Incheon District Court 2007Guu5466 (2008.05)

The propriety of any tax invoice delivered prior to the time of supply, in a false tax invoice different from the fact

If an input tax deduction is allowed solely on the basis that the tax invoice delivered prior to the time of supply is confirmed to have been supplied and paid within the same taxable period, any inconsistency in the refund occurs even if the tax invoice is issued after the time of supply, unlike the case where the tax invoice is delivered to the purchaser.

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

Article 3 (Taxable Period)

Article 9 (Transaction Time of Value-Added Tax Act)

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition rejecting an application for refund of value-added tax of KRW 44,091,00 for the first term portion of 2006 against the Plaintiff on June 8, 2006 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On March 2, 2006, the Plaintiff entered into a contract with ○○ General Construction Co., Ltd. (hereinafter “○○ General Construction”) under which the said ○ General Construction Co., Ltd. newly built two-story factories (hereinafter “the instant building”) on the ○○○○○-dong, Incheon ○○○○-2 and two lots of land (hereinafter “the instant building”) by May 10, 2006 (hereinafter “the instant construction”).

B. On March 2, 2006, the Plaintiff received respectively a tax invoice (value of KRW 20,000,000) prepared on March 2, 2006 from ○○ Comprehensive Construction Co., Ltd. (hereinafter “○○ Comprehensive Construction”) and a tax invoice (value of KRW 530,000,000; hereinafter “instant tax invoice”) prepared on March 31, 2006 from the above ○ Comprehensive Construction, and filed an application for refund of value-added tax amount of KRW 55,00,000 on the aggregate of supply values of the said tax invoice with the Defendant on April 25, 2006.

C. On June 8, 2006, the Defendant decided to deduct the input tax amount for KRW 45,100,000,000, out of KRW 530,000 of the supply value of the instant tax invoice, as the tax invoice issued before the time of supply, and instead constitutes a false tax invoice issued before the time of supply. As such, the Defendant decided to refund the input tax amount for KRW 45,100,000, out of KRW 55,000,000, which was reported by the Plaintiff, and to deduct the input tax amount for KRW 9,90,000.

D. After being notified of the above decision on June 12, 2006, the Plaintiff filed an objection, and thereafter, the Defendant rendered a re-inspection on September 1, 2006 and decided to correct the decision after confirming on the place of refund. As a result, on December 14, 2006, with respect to the Plaintiff, the Plaintiff decided to deduct the input tax amount on the ground that the tax invoice (the supply price of KRW 20,000,000) received from ○○ Construction was actually traded by considering the construction contract, construction renunciation, and deposit sheet, etc., and the Plaintiff did not receive the above tax invoice on March 31, 2006, since the portion of the tax invoice received from ○○ Integrated Construction (the supply price of KRW 530,000,000,000, excluding the price of KRW 530,000,0000,0000, which was issued on March 31, 2006.

E. On March 12, 2007, the Plaintiff filed an appeal on March 12, 2007 after the filing of the above objection, and the National Tax Tribunal decided to deduct the input tax amount of KRW 120,00,000 (the supply price of KRW 109,090,90, and the supply price of KRW 10,909,09,090) which is confirmed to have been paid as construction cost by March 31, 2006, as the issue date of the instant tax invoice, as a legitimate tax invoice, from the input tax amount of KRW 10,909,00,000 (the input tax amount of KRW 10,90,09,000). Accordingly, the Defendant issued an additional disposition to deduct the input tax amount of KRW 1,009,000 from the original input tax amount of KRW 100,000,000 in accordance with the above determination of the determination of the input tax amount of KRW 1,009,000.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1 to 7, Eul evidence 2 to 10, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

