Plaintiff (Attorney Kim Young-soo et al., Counsel for the plaintiff-appellant)

Sejong District Tax Office (Law Firm Dolle, Attorneys Gyeong-gi et al., Counsel for the plaintiff-appellant)

July 22, 2008

1. The Defendant’s imposition disposition of KRW 329,919,280 against the Plaintiff on October 4, 2005 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Five minutes of the lawsuit are assessed against the defendant, and the remainder is assessed against the plaintiff.

The disposition of imposition of value-added tax for the first term of 2004 against the plaintiff on October 4, 2005 and the disposition of imposition of value-added tax for the second term of 2004 shall be revoked, respectively.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by adding up the whole purport of pleadings to the entries in Gap evidence 1-1-3, Gap evidence 2, Gap evidence 3-1-35, Eul evidence 1-3, and Eul evidence 1-3:

A. The plaintiff between February 12, 2004 and December 31, 2004, the non-party 1 corporation (Seoul Jongno-gu 4 omitted number 1 omitted, the representative director 9), the non-party 10 corporation (Seoul Jongno-gu 12 omitted number 2 omitted, the representative director non-party 13 corporation (Seoul Jongno-gu 4 omitted number 3 omitted, the representative director non-party 8), the non-party 6 corporation (Seoul Jongno-gu 4 omitted number 4 omitted, the non-party 14), the non-party 15 corporation (Seoul Jongno-gu 4 omitted number 5 omitted, the non-party 16 representative director, the non-party 15 corporation (Seoul Jongno-gu 10k 6 omitted, the non-party 18 representative director), the non-party 19 corporation representative director of the non-party 19 corporation (Seoul Jongno-gu 19 corporation) and the non-party 28 corporation's purchase tax invoice "the non-party 210 corporation and the non-party 217 corporation" omitted.

B. After conducting an investigation into the tax offense against the Plaintiff (hereinafter “instant investigation”), the director of the Seoul Regional Tax Office: (a) assessed the instant tax invoice as a false tax invoice; and (b) notified the Defendant of the relevant taxation data; (c) notified the Defendant of the relevant tax invoice as follows; (d) deducted the input tax amount pursuant to the instant tax invoice; and (e) on October 4, 2005, by applying the corporate tax not paid, the Plaintiff notified the Plaintiff of the correction of the value-added tax of KRW 1,407,05,670 for the first period portion of value-added tax for the year 2004, KRW 106,485,820 for the second period of value-added tax for the year 2004, KRW 329,919,280 for the corporate tax of KRW 329,919 (including KRW 331,636,458 for the lack of evidence collection).

본문내 포함된 표 과세기분 과세표준 매출세액 ① 매입세액 ② 차가감계 ③ (① - ②) 가산세 ④ 기납부세액 ⑤ 고지(환급)세액 (③ + ④ - ⑤) 2004. 제1기 (당초) 12,534,096,771 227,892,200 1,242,188,776 -1,014,296,576 ？ ？ -1,014,296,576 2004. 제1기 (경정) 10,255,174,771 ？ 1,393,576 -1,393,576 394,102,678 -1,014,296,576 1,407,005,678 2004. 제2기 (당초) 5,354,433,367 43,308,000 537,960,388 -494,652,388 ？ ？ -432,377 2004. 제2기 (경정) 4,921,353,367 ？ 1,282,188 -1,282,188 107,335,640 -432,377 106,485,829

(Unit: Won)

본문내 포함된 표 ？ 수익금액 과세표준 산출세액 ① 가산세 ② 공제세액 ③ 자진납부세액 ④ 고지세액 (① + ② - ③ - ④ ) 당초신고 16,513,019 16,513,019 2,476,952 5,278 35,440 ？ 2,482,230 경정내역 5,100,399 5,100,399 765,059 331,636,458 35,440 2,446,790 329,919,287

C. On November 15, 2005, the Plaintiff filed an appeal with the National Tax Tribunal on the instant disposition. On August 11, 2006, the National Tax Tribunal dismissed the Plaintiff’s appeal.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, as stated in the instant tax invoice, has actually purchased and settled the transaction price from each purchaser, and this is confirmed by the Plaintiff’s bank transaction details and the Plaintiff’s certificate of sale of goods. Therefore, the instant disposition that the Defendant reported otherwise is unlawful.

