AP&D Co., Ltd. (Law Firm Jeongdam, Attorney Kim Hyun-soo, Counsel for the plaintiff-appellant)

Samsung Head of Samsung Tax Office

June 12, 2015

1. The plaintiff's claim is dismissed.

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

The defendant's rejection disposition against the plaintiff on February 18, 2014 against the plaintiff is revoked as to the claim for correction seeking refund of the total value-added tax of KRW 290,120,000 as shown in attached Table 1.

1. Details of the disposition;

A. The Plaintiff is a clothing manufacturing and wholesale retail company, and the head of the Incheon customs office, upon conducting a customs investigation on the Plaintiff around September 2013, deemed that the Plaintiff was directly engaged in all customs duties with respect to the case of importing Korean male clothing in the name of the Jung-gu Commercial Co., Ltd. and the Jung-gu Commercial Co., Ltd. (hereinafter “Seoul Commercial Co., Ltd.”), and determined the importer as the Plaintiff. The Plaintiff revoked the import tax invoice issued to the Il-gu Commercial Co., Ltd. and issued the import tax invoice as shown in attached Table 1 (hereinafter “instant import tax invoice”).

B. Accordingly, on December 18, 2013, the Plaintiff filed a claim for correction of the tax base and tax amount for which refund of the above input tax amount was sought by asserting that the input tax amount equivalent to the tax base (total amount of KRW 2,901,213,00) of the import tax invoice of this case (total of KRW 290,120,870) was omitted for the taxable period from February 18, 2011 to January 1, 2013, but the Defendant rejected the Plaintiff’s claim for correction on the ground that the import tax invoice of this case received through the customs investigation by the Plaintiff was not subject to the input tax deduction (hereinafter “instant rejection disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on July 11, 2014, and the Tax Tribunal dismissed the Plaintiff’s appeal on December 16, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, 6, purport of the whole pleadings

2. The plaintiff's assertion

The import tax invoice of this case is a tax invoice issued by the head of Incheon Customs to the Plaintiff, a real importer, after changing the import entity. The Plaintiff is entitled to request refund since it was not issued a tax invoice like the import tax invoice of this case in the first taxable period, and thus, the Plaintiff has the right to request refund. The rejection disposition of this case made on a different premise should be revoked illegally.

3. Relevant statutes;

Attached Form 2 is as shown in Attached Form 2.

4. Determination

A. Relevant statutes

According to Articles 16(1) and (5), 17(1), and 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter the same shall apply), and Articles 56 and 60(2)3 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same shall apply), where an entrepreneur registered as a taxpayer supplies goods or services, a tax invoice stating the necessary entry therein shall be issued to the person supplied the goods or services at the time of supply, and the head of a customs office shall issue an import tax invoice to the importer for the imported goods. The value-added tax amount to be paid by the entrepreneur shall be the amount obtained by deducting the amount of tax on the goods or services supplied to him/her from the amount of tax on the goods or services (purchase) and the amount of an input tax on the goods or services received after the time of supply.

B. Whether the income tax calculation of the instant case constitutes subject to input tax deduction

In relation to this, the Defendant asserted that the import tax invoice of this case was prepared retroactively after the expiration of the initial taxable period, and that it is not subject to input tax deduction. In full view of the overall purport of the pleadings as to each of the items of evidence Nos. 4, and No. 1-1 through No. 8 of the evidence No. 1-8, the head of Incheon Customs Office issued the import tax invoice of this case as shown in Attached Table 1 by changing the importer of the import tax invoice issued by the Plaintiff to the Plaintiff for the taxable period from Dec. 2, 2011 to Nov. 1, 2013 according to the result of the customs investigation conducted by the Plaintiff, to the Plaintiff. Accordingly, the import tax invoice of this case does not constitute a tax invoice issued within each taxable period to which the time of receipt of the goods belongs, and there is no other evidence to acknowledge that the Plaintiff received the import tax invoice in the name of the Plaintiff within each of the above taxable period.

Therefore, the plaintiff cannot deduct the amount equivalent to the input tax amount of the import tax invoice of this case from the output tax amount of each relevant taxable period. Thus, the rejection disposition of this case is legitimate under the same premise, and the plaintiff's assertion is without

5. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Kim Byung-soo (Presiding Judge) et al.;