Daegu High Court-2018-Nu-4053 ( December 21, 2018)

Inasmuch as it is difficult to deem that a purchaser who received a false tax invoice was aware of the reduction of national tax revenue, it does not constitute fraud or other unlawful act.

(1) A summary of the tax invoice received by the Plaintiff shall be deemed to be a false tax invoice, but it is difficult to view that the tax invoice received the input tax deduction would result in the reduction of national tax revenue, and thus, it does not constitute a fraud or other unlawful act, but is not subject to the exclusion period of imposition for ten years and an unfair under-reported penalty tax.

Article 38 of the Value-Added Tax Act

2019Du31730 Revocation of Disposition of Imposition of Value-Added Tax

AA

aa tax office

September 9, 2019

Among the lower judgment, the imposition of value-added tax for the first to second years 2009 and the first period in 2011

This part of the disposition imposing additional tax on the second underreporting in 2014 is reversed, and this part of the case is dismissed.

The case shall be remanded to the Gu High Court.

The remaining appeals are dismissed.

The grounds of appeal are examined (the supplemental appellate brief not timely filed).

The reasons are examined to the extent of supplement in case of any kind.

1. Case summary

Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

the corporation.

(a) BB, which is the head of the business of BBB (hereinafter “BB”) corporation, shall be the Plaintiff;

The price of 20,000 won to 30,000 won per 1 lst,00 won compared to the arm's length price (hereinafter referred to as "actual sale price").

ccccc(hereinafter referred to as “ccccccc(hereinafter referred to as “the tax invoice”) supplied by the Corporation as the original contractor.

The term “the name” was issued and agreed at the intervals of issuance.

B. Accordingly, BB is paid the original cost calculated by the actual selling price from the Plaintiff.

c. cc. c. c. c. c. c. c, upon receipt of the charge from BB

in the process of bbb in cccc.

The zero-rate Tax Invoice was issued.

(c) cccc, at the request of BB, sells actual sales to the Plaintiff from January 2009 to September 2014.

Part 54 of the tax invoice of KRW 9,546,605,457 (hereinafter referred to as “instant tax system”).

ccccc has issued the instant tax invoice at the district tax office.

From the first quarter of 2009 to the second quarter of 2014 related to the value-added tax was fully reported and paid.

(c)

D. On the other hand, the Plaintiff is provided from bbbb to dd e, E, etc.

from the first quarter of 2009 to the second quarter of 2014 for failure to issue a tax invoice in part.

The total value of supply was 1,975,402,964 won and the total amount of supply was omitted.

E. The Director of the Seoul Regional Tax Office, as a result of the tax investigation against the plaintiff, actually bbb

to be issued the tax invoice of this case in the name of ccc even if the goods were supplied

d. Unless a tax invoice is issued in part on dd, etc., supply the original and make a sales report.

It confirmed that this fact was accepted and notified the defendant of taxation data.

F. The Defendant, on May 9, 2016, value-added tax from 1st to 2nd 2014, 2009 to the Plaintiff.

A total of KRW 2,375,696,870 (including additional tax) was corrected and notified (hereinafter “instant disposition”).

(c).

2. Judgment on ground of appeal No. 6

In the administrative trial, it shall not be bound by the finding of facts in the criminal trial.

Do. The fact that the criminal judgment already finalized on the same factual basis was found guilty is not guilty.

Inasmuch as evidence is proved, the facts in the criminal trial are judged in light of other evidence submitted in the criminal trial.

(1) Except in special circumstances where it is deemed difficult to employ the

Nor may (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012).

The lower court, based on the evidence duly admitted, found by the Plaintiff “from January 31, 2009 to September 30, 2014.”

The facts are false as they were supplied without being supplied with originals by Ccc.

of 9,546,605,457

A final judgment of conviction on a criminal charge that the case was issued;

Then, the lower court found the Plaintiff’s office in light of such factual basis, etc.

from the date of the tax invoice to the actual supplier, the supplier shall not be deemed to be a party to the tax invoice.

The Court determined that “written delivery was made.”

In light of the above legal principles and records, the judgment of the court below is just, and the appeal is dismissed.

As alleged in the grounds, the legal doctrine on the probative value of a final and conclusive tax invoice and criminal judgment

There was no misunderstanding error.

3. Determination on grounds of appeal Nos. 1 through 4

A. Article 26-2 of the former Framework Act on National Taxes (Amended by Act No. 11124, Dec. 31, 201)

Paragraph (1) shall, in principle, be subject to exclusion from imposition of national taxes other than inheritance tax or gift tax under subparagraph 3.

for five years from the date on which a national tax may be imposed, while subparagraph 1 provides that a taxpayer shall be liable for fraud or fraud;

If a national tax is evaded, refunded, or deducted by "any other unlawful act", the imposition of the national tax shall be made.