(b) Related statutes;

[Valued Tax]

Article 17 (Payable Tax Amount) (2) The following input tax amounts shall not be deducted from the output tax amount:

1-2. The input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as “necessary entry items”) is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be excluded;

[former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006)]

Article 76 (Additional Tax)

(5) In case where a corporation (excluding such corporation as prescribed by the Presidential Decree) is supplied goods or services with an entrepreneur as prescribed by the Presidential Decree in connection with its business and fails to receive the evidential documents falling under any of subparagraphs of Article 116 (2), the chief of the district tax office having jurisdiction over the place of tax payment shall collect the amount calculated by adding an amount equivalent to 2/100 of the amount not received as corporate tax, except for the case where the proviso of the

Article 116 (Receipt and Safekeeping of Documentary Evidence of Expenditures)

(1) A corporation shall prepare or receive documentary evidence for all business-related transactions for each business year and keep them for 5 years from the date on which the time limit for report under the provisions of Article 60 expires.

(2) In the case of paragraph (1), where any corporation receives goods or services from a business operator prescribed by the Presidential Decree and pays the price thereof, it shall receive and keep the evidential documents falling under any of the following subparagraphs: Provided, That the same shall not apply to the cases prescribed by

2. Tax invoice under Article 16 of the Value-Added Tax Act;

(c) Fact of recognition;

In light of each evidence mentioned above, Gap evidence 4-1 through 10, Eul evidence 5-1 through 4, Eul evidence 10-1 through 17, Eul evidence 11-1 through 11, Gap evidence 13-1 through 7, Eul evidence 14-1 through 3, Eul evidence 2-1 through 3, Eul evidence 3-1 through 45, Eul evidence 4-1 through 5, Eul evidence 5-1 through 45, Eul evidence 6-1 through 20, Eul evidence 7-1 through 3, Eul evidence 1 through 14, Eul evidence 1 through 13, Eul evidence 14-1 through 10-13, evidence 14-1 through 3, evidence 5-1 through 45, evidence 5-1 through 45, evidence 5-1 through 5-20, evidence 5-1 to 3-13, evidence 1-1 through 14, evidence 1-1 and 3-1 of the whole evidence.

(1) A general form, etc. of an irregular gold bullion transaction for the purpose of evading tax;

A) According to Article 11(1)1 of the Value-Added Tax Act, the supply of exported goods is subject to zero-rate tax rate. In addition, according to Article 24(2)1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827, Dec. 30, 2002; hereinafter the same shall apply from July 1, 2003), the goods supplied by an entrepreneur under a purchase certificate are also included in “exported goods” and gold bullion is not exception. Thus, the gold bullion importer, etc. may also be exempted from zero-rate tax rate even in cases where the gold bullion is supplied by an importer of foreign exchange with a purchase certificate issued by an importer of foreign exchange based on the export-related documents. According to Article 11(1)1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827, Dec. 11, 2002; hereinafter the same shall apply) and Article 106-3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 137, Dec. 137, 20, 2008, etc.

B) By abusing the zero-rate or zero-rate tax exemption system as above, gold bullion imported and distributed them through multiple stages of wholesalers, and then through zero-rate or zero-rate tax exemption. The so-called “large Carbon Business” is converted into the so-called “large Carbon Business” (a business with no economic ability and closing its business with the intention of tax evasion, which is not a “large Carbon Business”) and then distributed it through multiple stages of wholesalers, and then exports the value-added tax. In other words, the “large Carbon Business” is exempted from the value-added tax collected through transactions, and the exporters are limited among the precious metal business located in Jongno-gu Seoul. In particular, from around 2002, the so-called “large Carbon Business” in the form of “large Carbon Business”, which is subject to the value-added tax exemption system, is more detailed as follows.

(1) In appearance, gold bullion is distributed through the stages of “foreign companies ? importer ? duty-free wholesale companies ? ? Tax-free wholesale companies ? Tax-free wholesale companies ? ? Tax-free wholesale companies ? ? Tax-free wholesale companies ? ? Export companies ? Foreign companies ? The transaction amount is paid in sequence from the export company to the import company in the reverse direction, but in particular, taxation wholesalers are only to issue tax invoices according to the orders of specific persons or specific companies, and they do not actually trade or transport gold bullion.

