Cho-2015-China-2603 ( October 13, 2015)

Whether the instant tax invoice constitutes a false tax invoice

Since it is difficult to view that there exists an actual act of supplying services consistent with the entry of the instant tax invoice, the instant disposition that deemed the instant tax invoice as a false tax invoice received without a real transaction is lawful.

Article 32 of the Value-Added Tax Act

Incheon District Court 2016Guhap50130 Such revocation

○ Iron Co., Ltd.

○○ Head of tax office

2017.27

oly 2017.15

1. On November 27, 2014, the part exceeding KRW 19,125,710 for the first term portion in 2009, the part exceeding KRW 4,029,40 for the second term portion in 2009, the part exceeding KRW 1,546,730 for the first term portion in 2010, the part exceeding KRW 10,712,820 for the second term in 2010, and the part exceeding KRW 10,712,820 for the second term in 2010, the Defendant issued a notice of change in the amount of income for 2010 business year against the Plaintiff on December 1, 2014 (including additional tax) and each disposition is revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Cheong-gu Office

Each disposition listed in attached Table 1 that the defendant rendered against the plaintiff shall be revoked.

1. Details of the disposition;

A. On October 24, 1995, the Plaintiff purchased (hereinafter “the instant transaction”) scrap 561,670km from “○○○ (representative △△△△)” to “○○○ from April 22, 2009 to November 3, 2010” (excluding value-added tax) with the primary purpose of processing and processing steel scrap scrap scrap, collecting recyclable materials, selling business, etc., the Plaintiff deducted the relevant input tax amount at the time of the return of value-added tax from 2009 to 2010, and included the said purchase amount in deductible expenses at the time of the return of the corporate tax.

B. From March 21, 2013 to May 26, 2013, the head of the △△△△ Tax Office, through a tax investigation on the transaction details with the Plaintiff, confirmed the issuance of tax invoices for the taxable period and most of the received portions, and filed a complaint with the representative of the △△△△△△ on data (However, a non-prosecution disposition was rendered against the Plaintiff on the charge of having no suspicion of being suspected of having committed the transaction details (Evidence of evidence) on January 14, 2014).

C. From September 22, 2014 to November 22, 2014, the director of ○○ Regional Tax Office conducted a periodic investigation of corporate tax against the Plaintiff, and notified the Defendant of taxation data on the first term portion of the transaction corresponding to the tax invoice received by the Plaintiff from ○○ was deemed as a processing transaction, and the remainder was deemed as a disguised transaction.

D. On November 27, 2014, the Defendant: (a) deducted the purchase value-added tax amount of the tax invoice issued from ○○ethyl; (b) imposed a disposition of imposition of value-added tax (including the penalty tax for false tax invoices, illegal underreporting; and (c) imposed a disposition of imposition of additional tax for lack of eligibility in connection with the disguised transaction part of the tax invoice issued from ○○ ethyl on the same day (hereinafter “instant disposition of imposition of value-added tax”); and (c) imposed a disposition of imposition of additional tax for lack of qualification in connection with the disguised transaction part of the tax invoice issued from ○○ ethyl on the same day (hereinafter “instant disposition of imposition of corporate tax”). On December 1, 2014, the processing transaction part (the first purchase part in 2010) was treated as a representative as a bonus, and the pertinent value-added tax was disposed of as a representative; and (c) the notice of change of income amount reserved in the calculation of deductible expenses (hereinafter “instant disposition”); and (d) each of the instant dispositions in common name “each disposition”

E. On January 27, 2015, the Plaintiff filed an objection with the Commissioner of the Central Tax Office on each of the instant dispositions, but was dismissed on March 23, 2015. On May 18, 2015, the Plaintiff filed a request for a trial with the Tax Tribunal, but received a dismissal ruling on October 13, 2015.

[Ground of recognition] Facts without dispute, Gap 1-3, 30-31 (including branch numbers for those with additional numbers; hereinafter the same shall apply), Eul 1, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. Summary of the Plaintiff’s assertion

(1) The instant transaction does not constitute a disguised or fictitious transaction with all documentary evidence, such as the details of the Plaintiff purchased scrap metal from ○○ ethyl and supplied them to the modern iron, the vehicle and its transport cost used by the Plaintiff for transporting scrap metal, the measurement table of modern iron or certified measuring instruments, and the deposit details of the scrap metal price.