“10 years from the applicable date” is defined as “10 years from the applicable date.

Article 47-3 subparag. 2 of the former Framework Act on National Taxes (Amended by Act No. 12848, Dec. 23, 2014)

Paragraph (2) 2 shall be underreported or refunded by a taxpayer to pay value-added tax by "unlawful act"

If the tax amount has been overreported, the sum of the unlawfully underreported tax amount and unlawfully overreported refunded tax amount;

amount equivalent to 40/100 of the amount of general under-reported tax, etc. equivalent to 10/100 of the amount of under-reported tax, etc.

§ 1124, Dec. 31, 201, provides that the sum of the amounts shall be the penalty tax (No. 11124, 201)

Article 47-3 (2) 1 and 2 of the former Framework Act on National Taxes are the same purport.

Ha The above-mentioned Framework Act on National Taxes is not classified and called the "former Framework Act on National Taxes" (hereinafter referred to as "former Framework Act").

A taxpayer who receives a false tax invoice and receives an input tax deduction or refund;

(1) such act may be deemed to be a fraud or out of it, as provided in Article 26-2(1)1 of the former Framework Act on National Taxes.

"Where a taxpayer evades national taxes, obtains a refund or deduction by unlawful means" or Article 47-3 (2) 2;

tax amount of value-added tax shall be underreported or over-reported due to an unlawful act.

in order to constitute a “case”, the taxpayer may not be deemed to be a taxpayer by a false tax invoice.

In addition to recognizing that input tax shall be deducted or refunded, a false tax invoice shall be issued.

the tax base and tax amount of value-added tax except for the output tax amount under the tax invoice.

Claim for rectification after filing a return or filing a return or filing a return or filing a tax invoice in whole;

(1) Any evasion of liability to pay value-added tax on the tax invoice by means of refund, etc.

As a result, the taxpayer’s deduction of the input tax amount may reduce the national tax revenue.

There should be awareness that such an act will bring about the said act (Supreme Court Order February 27, 2014).

Supreme Court Decisions 2013Du19516 and Supreme Court Decision 2014Du11618 Decided January 15, 2015, etc.

B. The following circumstances revealed by the facts as seen earlier and the record

Examining in light of the above provisions and legal principles, the Plaintiff purchased the tax invoice of this case different from the fact.

The fact that the deduction of the tax amount would result in a decrease in the national tax revenue.

It is difficult to see that there was a perception about it.

(1) In the instant tax invoice, the term “purchase transaction in which the Plaintiff was supplied with the capital stock from ccc” means “purchase transaction.”

The term "transaction supplied by the Plaintiff to Dd, etc. for sale" and all the parties, parties, transaction objects, etc.

transaction is a separate transaction, and otherwise, the purchase transaction and sales transaction are substantially a single transaction.

there is no evidence to deem that the Plaintiff was due to purchase transaction with BBB. Furthermore, 2-3

In order to conceal the amount of profit equivalent to 1.975 million won, the report of sales not exceeding KRW 1.975 million shall be omitted.

It is difficult to see that the Plaintiff’s omission of a report on sales is generated from the purchase transaction.

(2) The difference in the transaction between dddd and any other transaction party at all is not the difference.

In other words, the determination of whether the above purchase transaction constitutes a fraudulent act cannot be taken into account.

(2) ccccc is the cost of the master company received from the Plaintiff through BB, and the tax of this case

In accordance with the agreement entered into with BB, the Plaintiff paid all the output tax amount on the statement of accounts.

D. Purchase to the Plaintiff solely on the ground that the value-added tax amount equivalent to 3 to 5% of the supply value was reduced

There is awareness that there will be a decrease in the national tax revenue in connection with the transaction.

It is difficult to see that they were.

(3) The disposition of refund of value-added tax on ccc is conducted by the tax authority after the fact.

Accordingly, the plaintiff will bring about the reduction of national tax revenue at the time of filing the value-added tax return.

such determination may not affect the determination of whether or not the person has recognized it.

C. Therefore, the Plaintiff from 1 to 2012 and from 2 to 2013, 2014

An act of deducting the input tax amount under the tax invoice of this case which is different from the fact in the second period

Article 26-2 (1) 1 of the Framework Act on Taxation and Article 47-3 (2) 2 of the same Act

No “unlawful act” or “unfair act” shall be deemed to be “unfair act” or “unfair act”. Accordingly, a purchase transaction under the instant disposition shall be deemed to

the second imposition of value-added tax (including additional tax) in 2009 to 2010 shall be based on the old national tax.