(1) The plaintiff's assertion

Although the tax invoice of this case is prepared prior to the actual date of supply and the actual date of supply are different, if the actual transaction is confirmed within the same taxable period, the tax invoice of this case constitutes a legitimate tax invoice, as it constitutes a case where transaction is confirmed in view of the fact that the tax invoice under Article 60 (2) 2 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 19892, Feb. 28, 2007; Presidential Decree No. hereinafter referred to as the "Enforcement Decree of the Act")

(2) The defendant's assertion

Unlike Article 9 (3) of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006; hereinafter referred to as the "Act") and Article 60 (2) 3 of the Enforcement Decree of the Act, with respect to the construction price paid after March 31, 2006, which is different from the actual time of supply for the service (the date of actual completion of the building of this case) and the date of March 31, 2006, the tax invoice of this case was prepared before the time of supply for the service, and thus, it is legitimate to make the disposition of this case since the tax invoice of this case was prepared before March 31, 2006, which constitutes a tax invoice differently from the fact, and thus, it does not constitute a tax invoice of tax invoice of Article 17 (2) 1-2 of the Act.

B. Relevant statutes

Article 3 (Taxable Period)

Article 9 (Transaction Time of Value-Added Tax Act)

(c) Fact of recognition;

(1) On January 6, 2006, the Plaintiff concluded a contract for the instant construction with ○○ General Construction and the instant construction. However, on March 2, 2006, 2006, the Plaintiff paid KRW 20,000,000 for construction cost, and received a tax invoice (value of KRW 20,000,000) from the said ○ General Construction, and waived the instant construction on the same day.

(2) On March 2, 2006, the Plaintiff entered into the instant contract with the ○○ General Construction Division. On March 2, 2006, the date of the commencement of the instant construction works, March 2, 2006, the date of completion of the completion of the construction works, May 10, 2006, the construction cost corresponding to the completed portion of KRW 880,000 (including value-added tax) and the completed portion was paid once a month. On April 30, 206, the Plaintiff agreed to KRW 700,000 as the interior office and interior office of the instant building were revoked, and the entire construction period for the instant building is from January 12, 2006 to May 30, 2006, and the date of completion of the construction approval is May 3, 2006.

(3) The Plaintiff paid ○○ General Construction KRW 10,00,000 on March 14, 2006, KRW 20,000 on the same month, KRW 20,000 on the 20th of the same month, KRW 40,000 on the 32th of the same month, KRW 50,000 on the 30th of the same month, KRW 00,000 on the 30th of the same month, and KRW 10,000 on the 5th of April of the same year, KRW 300,000 on the 117th of the same month, and KRW 50,000,00 on the 17th of the same month, respectively.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 5, Eul evidence No. 1-4, 5-5, the purport of the whole pleadings

D. Determination

(1) According to Article 16(1) of the Act, where an entrepreneur registered as a taxpayer supplies goods or services, an invoice stating the registration number, name or title, registration number, supply price and value-added tax of the supplier, preparation date (hereinafter “necessary entry”) and other matters prescribed by the Presidential Decree (Article 53(1) of the Enforcement Decree of the Act refers to the address of the supplier, trade name and address of the supplier, the person who receives the goods, the trade name and address, the type of the supplier, the type and type of the supplied goods, the unit price and quantity, the supply date, the kind of the transaction, and the kind of the transaction) shall be delivered to the person who receives the goods or services. Article 9(2) and (3) of the Act provides that where the services are provided or the goods, facilities, or rights are used at the time of the supply, the delivery of the tax invoice shall be deemed the time of the service delivery.

