Diab015bu790 (25. 2015.06)

It is necessary to recognize that the opposite contractual party is evading taxes.

In the absence of awareness that the deduction of input tax amounts by a false tax invoice would result in the reduction of national tax revenue, it is unreasonable to impose unjust penalty tax on a taxpayer.

Article 17 of the Value-Added Tax Act

2015Guhap5898 Disposition to revoke the imposition of value-added tax

△△ stock (ju)

Head of Ulsan District Office

April 7, 2016

May 26, 2016

1. The Defendant’s imposition disposition of KRW 136,165,120 of value-added tax for KRW 164,372,230 on December 1, 2014 and the imposition disposition of KRW 380,274,330 of value-added tax for KRW 20 in 2013 and the imposition disposition of KRW 312,865,737 of value-added tax for KRW 380,274,30, respectively, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s imposition of value-added tax on December 1, 2014 by KRW 164,372,230 for the first term portion in 2013 and KRW 380,274,330 for the second term in 2013 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a company that runs scrap metal wholesale and retail business from 18, Ulsan-gu, Ulsan-gu, 19-ro, △△△△△△△.

B. The Plaintiff reported value-added tax from the first quarter of 2013 to the second quarter of 2013, following:

As above, 59 copies of the purchase tax invoice (hereinafter referred to as the "tax invoice of this case") in the aggregate amount of 3,187,189,000 won were received from two enterprises of △△ Resources and △ Steel (hereinafter referred to as "the purchaser of this case") and deducted the above input tax amount from the output tax amount.

C. On December 1, 2014, the Defendant: (a) conducted an investigation related to the transaction order with the Plaintiff, reported the instant tax invoice as a false tax invoice different from the fact; and (b) calculated the tax amount without deducting the input tax amount for the purchaser of the instant case; and (c) notified the Plaintiff of the correction and notification of the total value-added tax amount of KRW 54,646,560 (including additional tax) as indicated in the list below (hereinafter “instant disposition”).

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on January 5, 2015.

However, it was rejected on June 25, 2015.

2. The legality of the instant disposition

A. The plaintiff's assertion

1) The Plaintiff, like the entry of the instant tax invoice, was actually supplied by the instant purchaser, and thus, the instant tax invoice does not constitute a false tax invoice.

2) Even if each representative of the purchaser of this case is merely a nominal representative, the Plaintiff constitutes a trader with good faith and without negligence since it verified that the purchaser of this case received a business registration certificate, personal seal impression, identification card, etc. from the purchaser of this case and thereafter transacted in scrap metal.

3) The tax authorities are obligated to investigate and confirm whether the name holder is the nominal lender, whether the business establishment is a business establishment, and whether the business establishment is a business establishment, etc. in the instant purchasing place. The tax authorities neglected these obligations and issued the name name registration to the instant purchasing place, and then transfer the business registration to the Plaintiff. The instant disposition was unlawful since it violated the principle of good faith.

4) Even if the instant tax invoice is a tax invoice different from the fact, and even if the Plaintiff did not know such fact by negligence, the Plaintiff did not recognize that the tax invoice issued by the instant purchaser was false and that the instant purchaser, who is the counterparty, would evade value-added tax. As such, the portion of imposing unfair underreporting penalty among the instant disposition is unlawful.

5) Therefore, the Defendant’s instant disposition is unlawful and thus ought to be revoked.

B. Relevant statutes

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

C. Facts of recognition

1) The Plaintiff purchased scrap metal, etc. and supplied it to ○○○ Co., Ltd., ○○ River Co., Ltd.

2) 원고는 △△자원과 고철매매계약을 체결할 당시 자신을 김사장이라고 지칭하는 김■■과 계약을 체결하였고, 원고가 △△자원으로부터 매입한 고철의 상차지는 △△자원의 사업장 소재지인 울산 울주군 언양읍 ○○로 17이 아닌 김해시 또는 다른 사업체의 사업장이었다.

