Supreme Court Decision 2008Du15206 ( October 26, 2009)

Cho High Court Decision 2006No1499 (Law No. 26, 2006)

Whether the transaction constitutes a false tax invoice different from the fact related to gold bullion

A series of transaction processes until gold bullion, etc. are imported and exported within one to two days, and even if there is a transaction of a so-called wide coal supplier at the middle stage, it is difficult to deem that the tax invoice in this case constitutes a different tax invoice from the actual supplier.

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

1. The imposition of value-added tax in the judgment of the first instance shall be revoked;

2. The Defendant’s imposition of value-added tax against the Plaintiff on December 1, 2005 of KRW 7,864,843,220 for the second term of 203, and KRW 6,517,43,790 for the first term of 2004, and KRW 2,531,876,010 for the second term of 204.

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

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant's imposition of the value-added tax against the plaintiff on December 1, 2005 of the second period of 7,864,843,220 won, the first period of 2004, the first period of 6,517,43,790 won, the second period of 2004, the second period of 2004, the second period of 2,531,876,010 won, and the imposition of the corporate tax of 565,142,710 won for the business year of 2003, each disposition of 632,219,610 won for the business year of 204 shall be revoked.

1. Objects to be tried on the political party after remand;

On the first island, the first instance court dismissed all of the Plaintiff’s claims, and the first instance court prior to the remanding of the appeal by the Plaintiff, accepted the Plaintiff’s claims against the above part and dismissed the Plaintiff’s appeal against the part of the disposition of non-value added tax. As to the part of the disposition of non-value added tax, upon the Plaintiff’s appeal against the part of the disposition of imposition of value-added tax, the appellate court dismissed the Defendant’s appeal against the part of the disposition of imposition of value-added tax and reversed the part against the Plaintiff seeking revocation of the disposition of imposition of value-added tax. Accordingly, the part of the disposition of imposition of corporate tax among the Plaintiff’s claims became final and conclusive in favor of the Plaintiff

Therefore, only the part of the claim of this case seeking revocation of the disposition imposing value-added tax is subject to this Court's judgment.

2. Details of the instant disposition

A. On August 5, 2003, the Plaintiff is a company established for the purpose of export and import business with the location of its head office ○○○○○○○○-dong 45-5 ○○○ Building 1215.

B. When the Plaintiff reported the value-added tax to the Defendant in 203, 203, 204, 2004, 2002, 204, 2004, the Plaintiff received 200,000,000,000 won in total from 20,000,000,000 won (hereinafter referred to as "20,000,0000,0000,0000 won and 200,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00.

(3) The Plaintiff’s representative director, his family members, and the Plaintiff used money as a collateral for business use. The Plaintiff directly traded a passbook at a bank rather than an Internet banking, and the transportation chain, upon the Plaintiff’s request, directly purchased gold bullion, etc. in the domestic gold market office in Korea, and transferred gold bullion products through a winding procedure. The so-called large carbon company (a company that evades value-added tax by purchasing gold as tax-free gold and selling it as full withdrawal, concealment, and closing its business within the short period after selling it as tax-free gold, did not intervene in the so-called large coal company (hereinafter “large coal company”).

(4) The Plaintiff had no intent to evade taxes jointly with gold bullion companies. Even if there were differences between the actual supplier and the supplier on the tax invoice, the Plaintiff was unaware of the other company’s act.

(5) Therefore, the Defendant’s disposition of this case, based on which the Plaintiff was either a false tax invoice or a false tax invoice received even if the Plaintiff knew or could have known, was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) From around 202 to December 31, 2004, among the precious metal companies located at ○○○○ through the amendment of the Restriction of Special Taxation Act, the value-added tax rate or variable system has been abused, and the gold bullion has been imported and distributed through various stages of zero-rate or tax exemption, and then has been converted into the tax amount to the wide-scale coal companies, and then again has been distributed through the large-scale wholesalers, and the large-scale coal companies were exported, and the exporters did not pay value-added tax, and the exporters were bound to receive the refund of the value-added tax that has not been paid by the large-scale coal companies.

(2) 원고는 ☆☆☆일, ◇◇◇리에서 대부분의 지금을 매입하여 홍콩에 있는 ◁◁(이하 '◁◁L'이라 한다)에 수출하고 위와 같이 부가가치세를 환급받았다. 원고가 2003. 8. 21.부터 2004. 12. 11.까지 사이에 ☆☆☆일 및 ◇◇◇리 등으로부터 매입한 수량 및 금액은 다음과 같다.

(3) 위 거래당사자 중 이 사건 금지금을 면세로 매입하였다가 부가가치세 과세거래로 전환하여 매출하는 폭탄업체(주식회사 ◆◆◆에스 등)는 이전의 거래에서 발생한 부가가치를 포함하여 전체 부가가치세의 납부의무를 지게 되나, 실제로는 부가가치세를 전혀 납부하지 않고 폐업하는 등으로 그 부가가치세 납부의무를 이행하지 아니하였다.

