Nemos Co., Ltd. (Law Firm Lee & Lee, Attorney Lee Jae-hwan, Counsel for the plaintiff-appellant)

Samsung Head of Samsung Tax Office

August 22, 2013

1. The Defendant’s imposition of value-added tax against the Plaintiff on September 1, 201 shall be revoked in the first period of 2010, the first period of 170,225,380 won, and the second period of 2010, the second period of 2010, and the second period of 148,032,100 won.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff was established on July 1, 2009 and operated a soft business related to electronic commerce and electronic commerce, and received 9 copies of the purchase tax invoice 9 (the total supply price of KRW 8,200,598,264; hereinafter “purchase tax invoice of this case”) from the Small and Medium Business Distribution Center (hereinafter “Small and Medium Business Distribution Center”) during the period of 1 and 2 years of value-added tax, and issued 9 copies of the sales tax invoice 9 (the total supply price of KRW 8,200,59,264; hereinafter “instant purchase tax invoice”).

. Table 1.48. 3. 6. 8. 6. 3. 8. 1, 20. 31. 31, 239, 70, 70 . 40. 1, 45, 153, 582. 3. 6. 3. 8. 6. 4. 8. 4. 8. 1, 206. 8. 3. 6. 3. 8. 1, 6. 4. 1, 6. 3. 8. 1, 6. 6. 4. 1, 63. 8. 1, 46. 6. 3. 1, 171; 4. 8. 4. 6. 3. 1, 205 8. 3. 8. 30, 2014 8. 31, 2010 ;

B. From May 17, 2011 to August 24, 2011, the head of the Seoul Regional Tax Office investigated the value-added tax on the Plaintiff and related enterprises, etc., and notified the Defendant of the tax data by deeming the purchase and sale tax invoice of the instant case as the processing tax invoice.

C. Accordingly, the Defendant determined the purchase and sale tax invoice of this case as a tax invoice different from the actual transaction, and reduced the purchase and sale tax amount. On the other hand, the Defendant applied the additional tax amount on the receipt of the purchase and sale tax invoice of this case pursuant to Article 22(3) of the former Value-Added Tax Act (amended by Act No. 10409, Dec. 27, 2010; hereinafter the same shall apply). On September 1, 2011, the Defendant corrected and notified the Plaintiff of value-added tax amounting to 170,225,380, and 148,032,100 for the second period of February 2010 (hereinafter “instant disposition”). Specific details of the correction of the purchase and sale tax amount are the penalty tax as follows.

The amount of output tax for the rectification of the filing of the second return in 2010, which was contained in the main sentence of 721,930,084 276,909,496 730,760,720,720 343,513,513,228,693,825 270,159,016 723,367,493,4341,842,476 vehicle was 13,236,259,750,4807,393,271,670,670,752,752,236,236,236,259, 236, 259, 239, 2739, 2737, 279, 27137, 157, 257, 13757

D. On December 2, 2011, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service, but received a decision of dismissal on October 26, 2012.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1, 2, 8, Eul evidence Nos. 1 through 3 (including branch numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not know at all the processing trader, and there was no circumstance to suspect this. As such, there was a justifiable ground that the Plaintiff could not be mistaken for the Plaintiff’s negligence in connection with the instant transaction. Therefore, the instant disposition is unlawful.

B. Relevant statutes

Attached Form. The entry in the relevant statutes is as follows.

(c) Fact of recognition;

1) Processing transactions by Nonparty 1

A) The small and medium enterprise distribution center is a public institution established by the Small and Medium Business Corporation by investing 100% in order to develop markets for small and medium enterprise products and promote business management.

Nonparty 1, who is a distributor, is the actual operator of Japanese C&D F (hereinafter referred to as “Japan C&W F”), A.D., A.D., and E.I.D. distribution (hereinafter referred to as “the above companies individually”). Nonparty 1 signed an entrustment contract with the small and medium enterprise distribution center since 2005 on the purchase and delivery of goods, etc., and performed its duties on behalf of the distributor.