(2) As claimed by the Defendant, the actual business operator of ○○○○○, as the form of the △△△△△△△, is merely the nominal lender, and thus the instant transaction constitutes a disguised transaction, even if the Plaintiff’s employee, who visited the △△△△△△ office located in the city where the city was interested, consulted with the △△△△△△, confirmed the actual status of the scrap metal business, and commenced the transaction, and thereafter, confirmed the business registration certificate by facsimile, and then deposited the transaction amount into the account in the name of the △△△△△△△ in light of the circumstances where the Plaintiff transferred the business registration certificate by facsimile, and then deposited the transaction amount into the account in the name of the △△△△△△△.

(3) Even if the instant transaction constitutes a disguised or fictitious transaction, under Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201; hereinafter the same) and Article 47-3(2)1 of the former Framework Act on National Taxes, a penalty for under-reported value-added tax may be imposed only when the “tax base” is underreported. ② Under Article 47-4(1) of the former Framework Act on National Taxes, an additional tax may be imposed on the value-added tax only when the “excess refund” is received. ③ Under Article 76(5) of the former Corporate Tax Act (amended by Act No. 9898, Dec. 31, 2009), an additional tax may be imposed on the “in cases of failure to receive documentary evidence” for the business year 2009, each of the above imposition dispositions of penalty taxes is unlawful.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

(1) Whether the instant transaction is a real transaction

㈎ 2010년 제1기분 거래가 가공거래인지 여부

1) In a lawsuit seeking the revocation of a disposition imposing tax, the burden of proof regarding the facts requiring taxation exists under the authority to impose tax. In light of the following circumstances, the aforementioned evidence and the overall purport of the statements and arguments presented by the Defendant, which can be comprehensively acknowledged, are insufficient to recognize that the first-term transaction in 2010 was a processed transaction, and there is no clear evidence to acknowledge otherwise.

① In the first quarter transaction in 2010, the Plaintiff supplied scrap metal equivalent to KRW 9,585,290 in total amount of KRW 4,388,670 on March 29, 2010 (including value-added tax; hereinafter the same shall apply) and KRW 5,196,620 on March 30, 2010. The Plaintiff submitted the ○○○○ and the Plaintiff’s luxical measurement table, and there is no objective evidence to deem that the date, weight, total weight, etc. of the said table were forged.

② The Plaintiff remitted 8,713,900 won to the Agricultural Cooperative Account in the name of △△△△ (351-048-5957-03) and 871,390 won on April 22, 2010, respectively, and paid 9,528,290 won to each of the above transaction. The Defendant asserted that △△△△△△△ was a typical material behavior by withdrawing the transaction amount in cash immediately after the deposit. However, there is no material that the amount equivalent to the above transaction amount was returned to the Plaintiff or returned to the Plaintiff immediately after the deposit.

③ Although the director of the competent tax office filed a charge of △△△△ on the data, he/she was subject to the disposition of non-prosecution on April 14, 2014 regarding the instant transaction.

④ Although there is no evidence as to the Plaintiff’s delivery to a third party or transportation by using a third party’s vehicle in the form of direct payment, etc., it is difficult to readily conclude that no scrap metal has been supplied solely on the aforementioned circumstances. In the process of a tax investigation, the director of the Central Regional Tax Office of China and the director of the Regional Tax Office also determined that the transaction was a disguised transaction, other than a processed transaction, even though the Plaintiff took the same transaction form in the course of the tax investigation.

⑤ The Plaintiff’s sales in 2010 amounted to KRW 113,158,06,948, and was supplied directly to Hyundai Steel, etc., and there is no material to deem the Plaintiff as material, and there is no special motive to conduct processing transactions on the amount of KRW 9,585,290 between 00 and 00.

2) Therefore, the instant disposition that deemed the first transaction in 2010 as a processing transaction and excluded the transaction amount from deductible expenses, and that recognized as a representative bonus should be revoked as unlawful.

㈏ 이 사건 거래가 위장거래인지 여부

2) As to the whole of the instant transactions, including the first period portion in 2010, it is deemed that the actual supplier is a disguised transaction because the supplier was not a △△△△△.

