Busan District Court-2015-Guhap-5089 ( February 24, 2015)

If the received certificate does not know that it is false, it cannot be deemed that it constitutes a case of underreporting the tax base by improper means.

It is insufficient to view that the Plaintiff was aware that the transaction partner would be evading awareness and tax liability on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, on the grounds that it is difficult to deem that the transaction partner was issued with the knowledge that it was a false tax invoice with respect to the tax invoice issued by the transaction partner.

Article 17 of the Value-Added Tax Act

2015Nu2304 Revocation of Disposition of Imposing Value-Added Tax

AAAAAM (State)

BB Director of the Tax Office

Ulsan District Court Decision 2015Guhap5089 Decided September 24, 2015

January 29, 2016

February 4, 2016

1. 제1심 판결 중 아래에서 취소를 명하는 부분에 해당하는 원고 패소 부분을 취소한다. 피고가 2013. 7. 15. 원고에게 한 부가가치세 2010년 제1기분 QQQ,QQQ,QQQ원의 부과처분 중 WWW,WWW,WWW원을 초과하는 부분，2010년 제2기분 QQQ,QQQ,QQQ원의 부과처분 중 WWW,WWW,WWW원을 초과하는 부분을 각 취소한다.

2. The plaintiff's remaining appeal is dismissed.

3. 9/10 of the total costs of the litigation shall be borne by the Plaintiff, and the Defendant, respectively.

제1심 판결을 취소한다. 피고가 2013. 7. 15. 원고에게 한 부가가치세 2010년 제1기분 QQQ,QQQ,QQQ원，2010년 제2기분 QQQ,QQQ,QQQ원, 2011년 제1기분 QQQ,QQQ,QQQ원, 2011 년 제2기분 QQQ,QQQ,QQQ원, 2012년 제1기분 QQQ,QQQ,QQQ원, 2012년 제2기분 QQQ,QQQ,QQQ원의 각 부과처분을 취소한다.

1. Details of the disposition;

This Court's explanation is based on Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, because the reasons for this part are the same as the corresponding part of the judgment of the court of first instance.

2. The legality of disposition.

The court's explanation on this part is based on Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since the reasoning of the court of first instance is the same as that of the corresponding part of the reasoning of the court of first instance, except for addition of the following judgments as to the newly asserted by the plaintiff in the court of first instance.

Additional Decision-Making>

A. The plaintiff's assertion

The instant tax invoice is a tax invoice different from the facts, and even if the Plaintiff did not know such fact due to negligence, the Plaintiff was illegal to impose an unfair under-reported additional tax on the Plaintiff in relation to the tax invoice issued by the CC company even though the Plaintiff did not know that the tax invoice issued by the CC company was false and that the CC company would evade value-added tax.

B. Determination

(1) Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same) provides that an amount equivalent to 40/100 of the amount calculated by multiplying the rate of tax base underreported by the calculated tax amount shall be added to, or deducted from, the payable tax amount. In addition, Article 47-2(2) of the former Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012; hereinafter the same) defines the meaning of “unfair method” as “a method prescribed by Presidential Decree that violates the duty to report the tax base or the amount of national tax based on the disguised concealment of all or part of the fact that serves as the basis for calculating the tax base or the amount of national tax,” and Article 27-3(2)1 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012012) provides that a taxpayer may receive any false or fraudulent method.

Even if the tax base was underreported, if the taxpayer did not know that the proof of receipt of the tax base was false, it cannot be deemed that the taxpayer did not know that it was false due to gross negligence. Moreover, if the taxpayer received a tax invoice different from the actual supplier under the tax invoice and received the input tax deduction or refund in an unjust manner under Article 47-3(2)1 of the former Framework Act on National Taxes, it should be viewed that the taxpayer’s act constitutes “in cases where the taxpayer undergoes the input tax deduction or refund in an unjust manner as provided under Article 47-3(2)1 of the former Framework Act on National Taxes,” and there should be awareness that the taxpayer would receive the input tax deduction or refund based on the fact that the taxpayer would receive the input tax deduction or refund, other than the output tax under the tax invoice, by filing a return or payment of the tax base and the amount of the value-added tax, or by filing a request for correction after filing a return or payment of the entire output tax amount under the tax invoice, thereby undermining the taxpayer’s liability for payment under the tax invoice.”

을 제1호증의1，2의 각 기재 및 변론 전체의 취지에 의하면 이 사건 처분 중 CC상사가 발행한 세금계산서와 관련한 부당과소신고가산세로, ① 2010년 제1기분에 QQQ,QQQ,QQQ원(= VVV,VVV,VVV원 ×40/100), ② 2010년 제2기분에 QQQ,QQQ,QQQ원(= VVV,VVV,VVV원 x 40/100, 원미만 버림)이 각 부과된 사실을 인정할 수 있다.

However, the following circumstances acknowledged by the facts and evidence revealed earlier, namely, the Plaintiff paid all the value-added tax on the tax invoice issued by theCC company to EF et al., and the tax invoice issued by KK as the Plaintiff’s employee is false tax invoice.

In light of the fact that the judgment of innocence was finalized on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance, etc. of False Tax Invoice) with respect to the tax invoice issued by theCC company on the grounds that it is difficult to view it as having been issued with knowledge, it is insufficient to recognize that the Plaintiff was aware of the fact that the tax invoice issued by theCC company was false and that theCC company was exempted from the liability for value-added tax payment with respect to the above tax invoice, and there is no other evidence to acknowledge it.

Therefore, the part that imposes an unfair under-reported penalty tax in relation to the tax invoice issued by theCC company among the dispositions of this case is unlawful. Therefore, the plaintiff's assertion pointing this out is with merit

3. Conclusion

그렇다면 이 사건 처분 중，① 2010년 제1기분 QQQ,QQQ,QQQ원의 부과처분 중 WWW,WWW,WWW원(=QQQ,QQQ,QQQ원-VVV,VVV,VVV원)을 초과하는 부분, ② 2010년 제2기분 QQQ,QQQ,QQQ원의 부과처분 중 WWW,WWW,WWW원(=QQQ,QQQ,QQQ원-VVV,VVV,VVV원)을 초과하는 부분은 위법하므로 이를 각 취소하여야 할 것인바, 이와 결론을 달리한 제1심 판결 중 위 취소 부분에 해당하는 원고 패소 부분은 부당하므로 원고의 항소를 일부 받아들여 이를 취소하고, 원고의 나머지 항소는 이유 없어 이를 기각하기로 하여 주문과 같 이 판결한다.