Whether evidence is included in deductible expenses of insufficient expenses

Any other party to the payment, the date and time of payment, the amount of payment, etc., may be presumed to have been paid in part of the service cost, but it is legitimate that such amount is not included in the calculation of losses, as there is no evidence to specifically determine

Article 19 (Scope of Deductible Expenses)

Tax amount paid under Article 17 of the Value-Added Tax Act

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. Each disposition of the Defendant rendered against the Plaintiff on April 10, 2004, including KRW 21,931,700 and value-added tax of KRW 6,112,410 for the second period of 202, and value-added tax for the second period of 202 shall be revoked.

1. Details of taxation; and

A. The Plaintiff was established on July 23, 1992 for the purpose of running a cargo transport business, and was under liquidation proceedings after the resolution of the general meeting of shareholders on February 18, 2004, and operated a business to transport products, such as air purification apparatus, air cooling apparatus, etc. produced at the ○○○○ factory, mainly from around 1999 to 2003 at the ○○○○○○○○○○’s request.

B. In filing a return of corporate tax and value-added tax for the business year 2002, the Plaintiff reported corporate tax by including the total of 80,800,000 won of the total supply value of all tax invoices under the following Chapter 6 (hereinafter “the tax invoice of this case”) as deductible expenses, and deducted the total of 4,060,000 won for the first-term portion of value-added tax, among which the total of 3 value-added tax on the tax invoice issued by ○○ Construction Co., Ltd. was deducted as the input tax amount for the second-term portion, and filed a return of the first-term and second-term value-added tax by deducting the total of 4,020,000 won for the

No.

Customer

Time of transaction

Value of supply (cost)

Value-added Tax (cost)

1

○○ ○

(Business Person: Ma○)

April 30, 2002

16,400,000

1,640,000

2

May 31, 2002

13,400,000

1,340,000

3

June 30, 2002

10,800,000

1,080,000

4

○ ○ Transportation

Stock Company

July 31, 2002

17,700,000

1,770,000

5

August 31, 2002

13,300,000

1,330,000

6

September 30, 2002

9,200,000

920,000

Consolidateds

80,800,000

8,080,000

C. However, according to the notice from the head of ○○ Tax Office and the head of ○○ Tax Office of taxation that the instant tax invoice was issued by the Plaintiff without real transaction, the Defendant did not recognize the total amount of 80,80,000,000 of the supply value as deductible expenses, and instead excluded the total of 8,080,000 of the value-added tax amount from the input tax amount to be deducted, thereby correcting the corporate tax and the value-added tax initially reported by the Plaintiff. On April 10, 2004, the Defendant issued the instant taxation disposition imposing the Plaintiff KRW 21,931,70, and the value-added tax for the first period of 202, imposed the Plaintiff KRW 6,546,750, the value-added tax for the second period of 202, and the value-added tax for the second period of 2,12,410.

D. Accordingly, on June 25, 2004, the Plaintiff filed a national tax appeal seeking revocation of the instant taxation disposition with the National Tax Tribunal, but it was dismissed on October 7, 2005. Accordingly, the Plaintiff filed the instant lawsuit seeking revocation only for the imposition of corporate tax among the instant taxation disposition and the imposition of value-added tax for the second period in 2002 (hereinafter referred to as “instant taxation disposition”) (limited to the instant disposition imposing corporate tax and the second period value-added tax for which the Plaintiff seeks revocation).

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2-2, Gap evidence 2, Eul evidence 3-1, 2-2, Eul evidence 1-1, 2-2, Eul evidence 2, Eul evidence 6, and the purport of the whole pleadings.

2. Whether the taxation disposition is legitimate

A. The plaintiff's assertion

The instant taxation disposition is unlawful for the following reasons.

First, since the Plaintiff used the cargo vehicle or the cargo vehicle, which was assisted by the transaction of the freight vehicle, which was not owned by one vehicle, and transported the goods of ○○○ by using it, and paid the freight charges therefrom to the driver of the vehicle, the Plaintiff received the instant tax invoice issued in the name of ○○ Transport or ○○ Transport Co., Ltd. from the driver, and thus, the instant tax invoice can be deemed as a false tax invoice without a real transaction.

Second, even if the tax invoice of this case is a false tax invoice without real transaction, it is not reasonable to pay the transportation cost of the freight vehicle used by the plaintiff to the freight driver. Thus, in calculating the corporate tax, the value of 80,800,000 won should be included in the calculation of the deductible expenses.

Third, as the plaintiff was not aware of the fact that the supplier's column of the tax invoice of this case was different from the fact at the time when the tax invoice of this case was delivered from the truck driver, it is necessary to deduct 4,020,000 won as the input tax amount in calculating the value-added tax on the tax invoice issued by the ○ Transport Co., Ltd.

(b) Related statutes;

Attached Form 3 is as shown in the "relevant Acts and subordinate statutes".

