Suwon District Court 2010Guhap17992 (Law No. 29, 2011)

early 2010 Heavy3014 ( November 09, 2010)

Inasmuch as there is insufficient evidence to prove that the transaction is not true, the disposition taxable by the Plaintiff’s sales is legitimate.

There is no circumstance to deem that a tax invoice was not a final or conclusive one, and there is no evidence to prove that a portion of witness’s testimony is not a genuine one, the initial disposition taxable as the Plaintiff’s sales is legitimate.

2011Nu366. Revocation of imposition of global income tax

XX

port of origin

Suwon District Court Decision 2010Guhap17992 Decided September 29, 2011

May 22, 2012

June 22, 2012

1. Of the judgment of the court of first instance, the part against the defendant in excess of the following revocation shall be revoked, and the corresponding plaintiff's claim shall be dismissed:

The Defendant’s disposition of imposing global income tax of KRW 000 on the Plaintiff on May 1, 2010, which exceeds KRW 000,000, shall be revoked.

2. The defendant's remaining appeal is dismissed.

3. 2/3 of the total costs of litigation shall be borne by the Plaintiff, and 1/3 by the Defendant, respectively.

1. Purport of claim

The Defendant’s disposition of imposing global income tax of KRW 000 on the Plaintiff on May 1, 2010 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Global income tax:

The following facts are acknowledged in light of the overall purport of the arguments in Gap evidence 1, 3, 5, and Eul evidence 1 to 6.

[1]

O From October 27, 1997, the Plaintiff engaged in the mid-term rental business, etc. with the trade name of the head of Suwon-si, Q 1132, XX 203.

O The plaintiff reported the second value-added tax in 2004, and sentenced sales of O-Industrial Development Co., Ltd. (hereinafter "O") to KRW 000.

O On the other hand, the O reported the purchase amount to KRW 000 when it reported the second value-added tax in 2004.

As a result, there was a inconsistency between the Plaintiff and the O in sales and purchase with respect to the second half-year value-added tax in 2004 (=00 won -00 won).

[2]

O On May 1, 2010, the Defendant issued a disposition imposing global income tax of KRW 000 on the Plaintiff for the reason that the Plaintiff omitted income tax of KRW 000 (hereinafter “instant disposition”).

O The Plaintiff filed an appeal with the Tax Tribunal on September 16, 2010 regarding the instant disposition, and the appeal was dismissed on November 9, 2010.

2. The plaintiff's assertion

In the return of the second value-added tax in 2004, the O reported the purchase amount from the Plaintiff as KRW 000,000 on the basis of the tax invoice that is the Plaintiff. The tax invoice of KRW 5,000, which is the sum of the values indicated in the above tax invoice (attached 1), is arbitrarily prepared by the O despite that the O did not purchase from the Plaintiff.

(1) Table 1 omitted

Therefore, the instant disposition imposing the global income tax for the year 2004 on the Plaintiff is unlawful on the ground that there was any inconsistency between the Plaintiff and the O with sales and purchase on the basis of KRW 000,000, which was reported by the O as purchase amount from the Plaintiff.

3. Determination

(a) Tax invoice dated 31, 2004

(1) The following facts are acknowledged in full view of Gap evidence Nos. 3, 4, 7, and Eul evidence Nos. 6 (including paper numbers), and each testimony of the witness of the first instance court, leA, YB, and KimCC of the first instance trial (excluding the portion not trusted), and the whole purport of the pleading.

OO, in trading with the purchaser including the Plaintiff, received the tax invoice first, and then dealt with the business by which the price was paid later, and in consultation with the purchaser, the president reduced the value of supply of the tax invoice or received a tax invoice with a new content.

As a result, theO has kept the tax invoice received from the purchaser without returning or destroying it, and it has used it as evidence for the input tax amount, etc. as required by theO.

OO reported the second value-added tax in 2004, as seen earlier, the supplier reported the purchase amount to KRW 000 on the basis of the tax invoice that is the Plaintiff, and the tax invoice included three copies of the tax invoice dated August 31, 2004 (hereinafter referred to as “first tax invoice”).

O On the other hand, most of the tax invoices reported by O to the Plaintiff at KRW 000, as seen above, were prepared by computers, etc., but the first tax invoice was prepared in several ways, and there was a note and a letter related to the business.

O The tax invoice, as above, on which OO reported the purchase amount from the Plaintiff at KRW 000, includes one tax invoice of KRW 000 and one tax invoice of KRW 000,000, but such tax invoice was prepared on August 31, 2004 and item was also the same as the first tax invoice.

O The total value of supply in Chapter II of the above tax invoice is KRW 0001, which exceeds the total value of supply in Chapter I tax invoice(2).

O In case of exclusion from the first tax invoice, the details of the return of value-added tax are consistent with all the director of the customer's office and the details of the return of value-added tax in August 208.

(2) According to the above facts, all of the tax invoices received by △△○ from the purchaser including the Plaintiff were not final or conclusive, and △△△△△△△△ was prepared as a receiver, and it seems that it was not final or conclusive, while there were other tax invoices in the same manner as the first tax invoice and the date of preparation and items, which exceed the value of the first tax invoice, and it appears that such tax invoices were final and conclusive. In light of these circumstances, it is recognized that the OO’s filing of the purchase amount from the Plaintiff on the basis of the first tax invoice is not a genuine purchase.