(4) 이 사건 금지금은 수입업체로부터 원고에 이르기까지 총 5-8단계의 도매입체들을 거쳤는데, 연말・연휴를 제외하고는 당일에 모든 거래가 이루어졌고, 이 사건 금지금의 거래와 관련한 대금결제내역을 보면 대부분 원고가 이 사건 금지금율 매입한 ☆☆☆일이나 ◇◇◇리 등 이 사건 공급자가 수입대금을 비롯한 전단계의 매입대금을 역순으로 순차 지급하며, 원고가 '◁◁L'로부터 수출대금을 받아 자신의 매입처인 이 사건 공급자에게 지급하는 방식으로 이루어져 왔다.

(5) As of August 21, 2003, the export price of the instant gold bullion was lower than the import price, USD 1.11 and USD 0.19 below the international market price per gram.

[Based on Recognition] Unsatisfy, Gap evidence 2, 3-1 through 5, Gap evidence 7-1 through 32, Gap evidence 8-1, 2, Gap evidence 9, 10, Gap evidence 15-1 through 4, Gap evidence 16-1 through 16, Gap evidence 17, 18-19-3, Gap evidence 21 through 24, Gap evidence 34, 35-1 through 16, Eul evidence 36-1 through 79, Gap evidence 37-1 through 35, Gap evidence 38, Eul evidence 1 through 73, Gap evidence 50, Eul evidence 51, Eul evidence 4 through 9-14, Eul evidence 1 to 16-1, Eul evidence 2-1, Eul evidence 1 to 37-2, Eul evidence 1, Eul evidence 2-1, Eul evidence 2-1, Eul evidence 1 to 2-14, evidence 2-1, Eul evidence 1 to 2

D. Determination

(1) Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as taxable subject to value-added tax" and Article 6(1) provides that "the delivery or transfer of goods shall be a delivery or transfer of goods on all contractual or legal grounds." In light of the fact that value-added tax is characterized as multi-stage transaction tax, delivery or transfer under Article 6(1) of the Value-Added Tax Act includes all original acts of transferring the right to use and consume goods, regardless of the existence of actual profits (see, e.g., Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 201; 9Du9247, Mar. 13, 2001; 200.1) In this case, the issue of whether a specific transaction among a series of transactions constitutes the supply of goods as provided for in the Value-Added Tax Act shall be determined by considering the following facts: (i) the transaction party's length and type of each transaction, mode of return, and mode of profits; (ii)

In light of the above legal principles, the gold bullion was actually distributed from the importer to the exporter. From August 21, 2003 to December 11, 2004, the Plaintiff: (a) received each of the gold bullion from the supplier of this case on the date of purchase; and (b) paid all the price; and (c) received 78 copies of the tax invoice for the instant gold bullion from the supplier of this case; and (b) received 78 copies of the tax invoice for the instant transaction from the supplier of this case; and (c) as long as it can be known that the gold bullion was exported to the Hong Kong import; (d) a series of entire transactions until the import and export of the gold bullion were made within a short period; (e) after purchasing the gold bullion exempted from value-added tax at the intermediate stage, it is difficult to conclude that the instant gold bullion was supplied only by issuing the tax invoice and supplying the gold bullion to the supplier who did not receive the recommendation for tax exemption; and (e) there is a so-called large coal supplier, which does not pay the amount of value-added tax.

(2) On this point, the defendant's removal from Korea of the gold bullion of this case from Korea is merely a formal disguised export for the purpose of acquiring national tax revenue by abusing the zero tax rate system and the input tax deduction recognized for exporters rather than normal exports of goods. In light of the contact found guilty by KimA as a result of the plaintiff's solicitation for tax evasion, the plaintiff's exportation was clearly revealed that it would result in an unlawful purpose. Thus, the plaintiff's refusal of the application for refund by denying the input tax deduction in order to prevent damages to the country caused by the tort is legitimate, and even if it is necessary to refund, the country has the right to claim damages equivalent to the above amount, and thus, the plaintiff's aforementioned act is anti-social, and thus it is necessary to make a false representation for the purpose of evading taxes through prior recruitment, and thus, it is not necessary to acknowledge that the plaintiff's act of abusing the zero tax rate system is invalid under Article 108 of the Civil Act. However, the plaintiff's assertion that the above act of abusing the zero tax rate system and the above input tax exemption system should not be recognized otherwise without the defendant's opinion.

E. Sub-committee

Therefore, the instant disposition that did not deduct input tax amount on the premise that the instant tax invoice constitutes a “unlawful tax invoice that was prepared differently from the actual one by the supplier is unlawful.”

4. Conclusion

If so, the plaintiff's claim of this case is accepted in its reasoning, and the judgment of the court of first instance, which has different conclusions, is unfair, and it is so decided as per Disposition by the court of first instance.