Whether the principal registration based on a provisional registration is the supply of goods or constitutes security for transfer;

If a provisional registration has been made to secure a debt for a share of a building and the principal registration has been made, the portion of the purchase tax invoice received according to the registration of ownership of the building is not subject to input tax deduction.

Article 6 (Supply of Goods)

1. The plaintiff's appeal is dismissed.

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

the Gu Office's place of service and place of service

The judgment of the first instance shall be revoked. The imposition of value-added tax of KRW 319,473,00 on July 9, 2006 by the defendant against the plaintiff on July 9, 2006 shall be revoked.

1. Details of the imposition;

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry of Gap evidence 1, Gap evidence 2-1, Eul evidence 2, and Eul evidence 3.

가. 원고는 2003. 6. 20. 서울 ○○○구 ○○○동 ○-○4 외 3필지 지상에 있는 철근콘크리트조 평글래브 7층 운동시설 및 근린생활시설(이하 '이 사건 건물'이라 한다) 중 윤○○의 지분(9,912.57분의 4,032.445지분, 이하 '이사건 윤○○ 지뷴'이라 한다)에 관하여 원고 명의로 소유권 이전등기를 마쳤고, 윤○○으로부터 공급가액 21억 원의 세금계산서(이하 '이 사건 세금계산서'라 한다)를 교부받았으며, 부가가치세신고를 할 때 이 사건 세금계산서상의 매입세액 2억1천만 원을 신고하였다.

B. On July 9, 2006, the Defendant decided and notified KRW 319,473,00 of value-added tax for the first period of No. 1 year of 2003 after deducting the input tax amount on the instant tax invoice on the grounds that the transaction in the instant tax invoice constitutes security for transfer and cannot be seen as the supply of goods pursuant to Article 6(6)1 of the Value-Added Tax Act and Article 17 of the Enforcement Decree of the Value-Added Tax Act (hereinafter “instant disposition”).

C. The Plaintiff, who was dissatisfied with the instant disposition, filed a national tax adjudication request on August 31, 2006, but was dismissed on December 26, 2006.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On April 19, 1996, the Plaintiff completed the registration of the right to claim ownership transfer registration with respect to the portion of 0.3 billion won with respect to the claim against 0 billion won. After that, by exercising a security right on June 20, 2003 due to the Plaintiff’s failure to pay the above debt, the instant le○○ shares were finally reverted to the Plaintiff. Thus, the Plaintiff did not agree with the importing company, domestic company, and overseas export company to unlawfully refund the value-added tax, and even if the business agent was involved in the distribution process of the domestic gold bullion, the Plaintiff did not know of such lebane company, as well as whether gold bullion was distributed in any way to the Plaintiff immediately before the purchase place. Accordingly, each of the instant purchase tax invoices was false tax invoices, or that the Plaintiff knew or could have known the fact, and each of the instant disposition of refusal to impose the value-added tax and the disposition of refusal to refund was unlawful.

2) As seen above, since the Plaintiff’s purchase of gold bullion is normal transaction, each of the instant purchase tax invoices is false tax invoices, each of the instant dispositions imposing additional tax on the Plaintiff, on the premise that it is a false tax invoice, is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

(1) A general form of variable transaction for the purpose of tax evasion in the transaction of gold bullion;

(A) The case holding that the value-added tax was levied on the gold bullion imported by wholesalers and manufacturers of gold bullions, etc. upon receipt of a tax-free gold bullion import recommendation from the importer of the tax-free gold bullion and the gold bullion business operator, etc. from July 01, 2003 to June 30, 2005 by abusing the system under which the value-added tax is exempted [Article 106-3 of the former Restriction of Special Taxation Act (amended by Act No. 7577 of July 13, 2005)] for the sales of gold bullions, which is at least 95/1,00 of the Value-Added Tax Act (Article 11(1)1 of the Value-Added Tax Act), and the sales of gold bullions, etc. or the sales of gold bullions, as if they were through various stages of wholesale after importing the gold bullions for the purpose of unfairly being refunded, or the sales of the gold bullions were made through a disguised sales process among the precious metal business operator ○○○.

