Disposition deemed to have received a disguised processing tax invoice at the time of purchase of alcoholic beverages and not required expenses;

It is difficult to deem that there was no actual transaction because there was no single amount deposited in the Plaintiff’s name due to the Plaintiff’s account details connected to the liquor card without submitting at all materials to prove that the purchase account book or the sales account book of purchased alcoholic beverages which can accurately verify the transactions and the scale of transactions, and that there was no actual transaction.

Article 27 (Calculation of Necessary Expenses) of the Income Tax Act

1. The plaintiff's appeal is dismissed.

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

The decision of the court of first instance shall be revoked. On June 1, 2005, the Defendant revoked the imposition of value-added tax of KRW 8,874,290 for the first term of 2001, the second term of 2001, the second term of 2001, the second term of 7,679,100 for the first term of 202, and the first term of 2001, the amount of KRW 52,716,290 for the second term of 201, and the amount of KRW 13,358,50 for the year 202.

The court's explanation about this case is identical to the statement in the reasoning of the judgment of the court of first instance, except for the partial completion of the statement in the reasoning of the judgment of the court of first instance as follows. Thus, it is acceptable to accept it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the

A. The judgment of the court of first instance changed the "○○ Unemployment" (No. 6 of the judgment of the court of first instance) in the middle of Article 2-4(2)(b) of the first instance judgment to "○○ Unemployment (No. 14 of the judgment of the court of first instance)" (No. 6 of the judgment).

B. In the middle part of Article 2-4(d)(2)(b) of the title "within a short period of time" (as from No. 6 of the judgment of the court of first instance, the right ○○○○ has applied to "by means of ATM (cash automatic withdrawal machine) machine within a short period of time while possessing the Plaintiff's exclusive license card for purchase of alcoholic beverages."

(c) The reasons for the judgment of the first instance court are as follows: (d)(2)(b) the simple expense rate of the end of Article 2(d)(2)(b) (as from the sixth of the judgment of the first instance to the simple expense rate (58.4%).

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Seoul Administrative Court 2006Guu1233, May 18, 2007]

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of value-added tax against the Plaintiff on September 1, 2005 of KRW 8,874,290 for the first term portion in 2001, KRW 9,442,440 for the second term portion in 2001, KRW 7,679,100 for the first term portion in 202, and KRW 52,716,290 for the first term portion in 2001, and global income tax for the year 2001 shall be revoked.

1. Details of the disposition;

A. From October 4, 2000 to 00, the Plaintiff is an individual entrepreneur who has operated a danran bar under the trade name of ○○○○○○○○○○○○○○○○○○○○○○○.

B. The Plaintiff received each purchase tax invoice of KRW 1, 201 from the Defendant in 2001, the second quarter in 2001, the first quarter in 2002, the value-added tax for 201, and the global income tax for 2002 from ○○○○○○○ (hereinafter “○○○○○”) in 2001, and thereafter deducted each of the purchase tax invoices of KRW 52,125,00 in 201 (hereinafter “the instant tax invoice”) from the Defendant, and filed a return on the amount of value-added tax for each taxation period from the global income tax return for each taxable year.

C. However, as a result of the tracking investigation of the distribution process of alcoholic beverages from ○○○○○○○○, the Defendant received the instant tax invoice under the name of ○○○○○○○○○○○ even though the Plaintiff actually engaged in alcoholic beverages transactions with ○○○○○○○○○○○○○, and most of them were notified of the taxation data for disguised and fictitious transactions. Accordingly, on June 1, 2005, the Defendant imposed the amount calculated by adding additional tax to the amount calculated by deducting the amount equivalent to the instant tax invoice from the amount calculated by deducting the amount as indicated in the table of calculation of value-added tax from the input tax amount for each corresponding taxable year as indicated in the table of calculation of value-added tax, and subsequently, the Defendant denied the inclusion of the amount equivalent to the instant tax invoice in necessary expenses for the pertinent taxable year as indicated in the global income tax calculation table, added additional tax to the amount calculated by including it in the global income amount, and deducted the tax amount to be paid (hereinafter referred to as “the instant disposition imposing the global income tax and global income tax”).

Details of the value-added tax calculation (unit: Won)

Amount of taxable period

Details of correction

(1) Purchase tax invoices.

