Busan District Court-2013-Gu 21367 (Law No. 21, 2014)

It constitutes a false tax invoice but is not subject to the application of additional tax on not received evidence.

It is reasonable to see that the person who supplies non-ferrouss, etc. is a false tax invoice prepared differently from the fact, but it is difficult to see that the other party to the transaction is a business operator, which is illegal.

Article 16 (Tax Invoice)

2014Nu1185 Revocation of Disposition of Imposing capital gains tax

AA

BB Director of the Tax Office

March 6, 2015

March 27, 2015

1. The part of the judgment of the court of first instance that ruled against the Plaintiff that falls under the order of revocation below shall be revoked. The part that exceeds KRW 154,906,630 of the disposition of imposition of corporate tax of KRW 155,270,630 for the Plaintiff on December 1, 2012 and the part that exceeds KRW 27,18,340 of the disposition of imposition of corporate tax of KRW 28,138,340 for the year 2010 shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. 3/4 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance court is revoked. On December 1, 2012, the Defendant’s imposition (including additional taxes) of KRW 2,934,380, KRW 1,090, KRW 136,018,100, and KRW 154,90, KRW 630 of the imposition disposition of KRW 15,270, KRW 630, KRW 28,138,340 of the imposition of corporate tax for the year 2009, KRW 1,09, KRW 1,090 of the imposition disposition of KRW 9,929, KRW 929, and KRW 100 of the imposition disposition of KRW 15,270, KRW 630 of the amount of corporate tax for the year 2009, KRW 28,138,340 of the imposition disposition of KRW 29,920 of the amount of corporate tax for the year 2010.

1. Details of the disposition;

A. From July 1, 2006 to October 26, 2010, the Plaintiff is running a pipe, non-metallic metal manufacturing and sales business from 00:0:00 to 1072, and thereafter 00 to 00,000 to 00.00 to 00.

B. The Plaintiff received 14 copies of the purchase tax invoice of 928,621,270 won (hereinafter “the purchase price of this case”) as listed below during the taxable period from KRK operating wholesale and retail business, such as non-ferrous iron, in the trade name of MF, from 2009 to 2010, and deducted the purchase price-related tax amount from the Defendant and filed a return of value-added tax and corporate tax by adding the purchase amount to deductible expenses.

다. 금정세무서장은 KKK(MMMM)에 대한 세무조사 결과 이 사건 각 세금계산서가 사실과 다르게 기재된 세금계산서로 보아 이를 피고에게 과세자료로 통보하였고, 피고는 이와 같은 이유로 2012. 12. 1. 원고에 대하여 이 사건 각 세금계산서에 기한 부 가가치세 매입세액 공제를 부인하고, 그에 따라 2009년 2기분 부가가치세 3,480,380원 (가산세 포함), 2010년 1기분 부가가치세 1,300,390원(가산세 포함), 2010년 2기분 부가가치세 162,868,730원(가산세 포함)을 부과하는 한편, 이 사건 각 세금계산서 상당 금액에 대하여 적법한 증빙서류를 수취하지 아니하였다는 이유로 법인세법상 증빙미수취 가산세로 2009년분 364,000원, 2010년분 18,208,420원을 각 부과하였다(이하 '이 사건 법인세 부과처분|이라고 한다)을 하였다.

D. Accordingly, on May 28, 2013, the Plaintiff filed an appeal with the Tax Tribunal on May 28, 2013, but received a decision of dismissal on August 14, 2013, and filed the instant lawsuit on November 11, 2013.

"E. The defendant, on October 16, 2015, on which the lawsuit in this case was pending, corrected ex officio the part on which the imposition of unfair under-reported penalty tax was imposed with respect to each of the above imposition of value-added tax. The imposition of each of the imposition values remaining after ex officio correction (hereinafter referred to as "the imposition of each value-added tax remaining after ex officio correction and the imposition of the corporate tax in this case are as listed in Table 2 below), and 2. Whether each of the above dispositions in this case is legitimate

A. The plaintiff's assertion

The Plaintiff: (a) provided KK that operates MF with actual non-ferrouss, etc., remitted the purchase price to normal transaction; and (b) received each of the instant tax invoices; and (c) although each of the instant tax invoices cannot be deemed as false, each of the instant dispositions based on the premise that each of the instant tax invoices is false, and even if each of the instant tax invoices is different from the facts, the Plaintiff received the goods and received the tax invoice, thereby making the disposition imposing the corporate tax of this case illegal on the ground that the Plaintiff did not receive the evidentiary materials under the Corporate Tax Act.

