(영문) 부산고등법원 2006. 11. 10. 선고 2004누4512 판결

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글꼴

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(영문) 부산고등법원 2006. 11. 10. 선고 2004누4512 판결

영세율 적용여부[국패]

Title

Application of zero Tax Rate

Summary

The zero tax rate shall apply even if the goods were supplied at the zero rate under the defective purchase approval.

Related statutes

Article 11 (Application of Value-Added Tax Act)

Article 24 of the Enforcement Decree of the Tax Act

Text

1. The defendant's appeal is dismissed.

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

Reasons

1. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged by Gap evidence 1, evidence 3-1, evidence 3-1, 2, 3, and evidence 4-1, 2, 3, Eul evidence 1, 2-1, 3-5, and Eul evidence 3-1 through 5.

A. From July 24, 1998 to September 29, 1998, ○○○○○ (hereinafter referred to as “○○○”) Co., Ltd. (hereinafter referred to as “the Plaintiff”) sold a total of 104 km (hereinafter referred to as “the above transaction”) three times in total to ○○○○○ (hereinafter referred to as “○○○○”) (hereinafter referred to as “the above transaction”) as a corporation engaging in the sales of metal and non-metallic minerals, which was incorporated into the Plaintiff on April 1, 199 and completed the registration on the 2nd of the same month.

B. At the time of the above transaction, the ○○○○○○○ presented to the Plaintiff a written approval for purchase of goods for foreign exchange earnings (hereinafter “written approval for purchase”), which is issued by the head of the ○○○○○ Bank, the head of the ○○○○○ Bank. For this reason, the Plaintiff deemed that the above transaction constitutes a transaction subject to zero tax rate under the Value-Added Tax Act, and thus, did not report or pay the value-added tax under the above transaction to the Defendant as well as did not collect

C. However, the Defendant, on April 4, 2002, deemed that the zero-rate tax rate under the Value-Added Tax Act cannot be applied to the Plaintiff’s above transaction on the ground that ○○○○○○ was issued by a false export contract, and thus, it does not constitute a lawful and effective purchase approval, and instead, ○○○○ was used for the initial purpose and purpose of internal waters, which was approved for the purchase of goods supplied through the above transaction, currently for foreign exchange earnings. Even if ○○○○ paid a little attention at the time of the above transaction, it was known that the Plaintiff’s failure to meet the requirements for issuance as above, and the situation that ○○○○ would be used for the purpose and purpose of internal waters. Accordingly, on the ground that the zero-rate tax rate under the Value-Added Tax Act cannot be applied to the Plaintiff’s above transaction, which was calculated on April 4, 2002 with respect to the second period of value-added tax for the year 121,271,49,36,481,652,949.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The above purchase approval letter presented to the Plaintiff by ○○○○○○ is a legitimate purchase approval letter issued by the head of the above ○○○ Bank, as alleged by the Defendant. Even if there is a defect in the procedure of issuing the above purchase approval, the zero tax rate under the Value-Added Tax Act is naturally applied to the head of the ○○ Bank that issued the above purchase approval letter, separate from the imposition of sanctions under the relevant Acts and subordinate statutes, the Plaintiff’s sales of the goods for which the above purchase approval letter was issued and submitted cannot be excluded from the application of zero-rate tax under the Value-Added Tax Act. Even if the goods are converted for domestic purposes different from the original purpose and purpose of the purchase approval after the supply transaction is made through the submission of the purchase approval letter, the above purchase approval letter is still subject to zero-rate tax rate under the Value-Added Tax Act, so long as the above transaction was made through the submission of the above purchase approval letter and its present supply was made, and thus, it is against the principle of no taxation without law, which prohibits the Plaintiff from applying the above purchase approval letter.

(b) Related statutes;

○ Application of zero Tax Article 11 of the Value-Added Tax Act

(1) The zero tax rates shall apply to the supply of the following goods or services:

1. Exported goods;

Article 24 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 16661 of Dec. 31, 199) Scope of export

(1) The export provided for in Article 11 (1) 1 of the Act shall be a shipment of domestic goods (including the fishery products collected by Korean vessels) from a foreign country.

(2) Goods exported under Article 11 (1) 1 of the Act shall include the goods supplied by an entrepreneur through a local letter of credit and a purchase approval as prescribed by the Foreign Trade Act.

Article 9-2 of the Enforcement Rule of the Value-Added Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 133 of March 31, 200) Scope of local letters of credit, etc.

(1) "Local letter of credit" in subparagraph 24 (2) 1 of the Decree and Article 26 (1) 2-2 of the Decree means a letter of credit which the head of ○○ Bank issues at the request of the relevant business operator, where the business operator intends to be supplied with raw materials, finished products, or exported goods for export in the Republic of Korea, within 20 days after the end of the taxable period in which the time of supply for goods or services belongs

(2) "Approval for purchase" in Article 24 (2) 1 of the Decree and Article 26 (1) 2-2 of the Decree means an approval issued by the head of ○○ Bank within 20 days after the end of the taxable period in which the goods or services are supplied in accordance with the local letter of credit referred to in paragraph (1).