3) 이■■은 박■■이 월 300만 원을 주겠다고 제의하자 양산시 동면△△4길 23을 사업장으로 하여 △△철강의 사업자등록을 하였다. 원고는 △△철강과의 고철거래에 관해 박■■과 논의하였고, 원고가 △△철강으로부터 매입한 고철의 상차지는 △△철강의 사업장 소재지가 아닌 포항, 경주, 부산 등이었다.

4) The Plaintiff supplied scrap metal as indicated in the instant tax invoice to ○○○ Co., Ltd., ○○ Steel Co., Ltd., and deposited the scrap metal into the business account of △△ Resources and △ Steel.

5) 피고는 원고에 대한 거래질서관련 조사를 실시하여 이 사건 세금계산서를 사실과 다른 거짓세금계산서로 보고 원고와 원고의 대표이사인 장■■을 고발하였는데, 검찰은 2015. 6. 25. 원고와 위 장■■에 대하여 '원고가 이 사건 매입처와 실물거래를 하고 그에 따른 대금지급 및 세금계산서의 수수가 있었다'는 사유로 특정범죄가중처벌 등에관한법률위반(허위세금계산서교부등) 혐의에 대해 혐의없음(증거불충분) 처분을 하였다.

D. Determination

1) Determination as to whether the instant tax invoice is false or not

A) The former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) and Article 39(1)2 of the Value-Added Tax Act, which denies the deduction of an input tax amount for a tax invoice received in the course of a transaction, refer to a case where the necessary entries in the tax invoice do not coincide with those in the actual supply of goods or services or with those in the supply of the goods or services, regardless of the formal entries in the transaction contract, etc. prepared between the parties to the transaction with respect to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196); even if a transaction of supplying goods, etc. actually exists, such transaction constitutes a tax invoice different from those in the name of the issuer of the tax invoice.

나) 위 인정사실, 앞서 본 증거들 및 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정들, 즉 ① △△자원은 2013. 3. 22. 사업자등록을 하여 2013. 12. 24. 폐업한 업체로, 그 대표자인 전■■은 고철관련업을 영위한 사실이 없고, 일용직으로 생계를 유지하고 있는 점, ② △△자원은 고철, 폐품 관련 사업이력이 없음에도 2013. 3. 22.부터 2013. 6. 30.까지의 매출액이 약 2,899,000,000원에 이르고, 매입액도 약 2,344,000,000원에 이르는 점, ③ △△자원의 사업장 소재지는 주택가 근처로 사무실만 있고, 고철을 보관할 수 있는 야적장이 존재하지 않으며 계근시설 및 고철 재고 등이 없는 점, ④ 원고는 △△자원과 계약을 체결할 당시 전■■이 아닌 자신을 김사장이라고 지칭하는 김■■과 계약을 체결하였고, 원고가 △△자원으로부터 매입한 고철의 상차지가 △△자원의 사업장 소재지가 아닌 김해시 또는 다른 사업체의 사업장이었던 점, ⑤ △△자원은 김■■이 가공거래를 위해 형식적으로 만든 회사로 보이는 점, ⑥ △△철강은 2013. 7. 2. 사업자등 록을 하여 2014. 2. 24. 폐업한 업체이고, △△철강의 대표자인 이■■은 월 300만 원을 주겠다는 박■■의 제의에 △△철강의 사업자등록을 하였으나 고철관련업을 영위한 사실이 없으며, 고철을 판매할 수 있는 능력이 있는 것으로 보이지 않는 점, ⑦ △△철강은 고철, 폐품 관련 사업이력이 없음에도 단기간 약 1,944,000,000원의 고액 매출이 발생하였는데, △△철강의 사업장에서 2013. 7. 2.경부터 6개월간 고철의 이동이 거의 없었던 점, ⑧ 원고는 △△철강과의 고철거래에 관해 박■■과 논의하였고, 박■■은 원고에게 양산시 동면에 위치한 △△철강의 연락처를 박■■이 운영하는 회사의 전화번호인 051-904-△△△△로 알려주었던 점, ⑨ 원고가 △△철강으로부터 매입한 고철의 상차지는

