Supreme Court Decision 2008Du17639 (Law No. 23, 2009)

Gold bullion shall not be deemed a nominal transaction only on the ground that it is imported and exported, and there is a bombane company in the middle.

Most of the entire transactions until gold bullion is imported and exported, and it is difficult to readily conclude that the nominal transactions are not the supply of goods subject to taxation solely on the basis of the fact that there is a wide carbon company involved in the tax-free business at the middle stage.

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

1.In the judgment of the court of first instance, the part of the plaintiff's plaque which falls under the order of cancellation shall be revoked:

2. The defendant's imposition of value-added tax of 22,051,640 won on August 1, 2005, value-added tax of 1,216,353,120 won on January 1, 2004, and each imposition of value-added tax of 134,244,700 won on February 2004, and the disposition of rejecting an application for refund of value-added tax of 572,760,300 won on February 2004, shall be revoked.

Purport of claim and appeal

In addition to the above claim, the plaintiff claimed revocation of the disposition of imposition of KRW 3,00,00 for the business year of 2003, and KRW 300,151,620 for the business year of 204.

1. Scope of adjudication by this Court;

Of the Plaintiff’s instant claims in the judgment before remanding, the remainder, other than the part on the imposition of value-added tax and the claim on the revocation of the application for refund, as seen earlier, was already determined by the judgment of remand and excluded from the scope of the party members’ judgment.

2. Circumstances of the disposition;

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

3. Whether the dispositions of the instant case are legal.

(a)the master of the plaintiff;

In fact, the Plaintiff received each of the instant tax invoices from each of the instant traders, and subsequently exported them to a foreign country or sold them to a domestic trader. In addition, the Plaintiff did not conspired with the importer, the domestic company, and the foreign exporter to unlawfully refund the value-added tax. In addition, even if the Plaintiff participated in the process of distributing the instant gold bullion, the Plaintiff was not aware of such a bomb, and the Plaintiff was not aware of all of the Plaintiff’s previous distributors. Accordingly, each of the instant tax invoices, which was based on the premise that each of the instant tax invoices was false or that the Plaintiff knew or could have known of such fact, was unlawful.

(b) relevant statutes;

It is the same as the entry of the attached statutes.

C. Determination

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 shall be a delivery or transfer of goods on all contractual or legal grounds." In light of the fact that value-added tax has characteristics as multi-stage transaction tax, "Do or transfer, which is stipulated in Article 6(1) of the Value-Added Tax Act, includes all acts of causing the transfer of rights to use and consume goods, regardless of the existence of profits gained (see Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 201; 9Du9247, Mar. 13, 2001). In this case, the issue of whether a specific transaction among a series of transactions constitutes the supply of goods prescribed in the Value-Added Tax Act shall be determined on the grounds that the tax invoice is delivered or delivered under Article 29(2)4 of the Value-Added Tax Act.

In addition to the whole purport of each of the evidences of this case, the plaintiff purchased gold bullion of KRW 15,171,857,690 (hereinafter referred to as "gold bullion of this case") from each of the parties to the transaction of this case from December 22, 2003 to September 17, 2004, respectively, and received delivery of the gold bullion of KRW 15,171,857,690 (hereinafter referred to as "the gold bullion of this case") on the date of purchase, and received all of the price (hereinafter referred to as "transaction of this case"), and received each of the tax invoices of this case from the suppliers of this case, and the plaintiff exported all of the gold bullion of Hong Kong on the date of purchase.

Examining these facts and records in light of the legal principles as seen earlier, it is difficult to readily conclude that the instant transaction, one of the entire transactions of this case, is not the supply of goods subject to value-added tax as nominal transactions, solely on the following grounds: (a) a series of entire transactions up to the time the instant gold bullion is imported and exported; (b) a gold bullion exempt from value-added tax at the intermediate stage is purchased and supplied as gold bullion to a person who is not recommended to be exempted from value-added tax; and (c) a so-called wide-scale coal company exists, which does not pay the amount equivalent to value-added tax; and (d) a single of the instant entire transactions, is a nominal transaction. Accordingly, each disposition to impose value-added tax and refuse

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so the judgment of the court of first instance is revoked and all of the disposition of imposition and rejection of refund of each of the value-added tax of this case are revoked,