Cho High Court Decision 201Do1037 ( October 16, 2011)

The Plaintiff’s good faith and negligence that the supplier received a false tax invoice is not recognized.

In light of the fact that the representative of the plaintiff was well aware of the type or method of trade in the industry, and signed and sealed a certificate of confirmation that disguised transactions were conducted at the time of the tax investigation, that the purchase price transferred to the corporate account of the client was withdrawn to the IP address used by the plaintiff, etc., it is insufficient to recognize that the plaintiff was not negligent because the plaintiff was unaware of the fact that the supplier of the tax invoice of this case was not guilty.

Article 16 of the Value-Added Tax Act and Article 17 of the Value-Added Tax Act

2011Guhap26459 Revocation of Disposition of Imposition of Value-Added Tax

AAAAHE Co., Ltd.

Director of the District Office

June 20, 2012

June 29, 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 000 of the value-added tax of KRW 000 on December 1, 2010 against the Plaintiff on December 1, 201 (the date of December 17, 2010 is a clerical error) is revoked.

1. Details of the disposition;

A. The Plaintiff paid sales agency fees to BBB (hereinafter referred to as “BB”) andCC collection (hereinafter referred to as “CC collection”) and received purchase tax invoices of KRW 000 from “BB, and KRW 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

B. On December 1, 2010, the Defendant: (a) deducted input tax amount for the Plaintiff on the ground that “BB andCC collection is data; (b) each purchase tax credit line supplier constitutes a tax invoice different from the facts; and (c) imposed and notified KRW 000 on the Plaintiff for the second period of value-added tax (including additional tax) in 2009 (hereinafter “instant disposition”).

C. On March 2, 2011, the Plaintiff filed an appeal against the instant disposition, and received a decision of dismissal from the Tax Tribunal on May 16, 2011.

[Reasons for Recognition] The non-contentious facts, Gap evidence 9, 10, and Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In spite of the knowledge that the employee of BB was in transactions with KimG, and the parties to the transaction fulfilled good duty of care, the GG did not know that "GG was to issue tax invoices in the name of BB," and the purchase tax amount must be deducted.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The Plaintiff’s establishment background, business method, etc.

(A) On May 2009, HH, the representative director of the Plaintiff, changed the trade name to â………………………………………………………â…………………………………………………………………âââ…………………âââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââ

(B) The plaintiff directly attracts the insured, but most of it is with the intermediary recruitment company.

The sales agency contract is concluded, and when attracting the subscriber, the fee is paid to the interim sear, and the fee is received.On the other hand, the middle sear concluded the sales agency contract with the small-scale recruitment company that is called the small-scale endur, and paid the fee to the endur at the time of attracting the subscriber.

(C) At the end of the second half of 2009, many registered business operators were under construction and operation in the first half of the Elecommunications Services Market due to the excessive competition of the Elecommunications Services Market, and there were many data on tax evasion, including value-added tax, due to the irregular trade practices.

(2) Data related to BB transaction.

(A) On August 2009, the Plaintiff entered into a sales agency contract with BBB, which is an intermediate with the end of the end of the month, and the representative director, HH, working-level staff, and the KimG in KK respectively.

(B) When the Plaintiff entered into a sales agency contract, the Plaintiff confirmed BB’s business registration certificate (Evidence A 1), and submitted a performance guarantee insurance policy (Evidence A 4) with the content that “BB,” from BB, and from BB, the policyholder: the Plaintiff, the insured, and the insurance period: from September 1, 2009 to August 31, 2010; and the content of the insurance: the payment guarantee under the sales agency contract, and the contract amount:00 won.”

(C) From September 11, 2009 to October 23, 2009, the Plaintiff received purchase tax invoices of KRW 000 (hereinafter “instant tax invoice”) in the name of sales store commission, and transferred KRW 000 (including value added tax) to BB account in the name of BB from August 25, 2009 to October 30, 209.

(3) Details, etc. of the Plaintiff’s survey;

(A) In 2009, the Plaintiff reported KRW 000 as the input tax amount of the second value-added tax and submitted the purchase tax invoice by transaction partner.

(B) On the basis of the purchase tax invoice reported by the Plaintiff, the Defendant investigated whether the processing or disguised transaction was conducted by each customer, and the result of the investigation on the purchaser of at least KRW 100 million of the supply price is as listed below.

(4) Details of the BB-related research

(A) BB on August 17, 2009, a representative was established as KimLL, and was voluntarily closed on December 31, 2009, and reported KRW 000 as the output tax amount for the second period of value-added tax in 2009 and KRW 00 as the input tax amount for the second period of value-added tax in 2009.