B. The Plaintiff purchased gold bullion as tax-free gold and sold it as tax-free gold, and then evaded the value-added tax by fully withdrawing, concealing, and closing its profits within a short period. The Plaintiff sold gold bullion with the supply price lower than the purchase price. However, the value-added tax added to the value-added tax is higher than the purchase price, and the value-added tax collected is not paid. As such, the amount of value-added tax collected by the “large Carbon Business” would be a substantial difference between the supply price and the purchase price. On the other hand, the value-added tax collected by each company in the following stages using the tax invoice delivered by each company in the immediately preceding stage to deduct the input tax amount. Accordingly, the exporter’s export price is to be refunded from the State in accordance with the zero-rate tax rate after its export. Accordingly, the Plaintiff’s considerable portion of the value-added tax, which was not paid by the “large Carbon Business”, becomes the ultimate source of profit from the “large Carbon Business,” which is the final amount of profit paid by each domestic company in the import price, which is distributed to the foreign company, or paid to the new ratio.

(1) In order to maximize profits, a trade name: (1) most of the same states (referring to a person who prepares for the import fund of the first gold bullion from the outside of the heavy carbon business network) operate both the exporting company and the importing company at the same time; and (2) the former state shall place the company substantially controlled or trusted by it in direct transaction with the "large Carbon Company"; and (3) the former state shall determine the volume of the trade, unit price, and margin of the trade at each stage of trade; (4) the series of trade from the importing company to the exporting company is made at a very short time, and (5) the gold bullion is transported immediately with the exporting company by cutting off the trading stage (limited to the formal transport for the purpose of normal trade even if it is transported every stage of trade).

C) If the head of the competent tax office deems it necessary to preserve the value-added tax as a result of the amendment of the Restriction of Special Taxation Act by Act No. 7322 on December 31, 2004 in order to prevent tax evasion by the above methods, the security system was newly established and enforced on April 1, 2005 (Article 106-3(11)) to ensure that gold bullion wholesalers, etc. and gold bullion business operators may demand the provision of security (Article 106-3(11)). Since April 1, 2004, gold bullion import amount was 268 tons, export volume was 233 tons, which was 56 tons of import volume and 19 tons of export volume.

2) History, etc. of the Plaintiff Company and the representative director

A) On February 12, 2004, the Plaintiff was established as KRW 100 million in capital, Jongno-gu Seoul, Jongno-gu, Seoul, the area where precious metal companies are densely located for the purpose of manufacturing gold bullion, such as gold inging, inging, and inging and selling wholesale. Nonparty 2, the representative director of the register of shareholders, was registered as KRW 45 million in the register of shareholders, Nonparty 23, the auditor, KRW 30 million in the register of shareholders, and Nonparty 24, the director, KRW 45% in the number of Nonparty 2, Nonparty 23, and Nonparty 25 million in the register of shareholders, respectively, and registered as holding the Plaintiff’s shares at KRW 25% in the register of shareholders.

B) The Plaintiff used approximately 12 square meters for rent deposit amounting to KRW 10 million and monthly rent of KRW 10 million as its principal office. The parties to the above lease agreement are Nonparty 25, the representative director of the non-party 11 corporation in the external relationship with the non-party 2. The non-party 25 worked for the non-party 25 to sell precious metals on precious metal retail to the local ( Daejeon, Gwangju) precious metal retail market (Seoul), the non-party 26 on January 30, 200, after acquiring about 12 square meters from the non-party 26 to the non-party 27 corporation located in the non-party 11 corporation, and changing its trade name to the non-party 11 corporation until now.

C) Meanwhile, Nonparty 2, the representative director of the Plaintiff, graduated from the Seoul University economics division around 1987. From September 25, 2002 to December 31, 2004, Nonparty 2, the representative director of the Plaintiff, was registered as the representative of Nonparty 70 company located in the Gangnam-gu Seoul Metropolitan Government (number 10 omitted), and was directly operated with one employee. Nonparty 2, the representative director of the Plaintiff, had no experience of engaging in the current business or trade business until he was appointed as the representative director. At the time of incorporation of the Plaintiff Company, the bank’s obligations amount to KRW 130 million.