(2) Meanwhile, according to Article 17 (2) 1-2 of the Act, in a case where a tax invoice under Article 16 (1) of the Act is not delivered, or where the whole or part of the items to be entered under Article 16 (1) 1 through 4 is not entered or entered differently from the fact on the delivered tax invoice, the input tax amount shall not be deducted, but in a case where the whole or part of the items to be entered under Article 16 (1) 1 through 4 is not entered or entered differently from the fact, and as prescribed by the Presidential Decree, each item of Article 60 (2) 2 and 3 of the Enforcement Decree of the Act provides that the input tax amount may be deducted from the output tax amount in a case where a part of the requisite entry items of the tax invoice delivered under Article 16 (1) of the Act are entered by mistake in the law, but the transaction is confirmed by considering it as the other requisite entry items or discretionary entry items in the relevant tax invoice, and the tax invoice

(3) As to the instant case, since the instant tax invoice is included in the supply price to the portion for which the price is not paid due to the lack of the supply, it shall be deemed that the supply price and value-added tax, which are the necessary entry items under Article 16(1) of the Act, are entered differently from the fact. As can be seen, if an input tax amount is to be deducted by the instant tax invoice that is delivered without payment prior to the actual time of supply for the service, there must be the grounds under Article 60(2)2 and 3 of the Enforcement Decree of the Act. First, it is clear that the instant tax invoice was delivered prior to

(4) On the other hand, if the tax invoice of this case falls under a case where there is a reason under Article 60(2)2 of the Enforcement Decree of the Act, part of the requisite entry of the tax invoice must be the case where the necessary entry of the tax invoice is mistakenly entered. There is no evidence to acknowledge that the requisite entry of the tax account of this case was entered by mistake. Rather, according to each of the above evidence, the plaintiff is found to have received the tax invoice of this case, including the supply price, even if he intends to receive a refund prior to the payment of the construction price and has not yet paid the price, and thus,

(5) Accordingly, the Plaintiff asserts that, even if a tax invoice was formulated differently from the time of supply for goods or services, insofar as it was made within the same taxable period as the time of supply for goods or services, the mutual verification function as a tax invoice and the legal principles of the value-added tax system should be undermined, and that such circumstance does not vary depending on whether the tax invoice was made before the time of supply for goods or services or whether it was made after the time of supply for goods or services. As such, as in the case of a tax invoice made after the time of supply for goods or services, it shall be treated as a legitimate tax invoice under Article 60 (2) 3 of the Enforcement Decree of the Act, if transaction is confirmed even in the case of a tax invoice made before the time of supply for goods or services, it shall be

Therefore, a tax invoice is a documentary evidence to determine value-added tax, which is issued and delivered at the time of transaction, not only to guarantee the truth of the documentary evidence, but also the current VAT system adopting the pre-stage tax credit law has the function of mutual verification between taxpayers that facilitate the circulation of income tax and corporate tax as well as value-added tax by exposing transactions between the parties concerned. Therefore, a tax invoice prepared and issued differently from the actual time of supply should, in principle, deny the deduction of the input tax amount, unless there is any reason prescribed in Article 54 of the Enforcement Decree of the Act. However, Article 60 (2) 3 of the Enforcement Decree of the Act permits the deduction of the input tax amount if a tax invoice delivered after the time of supply for the service is delivered to the seller, even if the tax invoice is delivered within the taxable period to which the time of supply belongs, and in such a case, the purchaser is obliged to pay additional tax pursuant to Article 22 (4) 1 of the Act and Article 70-3 (4) of the Enforcement Decree of the Act.

On the other hand, in the case of this case, even if a tax invoice was issued prior to the time of supply, there is no provision that deducts the input tax amount as above, and there is no need to protect the purchaser, and if an input tax amount is allowed solely on the basis that the tax invoice delivered prior to the time of supply was confirmed to have been supplied and paid within the same taxable period, it would result in guaranteeing that the purchaser would enjoy unfair benefits that are being refunded in advance even if the tax invoice was issued after the time of supply and the price was not paid to the purchaser, even if the actual transaction was confirmed within the same taxable period, it shall not be treated equally as the case where the time of issuance of the tax invoice is prior to the time of supply and the subsequent case

(6) Therefore, since the portion of supply value of KRW 410,00,000 in the tax invoice of this case is the husband and wife who is different from the fact, the deduction of input tax amount should be denied, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance, which has different conclusions, shall be revoked, and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.