Seoul High Court 2009Nu1756 (2009.08)

Examination of actual evidence of gold bullion flow and trends of changes in purchase and sale, etc., it shall be determined whether it constitutes a false tax invoice or not.

Since most of the companies that supplied gold bullion to the purchaser are materials, there is little possibility that the purchaser actually supplied gold bullion, and it is very rare that the Plaintiff’s payment of gold bullion to the purchaser bank located in the place of business at the risk of theft and loss at the risk of theft and loss. In light of the logical rule and the empirical rule, there is a lot of room to view that the Plaintiff’s purchase tax invoice constitutes a tax invoice different from the fact.

Article 17 of the Value-Added Tax Act

209Du17599 Revocation of Disposition of Imposition of Value-Added Tax

XX Kim

Head of the High Tax Office

November 10, 201

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant’s ground of appeal

원심은 그 채택 증거에 의하여, ① 남대문세무서의 세무조사 결과, 주식회사 ○○○쥬얼리(이하 '○○○쥬얼리'라 한다)가 2002년 2기부터 2003년 1기까지 거래한 금지금 매입처들은 대부분 자료상이고, ○○○쥬얼리가 2001년 1기부터 2003년 2기까지 주식회사 ☆☆케이골드 등에게 금지금을 매출하였다는 내용의 세금계산서를 교부하였으나 이들도 대부분(매출액의 81.3%) 자료상 등의 범칙이력이 있는 업체들로 밝혀진 사실, ② 원고는 자신의 사업장과는 무관한 우리은행 을지로 지점, 한빛은행 종로3가 지점, 국민은행 종로3가 지점(오히려 ○○○쥬얼리의 사업장과 가깝다) 등에서 ○○○쥬얼리의 계좌에 금지금 대금을 입금하였으며, 그 돈은 곧바로 자료상으로 밝혀진 △△골드시스템 주식회사, □□금은유통 주식회사, 주식회사 ◇◇골드퀸 등의 계좌로 재차 입금된 사실, ③ ○○○쥬얼리는 2001년 1기부터 2003년 2기까지 실물거래가 없는 100% 자료상이라는 이유로 그 대표이사인 조AA가 수사기관에 고발되었으나 조AA의 주소불명으로 기소중지된 사실 등을 인정하면서도, 이러한 사실들만으로는 원고와 ○○○쥬얼리 사이의 이 사건 금지금 거래가 명목상의 거래임을 인정하기에 부족하다고 보아 그에 관하여 원고가 ○○○쥬얼리로부터 수취한 이 사건 세금계산서가 실물거래를 수반하지 않은 사실과 다른 세금계산서에 해당한다고 본 이 사건 부가가치세 부과처분은 위법하다고 판단하였다.

However, it is difficult to accept such judgment of the court below for the following reasons.

According to the facts acknowledged by the court below, most of the companies that supplied gold bullion to ○○○ △△ was issued without a real transaction, and therefore there is little possibility that ○○ △△△ was actually supplied gold bullion to their sales offices, including the Plaintiff. When the Plaintiff wired gold bullion to ○○ △○○ △○, it was possible to simply transfer it to phone or Internet banking or transfer it to the bank located in the Plaintiff’s place of business, etc., but it is very exceptional that ○ ○○ △○ △○ △○ △ △ △○ △ △ was deposited into the bank located in the place of business near the Plaintiff’s place of business at the risk of theft and loss. In light of the logical rules and empirical rules, it is highly reasonable to deem that the purchase tax invoice received by the Plaintiff from ○ ○ △ △△ △ constitutes a tax invoice different from the fact that it does not involve a real transaction.

Therefore, the court below should have determined whether the tax invoice of this case constitutes a false tax invoice by examining whether the actual flow of the gold bullion that the plaintiff purchased from ○○ △△ ice, whether there exists a book and evidence verifying the actual flow of the gold bullion, and whether the change in the purchase quantity of gold bullion and the purchase ratio compared to the purchase amount during the period before and after the transaction with ○ ○○ △ ice, etc., but without such examination, it did not present any ground to deem that the tax invoice of this case entails a real transaction and judged that it does not constitute a false tax invoice. In such a case, the court below erred by misapprehending the legal principles on a false tax invoice, or by failing to exhaust all necessary deliberations in violation of the rules of evidence, which affected the conclusion

2. Plaintiff’s ground of appeal

According to the reasoning of the judgment below, the court below held that the disposition imposing the value-added tax of this case was unlawful on the ground that the tax invoice of this case does not constitute a false tax invoice that does not involve real transactions. However, without any determination as to the Plaintiff’s assertion that the purchase amount in the tax invoice of this case should be recognized as necessary expenses when calculating the global income tax base is not false, the court below lawful the disposition imposing the global income tax of this case, which did not recognize the purchase amount in the tax invoice of this case as necessary expenses. The court below erred by omitting judgment which did not properly determine the Plaintiff’

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.