△△철강의 사업장 소재지가 아닌 포항, 경주, 부산 등이었던 점 등에 비추어 보면, △△자원의 대표자 전■■, △△철강의 대표자 이■■ 명의의 세금계산서에 기재된 고철의 실제 공급자는 전■■, 이■■이 아니라고 할 것이고, 전■■, 이■■은 단지 세금계산서의 발급자 명의만을 빌려준 것에 불과하다고 보이므로, 이 사건 세금계산서는 공급자의 기재가 사실과 다른 세금계산서에 해당한다.

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

2) Determination as to whether the Plaintiff is a trader of good faith and negligence

A) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice either knew of the fact that the person who received the other tax invoice was not aware of the fact that the tax invoice was entered in the name of the supplier, and that the person who received the tax invoice was not aware of the fact that there was no negligence on the part of the supplier, the person who asserts the deduction or refund of the input tax amount should prove that the supplier was not negligent (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28,

B) As to whether the Plaintiff did not know that the supplier and the actual supplier indicated in the instant tax invoice are different, and whether there was no negligence on the part of the supplier and the actual supplier, the Plaintiff was submitted.

The evidence alone is insufficient to recognize that the Plaintiff was unaware of the aforementioned facts, and that there was no negligence on the part of the Plaintiff, and there is no other evidence to prove otherwise.

오히려 위 인정사실 및 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정들, 즉 ① 원고는 이 사건 매입처의 각 실질적인 대표자인 김■■, 박■■과 고철 거래를 하였을 뿐 전■■이나 이■■과는 거의 접촉하지 않았던 것으로 보이는 점, ② 원고가 이 사건 매입처로부터 매입한 고철의 상차지가 △△자원, △△철강의 사업장 소재지와 상이하였던 점, ③ △△자원의 사업장 소재지는 주택가 근처로 고철을 보관할 수 있는 야적장이나 계근시설, 고철 재고 등이 존재하지 않았던 점, ④ 박■■은 원고에게 다른 지역에 있는 박■■이 운영하는 회사의 전화번호를 △△철강의 연락처로 알려준 점 등을 종합하면, 원고는 이 사건 매입처의 각 사업자등록상의 대표가 실제로 고철을 공급하는 자가 아니라는 사실을 알았거나 적어도 이를 알지 못한 데에 과실이 있었다고 봄이 상당하다.

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

3) Determination as to whether the principle of good faith is violated

A) In general, in order to apply the principle of trust and good faith to the tax authority’s acts in tax and law relations, the tax authority should name the public opinion list that is the subject of taxpayer’s trust; the tax authority’s name of opinion statement is justifiable; the taxpayer does not have any cause attributable to the taxpayer; the taxpayer must trust the opinion list; and what is the taxpayer’s name should be; and the tax authority’s disposition against the above opinion list should result in infringing the taxpayer’s interest (see, e.g., Supreme Court Decision 2007Du7741, Oct. 29).

B) With respect to the instant case, it is merely a taxpayer’s request to operate a business, and the head of a tax office does not issue a business registration upon an application for business management, but does not determine the specific contents of the business and whether the business is a substantial business operator. Therefore, it is difficult to view the issue of business registration as a public opinion list of administrative agencies. The Plaintiff’s argument in this part is without merit without further review.