(B) The appearance of gold bullion is distributed through the stages of 'foreign companies', 'import companies', 'the first (s) companies', 'the second (s) companies', 'the second (e.g., heavy carbon companies', 'the floor wholesale companies', 'the export companies', 'the foreign companies', and the transaction price is paid in succession in the reverse direction from the export companies to the import companies. However, among the above distribution companies, it is limited to the issuance of tax invoices from the large coal companies to the floor wholesale companies, and there are many cases where gold bullion is not actually traded or transported.

(C) After purchasing gold bullion, which was distributed under tax exemption at the previous stage, and selling it to the Do government company as an additional tax amount equivalent to 10% of the value-added tax, the amount equivalent to the value-added tax shall be successively transferred to the State by each stage enterprise by withdrawing its profit in cash and closing its business within the short period. The amount equivalent to the value-added tax shall be successively transferred by each stage enterprise through the tax invoice issued by the immediately preceding stage enterprise to deduct its input tax amount. Ultimately, the exporter exports gold bullion as zero tax rate and then is entitled to refund from the State by the method of deducting its input tax amount. The ultimate source of profit from the value-added tax refund amount is the portion equivalent to the value-added tax amount paid by the Gun government. The above profit is distributed to the domestic company involved in the Gun coal business in the form of Mara, which is distributed in the form of Mara, or the amount calculated by the specified ratio of the profit (the remainder after deducting the purchase price from the sales price) of the company. In addition, the export price of the foreign company is lower than the export price (the domestic export price).

(d)Pistan business shall distribute to the greatest extent possible amount of gold bullion in a short term in order to maximize its profits, and to prevent disputes between participating enterprises that may arise therefrom, or accidents, such as loss of prices, ① the same pecuniary owner (referring to any person who prepares for the import and settlement of gold bullion from the outside of the carbon business network) shall operate both the exporting enterprise and the importing enterprise at the same time; ② the former owner shall place an enterprise substantially controlled or trusted by it in direct transactions with the bomban enterprise; ③ the former owner shall determine the volume, unit price, and margin of the transactions at each stage of transactions; ④ the series of transactions between the importing enterprise and the exporting enterprise at a very short time, ④ the latter is carried out in most cases at a very short time, and ⑤ the actual gold bullion is transported immediately with the exporting enterprise (limited to transportation at each stage of transactions, even if it is a formal transaction).

2) In the case of each purchase tax invoice of the instant case

(A) From July 2001, the two chief director of the Plaintiff’s board of directors operated the ○○ Unemployment as a manufacturing business entity of clothing and subsidiary materials. On October 29, 2003, the Plaintiff established the Plaintiff. However, until March 6, 2001 until March 6, 2001, there is no experience related to the present transaction other than the current processing business operator’s work experience.

(B) The gold bullion on each tax invoice received by the Plaintiff in the instant case (hereinafter “gold bullion”) is all converted into a taxable gold from a foreign country to a foreign country and distributed as a tax-free gold. They were exported through the Plaintiff through six-7 stages from the importing company or traded through the Plaintiff at the middle stage of such import and export, and a variety of stages of transactions from the import to the export was conducted within 2,3 days from the date of the import of the relevant gold bullion, or from the import to the export.

(다) 원고는 이 사건 금지금을 수출하는 경우, 호주의 ○○○ BANK에 수출한 일부는 주식회사 ○○○상사에 의뢰하여 22K나 18K의 반지, 목걸이 등으로 가공하여 수출하였고, 2004. 3. 17. 이후의 수출분은 금지금 상태 그대로 모두 홍콩에 있는 ★★, ☆☆, ◇◇ 또는 ◎◎로 수출하였다. 그런데 ○○지방국세청의 조사결과 위 ★★, ☆☆, ◇◇는 모두 '△△△'이 실제로 운영하고 있는 회사로서 사실상 동일업체이고, 위 업체들은 수출입 관련 서류 및 거래대금 등에 관한 관련 장부도 제시하지 목하고 사업장이 불분명한 등 정상적인 사업체가 아닌 것으로 확인되었으며, 원고가 수출한

Some gold bullions have been imported from the above exporter(24.05.05.05.06.06.09.16).