The exclusion period of five years under Article 26-2 (1) 3 of the Act was set by the exclusion period of five years, and the first period of 2009

In respect of purchase transactions between the second and second years 2012 and 2013 to 2014, fraudulent

It should be deemed that the penalty tax for underreporting cannot be imposed.

D. Nevertheless, the lower court, solely on the grounds indicated in its reasoning, found the Plaintiff guilty of the instant taxes.

Recognizing that account statements will result in the reduction of national tax revenue.

The imposition of value-added tax for the first or second period of 2009 to 2010 on the erroneous premise that it was 10

Law that has been made within the exclusion period of imposition of year, and 1 to 2012

In addition, the second or second or second or 2014 determination that the imposition of penalty tax for illegal underreporting is lawful

was made.

E. Such determination by the court below is in accordance with Articles 26-2(1)1 and 47-3 of the former Framework Act on National Taxes

Matters concerning the requirements for the imposition of long-term exclusion period and non-reported penalty under paragraph (2) 2;

In so determining, the lower court erred by misapprehending the legal doctrine and adversely affected the conclusion of the judgment.

§ 30.

4. Judgment on ground of appeal No. 5

(a) The “private company” under Articles 26-2(1)1 and 47-3(2)2 of the former Framework Act on National Taxes;

"Other unlawful act" or "unlawful act" means an act in which the imposition and collection of taxes are impossible.

or other active action that significantly makes it difficult to do so, and active concealment

In addition to the circumstances showing the intention to do so, no report under tax law is simply filed; or

The filing of a false report does not constitute a false report (Supreme Court Decision 201Da1548, Apr. 13, 2017).

2015Du44158, supra.

Generally, a bank account in the name of another person has been deposited, and such account has been borrowed.

In any case or active in any case any circumstance, such as the motive, circumstance, etc. of a specific act

Although it is not determined that it constitutes an act of concealing sales, it is not a false entry in books, and payment of checks, etc.

In the case where the exchange, return, or other concealment of the means is included, the use of the borrowed account.

Money deposited in several borrowed accounts or repeatedly deposited in another borrowed account in succession.

Provided, That even one deposit shall have a substantial effect on concealment due to the special relationship with the nominal owner.

(2) If it is deemed that there is an intention of active concealment, etc., the imposition and collection of taxes is impossible or

It is substantially difficult and constitutes a fraudulent act (Supreme Court Order February 18, 2016).

2014Do3411, supra.

B. According to the records, the Plaintiff uses the “spouse’s account in the name of spouse” on the second day for pleading of the court below.

It is known that the omission of a report on sale does not constitute an unlawful act.

In light of the above legal principles, the court below held that the Plaintiff’s account under the name of his spouse was used.

In addition, whether there were other concealments, or not, the intention of the plaintiff's active sale concealment.

The account in the name of the spouse after hearing whether there are other circumstances that can be recognized

It should have judged whether the omission in the return of sales by using it constitutes a fraudulent act.

C. Nevertheless, the lower court did not examine these points, and did not examine them, and the Plaintiff’s spouse name.

direct account as to whether the act of omitting the revenue deposited in the account constitutes an unlawful act

§ 1 to 2, 2010 on an omitted return of sale without determination

The imposition of value-added tax is legitimate within the exclusion period of ten years, and 2009.

The imposition of penalty tax for illegal underreporting 1 to 2013 and the second underreporting 2014 is legitimate.

In so determining, the lower court did not exhaust all necessary deliberations or make decisions.

Omission and omission, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

section 1.

5. Judgment on the ground of appeal No. 7

The ground of appeal pointing this out is a new argument that only when the plaintiff was on the appellate trial.

No legitimate ground of appeal can be a legitimate ground of appeal. Furthermore, the Act imposing additional tax for an illegal underreporting.

As alleged in the grounds of appeal, it shall be deemed that a provision violates the Constitution of the Republic of Korea.

shall not be effective.

6. Conclusion

Therefore, among the judgment below, the imposition of value-added tax for the first to second year 2009 and the second year 2010.

The part of the imposition of penalty taxes on the second underreporting in 2011 to 2014 is reversed, and this part is reversed.

Part of the case is remanded to the court below for a new trial and determination, and the remaining grounds of appeal are dismissed.

It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-hwan

Justices Park Sang-ok

Lee In-bok and Lee In-chul

Justices Noh Jeong-hee