The burden of proving that the tax invoice received from a certain transaction on the grounds of the actual transaction, such as nominal transaction without delivery or transfer, constitutes “tax invoice different from the fact stipulated in Article 17 (2) 2 of the former Value-Added Tax Act (amended by Act No. 10409, Dec. 27, 2010; January 1, 201),” is the principle that the tax authority bears the burden of proving that the tax invoice constitutes “△△△△△△△” (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008). However, in light of the purport of Article 14(1) of the Framework Act on National Taxes, if the tax invoice is different from the fact that the actual transaction was conducted on the grounds of the fact that the actual transaction was conducted on the basis of the name of ○△△△△△△△△△△△△△△△△△△△, the actual owner of the goods or services, and thus, the actual owner of the goods supplied.

① Around April 2009, the Plaintiff asserted that △△△△△△△△△△ and △△△△△△△△△△△, ○○○-1, and 9 (hereinafter referred to as “Silung-si storage”) started the instant transaction from April 22, 2009, when she found the place of business located in Silung-si, ○○○, ○○○, ○○○, and ○○○○○○, and ○○○○○, and identified the business facilities or the studs of scrap metal. However, △△△△△△△ was registered for the first time on May 6, 2009, which was after the commencement of the instant transaction, and the address of the place of business was 1260-4,000,000,000 prior to the instant disposition, 1260-4,000,000 neighboring △△△△△△△△△△△△△, which was located.

② On February 6, 1985, ○○○○○○○○○○○○ apartment 00, which was registered as the location of ○○○○○○○○○○○○○ on November 12, 1990, and ○○○○○○○○○○ on July 1, 1998, respectively registered as the name of ○○○○○○○○ Resource and operated a renovation project or a scrap metal business. On December 4, 2004, ○○○○○○○ concluded a lease agreement on the storage in Silung-si (in the above lease agreement copy, the signature and seal of ○○○○ and ○○○○○○○○○○, a wife of ○○○○, and ○○○○○○○○○, which was indicated as ○○○○○○○’s address, was the address of ○○○○○○○○○○○○○’s business, and the instant phone number from March 3, 2008.

③ All of the instant transaction proceeds were deposited into the agricultural bank account in the name of △△△△△. However, the said payment was immediately transferred to the account in the name of ○○○, the wife of ○○, and there was also a portion of money remitted to ○○○○, or the payment was made with the payment with the debit card of ○○○. Kim○ intended to use the aforementioned money transferred as real estate acquisition fund. In light of the foregoing, at least, ○○○ was deemed to have not been actually controlled and managed by △△△△△ in the instant business account, and the profits from the instant transaction were deemed to have been actually reverted to ○○ and Kim○○.

④ △△△△△ did not properly understand the operating profit of the instant transaction, and did not disclose the actual profit, even when it actually accrued. △△△△△△ appears to have not been engaged in the instant business prior to the operation of the instant business, and only stated that △△△△△ was supported by ○○ and her parent-child, such as equipment purchase cost and equipment purchase fund. This is not disclosed properly. Under the circumstances, △△△△△△△△ was without properly disclosing the ○○ purchase cost and equipment, and △△△△△△ was engaged in the instant business by receiving the ○○○ source site and facilities from her type of fish, and ○○○ was trying to operate the instant business, and some of △△△△△△△△△△△ was her employee, who was a type of her type of ○○ Kim, and was her employee to use the money to ○○○, a type of her type of money. However, △△△△△△△ was merely a part of her business name in the instant transaction.

The Defendant asserted that the instant transaction was conducted at the storage at the time of Silung-si. However, △△△△△ stated that the instant transaction was conducted at the storage at Silung-si, but it was not well memoryed, that the place of business was transferred to the storage at Silung-si, and that the place of business was changed to the storage at Silung-si, and that the place of business was changed to the storage at Silung-si, and that the address at Silung-dong 419-3 was pointed out in detail, and that he did not know of the place of business at Silung-si, and that he did not move to the place of business as he asked questions about the relocation of the re-place of business.

(B) The △△△△△ did not pay any compensation for business takeover to the ○○○, and did not conclude a distribution agreement on business profits, and did not pay operating profits. However, in fact, most of the money deposited in the △△△△△△△ was deemed to have accrued to the ○○ and the Kim○ couple. Thus, the fact that the △△△△△△△△△ was unable to grasp the operating profits accrued from the instant transaction, is a good circumstance where it is difficult to deem the △△△△△△△△ to be a business operator actually operating the ○○○○.

