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(영문) 대전고등법원 2008. 03. 27. 선고 2007누2225 판결
사실과 다른 세금계산서 매입액 중 공동구매분 인정여부[국승]
Title

Whether to recognize joint purchase portion among the purchase amount of a false tax invoice;

Summary

A joint purchase agreement between the parties asserting that they are joint buyers has not been prepared and there is no objective evidence on the evidence of payment, etc., it shall not be deemed a joint purchase.

Related statutes

Article 21 of the Value-Added Tax Act

Text

1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant revoked each disposition of value-added tax for the second period of December 7, 2000 against the plaintiff on December 7, 2005, including value-added tax 48,004,690 won and global income tax of 57,674,230 won for the second period of December 7, 200.

Reasons

1. Details of the disposition;

A. The Plaintiff, ○○○ City ○○○○○-dong 486-2, run a wholesale and retail business with the trade name “○○○ Audio”.

B. The director of ○○○ Regional Tax Office, around 2003, conducted a tax investigation with respect to ○○○○○○○○ Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”). As a result, the non-party Co., Ltd. supplied the goods of KRW 432,293,680 to the Plaintiff during the second taxable period of 200, but the non-party Co., Ltd supplied the goods of KRW 249,225,880 to the Plaintiff during the second taxable period of 200, discovered the fact that the tax invoice issued KRW 249,225,8

C. In accordance with the above notification data, the Defendant: (a) deemed that the Plaintiff failed to report the amount of KRW 232,614,00, computed by applying the total profit ratio to the amount received as non-party non-party company’s non-indicted 2 from the non-party company; and (b) on December 7, 2005, imposed upon the Plaintiff a notice of imposition of KRW 57,674,230, the global income tax for the second period portion of value-added tax of KRW 48,04,690 and the global income tax for the year 200 (hereinafter “instant taxation”).

(Evidence) Evidence No. 1, Evidence No. 2, Evidence No. 1 to No. 5 (including each number), and the purport of the whole pleadings

2. Whether the instant taxation disposition is legitimate

A. The parties' assertion

In regard to the Defendant’s assertion that the instant taxation disposition was lawful on the grounds of the instant taxation disposition and relevant statutes, the Plaintiff: (a) made a discount based on the purchase amount when the amount of the Plaintiff’s purchase was above a certain amount; (b) the Plaintiff asserted that ○○○○○○○○○○○○○○○○○○, a like company, was a joint purchase of goods from the Plaintiff Company, together with △○○○○○○○○○○○○○○○○○ (hereinafter collectively referred to as “○○○○○○○○○○○○”) operated to receive such discount benefits; (c) the Plaintiff decided to jointly purchase goods from the Plaintiff Company; (d) the purchase of goods under the name of the Plaintiff; and (e) the payment and tax invoice were settled or delivered separately from the Nonindicted Party Company; and (e) the Plaintiff did not claim that KRW 183,067,80, which was recognized to have been supplied as non-party 1,000, 300 won, 300 won and 500.

B. Relevant statutes

The entries in the attached statutes are as follows.

(c) Fact of recognition;