B. Relevant statutes

It is as stated in the "Attached Acts and subordinate statutes". Whether each tax invoice of this case is a false tax invoice or not.

1) Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 10409, Dec. 27, 2010; hereinafter the same) provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries in a tax invoice are different from the facts. In such a case, the meaning that it is different from the fact is subject to taxation. If there is a person to whom the profit calculation act or transaction belongs merely belongs, if there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable for tax payment and the tax law shall apply, in light of the purport of Article 14(1) of the Framework Act on National Taxes, that the necessary re-matters of the tax invoice refers to a case where the content of the necessary re-matters of the tax invoice does not coincide with the person to whom the goods or service is actually supplied or the person to whom the goods or service is supplied, the value, and the timing of the transaction contract, etc. prepared between the parties to the goods or service (see

2) In light of the above legal principles, in light of the following circumstances, the health class, Gap evidence Nos. 1, 2, Eul evidence Nos. 3, 6, and 7 as to the instant case, and some testimony of KK witness of the first instance trial, which may be recognized or ratified by comprehensively taking into account the overall purport of the pleadings, and the following circumstances, it is reasonable to view that each of the instant tax invoices was issued as false tax invoices, since the Plaintiff was supplied to the Plaintiff by the MF, not MM, but by the SS non-metallic metal, J metal Co., Ltd., and TTT TT, but the Plaintiff was deemed to have been supplied with the said non-ferrous, etc., and therefore, each of the instant tax invoices was prepared differently from the fact by the supplier of non-ferrous, etc.

A) KK, which is registered as the business owner of MM, has no ability to operate the business before MM. However, in light of the fact that KK claims that all business funds and operating funds, including the lease deposit of MM, were provided to the Plaintiff representative director or its wife, KK seems to have no economic ability to engage in the transaction equivalent to the amount of supply value on the sales tax invoice issued in the name of MM.

B) There is no evidence to deem that the workplace registered in the business registration certificate of MM was equipped with essential facilities, equipment, etc. to carry on the high-speed business, such as gymnasiums, solid symnasiums, and gymnasiums, and KK stated in the first instance court that KM operated the mixed MM without an employee. In light of these circumstances, MM did not have any human resources or physical facilities to the extent that it can deal with the total amount of supply on the sales tax invoice issued in its name.

다) KKK는 과세관청의 실지조사 당시 MMMM이 실제로 비철 등을 매입하였다고 진술하면서도 그 매입처나 매입자금의 출처 등 실제로 정상적으로 비철을 매입하였더라면 쉽게 밝힐 수 있는 사항들에 대하여 전혀 밝히지 않았고, 그에 대한 증빙 자료도 제시하지 않고 있는데다가, MMMM의 매입처로 알려진 거래처들이 TTTTTT(KKK는 TTTTTT에서 2006. 8.까지 근무하였다)의 대표 QQQ의 제안으로 MMMM을 거쳐 거래를 한 것일 뿐 KKK와 직접 거래하거나 통화한 사실이 없다고 진술하고 있는 점 등에 비추어 MMMM이 운영기간동안 자신의 매입처로부터 비철 등을 매입한 사실을 인정하기 어렵고, 그와 같이 MMMM이 비철 등을 매입한 사실을 인정하기 어려운 이상 MMMM이 이 사건 각 세금계산서 기재 내용과 같은 대량의 비철 등을 원고에게 실제로 공급하였다고 보기도 어렵다[KKK는 위와 같이 재화의 공급 없이 세금계산서를 발급하였거나 세금계산서를 발급받은 사실로 과세관청으로 부터 조세범처벌법 위반 혐의로 고발되어 00지방법원으로부터 벌금형을 선고(00지방법원 20**노3**9)받았고, 현재 KKK의 상고(대법원 20**도5**8)로 재판 계속 중 이다].

