Whether the instant tax invoice constitutes a false tax invoice

The evidence submitted by the Plaintiff alone is insufficient to acknowledge that the Plaintiff was negligent in not knowing that the name of the supplier of the instant tax invoice was different from that of the actual supplier.

Article 16 of the Value-Added Tax Act

Incheon District Court 2015Gudan50154 Disposition Revocation of Value-Added Tax Imposition

AA

BB Director of the Tax Office

May 31, 2016

2016.9.20

1. The plaintiff's claim is dismissed.

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

1. Details of disposition;

A. From June 12, 2006, the Plaintiff, a corporate entrepreneur operating the business of manufacturing fire-fighting machinery and appliances from around June 12, 2006, received a tax invoice of KRW 81,646,050 of the supply price from the same mail post in the second taxable period of the value-added tax in 201, and subsequently reported and paid the value-added tax to the Defendant after deducting it from the output tax amount (hereinafter “the purchase price of this case” and “the tax invoice of this case”).

B. On March 1, 2014, the Defendant notified the Plaintiff of the result of the investigation on the data related to the instant purchaser, and issued a revised notice of KRW 14,074,140 on March 1, 201 to the Plaintiff on the ground that the instant tax invoice was a tax invoice different from the fact (hereinafter “instant disposition”).

C. On June 5, 2014, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but was dismissed on November 3, 2014.

[Ground of recognition] Facts without dispute, entry of Gap evidence 2 to 8, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) On November 21, 201, the Plaintiff was supplied 14,711 kilograms of the actual closed-dong from the transaction partner of the instant case, and thus, the instant tax invoice is not a false tax invoice.

(2) Even if the transaction partner of this case falls under the so-called data category, the Plaintiff did not know that the transaction partner of this case was not the actual supplier and did not know that the transaction partner of this case was not the actual supplier, since the Plaintiff did not know that the transaction partner of this case was not the actual supplier, as it was confirmed that the transaction partner of this case was directly visiting the place of business of this case and confirmed

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether the instant tax invoice constitutes a false tax invoice

(가) 구 부가가치세법(2013. 6. 7. 법률 제11873호로 개정되기 전의 것) 제17조 제2항 제2호는 세금계산서의 기재내용이 사실과 다른 경우의 매입세액은 매출세액에서 공제하지 아니한다고 규정하고 있다. 세금계산서의 기재 내용이 사실과 다르다는 의미는, 과세의 대상이 되는 소득・수익・계산・행위 또는 거래의 귀속이 명의일 뿐 사실상 귀속되는 자가 따로 있는 때에는 사실상 귀속되는 자를 납세의무자로 하여 세법을 적용한다고 규정한 ��국세기본법��제14조 제1항의 취지에 비추어 볼 때, 세금계산서의 필요적 기재사항의 내용이 재화 또는 용역에 관한 당사자 사이에 작성된 거래계약서 등의 형식적인 기재 내용에 불구하고 그 재화 또는 용역을 실제로 공급하거나 공급받는 주체와 가액 및 시기 등과 서로 일치하지 아니하는 경우를 가리키는 것이므로(대법원 1996. 12. 10. 선고 96누617 판결 등 참조), 재화 등을 공급하는 거래가 실제로 존재하더라도 그 공급 주체가 세금계산서 발행 명의자와 다른 소위 '위장거래'로 발급된 세금계산서도 앞서 본 사실과 다르게 기재된 세금계산서에 해당한다고 볼 것이다(대법원 2012. 4. 26.자 2012두959 판결 등 참조).

(B) In light of the following circumstances that can be recognized by comprehensively taking account of the health stand, Eul evidence Nos. 1 through 9, witness CCC’s testimony, the actual purchaser of the closure agreement under the tax invoice of this case is a third party, not the transaction party of this case, and the transaction party of this case was merely a "data that issues only tax invoices to the plaintiff under its own name," and the evidence submitted by the plaintiff alone is insufficient to reverse the recognition.

(1) In an administrative litigation, even if the facts are not bound by the facts established in a criminal trial, the facts that have been established as the grounds for a criminal judgment with respect to the same factual basis become flexible evidence in the administrative litigation. Thus, barring any special circumstance, it cannot be recognized that it is difficult to adopt a criminal judgment based on other evidence submitted in the administrative trial, barring special circumstances (see, e.g., Supreme Court Decision 98Du10424, Nov. 26, 1999).