Aggregate:

(2) Purchase tax amount.

(1) X 10%

(3) Additional tax.

(4) The notified tax amount.

(B+3)

For the first period of 2001

46,622,00

4,662,00

4,212,297

8,874,290

For the second period of 2001

52,125,000

5,212,500

4,229,943

9,442,440

For the first term, 2002

4,620,000

4,462,00

3,217,102

7,679,100

Table of Calculation of Global Income Tax (unit: Won)

Tax year

Original Contents

Details of correction

Notice Tax Amount

p. v. ＋ 6

- -)

(1) Global income.

Amount

(2) Income.

Mutual Aid

(3) Payment.

Amount of tax

(4) Necessary expenses

Denial Amount

(5) Global income.

Amount

(1) + 4)

(5) Calculated tax amount.

No. 55(1)(2) X

Tax Rate

(6) Additional tax.

201 Reversion of year 200

21,203,619

4,600,000

2,784,867

98,747,000

19,950,619

3,140,247

2,360,919

52,716,290

202 Reversion of year 2002

23,99,363

6,543,340

2,743,771

4,620,000

68,619,363

12,260,526

3,841,799

13,358,550

＊ 각 고지세액은 각 계산방법에 따라 산출된 금원에서 십 원 미만 금액을 버린 것이다.

D. Meanwhile, the simple expense rate set by ○○○○ for the same type of business as the Plaintiff is 58.4%.

Facts without any dispute over recognition, Gap's evidence 1, 2, Gap's evidence 3-1 through 3, Gap's evidence 4, Gap's evidence 9, 10, Gap's evidence 13, 14, Eul's evidence 1-1 through 5, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Defendant: (a) issued the instant tax invoice that the Plaintiff received from ○○○○○; and (b) issued the instant tax invoice on the grounds that the instant tax invoice was issued differently from the facts; (c) however, ○○○○○○ was an employee of ○○○○○○; and (d) accordingly, the Plaintiff was duly issued the instant tax invoice while engaging

Shebly, even though ○○○ issued the instant tax invoice differently from the fact because ○○○○ was not an employee of the said company, the Plaintiff is a bona fide business operator who believed that ○○○○ was an employee of the said company and received the tax invoice, and thus, the reasonable purchase amount of the instant tax invoice should be deducted as the input tax amount in calculating the value-added tax, and should be included in the necessary expenses in calculating the global

Secondly, even if the above argument is not accepted in entirety, the Plaintiff purchased alcoholic beverages equivalent to the amount of money corresponding to the tax invoice of this case from ○○○, so at least the amount equivalent to the tax invoice of this case shall be included in the necessary expenses when calculating global income tax.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) ○○○○ is a representative of the company on ○○○○○-dong ○○○○○○○○, and ○○○ is a representative of the company on ○○○○○-dong ○○○○○○○, adjacent to ○○○○○○, and ○○○ and ○○○○ was also used as a juice warehouse.

B. From August 17, 2004 to October 14, 2004, ○○○○○○○○○ conducted a tracking investigation on the distribution process of alcoholic beverages with respect to ○○○ and ○○○○ Alcoholic Beverages. As a result, it was confirmed that all of the sales of the above companies to deal with the transaction partners except approximately 200 direct transaction partners, and the remaining transaction partners were issued with chi○○○○○○○○○○ was issued with a false tax invoice after selling all of the sales of the above companies to chi○○○○ and ○○○○○○○○○○○○. As a result of the investigation by comparing the sales of the actual books and the total tax invoices by transaction partners in the computer located at the office of the above company with the total tax invoices by place of sales submitted at the time of the declaration of value-added tax return, ○○○○○ reached KRW 2,242,34.3 billion, 2,831 companies and 37.3 billion.

【○○○” and ○○○○ had been supplied with alcoholic beverages as non-data and mainly sold alcoholic beverages in the region of ○○○○○○○○ and ○○○○○. The type of transaction was received from one’s business partners, and then purchased alcoholic beverages from ○○ and ○○○○○, and then paid the alcoholic beverages to the said company by the card for purchase of alcoholic beverages in the name of its business partners including the Plaintiff in possession. The actual business partners received cash payments from ○○ and ○○○○ and later brought about a tax invoice in the name of the said company.