D) Rather, on August 7, 2009, MM was operated by the Plaintiff on the opening of the business. From March 10, 2009 to August 7, 2009, MM was leased and used as a factory and a store. From the date of lease to the date of August 7, 2009, KM did not have any agreement on the due date of repayment and interest even though it was asserted that the Plaintiff borrowed and paid the lease deposit money from the Plaintiff’s representative director’s office. ② From the tax authority’s implementation investigation, it was found that K has signed on some of the purchase-related documents of the Plaintiff’s 2010 transaction specifications and delivery column. However, it appears that M had been used as an independent deposit account of the Plaintiff’s 15th day before and after each month from MM’s business’s business account, MM was transferred from 200 to 30,000, 200, 200,300, 201.

3) Therefore, since each of the tax invoices in this case is considered to be false tax invoices, it is without merit, and under the premise different from this, the first Plaintiff’s assertion on this part is groundless.

D. The legality of the disposition of imposition of the corporate tax of this case

(1) Article 76 (5) of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010; hereinafter the same shall apply) provides that where a corporation (excluding such corporation as prescribed by the Presidential Decree) is supplied goods or services with an entrepreneur prescribed by the Presidential Decree in connection with its business and fails to obtain evidentiary documents under any subparagraph of Article 116 (2) or receives false evidentiary documents, the head of a tax office having jurisdiction over the place of tax payment shall collect an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount or the amount received differently from the fact (hereinafter referred to as "amount of additional tax collected") as corporate tax, and Article 116 (2) of the former Corporate Tax Act provides that it shall be excluded from the amount of credit card sales slip under the Specialized Credit Financial Business Act, cash receipts under Article 1-2, Article 16 of the Value-Added Tax Act, Article 121 and Article 163 of the former Corporate Tax Act (amended by the Presidential Decree No. 2015, Jul. 27, 201, 208).

2) 표1 순번 1，2, 3번을 제외한 나머지 기재 각 세금계산서(이하 '이 사건 나머지 세금계산서'라고 한다)와 관련한 증빙미수취 가산세에 대한 판단 앞서 본 인정사실 및 증거들에 의하면 알 수 있는 다음과 같은 사정, 즉 SS비 철금속, JJ금속 주식회사 및 주식회사 TTTTTT가 이 사건 나머지 세금계산서 기재 일시에 그 기재 중량의 품목을 QQQ의 제안으로 MMMM을 거쳐 원고에게 공급한 점, KKK는 이 사건 나머지 세금계산서 기재 일시에 SS비철금속, JJ금속 주식회사 및 주식회사 TTTTTT로부터 그 기재 중량의 품목을 공급받은 사실이 없음에도 허위내용의 매입세금계산서를 발급받았다는 범죄사실로 과세관청으로부터 조세범처벌법 위반 혐의로 고발되어 부산지방법원으로부터 벌금형을 선고(부산지방법원 2013노3289)받고, 현재 상고심(대법원 2014도5408) 계속 중인 점, 이 사건 나머지 세금계산서는 공급하는 자가 사실과 달리 기재된 것인 점 등을 종합하면, 원고는 부가가치세법상 사업자로서 부가가치세법 제16조에 따른 세금계산서를 발급할 의무가 있는 SS비 철금속, JJ금속 주식회사 및 주식회사 TTTTTT로부터 재화를 공급받았음 에도 공급하는 자가 사실과 달리 기재된 이 사건 나머지 세금계산서를 교부받았다고 할 것이다

3) Determination as to the penalty tax not received in connection with the tax invoice Nos. 1, 2, and 3 of Table 1

With respect to the tax invoices Nos. 1, 2, and 3 of Table 1, the defendant only submitted evidentiary materials to the effect that the plaintiff did not receive the goods and services as stated on the date stated therein from MM, and without specifying the actual trader that supplied the plaintiff with the goods and services, it is argued that the actual trader should be presumed to be the business operator as prescribed by the Presidential Decree under Article 76 (5) of the former Corporate Tax Act, in light of the general characteristics of the non-stock transaction, the size of the plaintiff's purchase of the non-stock, and the real trader. As examined below, it is difficult to view that the reason alleged by the defendant alone proves that the actual trader that supplied the plaintiff with the non-stock, etc. is the business operator as prescribed by the Presidential Decree under Article 76 (5) of the former Corporate Tax Act,

