National High Court Decision 2007Da4725 (No. 29, 2008)

Whether a purchase tax invoice is a real transaction

The transaction partner who claims that the Plaintiff purchased the purchase at present appears to be the data of the processing transaction, and the source of the purchase price paid by the transaction partner is not presented, and the transaction partner fails to vindicate the borrowed name of the process of paying the purchase price, etc., shall be deemed to be a false tax invoice which is the most false transaction.

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

Article 16 (Tax Invoice)

1. The plaintiff's claims against the defendants are all dismissed.

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

The disposition of imposition of KRW 71,818,350 as global income tax for the Plaintiff on June 1, 2007, and KRW 14,006,360 as global income tax for the year 2001, and the disposition of imposition of KRW 19,103,680 as global income tax for the Plaintiff on January 10, 207 by the head of the Busan Busan District Tax Office on January 10, 207, and the disposition of imposition of KRW 4,87,460 as global income tax for the second period of February 19, 200, imposed on the Plaintiff on the Plaintiff on January 10, 2007, respectively.

1. Details of the instant disposition

A. The Plaintiff, who runs the wholesale business in the name of “○○○-dong ○○○-20, Busan Metropolitan City ○○○○○-dong,” was issued three copies of purchase tax invoices as of July 2, 200, 200 from “○○ ○○ ” corporation (hereinafter referred to as “○ ○○ ”), and reported the amount of input tax as of January 16, 2002 after deducting it from the input tax amount as of January 2, 2001 at the time of reporting the purchase tax return for 2001 and 2002, and included it in the necessary expenses for the taxable year at the time of reporting the global income tax for 201 and 202.

B. The Defendants: (a) notified the director of the tax office of the Nam-gu of the taxation data that the tax invoice was issued without real transaction; and (b) deemed the tax invoice of this case as a different tax invoice from the fact that the tax invoice of this case was issued without real transaction; and (c) on January 10, 2007, the director of the tax office of Busan Busan Jin-gu did not deduct the input tax amount; (b) KRW 19,103,680 on January 10, 200, value-added tax of KRW 4,87,460 on January 1, 200; and (c) the director of the tax office of the tax office of Geumcheon-gu imposed the global income tax of KRW 71,818,350 on June 11, 207 and imposed the global income tax of KRW 14,06,360 on global income tax of 202 (hereinafter referred to as the “disposition of the Defendants”).

C. On January 29, 2008, the Plaintiff appealed against the instant disposition, and the National Tax Tribunal dismissed the request for adjudication on January 29, 2008.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-2, Gap evidence 2-1, Eul evidence 3-1-3, Eul evidence 1-2, Eul evidence 2-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Although the Plaintiff purchased the present tax invoice corresponding to the instant tax invoice from ○○ △△△, paid the price in full, made a normal transaction, and submitted evidentiary materials, the instant disposition based on the premise that the Plaintiff received the instant tax invoice without a real transaction solely on the ground that it was an enterprise accused of the fact that it was an enterprise.

(2) Although the head of Busan District Tax Office conducted a tax investigation with the Plaintiff previously conducted a tax investigation, he again conducted a tax investigation with the Plaintiff that did not have any problem with the transaction amount of the instant tax invoice, the disposition of this case is contrary to the prohibition of duplicate investigation under Article 81-4 of the Framework Act on National Taxes and Article 63-2 of the Enforcement Decree of the same Act, and is also contrary to the principle of good faith, the doctrine of advice, and the principle of base taxation.

(3) The defendant imposed a tax on June 11, 2007 on the aggregate income tax attributed to year 2001, which is illegal disposition since five years have passed since it was subject to exclusion period.

(b) Related statutes;

(Omission)

(c) Fact of recognition;

(1) On July 2, 2001, the Plaintiff deposited KRW 37,360,000 on July 2, 2001 with the purchase price, KRW 26,80,000 on July 4, 2001, and KRW 26,80,000 on January 16, 200 in the bank account (Account Number omitted) with the passbook transfer method. The Plaintiff received the corresponding tax invoice from the ○○○△△△△.

(2) The Plaintiff’s cash receipt and disbursement book is written on July 2, 2001, 63,500,000 won, and 32,500,000 won, each of which is written on July 4, 2001, in each deposit column.

(3) On January 1, 2003, 200, 000 ○○○○○ Head of ○○○ Head of 50,000 capital, purchased 214,036,000 won from ○○○○○○ Head of 20,000, and reported that ○○○○ Head of 214,036,000 won was sold to ○○○○○○ and 21,000 other companies. Such purchasing companies were recognized as data of the competent tax office’s investigation, and ○○○○○○○○ Head of 20,000 won was 9.9% (214,018,000,000 won) of 20, 30,000,000 from 20,000, 30,000,000 from 20,000,000 from 20,30,000).

(4) The Plaintiff’s employee account of ○○○○, an employee of ○○○○○○○○○○○, is transferred from the account under this subparagraph to the account of ○○○○○○○○○○○○○, from the account under this subparagraph, to the account of ○○○○○○○○○○, the representative of ○○○○○○○○’s account, and from the account of ○○○○○○○○○○○○, the sum of KRW 173,00,000,00 in total from May 26, 2001 and June 4, 2001 and June 5, 2001.

