Seoul Administrative Court 201Guhap21263 ( December 21, 2011)

Cho High Court Decision 201Do0028 ( October 14, 2011)

It is determined that the transaction constitutes a good faith trading party that has fulfilled good duty of care.

The plaintiff's assertion that the tax invoice of this case is not a false tax invoice is not acceptable, but the plaintiff was unaware of the circumstances that the tax invoice of this case constitutes a false tax invoice, and the plaintiff's assertion that there was no negligence on the part of the plaintiff.

2012Nu2247 Revocation of Disposition of Imposition of Value-Added Tax

AA metal Co., Ltd.

Head of Eastern Tax Office

Seoul Administrative Court Decision 201Guhap21263 decided December 21, 2011

January 17, 2013

February 7, 2013

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of value-added tax for the first term of October 1, 2009 (including additional tax) and value-added tax for the second term of 2009 (including additional tax) on the Plaintiff on October 1, 2010 shall be revoked in all.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. The part citing the judgment of the court of first instance

1. From 1. to 2. Whether the disposition in this case is legitimate, and the plaintiff.

(b) The plaintiff, for the purpose of the related Acts and subordinate statutes, and (c) the first instance court's judgment, and (i) 10 to 14, while the plaintiff, at the place of business of the AA comprehensive metal located in the old OO-si, issued the tax invoice on the same day after measuring the closing weight from the old O-si, and then transferred the price to the account of the transaction party at that time, and the transaction party at this case transferred the money to the other account at least 2,00 cm0,000 won upon deposit by the plaintiff, or transferred the money transferred to the other account at that time, immediately withdrawn in cash, and the part transferred to the other account "the plaintiff was transported to the place of business of the AA comprehensive metal located in the old-si O-si, 10 to 10, and 20, and 70, and 9,000,000,000,000,000,000,000,000.

2. Judgment on the plaintiff's assertion

A. Relevant legal principles

(1) In principle, tax authorities bears the burden of proving that a specific transaction constitutes “tax invoice entered differently from the fact” as provided by Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) where input tax deduction is denied on the ground that it is a nominal transaction without actual delivery or transfer of goods (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008). However, if the tax invoice differs from the fact, and if there is a person to whom it actually belongs, the actual ownership of the income, profit, calculation, or transaction does not coincide with the fact that the tax invoice was issued by the person who actually belongs to the person who actually owns the goods or services, the other party to whom the tax invoice was issued cannot be deemed to be the one who actually supplies the goods or services, in light of the purport of Article 14(1) of the Framework Act on National Taxes, and the other party who actually supplies the goods or services, 96.

(2) On the other hand, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there are special circumstances that the person who received the tax invoice was unaware of the fact that the supplier was unaware of the fact in the name of the supplier, and that the person who claimed the deduction or refund of the input tax amount was not negligent in not knowing the fact in the above name (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009). Furthermore, comprehensively considering all the circumstances such as the process of issuing and delivering the tax invoice, the specific route and process of the supply of the goods or services, and the price of the goods or services, and the confirmation of the business facilities of the supplier in the name of the supplier, and it is difficult to conclude that the actual supplier and the supplier in the tax invoice are merely the supplier in the name of the supplier.

B. As to the assertion that the instant tax invoice was not a false tax invoice

In light of the above legal principles and comprehensive consideration of various circumstances, such as H resources, DD resources, and FMs, the type of operation thereof, and the method of managing funds, which can be identified by the facts cited earlier, and the facts cited earlier, it is difficult to recognize that the transaction partner of the instant case supplied the Plaintiff as stated in the instant tax invoice, even if all of the evidence submitted by the Plaintiff and the circumstances asserted by the Plaintiff were considered, and it is difficult for the Plaintiff to recognize that the transaction partner of the instant case actually supplied the closed Dong to the Plaintiff as stated in the instant tax invoice, and it is determined that the supplier was merely delivered the instant tax invoice as indicated in the instant tax invoice, and therefore, it is reasonable to deem that the instant tax invoice constituted a “tax invoice issued by the so-called “counter transaction”, which is written differently from the facts.

(1) In light of the above academic background, social experience, etc., the leG and CC, as the business owner of the instant transaction partner, and the leapG, etc. (hereinafter referred to as the "leapG, etc.") are deemed to have no economic ability to operate the instant transaction partner, and there is also insufficient data to deem that leG, etc. had actually been operated by the place of business registered on the business registration certificate of the instant transaction partner.

(2) At the time of issuance of the instant tax invoice, the transaction partner of the instant case was found to have not reported purchase to the tax authority with respect to the closing Dong, which was sold to the Plaintiff at the first and second stages of 2009, or only reported purchase in comparison with its sales, and the sales amount was up to KRW KRW 100 million.

(3) The transaction partner of the instant case is deemed to have immediately withdrawn the closed cash from the Plaintiff on the date of the deposit, and to have withdrawn all or part of the transaction amount at the time of the withdrawal in cash. It seems to support the situation that the Plaintiff and the actual supplier of the transaction transaction separately exists because it is difficult to easily make it difficult for the business entity operating the business to fully withdraw the revenue deposited in the transaction account at all times.

(4) Meanwhile, while the Plaintiff submitted evidence that there was actual transaction with the instant transaction partner, 'transaction account books, measurement certificates, and product acceptance certificates', both of the documents submitted by the Plaintiff and the instant transaction partner are not "disposition documents" which indicate that the closed transport contract was actually conducted by the said documents, but only "report documents' which indicate the past fact that the closed transport contract was supplied by the instant transaction partner and the payment was made by the instant transaction partner, and in light of the aforementioned various circumstances, it cannot be readily concluded that the instant transaction partner actually supplied the Plaintiff with the closed transport as described in the instant tax invoice.

