Seoul High Court 2007Nu33476 (Law No. 18, 2008)

It is difficult to readily conclude it as a processing transaction solely with the fact that there is a wide carbon company.

It is difficult to conclude that a series of transactions until gold bullion is imported and exported is conducted on a day or on a short period of time, and there is a so-called "bomb" in the middle stage of such transactions that it is not a supply of goods subject to value-added tax, solely on the sole basis of the fact that there is a so-called "bomb" company.

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

Article 6 of the Value-Added Tax Act

Article 17 of the Value-Added Tax Act

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The judgment below is reversed and the case is remanded to Seoul High Court.

쇠鹬 쇠鹬 3000 쇠鹬 3000

The grounds of appeal are examined.

1. As to grounds of appeal on imposition of value-added tax

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 is a delivery or transfer of goods on all contractual or legal grounds." In light of the characteristics of value-added tax as multi-stage transaction tax, delivery or transfer under Article 6(1) of the Value-Added Tax Act includes all acts of causing the transfer of authority 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, 2001; 9Du9247, Mar. 13, 2001; 201; 30.2.6.2. Determination of whether a specific transaction among a series of transactions constitutes the supply of goods as provided for in the Value-Added Tax Act should be made by taking into account all the circumstances such as the purpose and attitude of each transaction, ownership, and payment subject, and payment relationship.

According to the facts duly established by the court below and the record, the plaintiff purchased gold bullion equivalent to the total value of 7,978,009,800 won (hereinafter "the gold bullion of this case") from six business operators, including Korea Stock Company, from April 13, 2004 to September 20 of the same year (hereinafter "the supplier of this case"), and received the gold bullion of this case on the date of purchase, and received all of the price (hereinafter "the "the gold bullion of this case"), and received tax invoices 15 (hereinafter "the tax invoice of this case") from the supplier of this case. The plaintiff exported the gold bullion of this case to 00 , which is the Hong Kong foreign company located in the day of purchase, and it is difficult to conclude that the gold bullion of this case was actually supplied or exempted from the tax invoice of this case only for the reason that the gold bullion of this case was actually supplied or exempted from the tax invoice of this case. Examining these facts and records in light of the aforementioned legal principles, it is difficult to conclude that the gold bullion of this case was supplied or exempted from value-added tax.

Nevertheless, the court below held that the tax invoice of this case constitutes a different tax invoice from the fact on the ground that the transaction of this case was merely a nominal transaction without supplying goods, on the ground that the transaction of this case was a single transaction included in the entire transaction of this case where the so-called wide coal company was opened. Such judgment below erred in the misapprehension of legal principles as to "supply of goods" and "tax invoice different from the fact", and failure to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

2. As to the ground of appeal on imposition of corporate tax

According to Articles 76(5) and 116(2)2 of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006), "the head of the district tax office having jurisdiction over the place of tax payment shall collect as corporate tax an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount in cases where a corporation is supplied goods by an entrepreneur in connection with its business and fails to receive a tax invoice under Article 16 of the Value-Added Tax Act," and Article 16 of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006) provides that "if an entrepreneur registered as a taxpayer supplies goods, he shall issue to a person who receives the goods a tax invoice stating the registration number, name or title, registration number, value-added tax amount, etc. of the supplier."

As seen earlier, so long as it cannot be concluded that the instant transaction is not a supply of goods subject to value-added tax, it is difficult to conclude that the instant tax invoice received therefrom is not a legitimate tax invoice under Article 16 of the former Value-Added Tax Act. However, the lower court determined that the instant transaction does not constitute a supply of goods, and accordingly, the instant disposition of imposing corporate tax was lawful on the premise that the instant tax invoice is a disguised tax invoice. In so doing, the lower court erred by misapprehending the legal doctrine on additional tax received without evidence, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.