(5) The account of the Suhyup Bank in the above Kim Jong-tae was newly opened on May 17, 2001 and terminated on December 11, 2002. The above account was actually used by the Plaintiff.

(6) ○○ Bank's ○○○○ is confirmed to have received a tax invoice by processing from ○○○○ ice without a real transaction, and thus did not deduct the input tax amount.

[Reasons for Recognition] Facts without dispute, Gap evidence 4-1 through 3, Eul evidence 2, 3, Eul evidence 6-1 through 3, Eul evidence 7, Eul evidence 8-1 through 3, Eul evidence 10-1 through 3, and Eul evidence 10-3, and the purport of the whole pleadings

D. Determination

(1) Determination as to the assertion that it is a normal transaction

The burden of proving that a tax invoice is false, in principle, to the defendant who is the tax authority, the defendant must prove that the tax invoice is not accompanied by a real transaction, based on direct evidence or circumstances. If the defendant has proved to the extent that he reasonably acceptable, it is necessary to prove that the tax invoice is not false and that it is easy for the plaintiff who is the taxpayer claiming the illegality of the defendant's disposition to present relevant evidence and materials (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

According to the above facts, according to the above facts, it is difficult to clearly explain the reasons for remitting money to ○○○ Bank Co., Ltd, an employee of ○○○○○○○○○○ Co., Ltd, and the fact that the remittance of money to ○○○○○○○ Co., Ltd., was not final remittance of the money to ○○○○○○ Co., Ltd. (hereinafter “○○○○ Co., Ltd”) and the fact that the above ○○ Co., Ltd. received a false tax invoice from ○○○ Co., Ltd. and received a false tax invoice, and thus, it can be deemed that the Plaintiff actually received the tax invoice from ○○○ Co., Ltd. to the extent that it is the most false transaction, and thus, it can be deemed that the Plaintiff received the tax invoice of this case from ○○○ Co., Ltd. to the extent that the tax invoice of this case is the most false transaction.

However, the evidence No. 13 is a confirmation letter of employee ○○○○○○○○ Korea, which delivered gold to the Plaintiff through the franchising of transportation chain ○○○○○○ Korea. Even if ○○○○○○ Korea was transported through ○○○○ Korea between the Plaintiff and the Plaintiff, it is difficult to believe that the employee of the ○○○○○○○○○○○○○○○○○ corporation is memory until six years prior to the transaction between the Plaintiff and ○○○○○○○○○. The witness Kim Jong-tae’s testimony means that the Plaintiff is believed in light of the following: (a) it is difficult to recognize that the instant tax invoice was a real transaction; and (b) it is insufficient to recognize that the Plaintiff was the addressee of the deposit account under his name even though the Plaintiff did not provide the deposit account as a tea; and (c) there is no other evidence to acknowledge this differently. Therefore, it is reasonable to deem the instant tax invoice as a false tax invoice for real transactions. The Plaintiff’s assertion is without merit.

(2) Determination as to the assertion that the prohibition of duplicate investigation violates the principle of good faith, the principle of good faith, and the principle of underlying taxation

On the other hand, Article 81-4 of the Framework Act on National Taxes provides that a re-investigation shall not be conducted on the same item of tax and the same taxable period except in the case where there is clear evidence to prove the suspicion of tax evasion. According to the above facts of recognition, the South Seodaemun-gu Tax Office conducted a tax investigation to clarify whether it is a material of tax evasion from April 29, 2003 to December 31, 2005, and confirmed as a material after the completion of the tax investigation on ○○○○ through the investigation on the tax investigation on the ○○○ju-ri, and notified the Defendants of the taxation data on the Plaintiff while filing a charge of violating the Punishment of Tax Evaders Act, and accordingly, the Defendants made the disposition of this case against the Plaintiff. The investigation for the disposition of this case was conducted based on clear material to prove the suspicion of tax evasion, and thus cannot be said to violate the principle of prohibition of duplicate investigation.

In addition, the ground alleged by the plaintiff alone cannot be recognized as violating the principle of good faith and the principle of taxation based on the ground. Therefore, the plaintiff's above assertion is without merit.

(3) Judgment on the assertion that the exclusion period has expired

Article 26-2(1)1 of the Framework Act on National Taxes provides that “Where a taxpayer evades national taxes, or is subject to a refund or deduction by fraudulent or other unlawful means, it shall be ten years from the date on which national taxes can be imposed.” As seen earlier, the Plaintiff’s act constitutes a case where the Plaintiff evades national taxes by means of fraudulent or other unlawful means until ten years elapse from the date on which the Plaintiff may impose global income tax for 2001, on which the amount entered in the tax invoice was reported as necessary expenses and reduced the global income tax for 2001. Therefore, the Plaintiff’s act may be imposed until the expiration of ten years from the date on which the global income tax for 201 may be imposed, and it is clear that the head of the tax office’s disposition to correct and impose global income tax for 201 against the Plaintiff on June 11, 2007 is within the calendar ten years. Therefore, the Plaintiff’s aforementioned assertion without any grounds for the history

3. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety as it is without merit, and it is so decided as per Disposition.