B) In order to raise funds to pay off the debt incurred by investing in the Home shopping business, Nonparty 1 processed circular transactions in which the third party of the day he operated is entrusted with the purchase business and the sales business from the small and medium enterprise distribution center. On the basis of the fact that the basic distribution flow of the product was conducted by the third party of the day / Sscarte, or the small and medium enterprise distribution center / the small and medium enterprise distribution center / the small and medium enterprise distribution center / the distribution center / the one who is not aware of such circumstance, received the payment first from the company, and used it in the repayment of its debt, etc., and then continued later, from the processing transaction that was made after the extension, the above processed transactions was made by deceiving the employees of the company, such as the above company, who were paid from the above company.

C) A small and medium business center and Nonparty 1 agreed to diversify the sales place from the standpoint of the small and medium business center in order to lower the risk burden by 90% or more among the analysis of transaction details around 2009. The Plaintiff received a proposal from the small and medium business distribution center at the end of February 2010 to request the Plaintiff to intermediate the transaction between the small and medium business distribution center and the Il C&P from the small and medium business distribution center at the end of February 201. Accordingly, the Plaintiff entered into a contract for the supply of goods with the Il C&P on March 1, 2010, and entered into a contract for the supply of goods with the small and medium business distribution center at the end of March 2, 2010 with the small and medium business distribution center at the end of March 2, 2010, and the main contents are as follows:

Article 3 (Delivery of Goods to the designated customer within three business days including the date of receipt of the data requested for delivery from Gap (Plaintiff; hereinafter the same shall apply). Article 4 (Price Payment and Method) A shall issue a tax invoice as of the end of the relevant month of delivery of the goods requested by Gap (the plaintiff; hereinafter the same shall apply) to the delivery date and place determined by Gap (the plaintiff; hereinafter the same shall apply). Article 4 (Price Payment and Method) B shall issue a tax invoice as of the end of the relevant month, and Gap shall deposit the corresponding amount in cash at the account of Eul at the end of the following month after receiving the tax invoice. Article 3 (Delivery of Goods; hereinafter the same shall apply) (1) B (the plaintiff; hereinafter the same shall apply) of the supply contract of goods shall send the goods within three business days including the date of receipt of the data requested for delivery from Eul (including delivery of goods to others),

2) Details of the instant transaction

A) The Plaintiff: (a) placed an order in the Small and Medium Enterprise Distribution Center upon the request of Il-NF; (b) issued a tax invoice with Il-NF; (c) deposited money from Il-NF; and (d) traded in a manner that pays to the Small and Medium Enterprise Distribution Center. At each transaction, the Plaintiff traded each transaction by confirming the issuance of tax invoice, the preparation of a detailed statement, and the payment for the purchase; (c) the goods in the transaction statement are Myeondog, shamp, ampoo and shamp, coffee, etc.; and (d) when the transaction price is paid from Il-NF from March 2010 to September 2010, the Plaintiff deposited the amount with the Small and Medium Enterprise Distribution Center. The Plaintiff acquired 1.4% amount of the supply price as seen earlier, as seen in the process; and (d) the Plaintiff is mainly paid a fee of KRW 1.5% by 1.5% in the transaction of virtual products.

B) At the time of the instant transaction, the Small and Medium Enterprise Distribution Center had the third party company use part of its building as the office, provided office equipment such as telephone and facsimile, and did not put a mark indicating the third party in the office or the office building signboard used by the third party employees. Moreover, the small and medium enterprise distribution center had the phone number of the small and medium enterprise distribution center as if the phone number of the third party employees was connected to the department under its jurisdiction.

C) On the other hand, in order to pretend the circular transaction as if it was a progressive transaction, Nonparty 1 had Nonparty 2 work for the Korea Transportation Agency, instructed Nonparty 2 to prepare a false cargo delivery certificate, and issued a false cargo delivery certificate to the small and medium enterprise distribution center by receiving a false cargo delivery certificate.

D) Nonparty 1 entered the Plaintiff into an intermediary to replace part of the sales place of the small and medium enterprise distribution center in a transaction in which the third party purchases goods from the small and medium enterprise distribution center, and Nonparty 1 stated that the intermediary did not confirm the actual movement of ordinary goods.