3) Specific details of the instant gold bullion transaction, etc.

A) According to the flow and remittance of the tax invoice, the Plaintiff purchased the tax invoice in attached Form 1: attached Form 1: (a) more than 35 times, such as the details of purchase and sales tax invoice; and (b) processed it in the form of golding (only one transaction exported to Nonparty 7 located in Hong Kong on September 3, 2004) as it is or in the form of golding (only one transaction exported to Nonparty 7), and sold it to Nonparty 28 and Nonparty 29, a domestic company, or exported it to Nonparty 30 (detailed name omitted) or Nonparty 7 (detailed name omitted) located in Hong Kong on 10 occasions.

B) Examining the specific details of transactions, on March 8, 2004, the Plaintiff purchased 20km from Non-Party 10 Co., Ltd. 289,060,000 won and sold it to Non-Party 28 Co., Ltd. 291,240,000 won on the same day. On the same day, wholesale prices have reached KRW 314,665,880 on 20km, and the Plaintiff purchased 26 km in total from Non-Party 19 Co., Ltd. 384,106,580 won (295,46,600 + KRW 88,46,600) and sold it to Non-Party 288,50 won on the same day at 385,500 won on the same day, and then sold it to 385,502,500 won on the same day on the same day at 200 785,619,5777,200.

C) On September 2, 2004, the Plaintiff purchased 100 km from Nonparty 3 Co., Ltd. in the form of gold 1,530,667,00, and processed it in the form of gold ging, and then exported to Nonparty 7 located in Hong Kong on the 3th of the same month following that day. The export price was KRW 1,495,54,000, which was below the above purchase price, and the wholesale ging price was KRW 1,626,62,60 on the same day.

D) On June 22, 2004 and June 23, 2004, the Plaintiff purchased an amount equivalent to KRW 219,789,000 in total from the non-party 11 corporation, and sold it again to the non-party 11 corporation in KRW 220,80,000 on the 28th of the same month as it is. At the time of the sale, the wholesale market tax at this time was 238,39,404 won.

E) At the time of each of the above transactions, the Plaintiff traded only by telephone without delivering the other party to the transaction. The Plaintiff’s promise to sell goods was sent and received by facsimile. The 35 purchase and the 10 promise was made out of the above 10 domestic sales were made on March 8, 2004 (2) and the 18th day of the same month, the 19th day of the same month, the 23th day of the same month with Nonparty 21 on April 30, 2004, the purchase and sale with Nonparty 21 on May 6, 2004, the 10th day of the same month, the 10th day of the same month, the 3rd day of the transaction with Nonparty 1 on May 27, 2004, the 10th day of the same month, and the 20th day of the same month and the 10th day of the same 20th day of the same month and the 20th day of the same 20th day and 14th day of the same month.

However, in relation to the purchase transaction with the non-party 1 corporation on May 6, 2004 among the letter of promise to sell the above goods, the fax that the non-party 1 corporation sent to the plaintiff with the purport of approving the plaintiff's request for purchase (the Eul evidence 4-7), the seller's name and seal impression are affixed to the purchaser's column with the blank, and the present delivery date is also written on May 4, 2004.

F) At the time of each of the above transactions, the Plaintiff settled the transaction price with the Internet Bank, and compared the above purchase and sale transactions on March 8, 2004, the above tax invoice was purchased from the non-party 19 company on March 8, 2004 and sold to the non-party 28 company on the same day. The bank transaction details were transferred to the non-party 19 company on March 8, 2004 on the 320 million won to the non-party 19 company, and the non-party 28 company deposited 324,052,200 won to the plaintiff on the 9th day of that month, and again, the plaintiff purchased 97,504,578 won from the non-party 19 company on the same day on the 30th day on the 19th day on the 19th day on the 30th day on the 19th day on the 20th day on the 30th day on the 19th day on the 20th day.