In light of the fact that △△△△ did not properly grasp and state the details of transactions with the Plaintiff, determination of the price, vehicle transport, and direct payment to a third party from the time when he was investigated by the police, △△△△△△ was unable to properly understand and state the transaction details with the Plaintiff. In light of the fact that the failure to explain the transaction method, etc. for two years or more, considering the interval between the time when the statement was made and the time when the statement was made, it is difficult to accept.

(2) Whether the Plaintiff acted in good faith and without fault on the name of the supplier

An actual supplier and a supplier on a tax invoice may not deduct or refund an input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the fact of misrepresentation of the tax invoice, and that the supplier was not negligent in not knowing the fact of misrepresentation of the 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 Decision 2009Du1808, Jun. 11, 2009).

In light of the following circumstances that can be acknowledged by comprehensively taking account of the purport of the entire pleadings, the evidence submitted by the Plaintiff alone cannot be deemed as having sufficiently proven that the Plaintiff was unaware of the fact that the Plaintiff was unaware of the name and was not negligent, and there is no other obvious evidence to acknowledge it otherwise.

① At the time of the Plaintiff’s commencement of the instant transaction, △△△△ was in a situation in which she was not registered as a business operator, and she appears to have been operating ○○ as a non-registration. However, if the Plaintiff demanded from the beginning the Plaintiff to produce the business registration certificate, it would have been easily known.

② The address on the business registration certificate sent by △△△ on May 8, 2009 by facsimile was not the depository in the city of Si interest, and the address changed thereafter was the neighboring land other than the depository in Si interest. However, even though the address changed thereafter was the neighboring land, the Plaintiff did not verify whether the recorded business registration certificate issued was the same.

③ In light of the police investigation stage and the statement of this court, △△△△△△△ in the instant transaction, it seems that the Plaintiff seems to have not been well aware of the most important transaction price and the delivery method. In fact, the Plaintiff appears to have determined the transaction price and the delivery method through consultation with △△△△, not the △△△△△△△△. The Plaintiff asserted to the effect that ○○○ was considered as a person in charge of the business. However, the Plaintiff was established in 1995 and has been engaged in the scrap metal business so far, and the Plaintiff was so-called “subject to delivery,” and its business experience and size is significant. In light of the fact that △△△△△△△△△ was not involved in the decision of the transaction price or delivery method, ○○○○○ was called “president,” and the phone number of ○○○ at the time of entertainment, etc., it appears that ○○ had a question about the possibility that ○○ was a person in charge of the actual operation.

(3) Whether the imposition of additional tax is unlawful

㈎ 부가가치세에 대한 부당과소신고 가산세

1) The Plaintiff asserts that the imposition of under-reported additional tax, among the disposition imposing the value-added tax, can only be made by underreporting the tax base. However, inasmuch as Article 47-2(2) of the former Framework Act on National Taxes provides that “the tax base shall be the tax base under Articles 17 and 26(2) of the Value-Added Tax Act in the case of the value-added tax with respect to the tax base; hereinafter the same shall apply in this Section, the tax amount under Article 47-3(2)1 of the Value-Added Tax Act shall be deemed to be included

2) On the other hand, we examine the Plaintiff’s assertion that the instant transaction is a disguised transaction with good faith and without fault, etc., and examine the Plaintiff’s assertion to the effect that it does not constitute “a case of underreporting the tax base in an unjust manner.”

① In light of the language, structure, etc. of relevant provisions under Article 47-3(2)1 of the former Framework Act on National Taxes, even if a taxpayer received a false certification and underreporting the tax base, if the taxpayer did not know that such certification was false, it cannot be deemed that the taxpayer did not know that he/she was false by gross negligence. Moreover, in cases where a taxpayer received a different tax invoice from a supplier on the relevant tax invoice and an actual supplier and received a deduction or refund of an input tax amount, such act constitutes “in cases where the taxpayer underreporting the tax base in an unjust manner” under Article 47-3(2)1 of the former Framework Act on National Taxes, in addition to the awareness that the taxpayer would receive a deduction or refund of an input tax amount by means of a false tax invoice, the taxpayer should be deemed to have received a deduction or payment of a value-added tax, excluding the output tax amount on the relevant tax invoice, or a taxpayer would have received a deduction of an input tax amount by filing a return or a request for correction on the relevant tax invoice by means of refund, etc.