3) Relevant criminal cases

The Defendant accused the Plaintiff, etc. as a violation of the Punishment of Tax Evaders Act. On November 17, 201, the Plaintiff, etc. received a false tax invoice from the prosecution with the knowledge of circular processing transaction and received a non-prosecution disposition on the grounds that there is no other evidence. In addition, the Defendant was issued a non-prosecution disposition on the grounds that it is insufficient to recognize the fact that the Plaintiff, etc. was aware of the processing transaction by engaging in the business in accordance with the direction of Nonparty 1.

[Reasons for Recognition] The entry of Gap evidence Nos. 3 through 11 and the purport of the whole pleadings

D. Determination

1) Additional tax under tax law is an administrative sanction imposed in accordance with the tax law in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim where a taxpayer violates a return, tax liability, etc. under the tax law without justifiable grounds, and the taxpayer’s intention or negligence is not considered. However, if a taxpayer is not aware of his/her duty, and there is a circumstance where it is unreasonable for him/her to reasonably present his/her duty, or where it is unreasonable for him/her to expect the fulfillment of his/her duty to do so, or where there is a justifiable reason to believe that the taxpayer is not aware of his/her duty (see Supreme Court Decision 2004Du930, Nov. 25, 2005, etc.).

2) Considering the following circumstances revealed in light of the aforementioned legal principles, it is reasonable to deem that there was a justifiable ground for not being negligent in the Plaintiff’s breach of duty in the return of value-added tax on the instant tax invoice, and that the instant disposition was unlawful.

① The instant transaction was basically processed by Nonparty 1 in order to avoid returning his/her own debt, and was conducted in accordance with Nonparty 1’s fraud. Nonparty 1 was unaware of the fact that the instant transaction was processed. In addition, Nonparty 1 had a person in charge of duties at the logistics center, who was in charge of duties at the logistics center, and had him/her prepare false cargo loading and confirmation, thereby making it impossible for the purchasing agency, such as the Plaintiff, to properly confirm the movement of goods.

② Due to its nature, electronic commerce is to utilize a virtual store; actual logistics transfer is directly transferred from the first supplier without going through an intermediate stage, and thus, it is not confirmed at each stage whether goods are delivered or received, unlike traditional commercial transactions. In other words, the transaction goods are directly transferred from the small and medium enterprise distribution center to the third party, and there is no objection that there is a problem in delivery of goods from the third party i.e., the Plaintiff is able to confirm the details of the transaction, confirm the transaction price, and check the transfer of goods from the transaction goods other than the deposit.

③ The business partner who purchased the product by the Plaintiff was a corporation that was made by the Small and Medium Business Corporation by investing 100% in the Small and Medium Business Distribution Center, and it was difficult to expect that the transaction was made by the Plaintiff as a corporation that was made by the Small and Medium Business Corporation by the Small and Medium Business Distribution Center. The Plaintiff was caused to the instant transaction at the request of the change in the sales place of the Small and Medium Business Distribution Center, and the Plaintiff was not deemed the third party at the Small and Medium Business Distribution Center, but was difficult to specifically doubt the reasons for the transaction through the Plaintiff. The Plaintiff was sufficiently responsible for the instant transaction with the Small and Medium Business Distribution Center for the purpose of expanding other transactions between the Plaintiff and the Small and Medium Business Distribution Center. In addition, the Plaintiff received the fee as it was similar to the other transaction. In addition, the Plaintiff did not have any profit or tax avoidance other than

④ The instant disposition basis was a de facto processing transaction. Since the Plaintiff did not verify whether the instant transaction was a processing transaction, the Plaintiff was presumed to have known of the fact that the instant transaction was an actual processing transaction. In the instant case, there is no evidence to know the details of the transaction, such as the content of the transaction by a person in charge, the issuance of a tax invoice at the stage of the transaction, and the confirmation of the receipt of the goods, it is difficult to readily conclude that the Plaintiff, even being aware that the instant transaction was a processing transaction, received a fee by participating in the transaction.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

[Attachment]

Judges Kim Jong-jin (Presiding Judge)