Supreme Court Decision 2008Du21027 ( October 06, 2009)

Seoul High Court 2008Nu3519 ( October 30, 2008)

Whether a tax invoice different from the fact related to gold bullion transactions has been received.

Even if a series of transactions are conducted within one to two days until gold bullion is imported and exported, and there is a wide-scale carbon company in the middle stage and the act of not paying the amount equivalent to the value-added tax is established, it is difficult to deem such fact alone as a nominal transaction for the purpose of disguised actual transactions.

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. Each imposition of value-added tax for the first period of September 1, 2005, value-added tax for the first period of 2004, and value-added tax for the second period of 2004 and value-added tax for the second period of 2004 shall be revoked, respectively.

3. The total costs of the lawsuit shall be borne by the Defendant.

The decision of the first instance shall be revoked. Paragraph (2) of this Article and the decision that the defendant's disposition of refusal to refund value-added tax of KRW 503,541,840 for the second period of September 1, 2005 against the plaintiff on September 1, 2005 and the disposition of imposition of KRW 218,619,170 for the corporate tax of KRW 2004 shall be revoked.

1. Scope of adjudication by this Court;

The judgment of the court prior to remanding all of the judgment of the court of first instance, which dismissed the plaintiff's claim, revoked the part on imposition of corporate tax and dismissed the plaintiff's remaining appeal, and both parties appealed to the part against each of them (the plaintiff appealed to the part on imposition of value-added tax and the part on rejection of refund of value-added tax). The Supreme Court reversed only the part on imposition of value-added tax in the judgment prior to remand, and remanded it to this court, and dismissed the defendant's appeal. As such, the part on imposition of corporate tax became final and conclusive by the judgment of remand. Accordingly, the scope of the judgment prior to remand is limited to the part on imposition of value-added tax reversed

2. Circumstances of the disposition;

This Court's reasoning is as follows: Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act shall be cited on September 20, 2005, except in the case of September 1, 2005, which is written on September 20, 2005 on September 1, 2005 by the court of first instance.

3. Whether the imposition disposition of the value-added tax is made;

A. The plaintiff's principal

Since the tax invoice of this case was actually traded as stated in the tax invoice of this case, the tax invoice of this case does not correspond to the "tax invoice different from the facts", and even if the plaintiff did not know it without any negligence, the imposition of each value-added tax is subject to the above law.

(b) Related statutes;

The court's explanation in this part is the same as the corresponding part of the judgment of the court of first instance, and thus, the court's explanation in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

(c) Fact of recognition;

The following facts may be acknowledged by integrating the purpose of the whole pleadings in each entry of evidence Nos. 12-1 through 22, evidence Nos. 19-1 through 41-2, and evidence Nos. 1-1 through 22-2.

(1) The Plaintiff is a company whose principal office is ○○○○○-dong 140-55, and is established for the present, precious metal manufacturing, wholesale business, etc.

(2) Types, etc. of gold-prohibited transactions

(가) 원고가 2004. 2. 24.부터 같은 해 12. 31.까지 ▽▽금은, ◆◆금은, ♣♣금속, ★★금은 등으로부터 공급가액 합계 9,937,235,230원에 이르는 이 사건 금지금을 매입하여 매입 당일 이를 인도받고 대금을 지급하면서 그 공급자로부터 각 거래에 따른 세금계산서를 교부받았으며 이 사건 금지금을 매입한 당일 홍콩에 있는 ◇◇◇◇에게 수출하고 그 과정에서 이득을 남겼다.

(B) All transactions with respect to the instant gold bullion were conducted from the importing company to the Plaintiff while they were imported from a foreign country and distributed as a tax-free gold, and had a total of 6-8 stages from the importing company to the Plaintiff. In addition, there is no difference between the date of import and the date of export and the date of export and the date of export and the date of export.

(C) Meanwhile, all of the companies that convert the gold bullion of this case into the tax-free gold from its distribution (a business entity that evades value-added tax by purchasing the gold bullion as a tax-free gold and selling it as a tax-free gold, and then withdrawing, concealing, and closing its profit within the short period following the sale of the gold bullion at a price lower than the purchase price (However, the amount added to the value-added tax plus the value-added tax, i.e., the price for supply higher than the purchase price), and did not fulfill the liability to pay value-added tax by closing the gold bullion. The representatives of the business entities were confirmed to have no business experience in the precious metal field

(D) The export price of the instant gold bullion was lower than the import price, and it was considerably low compared with the domestic market tax (the gold bullion wholesale business entity of major gold bullion is annually announced by the Internet or via automatic response telephone) and the international market tax.

(3) Since July 1, 2003, when the ‘tax-free gold scheme' was implemented under Article 106-3 of the Restriction of Special Taxation Act from July 1, 2003, some of the gold bullion wholesalers of ○○○ gold bullion used the same form for the purpose of abusing ‘the zero tax rate system' before June 30, 2003, and used it in the same manner for the purpose of evading value-added tax and taking unfair profits from the national treasury, and its contents were already widely known in the gold bullion wholesale business around 2003.

