Review Division 2009-0096 (Law No. 23, 2009)

Whether it is a tax invoice different from the facts related to construction works

The Corporation is a construction executed by e-mail and the non-party company is a tax invoice stating the name of the business operator differently from the fact because it can be deemed that it provided only the name of the issuance of tax invoice without participating in

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s imposition of value-added tax of KRW 54,640,00 (including additional tax) for the first period of 2008 against the Plaintiff on December 12, 2008 shall be revoked.

1. Circumstances of the disposition;

A. The Plaintiff is a business operator who runs a real estate rental business under the trade name of ○○○-ri 660-7 from ○○○-si, ○○○○○-si.

B. The Plaintiff entered into a construction contract with △△△ Co., Ltd. (hereinafter referred to as “non-party company”) to construct a factory on the land surface of ○○○○○ 660, and six parcels (hereinafter referred to as “instant land”), and paid the construction price, the Plaintiff received a tax invoice on February 28, 2008, the supply price of which was KRW 400,000,000,000,000,000 for the first term portion of 2008, after deducting the output tax amount corresponding to the said supply price from the output tax amount corresponding to KRW 40,000,000,000,000.

C. From September 22, 2008 to December 25, 2008, the Defendant entered into a contract for the construction with the Plaintiff for on-the-spot verification on the refund of the value-added tax for the first period of 2008, and deemed that the person who entered into the contract for the construction and implemented the contract was A, not a supplier under the tax invoice of this case. On December 12, 2008, the Defendant corrected and notified the Plaintiff (hereinafter referred to as the “instant disposition”) of value-added tax amounting to KRW 54,640,00 (including additional tax amounting to KRW 14,640,00) for the reason that the necessary entry under Article 17(2)1-2 of the Value-Added Tax Act is different from the fact.

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's principal

(1) The Plaintiff made an oral conclusion of a construction contract with AA to build a factory on the land of this case with the content that the Plaintiff will build a new factory on the land of this case. The registration of business was cancelled while the said construction was in progress, and the Nonparty Company, a representative director of the site at the time of the said construction, decided to comprehensively take over the maximum BB at the time of the said construction and continue the construction. Since the actual president of the Nonparty Company is EA, the instant tax invoice was not written differently from the fact.

(2) Even if the instant tax invoice was written differently from the facts, the Plaintiff is a bona fide trading party, as the Plaintiff knew that this case’s tax invoice was identical to the non-party company at that time.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) In early 2007, the Plaintiff entered into a contract with EA to build a factory on the ground of the instant land (hereinafter referred to as “instant construction”) (hereinafter referred to as “instant contract around 2007”). The Plaintiff’s wife (hereinafter referred to as “Plaintiff, etc.”) concluded a contract with EA to build a factory on the ground of the instant land (hereinafter referred to as “Plaintiff, etc.”) around that time.

(2) ThisA commenced the instant construction work on September 10, 2007. From September 17, 2007 to February 5, 2008, this A was paid KRW 361,909,000 in total under each of the above contracts with the Plaintiff, etc. five times from September 17, 2007 to February 5, 2008.

(3) On the other hand, the Plaintiff newly drafted a construction contract with the EA on December 30, 2007, the date of its preparation, the contractor, the non-party company, the date of its commencement, the date of its completion, and the date of its completion on January 1, 2008, and the contract amount of KRW 400 million (excluding value-added tax) for the instant construction project, contrary to the invitation contract with the EA on December 30, 2007.

(4) However, despite the preparation of the above new construction contract, EA, other than the non-party company, completed the instant construction work on or around February 5, 2008.

(5) On February 28, 2008, the Plaintiff received the instant tax invoice issued in the name of the non-party company from thisA.

(6) Meanwhile, the non-party company received 27.2 billion won on March 27, 2008 from the Plaintiff to the bank account of the non-party company, respectively. The non-party company received 17.0 million won on March 31, 2008 from the Plaintiff, and immediately returned her money to the Plaintiff using the bank account in the name of friendly E-Help.

(7) From November 23, 2005, thisA was operated for the construction of the ▽▽△△△△△. The construction was closed ex officio on May 8, 2008 due to the bankruptcy, etc., and the date of incorporation of the non-party company is the end of January 2008.

[Ground of recognition] Facts without dispute, entry of Eul evidence Nos. 2 through 15, purport of the whole pleadings

D. Determination

(1) Whether the instant tax invoice is false

In full view of the following circumstances, which are acknowledged as comprehensively taking into account the purport of the entire argument in the above facts: (a) the Plaintiff entered into a contract with this case orally with this case on early September 17, 2007, and paid the construction cost to this case five times from September 17, 2007 to February 5, 2008; (b) the construction contract with the non-party company was entered into before the incorporation of the non-party company; (c) the construction contract with the non-party company was completed after the non-party company was completed; and (d) the construction of this case was completed after the date of the formation of the construction contract with the non-party company; and (e) the construction of this case was completed at the date of the incorporation of the non-party company; and (e) the non-party company can be deemed to have provided only the name of the company that supplied the tax invoice without participating in the construction of this case; and therefore, the plaintiff's above assertion is without merit.

(2) Whether the plaintiff acted in good faith

Unless there are special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless the supplier knew of the disguised fact of the tax invoice, and there is no negligence on the part of the supplier on the part of the supplier, and the person who asserts the deduction or refund of the input tax amount should prove that there is no negligence on the part of the supplier on the part of the purchaser on the part of his/her nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 2

In the case of this case, there is no evidence to acknowledge that the Plaintiff did not know the fact that the supplier was not aware of the fact and did not know the fact that the supplier was not aware of the fact, and rather, considering the fact of recognition as above, it is reasonable to deem that the Plaintiff was issued the tax invoice of this case in the name of the non-party company with the knowledge that the actual contractor was thisA, and therefore, the Plaintiff’s assertion on this part

(3) Sub-decisions

Therefore, the instant disposition is lawful.

3. Conclusion

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