갑 제1호증 내지 갑 제3호증, 갑 제10호증, 을 제2호증, 을 제10호증 내지 을 제 17호증(각 가지번호 포함)의 각 기재와 제1심 증인 ○○○, △△△의 각 일부 증언에 변론 전체의 취지를 종합하면, ① ○○지방국세청장은 2003년경 소외 회사에 대한 세무조사를 실시한 결과, 소외 회사가 2000년 제2기 과세기간 중 ○○○ 및 ○○○킬러에 대하여 실제거래액을 초과하여 가공의 세금계산서를 발행한 것을 적발하여 이를 피고에게 통지한 사실, ② 이에 따라 피고는 2004. 4.경 ○○○에 대하여 매입세액 106,842,080원을 불공제하고, 위 금액을 필요경비에서 불산입하고 소득금액에 산입하여 19,076,630원의 부가가치세와 58,141,460원의 종합소득세를 부과하였으며, ○○○킬러에 대하여 매입세액 53,192,000원을 불공제하여 10,029,360원의 부가가치세를 부과한 사실, ③ ○○○은 2004. 7. 7. 피고에게 위 부가가치세 부과처분에 대하여 '소외 회사의 영업사원으로서 독립된 사업자등록을 하고 있던 ▲▲▲으로부터 정상적으로 물품을 구입하였고 단지 세금계산서만 소외 회사로부터 발행받았으므로, 위 부과처분 중 부가가치세는 인정하되 종합소득세에 대해서는 ▲▲▲에게 지급한 물품대금이 필요경비에 산입되어야 한다'고 주장하면서 가공거래가 아니라는 취지로 이의신청을 하였으나 기각되었고, 당시 위와 같은 내용의 주장 이외에 원고의 명의를 빌려 원고 등과 공동으로 소외 회사로부터 물품을 구매하였다는 내용의 주장을 하지 않은 사실, ④ □□□도 2006. 3. 27. 피고에게 '자신이 소외 회사로부터 발행받은 세금계산서는 정상적인 물품거래에 따른 것으로서 가공거래가 아니므로 자신에게 부과된 부가가치세를 취소하여 달라'는 내용의 고충청구서를 제출하였으나 고충민원 신청기간이 도과되었다는 이유로 각하되었고, 당시 위와 같은 내용의 주장 이외에 원고 등과의 공동구매 주장을 하지 않은 사실, ⑤ 소외 회사는 ○○지방국세청의 소외 회사에 대한 세무조사 당시 원고에 대한 일부 매출에 대하여 세금계산서를 발행·교부하지 않았고, ○○○과 ○○○킬러에게 매출사실 없이 가공의 세금계산서를 발행·교부하였다고 확인한 사실, ⑥ 소외 회사 대표이사 ■■■는 세무조사 뒤 원고 등에 대한 매출액 신고 누락 및 위장·가공의 세금계산서 발행 등에 따른 부가가치세 327,293,930원을 전액 납입한 사실, ⑦ 소외 회사는 이 사건 쟁점금액의 거래 당시 이를 원고에 대한 매출로 매출처원장에 기재한 사실, ⑧ 소외 회사와 원고 등과의 대금결제는 통상 물품공급 후 1개월 정도 지나 월말에 이루어졌는데, ○○○은 원고 명의로 소외 회사와 2000년 2기에 106,842,080원의 물품을 거래하였다고 주장하면서도 ○○○이 소외 회사에 지급한 금액은 2001. 1.부터 2001. 3.까지 사이에 송금한 7,000만원이 전부이고, 과세기간인 2000년 2기에 소외 회사에 지급한 물품대금이 없으며, 위 7,000만원에는 2001년 1기에 ○○○이 소외 회사와 거래한 물품대금 88,671,000원이 포함된 것으로 보이는 사실을 인정할 수 있고, 이에 반하는 듯한 갑 제5호증 내지 갑 제7호증, 갑 제12호증의 각 기재와 제1심 증인 ○○○, □□□, △△△의 각 증언 또는 일부 증언은 이를 믿기 어려우며, 갑 제4호증, 갑 제8호증 내지 갑 제10호증의 각 기재만으로는 위 인정을 뒤집기에 부족하고, 달리 반증이 없다.

D. Determination

In light of the above facts and the above acknowledged evidence, i.e., ① a request for the purchase of goods and methods of supply, whether payment is made and at the time of unpaid payment, whether there is an individual tax invoice is issued and received, and the possibility of dispute is anticipated in the course of settlement and payment of discount or sales incentive between the Plaintiff and ○○○○ or ○○○○○○○○○○○○ (hereinafter “○○○”) as well as the amount claimed to be paid to Nonparty Company for the second period of 2000 can not be confirmed as payment of goods for a taxable period. Moreover, the amount is not in accord with the key amount of this case, and it is difficult to view that the Plaintiff was jointly supplied with Nonparty Company for the pertinent taxable period due to the agreement between ○○○○ and ○○○○○○○○○ (hereinafter “○○○○”). However, it is difficult to view that the Plaintiff’s payment of goods was made in cash to the extent that there was a big difference between ○○○ and ○○○○).

Therefore, the disposition of this case, which imposed the value-added tax and the general income tax, should be deemed lawful on the ground that the Plaintiff, including the key amount of this case, was converted into the sales amount and omitted from the non-party company.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Daejeon District Court 2007Guhap1547 (2007.05)

Text

1. The plaintiff's claim is dismissed.

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

Purport of claim

The Defendant’s imposition of value-added tax of KRW 48,04,690 on December 7, 2005 and global income tax of KRW 57,674,230 on December 7, 200 against the Plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff was engaged in the Kasio wholesale and retail business with the trade name called ○○○○○○○-dong 486-2 '○○○○ Audio’.

B. Around 2003, the director of the regional tax office of ○○○○○ Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”) conducted a tax investigation with respect to Nonparty Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”) and subsequently, the non-party Co., Ltd supplied the Plaintiff the goods of KRW 432,293680 during the second taxable period of 200, but the tax invoice issued KRW 249,225,881, and omitted sales of KRW 183,067,80, and notified the Defendant of the fact of detection.

C. In accordance with the above notification data, the Defendant: (a) deemed that the Plaintiff omitted the return of KRW 232,614,00, computed by applying the total profit ratio to the amount supplied as non-party-free materials from the non-party company; and (b) on December 7, 2005, imposed upon the Plaintiff a notice of imposition of KRW 48,04,690, and KRW 57,674,230, respectively, of the global income tax for the second term portion of value-added tax for the year 200 and KRW 57,674,230 (hereinafter “instant taxation”).