(A) In appearance, gold bullion is distributed through the stages of ‘foreign companies ? ? importer companies ? ? ? 1 (subscriptive companies) ? ? Sheet wholesale companies ? ? Sheet wholesale companies ? ? Foreign companies ? the sales proceeds are paid in sequence from the exporters to the importing companies. However, among the above distributors, at least a large amount of carbon companies from the above distributors to the bottom wholesale companies are issued a tax invoice under the direction of a specific person or a specific company, and in fact, there are most cases where gold bullion is not traded or transported at each stage.

(B) A company that purchased gold bullion, which is distributed as tax-free gold at the previous stage of its transfer, and sold it as additional tax-free gold equivalent to 10% of the value-added tax to the company that participated in the business, and then made it impossible to collect the value-added tax by withdrawing its profit in cash within the short period. The amount equivalent to the value-added tax paid by the company that has been paid by the company that has been paid by the company that has been paid by the company that has been paid by the company that has been paid by the company that has been paid by the company in the previous stage of its transfer is successively transferred the amount of the value-added tax through the method of deducting the input tax by using the tax invoice received by the company that has been paid by the immediately preceding stage of its export. Ultimately, the amount equivalent to the value-added tax refunded by the exporter after its exportation is the ultimate source of profit from the business that has been paid by the company that has been paid by the company that has been paid by the company to the domestic company that has been involved in the business. The above profit is a lower portion than the export price paid by the domestic company.

(C) In order to maximize its profit, the gas supply business distributes a large quantity of gold in a short period of time to the greatest extent possible. In order to prevent disputes between the participating companies that may arise therefrom, or accidents such as loss of prices, ① most of the same former owners (referring to those who prepare for the first gold bullion import settlement from the outside of the gas supply business network) operate simultaneously with the exporting company and the importing company; ② the former owners place the former owners in a direct transaction with the gas supply company; ③ the former owners determine the volume, unit price, and margin of the transaction at each stage of transaction; ③ the former owners actually determine the volume, unit price, and margin of the transaction at each stage of transaction; and ③ the series of transactions from the importing company to the exporting company is operated at a very short time; and ② most of the gold bullion are transported immediately with the exporting company (the transportation is only a formal transport for disguised trade even if it is transported every stage of transaction).

D. Determination

부가가치세의 과세에 있어, 어느 거래가 실질적인 재화의 인도 또는 양도가 없는 명 목상의 거래라는 이유로 그 거래과정에서 수취한 세금계산서가 매입세액의 공제가 부 인되는 부가가치세법 제17조 제2항 제1의2호 소정의 '사실과 다른 세금계산서'에 해당 한다는 점에 관한 증명책임은 과세관청에게 있고(대법원 1992. 9. 22. 선고 92누2431 판결, 대법원 2006. 4. 14. 선고 2005두16406 판결 등 참조), 원고가 2004. 2. 24.부터 같은 해 12. 31.까지 ▽▽금은, ◆◆금은, ♡♡금속, ★★금은 등으로부터 공급가액 합계 9,937,235,230원에 이르는 이 사건 금지금을 매입하여 매입 당일 이를 인도받고 대금을 지급하면서 그 공급자로부터 각 거래에 따른 세금계산서를 교부받았고, 원고는 이 사건 금지금을 매입한 당일 홍콩 소재 수입상에게 수출하고 그 과정에서 이득을 남겼음은 위에서 본 바와 같다.

Therefore, even if a series of transaction processes until the gold bullion is imported and exported within 1-2 days, and the transaction of the so-called "gold bullion exempted from value-added tax" at the middle stage, namely, the transaction of the so-called "large coal business", the purchase of gold bullion exempted from value-added tax, and the preparation and issuance of a tax invoice to the person who did not obtain a recommendation for tax exemption, and the payment of the amount equivalent to value-added tax is constituted, as long as such circumstance alone cannot be readily concluded that the transaction of this case, one of the series of transaction processes, is merely a nominal transaction for the purpose of disguised so-called "actual transaction", it is difficult to deem that the tax invoice of this case received from the transaction of this case constitutes a "tax invoice different from the actual supplier stated differently from the supplier on the invoice (see

In regard to this, the defendant argued that the plaintiff should be deemed to have received a tax invoice different from the fact by rap, which falsely indicates the transaction amount which is only the value of supply in collusion with the bood coal company and which is not included from the beginning of the value-added tax as if the value-added tax was included in the item of value-added tax, but it is difficult to see that the tax invoice of this case constitutes a tax invoice different from the fact, as seen earlier,

Therefore, it is illegal that the defendant imposed the value-added tax on the plaintiff.

4. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted, and the part of the disposition imposing value-added tax in the judgment of the court of first instance is revoked, and it is so decided as per Disposition by ordering the cancellation of each disposition