C. Determination

(1) On the first argument of the Plaintiff

Article 17(2)1-2 of the Value-Added Tax Act provides that input tax shall not be deducted from the output tax amount where the entry of a tax invoice issued by an entrepreneur is different from the fact. Article 16(1) provides that "where the entry of a tax invoice is different from the fact" refers to cases where the necessary entry of a tax invoice is inconsistent with the registration number of an entrepreneur who supplies the goods or services, regardless of the formal entry of the contract, etc. made between the parties concerned, the term "where the entry of a tax invoice is different from the fact" means cases where the necessary entry of a tax invoice does not coincide with the actual supplier who supplies the goods or services or the price and time of the goods or services provided (see Supreme Court Decision 96Nu617, Dec. 10, 196). This provision provides 200: (a) under the current Value-Added Tax Act, which adopts the so-called phase Tax Credit Act; (b) there is no possibility that any transactions between the parties to the tax, which are subject to imposition of value-added taxes, and no more than 20 (3).

On the other hand, the plaintiff did not dispute the fact that the cargo vehicle used by the plaintiff is not belonging to ○○○ and ○○○○ Transportation Corporation, which is indicated as a supplier under the tax invoice of this case. In full view of the overall purport of the argument in the past of Gap evidence Nos. 5-1 to 71, Eul evidence Nos. 4, 5-2, 3, 6, and 6, the plaintiff used the cargo vehicle registered under the name of ○ Transportation Corporation. The plaintiff did not use the cargo vehicle. The ○○○ and ○○, which is the real representative of ○○○○○ Transportation Corporation and the actual representative director of the ○○○ Transportation Corporation, are the reference material in which the tax authority issued the false tax invoice including the tax invoice of this case, and it can be acknowledged that the above ○○○ and ○○○ was subject to criminal punishment for violation of the Punishment of Tax Evaders Act. According to the above facts, according to the above facts, the tax invoice of this case constitutes a case where "necessary entry" in the business operator's name or the name of supply of cargo.

Even if the Plaintiff, as alleged by the Plaintiff, actually traded the goods of ○○○ by driving a truck and transporting the goods of ○○○, and paying the price for the carriage of goods to the freight drivers, in light of the meaning of the tax invoice stated differently from the facts as seen earlier and the purport of not allowing the deduction of the input tax in such a case, such circumstance alone does not affect the determination that the instant tax invoice was a false tax invoice written differently from the facts.

Therefore, this part of the plaintiff's assertion is without merit.

(2) As to the second argument by the Plaintiff

If a tax invoice on a part of any of the expenses reported by a taxpayer is proved to be prepared by the defendant who is a tax authority without a real transaction, and it is disputed as to whether it is an actual cost and the other party to the payment of the expenses claimed by the taxpayer has been proved to the extent that it is reasonable for the taxpayer to do so, it is necessary to prove the fact that such expenses have been actually paid by the taxpayer in an easy manner to present all the data, such as the account book keeping and evidence (see, e.g., Supreme Court Decisions 96Nu8192, Sept. 26, 1997; 2004Du14168, Jun. 10, 2005).

As seen in the instant case, insofar as it has been proven that the Plaintiff paid the cost equivalent to KRW 80,80,000 on the tax invoice of this case to ○○ and ○○ Transport Co., Ltd., as seen earlier, the Plaintiff must prove that the Plaintiff actually paid the cost equivalent to the above value of the supply as the transportation cost to the freight driver, and first of all, it is difficult to believe that each of the instant tax invoice of this case and its deposited statement, details of the transaction and the list of the total tax invoice for the Plaintiff, Nos. 6-1 through 6, No. 7-1, No. 7-1, No. 6, No. 5-1, No. 80-1, No. 80-1, No. 800-1, No. 9, No. 111, and No. 110-2, No. 80-2, No. 70-2, Dec. 1, 2006 are insufficient to recognize that the Plaintiff paid the amount to ○○ transport Engineer Co.

Therefore, the plaintiff's assertion on this part is without merit.

(3) As to the plaintiff's third assertion

The actual supplier and the supplier on a tax invoice are not entitled to deduct or refund the input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not aware of the disguised name, the person who asserts the deduction or refund of the input tax amount must prove that the supplier was not negligent (see, e.g., Supreme Court Decisions 2002Du2277, Jun. 28, 2002; 97Nu4920, Jun. 27, 1997).

Therefore, in this case, as to whether the Plaintiff was negligent in not knowing and not knowing that the supplier was different from the actual supplier in the tax invoice of this case, the Plaintiff used the freight vehicle from the driver who was engaged in ordinary trade. According to the evidence No. 5-1 through No. 71, No. 14, and No. 7, the Plaintiff could not be deemed to have confirmed the truck's company with objective data such as the business registration certificate, etc., as between July 1, 2002 and September 30, 2002, the Plaintiff could not be deemed to have been negligent in finding that the Plaintiff was not aware of the fact that the supplier was a supplier who was engaged in ordinary trade. Thus, it is difficult to find that there was no doubt that there was no negligence with regard to the fact that the Plaintiff did not know that the Plaintiff was a supplier who was engaged in the freight vehicle of this case, which was the supplier of this case.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

If so, the plaintiff's claim seeking the revocation of the tax disposition of this case is without merit, and all of it shall be dismissed. The judgment of the court of first instance with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Related statutes

m. Corporate Tax Act

Article 19 (Scope of Losses)

/ Value-Added Tax Act

Article 16 (Tax Invoice)

(1) The former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827, Dec. 30, 2002)

Article 53 (Tax Invoice)