[Reasons for Recognition] Each entry of Gap 1, 2, Eul 1 through 5 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In order to receive such discount benefits, the non-party company issued a joint purchase of goods from the non-party company under the name of the non-party company, i.e., ○○○○○○ and the non-party company (hereinafter referred to as “○○○○○○○○○○”) that operated the same kind of company with the trade name called “○○○○○○○○○” to receive such discount benefits, and jointly purchased goods from the non-party company under the name of the plaintiff. Of 183,067,800 won, which was recognized to have been supplied by the plaintiff as non-indicted 160,035,00 won, which was only jointly purchased under the name of the plaintiff, but actually purchased from the plaintiff ○○○ (106,842,00 won) and ○○○○○○○○○ (53,193,000 won). Thus, the part of the tax disposition in this case should be revoked on the premise that the plaintiff supplied goods from the non-party company.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) As a result, the director of the regional tax office of 003 conducted a tax investigation on the non-party company around 2003, he discovered that the non-party company issued the processed tax invoice in excess of the actual transaction amount to ○○ and ○○○○○ in the second taxable period of 2000, and notified the defendant thereof.

(2) Accordingly, on April 2004, the Defendant imposed the value-added tax of KRW 19,076,630 by deducting the input tax amount of KRW 106,842,080 from the input tax amount of KRW 106,842,080. The Defendant imposed the value-added tax of KRW 10,029,360 by deducting the input tax amount of KRW 53,192,00 from the input tax amount.

(3) On July 7, 2004, ○○ filed an objection with the Defendant to the effect that the said disposition of value-added tax was not a processed transaction since it purchased goods normally from Kim○, a business employee of the non-party company. However, it was dismissed.

(4) On March 27, 2006, prior to the operation of ○○○○○○○○○○○, submitted a petition for grievance to the Defendant to the effect that the said disposition of imposing value-added tax was not a processed transaction since the purchase of actual goods and the payment was made in full by the Nonparty Company, but was dismissed on the ground that the period of application was expired.

[Grounds for recognition] Each entry of Eul 2, 10, 15 evidence (including each number), and the purport of the whole pleading is determined.

The plaintiff purchased goods jointly with O○○ and O○○○○ in the second taxable period of 2000. Among them, it was examined whether O○○ and O○○○○○○○○○ had purchased goods equivalent to KRW 160,035,000, and the testimony of O○○○ and O○○○○○○ and O○○○○’s testimony as follows: (a) the facts of recognition under the preceding paragraph are as follows; and (b) the overall purport of the arguments is added to the facts of recognition under the above paragraph (c); (c) in other words, O○ and O○○ only asserted that they traded with the non-party company’s business employees while raising an objection against the imposition of value-added tax on each amount of joint purchase with the plaintiff; (c) the plaintiff did not make any mention as to the fact that O○○ and O○○○○○ were jointly purchased during the second taxable period of 2000, since it is difficult to recognize that the amount of purchase by O○○ was 106,84200,000, respectively.

Therefore, the instant taxation disposition is lawful.

3. Conclusion

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

public official law, order of law,

(1) The former Value-Added Tax Act (amended by Act No. 7007 of Dec. 30, 2003)

Article 6 (Supply of Goods)

(5) In selling and buying goods on consignment or through an agent, the consignor or the principal shall be deemed to have supplied or received goods directly: Provided, That the same shall not apply if the consignor or the principal is not identified.

Article 21 (Rectification)

(1) The head of a district tax office having jurisdiction over a place of business, the Commissioner of the competent Regional Tax Office or the Commissioner of the National Tax Service shall correct the tax base or tax amount payable for the taxable period

2. Where there are any mistakes or omissions in details of the final tax return;

(2) Where the head of a district tax office having jurisdiction over the place of business, the head of a district tax office having jurisdiction over the place of business or the Commissioner of the National Tax Service revises the tax base and amount of tax refund for each taxable period pursuant to paragraph (1), he/she shall correct it on the basis of tax invoices, books and other evidence:

1. Where tax invoices, books, and other evidence necessary for calculating the tax base do not exist or important parts are incomplete;

(1) The former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 18153, Dec. 30, 2003)

Article 58 (Delivery of Tax Invoice in Case of Entrusted Sales, etc.)

(2) In cases of purchase by consignment purchase or by agent, a supplier shall issue a tax invoice to the truster or a person supplied with the principal. In such cases, the registration number of the trustee or agent shall be stated additionally.

Article 69 (Method of Estimation and Revision)

(1) Estimated correction under the proviso to Article 21 (2) of the Act shall be made by the following methods:

4. Calculation method by any of the following criteria determined by the Commissioner of the National Tax Service for each type of business or each region:

(d) A sales profit ratio which determines the ratio of the sales to the gross sales profits for a specified period.

(1) The former Income Tax Act (amended by Act No. 6292 of Dec. 29, 2000)

Article 80 (Settlement and Correction)

(1) If a person who has made a final return on the tax base pursuant to Articles 70 through 72 or 74, falls under any of the following subparagraphs, the superintendent of the district tax office or the director of the regional tax office having jurisdiction over the

1. Where an omission or error exists in the contents of return;

Finally.

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