A) The Defendant asserts that, under Article 2(1)1 of the former Enforcement Decree of the Value-Added Tax Act, the goods are the persons who independently supply goods for profit-making purposes. Meanwhile, under the standard expense rate book for the year 201, which belongs to the standard expense rate book published by the National Tax Service, the goods collection constitutes a wholesale business. According to the proviso of Article 25(1) of the former Value-Added Tax Act and Article 74(2) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 22578, Dec. 30, 2010; hereinafter the same), the wholesalers who supplied scrap metal to the Plaintiff are excluded from a simplified taxable person, and thus, the actual traders who supplied scrap metal to the Plaintiff are presumed to be an entrepreneur who supplied the Plaintiff with the goods, but it is difficult to recognize the external binding force and power of the goods distributors provided by the standard expense rate book book for the year 2011, and Article 74(1)2 of the former Enforcement Decree of the Corporate Tax Act, which does not include the simplified simplified.

B) In addition, the Defendant asserts that the actual transaction entity that supplied scrap metal to the Plaintiff is presumed to be a business entity prescribed by the Presidential Decree under Article 76(5) of the former Corporate Tax Act, even in light of the transaction size. As seen earlier, the Plaintiff purchased scrap metal equivalent to KRW 40,50,000 from KRW 7 million to KRW 30,000 as indicated in Table 1, 2, and 3. However, according to the Defendant’s assertion, MM purchased by the Plaintiff is merely a “data”, and the tax invoices listed in Table 1, 1, 2, and 3 are false. Thus, the actual transaction details or scale cannot be inferred through the tax invoices listed in Table 1, 1, 2, and 3, and the actual transaction details or scale cannot be inferred through the tax invoices listed in Table 1, 2, and 3, and the Plaintiff’s actual transaction guidance, which is a small number of business entities, and each of the Plaintiff’s presumed transaction partners cannot be known.

C) Meanwhile, in light of the characteristics of the scrap metal transaction, it is reasonable to view that the actual trader who supplied scrap metal to the Plaintiff is not an enterprise which has not been registered under the Value-Added Tax Act or the Income Tax Act, and such unregistered company does not fall under the “business prescribed by Presidential Decree” under Article 76(5) of the former Corporate Tax Act in consideration of the following circumstances.

Article 116(2) of the former Corporate Tax Act provides that "(1) shall be provided with goods or services by a person who actually supplies such goods or services." (2) Article 116(2)3 of the former Corporate Tax Act provides that "tax invoices under Article 16 of the Value-Added Tax Act shall be provided with evidential documents that need to be received." Article 16(1) of the former Value-Added Tax Act provides that a person who is registered as an entrepreneur shall be the owner of the goods or services, and Article 16(1) of the former Value-Added Tax Act provides that tax invoices shall be provided with the registration number and name or title of the supplier shall be limited to those who are registered as an entrepreneur under the Value-Added Tax Act (see, e.g., Supreme Court Decision 95Do100, Apr. 25, 195).

4) Sub-committee

Therefore, the part relating to the remaining tax invoices of this case among the disposition imposing corporate tax of this case is legitimate, and the part relating to the tax invoices of this case Nos. 1, 2, and 3 are unlawful. Thus, the plaintiff's above assertion is justified within the above scope of recognition.

3. Conclusion

Therefore, among the disposition of corporate tax in this case, the part exceeding KRW 154,906,630 [15,270,630 [15,270,630-(18,200,000-ax2/100] of the disposition of imposition of corporate tax in 2009] is illegal, and the part which exceeds KRW 27,188,340 [28,138,340-(7,00,000) [2/100] of the disposition of imposition of corporate tax in 2009 [27,138,340-(7,00,000)] (40,50,0000, X2/100] of the disposition of imposition of corporate tax in 209 should be revoked, and the part which falls under the above part of the judgment in the judgment of the court of first instance against the plaintiff shall be revoked, and the remaining part of the plaintiff's appeal shall be revoked and dismissed as it is without merit.