Therefore, while the OO reported the value-added tax for the second period of 2004, it cannot be recognized as the Plaintiff's sales amount of KRW 000,000 in total of the supply value of the LO tax invoice, which was reported by the Plaintiff as purchase amount from the Plaintiff.

B. Tax invoice of September 30, 2004 and tax invoice of October 31, 2004

(1) In full view of the purport of the entire pleadings, the following facts are recognized in each entry in Eul evidence Nos. 2 through 8 (including paper numbers):

OO filed a return of value-added tax for the second period of 2004, on the basis of the tax invoice that is the Plaintiff, and the supplier filed a return of the purchase amount from the Plaintiff as KRW 000,00. The tax invoice includes Nos. 4 through 8 and 5 of the tax invoice dated 30, 2004 and 5 of the tax invoice dated 31, 2004 (hereinafter referred to as "second tax invoice").

O The second tax invoice is signed and sealed by all the plaintiff, and unlike the first tax invoice, there is neither a string nor a straw and a straw related to the business.

Between the plaintiff and the OO, there was no inconsistency between the sale and the purchase between the second and the first half of 2005 to 2007.

(2) In light of the provisions of the Value-Added Tax Act, if an entrepreneur issues a tax invoice and delivers it to a third party, it shall be deemed that the entrepreneur had supplied the same goods or services as the entries of the tax invoice, unless there exist special grounds such as the issuance of a false tax invoice (see Supreme Court Decision 86Nu663, Jun. 23, 1987).

However, according to the above facts, since there is no reason to believe that the second tax invoice was not final or conclusive unlike the first tax invoice, it is difficult to view that OO's filing of the purchase amount from the Plaintiff on the basis of the second tax invoice is not a genuine purchase. Moreover, there is no evidence to support this fact, and there is no evidence to prove otherwise.

Therefore, while the OO reported the second value-added tax in 2004, the sum of the supply values of the second tax invoice among the 000 won reported by the Plaintiff as purchase amount from the Plaintiff is recognized as the Plaintiff’s sales amount.

(c) Calculation of tax amount;

(1) According to the above, the portion of the purchase price of the first tax invoice among those reported by O as KRW 000 when it reported a value-added tax for the second period of 2004 by O in 200, cannot be deemed to be due to real purchase, and it cannot be deemed to be the Plaintiff’s sales. Thus, the Plaintiff’s sales amount is recognized only as the remainder of the above KRW 000, excluding the above KRW 000.

According to the Plaintiff’s sales amount recognized as above and the evidence revealed earlier, the Plaintiff’s global income tax for the year 2004 is calculated as KRW 000 as indicated in [Attachment 2].

(2) Table 2 omitted

(2) As to this, the Plaintiff asserts that, in addition to the first and second tax invoices, the date of preparation was September 30, 2004, and the value of supply was issued to theO as of September 30, 200.

According to the evidence examined above, it is recognized that the OO reported the 2nd value-added tax in 2004, and the supplier reported the purchase amount to KRW 000 on the basis of the tax invoice that is the Plaintiff, such tax invoice did not include a tax invoice of KRW 000 as alleged above by the Plaintiff.

However, the fact that OO receives a tax invoice of KRW 000,000 as alleged by the Plaintiff and thereby does not report the purchase amount from the Plaintiff is an exceptional. As seen earlier, the Defendant merely recognized KRW 000,000, which O reported in the instant disposition, as the purchase amount from the Plaintiff, and it does not claim in the instant lawsuit that the value of the said tax invoice not reported by OO should be added to the purchase amount from the Plaintiff.

Meanwhile, according to the Plaintiff’s assertion, the sales of O was omitted at the time when the Plaintiff filed a return of the value-added tax for the second period of 2004 in return for the return of the value-added tax for the second period of 2004. Thus, if the Plaintiff delivered a tax invoice of KRW 000 to the O as alleged above, the value of supply should be included in KRW 00,000 as the sales of OO.

Therefore, in this case, when calculating the Plaintiff’s total income tax for the year 2004, the amount of tax calculated by adding the sum of the value of supply of the first tax invoice, which is not recognized as a real purchase from the Plaintiff, as seen earlier, from 000 won which the Defendant recognized as the purchase amount from the Plaintiff in the disposition of this case, to the purchase amount from the Plaintiff. The amount of tax calculated by adding the value of supply of the above tax invoice, which is claimed by the Plaintiff, to the purchase amount from the Plaintiff, cannot be calculated disadvantageous to the Plaintiff.

4. Conclusion

Therefore, the part exceeding KRW 00,00, which is calculated as stated in [Attachment 2] of the Disposition in this case, which imposes global income tax of KRW 000 on the plaintiff for the year 2004, is unlawful, and this part of this case shall be revoked.

However, since the judgment of the court of first instance revoked the entire disposition of this case, the part against the defendant exceeding the above disposition of this case in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding thereto shall be dismissed, and the remaining appeal by the defendant shall be dismissed. It