G) The Plaintiff entrusted the foreign carriage of the goods for export to Nonparty 32 limited liability companies, and the domestic carriage was requested to Nonparty 33 stock companies. The copies of the transportation invoice kept by Nonparty 3 are included in total of 11 copies, but the transportation schedule is not indicated in total of 6 copies among the 11 copies of the transportation invoice kept by the Plaintiff, but the transportation schedule is not indicated in total of 11 copies of the transportation invoice kept by the Plaintiff, and the place of receiving the goods is Nonparty 28

4) Details, etc. of transactions at the Plaintiff’s pre-purchase headquarters

A) Eight companies including the non-party 10 companies that issued the instant tax invoice to the Plaintiff are now purchasing from the non-party 34 companies, non-party 35 companies, non-party 36 companies, non-party 37 companies, non-party 38 companies, non-party 39 companies, non-party 40 companies, non-party 41 companies, and non-party 42 companies, such as the details of transactions by individual purchaser as indicated in attached Table 2

B) However, among the above trading companies of the Plaintiff, Nonparty 3 corporation closed its business on March 31, 2004 without paying the value-added tax equivalent to KRW 27.546 billion. Nonparty 4 corporation closed its business on April 13, 2004, and closed its business on May 22, 2004 without paying the value-added tax equivalent to KRW 1.1.87 billion.4 billion. Nonparty 54 corporation discontinued its business on May 2, 2004, and paid KRW 7.68 billion to Nonparty 2, without paying the value-added tax equivalent to KRW 1.5 billion.4 billion, Nonparty 4 corporation closed its business on February 28, 2004. Nonparty 5 billion, without paying the value-added tax equivalent to KRW 6.8 billion, KRW 5 billion, KRW 5000,000,000. Nonparty 48 billion.

C) Of the above companies, Nonparty 60, the representative director of Nonparty 59 corporation, is under way and abroad. Nonparty 61, the representative director of Nonparty 52 corporation, was a mentally ill person who is unable to make a decision, and was residing from January 7, 2004 in Incheon’s “○○○○○○○○ Network” office.

D) On January 16, 2001, the representative director of the non-party 19 corporation, the purchaser of the plaintiff, operated the non-party 62 corporation, the non-party 63 corporation, the non-party 64 corporation (hereinafter referred to as the "stock company") at the Seoul Western District Court 2004Da368, the non-party 2005Kahap42, the non-party 205Kahap49, "the non-party 62 corporation, the non-party 63 corporation, the non-party 64 corporation (hereinafter referred to as the "the non-party corporation")" and the non-party 62 corporation, the non-party 63 corporation, the non-party 64 corporation, and the non-party 64 corporation did not purchase the money between January 16, 201 and June 1, 2004, the Seoul Western District Court sentenced the non-party 200 to purchase the money at the price of KRW 800 through 8500,05000,00.

However, as above, Nonparty 62, Nonparty 63, and Nonparty 64 companies that issued false tax invoices to the Plaintiff or to Nonparty 44, Nonparty 38, and Nonparty 19 companies, etc., which are the Plaintiff’s customers at the Plaintiff’s purchasing place. Nonparty 62 companies that issued false tax invoices, etc. include Nonparty 56, Nonparty 6, Nonparty 48, Nonparty 35, Nonparty 65, Nonparty 11, and Nonparty 19 companies, which are the Plaintiff’s purchasing place or the customers at the Plaintiff’s purchasing place.

5) Results of the Plaintiff’s investigation

A) While investigating the Plaintiff’s refund of value-added tax, the director of the Seoul Regional Tax Office promulgated a suspicion of violation of the Punishment of Tax Evaders Act and conducted a tax investigation for the taxable period from February 12, 2004 to December 31, 2004 by the Plaintiff during the period from October 8, 2004 to August 23, 2005.

B) At the time of the above investigation, Nonparty 2 stated that all of the banking operations, accounting books, preparation and issuance of tax invoices, and other operations were conducted without any other employee of the married person. Nonparty 2 stated that the Plaintiff Company paid KRW 45 million to the source of the Plaintiff Company’s incorporation funds as its surplus funds, but later, Nonparty 6, who borrowed KRW 5 million from the above Nonparty 23. Nonparty 24 stated that, upon Nonparty 67’s request, Nonparty 2 paid the above amount of KRW 25 million to Nonparty 2’s bank office’s funeral branch account at the National Bank Woori-ri branch, and that Nonparty 23 did not disclose the specific source by refusing to comply with the request for attendance of Seoul Regional Tax Office and making funds borrowed from the above amount of money.