(5) Although at the trial, it is difficult to reverse the following facts: (a) although the prosecution made a disposition on the charge of a tax offense committed by the Defendant against the instant transaction partner on the ground of lack of evidence by the prosecution; (b) these circumstances are merely sufficient evidence to prove the facts of the instant transaction partner; and (c) considering the aforementioned circumstances, there is a disposition on the instant transaction partner; and (d) a third party, other than the instant transaction partner, is presumed to have supplied the instant transaction partner with the Plaintiff actually (see Supreme Court Decision 95Nu398, Oct. 13, 1995).

C. As to the assertion that the Plaintiff is bona fide and without fault

In light of the above legal principles and the following circumstances revealed by the facts cited above, evidence evidence No. 55, and the testimony of the above apK, etc., even though the transaction partner of this case cannot be deemed to be the company that actually supplied the Plaintiff with the closure operation, the transaction partner of this case cannot be determined to have any sufficient circumstances to suspect that the Plaintiff, who was supplied the closure operation, was merely a nominal supplier, and the Plaintiff actually supplied the operation operation to the Plaintiff. Ultimately, it is reasonable to view that the Plaintiff did not know the fact that the closure operation operation in accordance with the tax invoice of this case was the "counter operation", and that the Plaintiff was not negligent on the part of the Plaintiff.

(1) The closing transaction between the Plaintiff and the Plaintiff appears to have started in accordance with the proposal of the Plaintiff and the instant transaction partner, and the Plaintiff received a copy of the Plaintiff’s business registration certificate and a copy or order of identification cards of the instant transaction partner before commencing the transaction with the Plaintiff, and confirmed whether the representative of the instant transaction partner was identical to leG, etc., and the transaction amount of the closure agreement that the instant transaction partner provided to the Plaintiff from the instant transaction partner was deposited into the bank account in the name of leGG, etc., and there was no special reason or opportunity to suspect that the actual supplier of leG, etc. at the time of the transaction was not leG, etc., not only did the tax authorities have received the Plaintiff and its representative tax invoices different from the facts from the instant transaction partner, and the Plaintiff issued a disposition of “insufficiently suspected” on the ground that there was insufficient evidence against the case accused of violation of the Punishment of Tax Evaders Act (refer to the record 245 et al.).

(2) Generally, the purpose of using so-called “data” or “counter trader” is to evade taxes by using a false tax invoice, and to deduct the input tax amount of value-added tax. According to the facts cited earlier, the Plaintiff paid the entire amount of the transaction price of the instant closed agreement and its value-added tax through a bank account, such as leGG, etc.

In addition, there is no evidence to deem that the Plaintiff received a return of the transaction price paid through the bank account of leGG, etc. and the amount equivalent to the value-added tax, as well as the transaction price paid by leGG, etc. and the Plaintiff received a return of the amount equivalent to the value-added tax, even though the Plaintiff was aware that the transaction with leG, etc. was "compact transaction".

(3) Even though the existence of the transaction account book, the certificate of measurement, etc. submitted by the Plaintiff cannot be readily concluded that the transaction partner in this case actually supplied the Plaintiff with the closed-end operation, the transaction account book, etc. are written in detail by the Plaintiff on the terms of the transaction date, the supply price, etc. as stated in the instant tax invoice, and there is sufficient room to deem that the Plaintiff believed that the transaction partner in this case actually provided the Plaintiff with the closed-end operation.

(4) In addition, from July 20, 2010 to September 20, 20 of the same year, the Director of the Regional Tax Office of China and the Director of the Regional Tax Office found that the AA comprehensive metal was consistent with the business registration and the representative of the transaction partner of the instant transaction partner, and that the transaction amount was transferred directly to the deposit passbook in the name of the instant transaction partner, and it appears that the business operator determined that the Plaintiff constitutes a bona fide customer who fulfilled the duty of due care (see subparagraph 4-2, recorded No. 459, and No. 459). The representative of the AA comprehensive metal is the second part of the Plaintiff’s JJ, and the Plaintiff and the Plaintiff, AA comprehensive metal and the above JJJ’s representative were the Plaintiff’s representative, and “LL metal” used as the representative of the Plaintiff, the Plaintiff, and the Plaintiff, the former, and the Plaintiff, the Plaintiff, and the Plaintiff, and the Plaintiff, the Plaintiff, and the Plaintiff, were supplied with the duty of due care and care of the Plaintiff.

(5) On the other hand, for the reduction of transportation costs and transaction convenience, the intermediate wholesalers gather waste at their respective places of business, carry them directly and directly, and at the same time provide guidance and payment payment and issuance of tax invoices to the delivery places like the Plaintiff. In light of the transaction practices of the closure agreement and the purpose of the administrative litigation system and the protection of the rights and interests of the people through judicial authority, it is difficult to conclude that the Plaintiff was negligent in the transaction of the Plaintiff solely on the ground that there was no special circumstance to suspect that the transaction partner of the instant case was the “data” or “compactor” at the time of the closure operation with the instant transaction partner, and that there was no circumstance that the Plaintiff did not confirm the current status of the business place of the instant transaction partner or whether the cash was immediately withdrawn from the closed transaction transaction amount.

D. Sub-committee

Therefore, the plaintiff's assertion that the tax invoice of this case is not a false tax invoice is not acceptable, but the plaintiff was unaware of the circumstances that the tax invoice of this case constitutes a false tax invoice, and the plaintiff's assertion that there was no negligence on the part of the plaintiff. Ultimately, the disposition of this case based on the different premise is illegal.

3. Conclusion

Then, the plaintiff's claim of this case is accepted, and the judgment of the court of first instance is improper to conclude it differently, so it is decided to accept the plaintiff's appeal and revoke it, and it is so decided as per Disposition.