② However, DD’s representative of the instant transaction party was indicted on the charge that, as so-called “the so-called “bab president,” established a company in the actual operating state, issued false sales tax invoices, and released and delivered them in cash, 30 million won and KRW 500,000,000 per month and KRW 500,000 per month, in collusion with CCC to issue false tax invoices under the name of the instant transaction party without actual transaction without actual transaction after establishing the instant transaction party, and issued false tax invoices under the name of the instant transaction party without actual transaction, from August 201 to December 201, 121 including the instant tax invoices, even though there was no actual discontinuance of tax invoices, DD was sentenced to the punishment of KRW 9,41,747,470 in total and KRW 121,121,000,000,000,000 per year imprisonment, and CCC was sentenced to imprisonment for 2 years and KRW 190,000,00.

[DD: Seoul Central District Court 2013Gohap890, 960 (Joint), 1009 (Joint), Seoul High Court 2014No793, Supreme Court 2014Do6900, Seoul Central District Court 2013Gohap1071, 1327 (Joint) and Seoul High Court 2014No281).

(C) Therefore, the actual discontinuance of the tax invoice of this case constitutes a third party who is not the transaction partner of this case and constitutes a false tax invoice which is different from the fact that the supplier entered it in a false manner. The plaintiff's assertion on this part is without merit

(2) Whether the Plaintiff is bona fide and without fault or not

(A) Unless there is any special circumstance that the actual supplier and the supplier of a tax invoice are unaware of the fact that the supplier was unaware of the name of the tax invoice, and that there is no negligence on the part of the supplier, the input tax amount cannot be deducted or refunded. The fact that the supplier was not aware of the fact that he was unaware of the name as above, and that there was no negligence on the part of the supplier, the person who asserts the deduction or refund of the input tax amount (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28,

(B) In light of the following circumstances, it is reasonable to deem that there was sufficient reason to suspect the other party as a disguised business operator in light of the facts revealed in the process of collecting data to determine whether the other party constitutes a person eligible for transaction. Therefore, the evidence submitted by the Plaintiff alone is insufficient to acknowledge that the Plaintiff was negligent in not knowing that the name of the supplier of the tax invoice in this case was different from that of the actual supplier, and there is no other evidence to acknowledge otherwise.

Therefore, the plaintiff's assertion that the plaintiff is a bona fide trading party is without merit.

① From around 1992, the Plaintiff’s representative Kim Jae-sung engaged in the relevant type of business, deemed to have been well aware of the supply structure and distribution channel of the waste consent, transaction status on the type of transaction and the data, and its risk.

② Nevertheless, the Plaintiff did not receive the name of the representative and the working person, identification card, and place of business lease in addition to the issuance of a business registration certificate and an account number as to whether the transaction partner of the instant case is the actual supplier, while conducting the first transaction with the purchaser of the instant case, which has not been long since the opening of the business on August 1, 2011, and the Plaintiff appears to have failed to properly conduct a field investigation (it is difficult to confirm whether the Plaintiff submitted the photograph that the Plaintiff had visited the place of business of the instant purchaser, but only the image of the photograph was visiting the date, time, and the place of business of the purchaser of this case)

③ The business registration certificate that the Plaintiff verified in the course of the instant transaction with the purchaser is issued by the head of the competent district tax office by requiring the business entity to apply for registration to the head of the competent district tax office in order to identify the taxpayer of value-added tax, etc. and to secure taxation data, and is merely a certificate proving the business fact, and does not recognize that the copy of the passbook has the qualification or requirements for operating the business. In light of the reality of the agreement of closure where transactions without data are frequent, it is difficult to deem that the bona fide and without fault is acknowledged merely on the ground that the Plaintiff confirmed the business registration certificate or remitted the payment to the account under the name of the supplier.

④ Since DDR’s representative of the purchaser of this case was merely a branch office with no experience in the industry related to the high and non-ferrouss prior to this case, it seems that DDR’s representative meeting with DD with expertise in the closed-dong distribution and divided a serious conversation, DD could have immediately spread out that it was outside of the door with no experience in the closed-dong or high-speed iron distribution. If DDR’s representative had had registered its business and supplied its closed-dong as a disguised business, there seems to have been sufficient circumstances to suspect that DD would be a disguised business operator.

⑤ Although the Plaintiff submitted the vehicle commuting table and the import inspection report prepared by his business partner GG, the Plaintiff did not indicate that the Plaintiff purchased the waste transport from the instant purchaser.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.