C) At the time of the above investigation, Nonparty 2 made a transaction by stating his intent to purchase and sell only by telephone. In the case of a purchase transaction, he first received the payment by account transfer through Internet banking, and even in the case of a domestic sales, he received the payment by account transfer, and stated that he himself, on his own, transported the transaction to the trading company. In addition, Nonparty 2 stated that the credit cooperative in the Plaintiff’s office used to keep the cash and the cash within 5 km, and that there was no record of keeping it more than 5 km.

D) The transaction with the non-party 30 company located in Hong Kong was conducted through the introduction of the non-party 28 company, the representative director of the non-party 28 company, and the non-party 68 exported the transaction unit by telephone, and the non-party 68 exported the unit price at the plaintiff's office. On September 2, 2004, the non-party 6 purchased 100 km now from the non-party 6 company and processed the 100 g above from the non-party 6 company located in Hong Kong in the form of gold, and then processed it in the form of the 69 company to the non-party 69 company at the purchasing place. The non-party 2 was notified of the transaction unit's size, the purchase place, the non-party 10, the representative director of the non-party 17, and the non-party 17 company's phone number at all.

E) In addition, Nonparty 2 stated that the Plaintiff’s paper 5-ro 5’s National Bank’s withdrawal from the bank account on June 21, 2004 to June 130, 2004, Nonparty 2 made a statement that the user is not memory at all. Nonparty 2 made a statement that he/she is in custody upon request of the party to the tax office to prepare for seizure, etc. in relation to each withdrawal.

F) Meanwhile, at the time of the Seoul Regional Tax Office’s investigation into the Plaintiff, Nonparty 2 kept the documents of Nonparty 11 Company, i.e., the documents of the Seoul Regional Tax Office, which the Plaintiff sent to Nonparty 11 Company.

G) On August 2005, the director of Seoul Regional Tax Office filed a complaint with the head of the Seoul Central District Public Prosecutor’s Office that the Plaintiff and Nonparty 2 received false tax invoices, which are the instant tax invoices over 35 times, and that the Plaintiff and Nonparty 2 fabricated evidentiary materials, thereby falsely refunded the value-added tax amounting to KRW 1.56 million (493 million) in total, and issued false sales tax invoices to four companies, including Nonparty 28, and filed a complaint against the violation of the Punishment of Tax Evaders Act and the Aggravated Punishment, etc. of Specific Crimes Act.

D. Determination

1) Whether each disposition of value-added tax of this case is legitimate

Generally, even if there is no direct evidence of the facts requiring taxation in a lawsuit seeking revocation of disposition imposing taxes, if it is possible to presume the existence of the facts requiring taxation based on indirect facts, etc. based on the theory that can most reasonably explain in light of the empirical rule, etc. Therefore, insofar as indirect facts can be acknowledged in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the other party to the disposition imposing taxes is an unlawful disposition that fails to meet the taxation requirement in question, unless it proves that the other party to the disposition imposing taxes is not subject to the empirical rule or that there are special circumstances that may exclude the application of the empirical rule as above in the pertinent case (see Supreme Court Decision 2006Du6383, Sept. 22, 2006). Furthermore, even if there is no knowledge of the facts requiring taxation, it is difficult to conclude that the person who actually supplied goods or services and who did not know of the fact that the person who actually supplied the goods or services constitutes an entrepreneur who did not know of the name of the goods or services under Chapter 20 (1), and Article 20 (20) of the Value-Added Tax Act.