(D) Many of the parties involved in the transaction based on each of the purchase tax invoices of this case are RN with persons closely related to the Plaintiff’s ○○○○○ Company, one of the Plaintiff’s trading companies, and the cross-transaction where the customer overlaps or the customer and the purchaser are pending frequently without justifiable grounds.

① The Plaintiff’s shareholder consists of both ○○○○ (30%) (30%) and ○○ (30%) and ○○ (20%) and ○○ (20%). The Defendant’s wife Kim○ (20%) around December 2003, the Plaintiff’s shareholder was a shareholder of the company ○○○ (○○) around December 2003, and the Defendant’s ○○ and Park○ (199) worked for the company ○○ (198 or 199).

② The above inside ○○○ is the △△△△△△, a taxation trader, who takes charge of the ○○△△△△△, a corporation that takes charge of the role of the △△△△△△, and the husband of the ○○○○, who takes charge of the transaction of the gold bullion in the instant gold bullion, is the largest shareholder of the △△△△△, who takes charge of the △△△△△△, and the Plaintiff’s employee, the △△△△△△, a shareholder of the ○△△△△△△△,

③ 위 안△△은 주식회사 ○○○상사 대표이사 이△△의 처남이고, 양○○은 이△△의 자인 이★★과 고교 동창이며, 위 안○○과 안□□은 이△△의 처제이다.

④ One of the Plaintiff’s transaction partners, △△ Metal Co., Ltd.’s △○○○ is the mother of this △△△, a company’s employee, and Kim○○ is the shareholder who owns 8,160 shares in ○○○○○○○.

⑤ The ○○○○ Company, one of the customers of the Plaintiff, is the shareholder of the ○○ Company, and the branch office of the ○○ Bank related to the loan of the ○○ Company.

【○○○○, one of the purchase places of the Plaintiff, is a representative director of the ○○○○○ Company, and the principal director of the ○○○○ Company, is an interest relationship of the △△△△

(E) The △△○○○, the △△○○, the △△△△△, the △△△, and the △△△△, all of the wholesalers (so-called a business entity) that converted the gold bullion of this case into the taxable gold in the course of its distribution, whose purchase price is lower than the purchase price (However, the value-added tax plus the value-added tax is higher than the purchase price, i.e., the value-added tax plus the value-added tax), did not perform the liability to pay the value-added tax by arbitrarily suspending or closing the gold bullion, and all of

(F) The price exported by the Plaintiff was always set lower than the import price of the domestic importer.

(G) Some of the gold bullion in the instant case were imported from several different companies prior to that time, and re-exported transactions were repeated without going through any processing. The parties to the instant gold bullion including the Plaintiff did not receive at all a divisional certificate under the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export, which is necessary for the exporter to obtain refund of 3% customs duties while exporting gold bullion, and did not enter at all the serial numbers of the traded gold bullion at all.

(아) 한편, 이 사건 각 금지금 거래에 있어서 운송장 등의 기재에 의하면 금지금이 수입되어 수입신고 후 반출되기도 전에 관련 업체들이 이미 운송한 것으로 기재되어 있거나 아예 운송시간이 기재되어 있지 않은 경우도 있다. 또한 원고는 홍콩소재 수출업자로부터 미리 수출대금을 입금받은 후 이 사건 거래업체에게 송금하는 것을 시작으로 전 단계의 도매업체를 순차로 거슬러 올라가 수입업체에 이르게 되는데, 대금의 송금에 걸리는 시간은 각 단계별로 몇 분 정도밖에 소요되지 앟을 정도로 일사불란하게 결제가 이루어졌으며, 대금의 결제가 금지금의 운송보다도 먼저 이루어진 경우도 있었다.

(c) Price, etc. of gold bullion;

In the case of gold bullion, a large-scale wholesaler, etc. provides a daily gold bullion market price via the Internet or telephone, taking into account the international market price and exchange rate. However, the Plaintiff, regardless of the above market price, at all times, at a price lower than the domestic market price and international market price. If the Plaintiff or each of the instant traders did not export the gold bullion and distributed it in the Republic of Korea, the Plaintiff or each of the instant traders could have much more advantage than exporting the gold bullion.