4) Determination as to whether the imposition of an unfair under-reported additional tax is illegal

A) In light of the language, structure, etc. of relevant provisions, such as Article 47-3(2)2 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the “former Framework Act on National Taxes”), even if a taxpayer received false evidence and underreporting the amount of tax payable, such evidence does not constitute a case of underreporting the tax base by an unlawful act if the taxpayer did not know that the document received false evidence was false, and it does not change because the taxpayer did not know that he/she was false due to gross negligence. Furthermore, if a taxpayer received a tax invoice different from that of a supplier under the relevant tax invoice and the actual supplier, and received input tax deduction or refund, such act constitutes “in cases where a taxpayer underreporting the amount of tax payable by an unlawful act” under Article 47-3(2)2 of the former Framework Act on National Taxes, in order to constitute “in cases where the taxpayer underreporting the amount of tax payable by an unlawful act, other than the perception that he/she is entitled to receive the tax

There should be awareness that a taxpayer would be entitled to deduction of the input tax amount due to evasion of the liability for the payment of value-added tax on the relevant tax invoice by either filing or paying the tax base of value-added tax and the amount of tax payable, or filing or filing a request for rectification after filing a return or paying the entire amount of the output tax on the relevant tax invoice, except for the output tax amount on the relevant tax invoice (see Supreme Court Decision 2014Du1618, Jan. 15, 2015).

B) As to the instant case, the aforementioned facts acknowledged, and the purport of the entire argument as to the aforementioned evidence

(1) In other words, the Plaintiff’s entry in the tax invoice of this case

Article 12-2(1) of the Enforcement Decree of the Framework Act on National Taxes provides that the Plaintiff shall be deemed to have committed an unlawful act, even if the Plaintiff received false evidence, in light of the following: (a) the Plaintiff’s purchase price stated in the instant tax invoice and the total value-added tax thereon appears to have been paid through a business account in the name of the purchaser; (b) the Plaintiff does not appear to have known that the Plaintiff would have discontinued its business without paying value-added tax; and (c) the Plaintiff’s use of the pertinent tax invoice without paying value-added tax to the effect that it constitutes an unlawful act even if the Plaintiff received false evidence; (c) Article 12-2(1) of the Enforcement Decree of the Framework Act on National Taxes provides that the Plaintiff was not liable to pay the input tax amount by stipulating that the Plaintiff was not aware of the fact that there was a lack of knowledge that there was an unlawful act that the Plaintiff would have to receive the said tax invoice from the Plaintiff; and (d) Article 3(6) of the Punishment of Tax Evaders Act provides that the Plaintiff would not have been aware of any unlawful act that it constitutes an active act that constitutes a tax evasion under the Plaintiff’s provision.

Therefore, in imposing the value-added tax on the Plaintiff, the general under-reported penalty tax under Article 47-3(1) of the former Framework Act on National Taxes should be imposed, not the unfair under-reported penalty tax under Article 47-3(2). As such, the portion exceeding the scope of the general under-reported penalty tax is illegal.

C) a reasonable amount of tax

As acknowledged in paragraph (c) of the above 1-C, among the instant dispositions, KRW 37,609,480, and KRW 89,878,123 were imposed for the second period of 2013 as additional tax for the unlawful underreporting, and KRW 1,9,878,123 was imposed for the general underreporting, which is not additional tax for the unlawful underreporting. The general underreporting amount is KRW 9,402,370 for the first period of 2013 (i.e., underreporting tax amount 94,023,70 x 10%) and KRW 22,469,530 for the second period of 2013 (i.e., underreporting tax amount 224,695,308 x below 10%).

D) Sub-committee

Ultimately, among the instant dispositions, the part exceeding 136,165,120 won (=164,372,230 won - 37,609,480 won + 9,402,370 won + 312,865,737 won (=380,274,330 won - 89,878,1230 won + 22,469,530 won), among the disposition of imposition of value-added tax of KRW 380,274,30 in 2013, and the part exceeding 312,865,737 won among the disposition of imposition of value-added tax of KRW 380,274,330 in - 89,878,123 won in 2013 should be revoked as it is unlawful.

3. Conclusion

Thus, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are accepted.

Therefore, it is dismissed. It is so decided as per Disposition.