On the other hand, whether a disposition is lawful in a lawsuit seeking revocation of a tax disposition is determined depending on whether it exceeds a legitimate tax amount. The parties may submit objective tax bases and materials supporting the tax amount until the closing of arguments in the fact-finding court, and when calculating the legitimate tax amount to be imposed lawfully based on such materials, only the part exceeding the legitimate tax amount shall be revoked (see Supreme Court Decision 94Nu13527, Apr. 28, 1995).

② Comprehensively taking into account the facts acknowledged earlier, the following circumstances, namely, the Plaintiff’s employee: (a) confirmed the actual situation of the △△△△△△ and the △△△△△△△△△ in the Silung-si Storage; (b) the Plaintiff was actually supplied with scrap metal according to the amount of supply and price indicated in the instant transaction; and (c) the purchase price was also deemed to have been paid to the account in the name of △△△△△; and (d) even if the Plaintiff received a tax invoice different from the fact from the fact from the △△△△△△△△△△, the evidence submitted by the Defendant alone does not mean that the Plaintiff was different from the fact that the input tax invoice was submitted; or (e) reported and paid the tax base and the amount of the value-added tax other than the output tax indicated in the said tax invoice, or upon filing a request for correction after filing a tax return and payment on the entire amount of the output tax indicated in the said tax invoice, thereby evading liability for the payment of value-added tax on the relevant tax invoice.

(3) Therefore, in imposing the value-added tax on the Plaintiff, the general imposition of the tax for filing a report under Article 47-3(1) of the former Framework Act on National Taxes should be imposed, instead of the tax for filing an unfair underreporting under Article 47-3(2) of the same Act. As such, in imposing the value-added tax on the Plaintiff, the portion exceeding the amount that exceeds the amount that exceeds

④ In light of the above legal principles, the reasonable value-added tax amount on the Plaintiff is calculated as follows:

3) Therefore, the part that exceeds the amount of a general under-reported additional tax, which is not an unfair under-reported additional tax, is unlawful. Therefore, the part that exceeds the difference (justifiable amount of imposition) with each already paid tax amount should be revoked.

㈏ 부가가치세에 대한 납부불성실 가산세

The Plaintiff asserts that the imposition of penalty taxes in bad faith in the imposition of the value-added tax in this case can be made only when the excess refund return was made pursuant to Article 47-4 of the former Framework Act on National Taxes. However, the Defendant appears to apply Article 47-5, which is not Article 47-4 of the former Framework Act on National Taxes, and Article 47-5 (1) clearly states that the paid tax amount is below the payable tax amount.

㈐ 2009년 귀속 법인세에 대한 적격증빙불비가산세

The plaintiff argues that the imposition of additional tax on lack of evidence belonging to the year 2009 is possible only when the documents of evidence are not received.

Article 76 (5) of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereafter the same shall apply) provides that where a corporation (excluding a corporation prescribed by Presidential Decree) is supplied goods or services with a business-related business-related business by an enterpriser prescribed by Presidential Decree and fails to receive evidential documents provided for in any subparagraph of Article 116 (2), the chief of the district tax office having jurisdiction over the place of tax payment shall collect as corporate tax an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount, except for the cases governed by the proviso of Article 116 (2). In such cases, the penalty tax shall be collected even if there is no calculated tax amount.

However, a corporation that is supplied with goods or services in relation to the business should receive documentary evidence as stipulated in each subparagraph of Article 116(2) of the former Corporate Tax Act (hereinafter “legal documentary evidence”) from “person who actually conducted a transaction of supplying goods or services” (hereinafter “person who actually conducted a transaction of supplying goods or services”), and if the legal documentary evidence is not received from “person who actually conducted a transaction of supplying goods or services, it constitutes subject to additional tax pursuant to the main sentence of Article 76(5) of the former Corporate Tax Act, and even if the corporation received documentary evidence from “person who actually conducted a transaction of supplying goods or services,” it does not change even if it received legal documentary evidence from “person who actually conducted a transaction of supplying goods or services,” (see Supreme Court Decision 2010Du24654, Apr. 26, 2012). Article 76(5) of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010).

The plaintiff's assertion in this part is not accepted.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.