C. Determination

(1) whether the supply of goods under a defective purchase authorization is subject to the zero-rate tax rate

(가) 앞서 든 각 증거에 변론 전체의 취지를 종합하면, 대외무역법관련규정 제4-2-7조는 ○○○은행의 장은 수출신용장, 수출계약서, 외화매입(예치)증명서, 내국신용장, 구매승인서 서류, 대외무역법시행령에 의한 외화획득에 제공되는 물품을 생산하기 위한 경우임을 증명하는 서류에 의하여 구매승인서를 발급할 수 있고, 구매승인서를 발급받고자 하는 자는 외화획득용 원료(물품) 구매승인신청서 3부에 위 서류 1부 및 외화획득용 물품 공급계약서 또는 물품매도확약서 1부를 첨부하여 ○○○은행의 장에게 신청하도록 규정하고 있는 사실, 그런데 ○○○○○가 실제로 존재하지 않는 ㅇㅇ Co. Ltd.와의 수출계약서를 주식회사 ○○○○은행 ㅇㅇㅇ지점장에게 제시한 다음 주식회사 ○○○○은행장으로부터 이사건 구매승인서를 발급받아 그 구매승인서에 의하여 이사건 거래를 한 사실을 인정할 수 있으므로, 위 인정사실에 의하면 원고가 ○○○○○에게 지금을 공급하면서 제출받은 이 사건 구매승인서는 ○○○은행의 장이 발행한 것이기는 하나, 허위의 수출계약서에 의하여 발급된 것으로 그 발급절차에 하자가 있다 할 것이다.

(B) However, the issue of whether the head of ○○ Bank who issued a letter of approval for the purchase that has any defect in the process of issuing the letter of approval can revoke the letter of approval (the above letter of approval for purchase cannot be deemed null and void as a matter of course only because of the above defect in the process of issuing the letter of approval for purchase). Unless there are special circumstances such as that the supplier of the goods knows that there is a defect in issuing the letter of approval for purchase, the supply of the goods by the letter of approval for purchase can not be immediately excluded from zero-rate tax rate under the Value-Added Tax Act, and the plaintiff cannot be seen as having known that there was a defect in issuing the above letter of approval for purchase. Thus, the plaintiff's argument on this point is with merit.

(2) Whether the goods specified in the purchase approval can qualify for the zero tax rate although the goods are actually exported.

The Value-Added Tax Act does not require that the goods supplied for the purpose of being subject to zero tax rate under the Value-Added Tax Act should be actually exported, and even under the General Rule 11-24-9 of the Value-Added Tax Act, the zero tax rate shall apply regardless of whether the goods are used for export purposes after the goods were supplied. Thus, the issue of whether the goods supplied to ○○○○○○ is actually exported shall not affect the application of zero-rate tax rate to the Plaintiff. Thus, even if ○○○○○ does not actually export the current or its processed goods, the Plaintiff’s instant supply act cannot be deemed to be excluded from zero-rate tax rate. Thus, the Plaintiff’s assertion on this part is justified.

(3) Whether there was a bona fide transaction

(A) The defendant was aware of the situation of the gold-related industry at the time of the plaintiff's sale in large volume. In the case of a purchase approval, the defendant was aware of the fact that ○○○○○ at the time of the above transaction was not an exporter, and that it was not actually issued because the documents and number column were omitted in the purchase approval, and even if the plaintiff did not know that the above purchase approval procedure was defective, in light of the above circumstances, the plaintiff could have sufficiently known that the above purchase approval was not actually issued, and even if he did not know that the above purchase approval procedure was defective, he did not perform his duty of due care, such as checking the authenticity of the above purchase approval at the same point of ○○○○○ Bank, which is the issuing place, and thus, he is not a bona fide trading party, and therefore, he asserts that it is not a bona fide trading party.

However, it is not sufficient to recognize that the Plaintiff knew that there was a defect in the procedure for issuing the above purchase authorization submitted by ○○○○○○○○, on the sole basis of the descriptions of the evidence Nos. 1, 2, 3, and 6-1, 2, 3 of the evidence Nos. 4-1, 6-2, 3, and 8-1 through 5 of the evidence Nos. 8-2, 3-1, 2, and 3 of the evidence Nos. 4-2, and there is no other evidence to acknowledge otherwise, and there is no provision to exclude the supplier who did not know of the defect in the purchase authorization under the Value-Added Tax-Adde

D. Sub-committee

As seen above, the instant disposition, which did not apply zero tax rate, is unlawful, unless it is found that the above transaction was excluded from the zero tax rate.

3. Conclusion

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

Value-Added Tax Calculation

Classification

Original Declarations

Disposition of this case

Increased or decreased shares

Jinay

(1) Taxable sales.

173,837,790,740

175,050,505,710

1,212,714,970

(2) The zero-rate sales.

758,169,758,204