(나) 피고는 2010. 9. 14.부터 2010. 11. 8.까지 BBBB에 대한 매출처 및 매입처 조사를 실시하였는데， 김GG 등이 자료상인 KKKK 명의를 이용하여 가입자를 유치하여 수수료를 받고 KKKK 명의로 세금계산서를 발급한 사실을 확인하고， QQQQ의 명의상 대표자 김LLLL과 실제 행위자 김GG을 조세범처벌법위반죄로 검찰에 고발하였다.

(C) At the time of prosecutorial investigation, KimLL was identified as MF.

(5) Contents of the statement of HH, etc.

(A) TH

At the time of the tax investigation, “BB’s representative KimLL,” and “BB’s representative KimL, without knowledge, started a transaction after consultation with KimGGG during the 2009 Value-Added Tax period,” the Plaintiff signed and sealed a written confirmation that “the Plaintiff, during the 2009 Value-Added Tax period, recruited wire telecommunications service (Internet, telephone, Internet TV, etc.), and received a tax invoice in the name of BBBB andCC collection other than KimGG, which was attracting subscribers to business consultation and wire telecommunications service, and reported value-added tax by receiving the tax invoice in the name of BBB andCC collection.”

(b) KimGG

세무조사 당시 2006. 11.경부터 NNN텔레콤에 근무하다가 2009. 8.경 퇴직 한 후， 2009. 9.경부터 2010. 4.경까지 조PP으로부터 월 000원 정도를 받고，조PP이 QQQQQ 주식회사 등 5개의 자료상 명의로 세금계산서를 발행하면 자료상 명 의 계좌로 입금된 돈을 인출하는 업무를 수행하였다. 한편， NNN텔레콤에서 같이 근무 했던 배SSS이 2009. 8.경 RRR시스템 대표이사로 취임하였고， 자신은 2009. 10.경부터 RRR시스템의 직원으로도 근무하였는데， RRR시스템도 위 자료상틀 명의의 세금계산서를 수취하여 부가가치세 매입세액 공제를 받았다 는 취지로 진술하였다. 검찰 조사 당시 2009년경 NNN텔레콤 관리부장으로 근무할 때 거래처 사장인 조PP을 만나 같이 일해보자는 제의를 받아 조PP이 시키는 대로 영업을 했고，BBBB나 대표자 김LLLL을 알지 못한다"는 취지로 진술하였다.

[Ground of Recognition] The non-contentious facts, Gap evidence 1 through 15 (including household numbers), Eul evidence 1 through 11 (including household numbers), and the witness J's testimony, and the whole purport of the pleading

D. Determination

(1) Article 17(2)1-2 of the Value-Added Tax Act provides that "if the necessary entry of the tax invoice is entered differently from the fact, the deduction of the input tax amount shall not be permitted." The main purpose of this provision is to train the taxation data under the pre-stage tax credit method, and secure the tax amount by securing the tax amount. Therefore, if the person who received the tax invoice and the actual supplier are issued another tax invoice, the input tax amount cannot be deducted or refunded unless there are special circumstances that the actual supplier and the supplier were unaware of the fact that they were issued a different tax invoice, and the person who asserts the deduction or refund of the input tax amount is not negligent in not knowing the above fact (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). The fact that the recipient or the supplier did not know of the issuance and issuance of the tax invoice, the scale of the goods or services supplied and the actual transaction practices of the supplier and the supplier in question, and that the supplier did not know the actual name or actual name of the goods or service.

(2) The Plaintiff did not know that the name of the supplier of the instant tax invoice was 0GB, and that the Plaintiff did not know that it was 2GB, and that the Plaintiff did not know that it was 1GB’s 2G sales contract, and that it was issued by the 2G supplier of the instant tax invoice, and that the Plaintiff did not know that it was 0GB’s 2G sales contract, and that it was issued by the 2G supplier of the instant tax invoice, and that there was no other evidence that it was issued by the 10G supplier’s 2G sales contract, and that there was no other evidence that the Plaintiff would have been issued with the 10G supplier’s 2G sales contract, and that there was no other evidence that the 2G supplier would have been issued with the 0G supplier’s 9G sales contract, and that there was no other evidence that the 2G supplier would have been issued with the 0G supplier’s 9G sales contract, and that there was no other evidence that it would have been necessary to review the 2G supplier’s sales contract.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.