The grounds for recognition are stated in the evidence of subparagraphs 2 through 5, and the purport of the whole pleadings.

D. Determination

(i) Whether a tax invoice has been issued differently from the fact

㈎ 살피건대, 위 인정사실에 의하면 원고에게 주류를 공급한 ○○○는 ○○○○의 직원이 아니라 ○○○○과 ○○주류로부터 주류를 공급받아 자기의 고정거래처에 판매하는 등 모든 거래를 자기 책임하에 하는 무면허 주류판매업자이므로, 이 사건 세금계산서는 실제의 거래내용에 따라 진정하게 발행된 것이라고 볼 수 없다.

㈏ 다만, 관계기관의 조사로 인해 명의위장사업자로 판정되어 사업자가 받은 세금계산서가 실제의 거래내용에 따라 진정하게 발행된 것이 아니라는 점이 밝혀졌다 하더라도, 거래처가 위장사업자라는 사실을 알지 못하였고 또 알지 못한 데에 잘못이 없는 선의의 거래당사자가 그 세금계산서에 의하여 부가가치세신고를 한 경우에는 그로 인하여 실지사업자가 아닌 자가 공급자로 되었더라도 그 매입세액은 공제되어야 할 것이나, 이 경우 선의의 거래당사자라는 입증은 이를 주장하는 자가 해야 할 것인데, 선의의 거래당사자로서 ○○○가 위장사업자라는 사실을 알지 못한 데에 잘못이 없다는 원고의 주장에 부합하는 갑 제5호증의 1 내지 4의 각 기재, 증인 ○○○의 증언은 위 인정사실 및 아래 ⑵ ㈏에서 인정되는 사정들에 비추어 이를 믿지 아니하고, 달리 이를 인정할 만한 증거가 없으므로, 원고가 선의의 거래당사자라는 주장은 이유 없다.

She Whether the amount equivalent to the tax invoice of this case has been actually disbursed

㈎ 살피건대, 국세기본법 제14조에서 정하는 실질과세의 원칙상 납세의무자가 제출한 세금계산서가 허위임이 밝혀졌다고 하더라도 허위 세금계산서 상당의 금액이 실제로 지출된 경우에는 이를 종합소득세 산정시 필요경비로 산입할 수 있다고 할 것이나, 실제로 세금계산서 상당의 거래가 있었고, 금원이 실제로 지출되었는지에 대하여는 이를 주장하는 원고가 이를 입증하여야 할 것이다.

㈏ 그런데 이 사건 세금계산서 금액에 상당하는 주류를 매입하고 그 대금을 정상적으로 지불하였다는 원고의 주장에 부합하는 증인 ○○○의 증언을 이를 믿지 아니하고, 갑 제6호증의 기재만으로는 이를 인정하기 부족하며(원고는 위 증거들 외에는 달리 거래사실 및 거래규모를 정확히 확인할 수 있는 매입장부나 매입한 주류를 판매한 매출장부, 원고의 자금으로 주류대금이 전액 지급되었음을 인정할 만한 자료를 전혀 제출하지 않고 있다), 오히려 갑 제6호증, 갑 제7호증의 1, 2, 3의 각 기재에 의하면 원고는 ○○○○ 외에도 2001년 제1기 ○○○○에서 13,500,000원 상당의 음료외 물품을, 2001년 제2기 ○○○○에서 14,252,043원 상당, 2002년 제1기 ○○○○으로부터 9,154,000원 상당의 주류 등을 매입하였던 사실, 주류카드와 연결된 원고의 계좌내역상 원고의 명의로 입금된 금액이 한 건도 없고, ○○○가 짧은 시간 내에 입출금을 반복한 것이 여러 차례 나타나는 사실을 인정할 수 있을 뿐이다(○○○○에 대한 매입액을 전부 부인하더라도 원고 사업장의 경비율이 2001년도에 63.5%, 2002년도에 81%로서 동일업종 단순경비율을 훨씬 상회하며, ○○○○에 대한 매입액을 포함시킬 경우의 경비율은 93.5%, 93.3%에 달한다).

3. Conclusion

Therefore, the defendant's disposition of this case is legitimate, and the plaintiff's claim seeking revocation is dismissed as it is without merit. It is so decided as per Disposition.