이 사건에 관하여 보건대, 위 인정사실에 나타난 다음과 같은 사정들 즉, ① 원고 의 대표이사인 소외 2는 종전에 지금업에 종사한 적이 없고, 원고 회사 설립 당시 은행 채무가 1억 3,000만 원이나 됨에도 4,500만 원을 투자하여 원고 회사를 설립하였다고 하고 있는데, 그 출처에 대하여 자기 자본이라고 하였다가 다시 빌린 것이라고 하는 등 그 출처가 명확하지 아니하며, 소외 2는 당시 인테리어 업체인 소외 70 회사의 대표로 등재되어 있었고, 원고 회사 거래에 관하여 2004. 6.에 매출세금계산서가 작성되어 있음에도 2004. 6.과 같은 달 7.에는 매출거래가 전혀 없었다고 진술하였으며, 원고 회사 사무실의 임대차계약도 원고 명의나 소외 2 명의가 아닌 소외 11 주식회사의 대표이사 소외 25 명의로 되어 있고, 위 세무조사 당시 원고 사무실에서 소외 11 주식회사의 서류가 발견된 점에 비추어 소외 2가 원고 회사를 실제로 운영한 것으로 보이지 아니하는 점, ② 원고는 별지1 〈매입 및 매출 세금계산서 내역〉 기재와 같이 35회에 걸쳐 지금을 매입하고, 같은 날 또는 상당한 기일 이내에 21회에 걸쳐 이를 그대로 또는 금목걸이 형태로 가공하여 매출 또는 수출한 것으로 되어 있는데, 상당 부분 물품매도확약서도 작성되지 아니하였고, 작성된 물품매도확약서 중에도 원고 명판의 인감과 인장이 먼저 날인되어 있는 것도 있는 점, ③ 소외 2는 전화로 거래의사를 타진한 다음 먼저 물품대금을 입금하고 지금을 수령하였다고 진술하였고, 수출거래에 있어서 원고가 먼저 매입처로부터 거래대금을 지급하지 아니한 채 지금을 수령하고 이를 다시 거래대금의 수령 없이 수출한 다음 후에 수출대금이 입금되면 다시 원고의 매입처에 송금한 것으로 되어 있는데, 위와 같이 물품매도확약서도 작성하지 아니하거나 팩스로 작성된 물품매도확약서만으로 수 억원 또는 수 십억원에 이르는 외상거래를 한다는 것은 동일한 당사자에 의한 그 거래에 대한 전반적인 지휘 내지 간섭 없이는 불가능할 것으로 보이는 점, ④ 이 사건 거래는 지금 자체의 거래인데 여러 유통단계를 거칠 경우 중간상에게 거래에 관여하는 이익을 제공하여야 할 뿐만 아니라 그에 상응하는 부가가치세를 부담할 수밖에 없어 중간도매상이 개입함에는 그럴만한 특별한 사정이 있어야 할 것인데, 이러한 사정이 엿보이지 아니하고 오히려 여러 중간 도매상이 거의 동시에 개입하여 또는 매입한 지금을 그대로 동일한 매입처에게 되팔기도 하는 등 경제적 합리성 과는 동떨어진 거래가 이루어진 점, ⑤ 원고의 매입 및 매출이 모두 같은 날 지금 도매시세에 훨씬 못 미치는 금액에 거래되었고, 심지어 원고가 2004. 9. 2. 소외 6 주식회사로부터 지금 100kg을 매입하여 이를 금목걸이 형태로 가공하여 같은 달 3. 홍콩 소재 소외 7 회사에게 수출한 것으로 되어 있는데, 그 수출금액은 위 매입금액에도 훨씬 못 미치는 점, ⑥ 소외 10 주식회사 등 원고 매입처의 직전 매입처의 직전 매입처에 해당하는 소외 3 주식회사, 소외 4 주식회사, 소외 5 주식회사 등의 회사가 부가가치세를 납부하지 아니한 채 폐업한 점, ⑦ 원고 대표이사 소외 2는 위 지금거래를 모두 혼자서 영위하였고, 5kg 이상의 지금을 보관한 적이 없다고 진술하고 있는데, 위 세금계산서에는 원고가 2004. 3. 18. 소외 19 주식회사로부터 20kg의 지금을 매입하여 같은 달 23. 소외 31에게 매도되고, 원고가 2004. 4. 14. 소외 17 주식회사로부터 10kg의 지금을 매입하여 같은 달 27. 홍콩 소재 소외 30 회사에게 수출되는 등 위 세금계산서 기재대로라면 원고는 5kg 이상의 지금을 보관하고 있었어야 한다는 점, ⑧ 소외 2는 홍콩 소재 소외 30 회사와의 거래에서 소외 28 주식회사의 소외 68을 통하여 수출하였고, 거래단가도 소외 68이 결정하는 대로 정하였다고 진술하고 있고, 운송장의 물품 수령 장소가 소외 28 주식회사로 되어 있는 것도 있는 점, ⑨ 원고의 매입처 중 소외 19 주식회사의 대표이사 소외 20은 종전부터 지금거래와 관련하여 허위매입세금계산서를 교부하거나 교부받는 방법으로 부가가치세를 포탈하여 징역 3년 및 벌금 55억 원을 선고받았는데, 위 소외 20의 거래처에는 원고의 매입처나 원고 매입처의 거래처가 상당수 포함되어 있는 점 등 이 사건 변론에 나타난 모든 사정을 종합하여 보면, 실제로는 ‘폭탄업체’ 또는 그와 보다 가까운 거래단계에 있는 업체로부터 직접 수출업체로 금지금이 공급되는 것임에도, 양자 간의 직접적인 거래관계를 단절시킴으로써 ‘폭탄업체’의 부가가치세 포탈이 밝혀지더라도 수출업체에 대하여는 과세관청이나 수사기관의 조사가 어렵게 하기 위하여, 마치 여러 단계를 거쳐 금지금이 공급되는 것처럼 위장한 사실을 인정할 수 있으므로, 이 사건 세금계산서 중 원고가 수출업체로서 수수한 세금계산서는 실물거래는 있으나 실제 공급자와 세금계산서상의 공급자가 다른 ‘위장세금계산서’에 해당하고, 원고가 위와 같은 명의위장 사실을 알았거나 알 수 있었다고 보이며, 원고가 중간 도매업체로서 수수한 세금계산서는 아예 실물거래 없이 수수된 ‘가공세금계산서’에 해당한다.

