprises with old interest, and it was normally traded by remitting the purchase price, and even if it was a false tax invoice, the Plaintiff was involved in the transaction after confirming the BB enterprise’s business registration certificate, the representative’s name, etc., and by taking all measures to confirm whether BB enterprise actually supplies old interest, such as being supplied with old interest and remitting the price to the corporate account of BB enterprise, and the Plaintiff constitutes a bona fide transaction party. The instant disposition based on the different premise is unlawful.

B. Relevant statutes

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

C. Determination

(1) Whether the instant tax invoice constitutes a false tax invoice

The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts that the necessary entries in the tax invoice are different from the facts that the actual supplier of the goods or services, regardless of the formal entries in the transaction contract, etc. prepared between the parties to the goods or services, does not coincide with those in which the goods or services are actually supplied or received, and the price and time of the goods or services. In full view of the following facts, comprehensively taking into account each entry in the evidence Nos. 2, 3, 7, and 8 as a whole, it is reasonable to view that the instant tax invoice delivered by the Plaintiff from the BB enterprise constitutes a false tax invoice which is different from the facts

① The BB enterprise registered its business with 311-12 Dong Dong Dong-dong 311-12 as its place of business in Kimhae-si, but the said place of business is used as the office of another enterprise without any open space in which Gu Ri is kept.

② The BB reported on the purchase of copper to CC. However, CC was a company operated by Newly E, a real operator of the BB company, and closed its business without paying approximately KRW 3 billion after 2007, when it did not purchase at all during the two-year period, and generated approximately KRW 30.8 billion processing.

③ As such, BB is not equipped with basic facilities, such as fraternitys, open storages, transportation vehicles, etc. for the copper wholesale business, and it cannot be deemed that BB actually supplied its own interest to the Plaintiff in the absence of old interest. In view of the fact that BB andCC’s actual operator is the same, andCC generated excessive sales to BB by issuing tax invoices to B, etc., and subsequently closed its business without paying taxes accordingly, BB is a so-called “data” that issued only a processed tax invoice without any actual old interest transaction, and the actual purchase price of the Plaintiff’s interest under the tax invoice of this case should be deemed as a third party, not B.

(2) Whether the Plaintiff is bona fide and without fault or not

Article 17(2)2 of the Value-Added Tax Act provides that input tax deduction shall not be permitted in cases where necessary entries of a tax invoice are entered differently from the facts. This is the main purpose of securing tax revenue by training taxation data under the pre-stage tax credit method. Therefore, if an actual supplier and a supplier of a tax invoice have been issued other tax invoices, the input tax amount cannot be deducted or refunded unless there are special circumstances that the actual supplier was unaware of the fact that the actual supplier was unaware of the nominal name of the tax invoice, and that the recipient was not negligent in not knowing the above nominal name, the purchaser of the purchase tax amount deduction or refund must be proved (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). In full view of the fact that the Plaintiff was unaware of the nominal name of the tax invoice and the Plaintiff did not know of the fact that the Plaintiff did not know of the nominal name of the aforementioned corporation, the Plaintiff could not be found to have been negligent in the Plaintiff’s failure to obtain the entire tax invoice from each of the Plaintiff.

① Since the Plaintiff’s waste resources industry is highly likely to engage in disguised and fictitious transactions, the Plaintiff’s agent must confirm the transit route of the Guide that is traded prior to being supplied with the Guide to a new customer, and verify whether the transaction partner has basic facilities, such as the fraternity, field, and transport vehicle for the scrap metal wholesale business.

② Around August 2006, the Plaintiff received the name of the BB company as a copy of its business registration certificate and the name of its representative from around August 2006, which was prior to commencement of transaction with BB company (the Plaintiff asserted that the Plaintiff sought credit information of BB company from around that time, but it is not sufficient to recognize it solely with the statement of No. 3). The phone number of the headquarters (00-000-00-0000-0000) and the factory phone number (000-000) with the name of its representative, all of which are the phone number of the other company (Ga No. 4 and 5), and the Plaintiff could easily find whether BB company actually operates old wholesale business with the phone number with the above name of B company (the Plaintiff’s phone number appears to be different from the phone number with the above name of B company (00-00-000-000, regional number of No. 500).

③ 원고의 영업 총괄 업무를 담당하고 있던 정DD는 BB기업과 거래를 시작하기 전인 2006년 8월경 BB기업을 방문하기 위하여 김해시 OO동 부근에서 신EE에게 전화를 한 다음 신EE이 안내하는 곳으로 찾아갔다(을 제9호증). 그러나 신EE이 안내한 곳은 BB기업의 사업자등록증상 사업장 소재지와 다른 곳(사업자등록증상 사업장 소재지는 김해시 지내동 311-12이고, 신EE이 안내한 곳은 같은 동 000-00였다) 이었고, 그곳에는 '공단계량사'라는 간판만 있고 BB기업의 간판은 없었으며, 신EE과 강QQ(신EE의 배우자로 나중에 이름을 강RR로 바꾸었고 BB기업의 명의상 대표 이사이다)만 있고 다른 직원은 없었다(을 제9호증). 원고는 지적도나 등기부 등본을 확인하거나 주변 사람에게 물어보는 등의 방법으로 쉽게 BB기업이 실제 구리 도매업을 운영하고 있는지를 알 수 있었다.

(3) Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and it is insufficient to recognize the circumstances that the Plaintiff is bona fide and without fault in believing that the tax invoice received as such was properly prepared. Therefore, the instant disposition by the Defendant is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.