Evidence A-1-20, 6-16, evidence 1-14, 18-41, evidence 17-4, evidence 5-14, evidence 5-14, evidence 1-14, 18-41, evidence 5-14, 6-14, 8-1, 28-3, 29-32, evidence 33, 33-1, 33, 35-1, 37-1-6, 38-18, 42-4, evidence 46-1-4, 47, 48, 49, 50-41, 251, 45, and 525-1, 525, respectively.

D. Determination

(i) a disposition imposing and rejecting refund of value-added tax;

As seen earlier, the Plaintiff’s representative director ○○○ has no special experience or knowledge in the import and export business of gold bullion except for those who were temporarily engaged in the gold bullion business. The transaction of the gold bullion seems to have been formally transferred through various stages of companies, but it is a transaction in which gold bullion is transferred only through the structure of the evasion of the value-added tax and the refund of the value-added tax by the exporters; the so-called so-called “large carbon business” is widely known to the gold bullion wholesale business; thus, both ○○, a director of the Plaintiff’s large ○○ was well aware of the fact that the Plaintiff’s trade form was a part of the business. The gold bullion transaction seems to have been distributed from the import to the ○○○○○ company only through six-7 stages of business, and it seems to have been difficult for the Plaintiff to obtain the import price of gold bullion only through electronic financing, and it seems to have been impossible for the Plaintiff to obtain the import price of gold bullion in light of the fact that it is difficult for the Plaintiff to obtain the import price of gold bullion more than before and after the sale.

In addition, even if the business entity involved in the transaction until the plaintiff finally exports gold bullions, it is reasonable to view that the business entity merely transfers the price received from the plaintiff to the purchaser, receives the tax invoice, and then acquires in the form of the difference between the sales price and the purchase price, a certain portion of the value-added tax amount to be evaded in return for such interventions, and that the gold bullion is delivered between them and the plaintiff, and that the transaction constitutes an external appearance, such as the payment of the price, etc., is conducted,

Therefore, each purchase tax invoice of this case constitutes a processing transaction that receives only tax invoices without actual transaction of gold bullion, and constitutes the requirements for imposing additional tax under Article 22(4) and (5) of the Value-Added Tax Act, and the deduction of input tax pursuant to each purchase tax invoice of this case should be denied. Therefore, each of the disposition imposing and rejecting refund of this case is legitimate.

2) Disposition of imposing corporate tax

법인세법 제76조 제5항이 재화나 용역을 공급받은 법인으로 하여금 정규지출증빙서류를 수취하지 않은 경우 가산세를 부담하도록 하는 것은 법인의 경비지출내용의 투명성을 제고함과 아울러 거래상다방 사업자의 과세표준 양성화를 유도하기 위한 것으로서, 과세표준 양성화 대상이 되는 거래상대방 사업자에게 성실신고의무를 부과하는것만으로는 이러한 입법목적 달성에 어려움이 있으므로, 재화나 용역을 공급받는 법인에게 정규지출증빙서류를 수취하도록 하고 그 의무위반에 대하여 그 수취하지 앟은 금액의 일정비율에 상당한 금액을 추가하여 납부하도록 제재하는 것이다(헌법재판소 2005. 11. 24.자 2004헌가7 결정, 2007. 5. 31.자 2006헌바88 결정 참조). 따라서 위 규정에 의한 가산세는 실제의 거래가 있음에도 그 지출증빙서류를 수취하지 않은 경우에 적용되어야 하고, 이 사건 각 매입세금계산서와 같이 실제 거래가 없음에도 거래가 있는 것으로 위장하고 증빙서류를 수수한 행외에 대하여는 적용할 수 없으므로, 이 사건 각 법인세 부과처분은 위법하다.

3. Conclusion

Therefore, the part of the plaintiff's claim of this case seeking the revocation of each corporate tax imposition disposition is justified, and the remaining claims are dismissed, and it is so decided as per Disposition.

Relevant statutes

Value-Added Tax Act (Amended by Act No. 8142, Dec. 30, 2006)