Therefore, the instant disposition imposing the value-added tax on the premise that the instant tax invoice falls under the “listed tax invoice” or “processed tax invoice” is lawful.

2) Whether the imposition of additional tax on the non-acceptance of the instant evidence is legitimate

The Defendant applied Article 76(5) of the Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006; hereinafter “Corporate Tax Act”) to Article 76(5) on the ground that the instant tax invoice is a tax invoice different from the actual one, thereby imposing corporate tax of KRW 329,919,287, including the additional tax paid in the amount equivalent to 16,581,822,900 of the amount not paid in the transaction for the business year 2004, which is equivalent to 2/100 of the amount not paid in the transaction for the business year 2004 (the amount calculated by deducting the additional tax of KRW 331,636,458 of the corporate tax as seen earlier from the aggregate amount of KRW 35,40 of the amount paid in the source and the tax amount of KRW 2,46,790 of the already paid amount).

However, Article 76(5) of the Corporate Tax Act provides that a corporation to whom goods or services are supplied shall bear additional taxes in cases where it fails to receive regular documents, such as tax invoices, is aimed at enhancing transparency in the expenditure of a corporation and inducing a counterpart business operator to foster the tax base. Thus, the legitimacy of its purpose is recognized and imposing the opposite business operator who is the object of tax base cultivation obligation is difficult to achieve such legislative purpose. Thus, it is subject to imposing penalties on the corporation to whom the goods or services are supplied with the goods or services to receive regular documents and to additionally pay an amount equivalent to a certain percentage of the amount not received for the breach of its duty (see Constitutional Court Order 2004Hun-Ba7, Nov. 24, 2005; Supreme Court Order 2006Hun-Ba88, May 31, 2007). Therefore, the penalty taxes imposed on the Plaintiff cannot be applied to the case where the entire amount of the tax imposed on the Plaintiff is revoked by applying the provision of this case 309Hun-Ba29,36, etc.

3. Conclusion

Therefore, the part of the plaintiff's claim seeking revocation of the disposition of imposition of corporate tax among the plaintiff's claim of this case is justified, and the part seeking revocation of the disposition of imposition of value-added tax is dismissed as it is without merit. It

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Judge Jeong Ho-sung (Presiding Judge)