Seocho 2010Ch287 ( October 11, 201)

It is difficult to see that the Plaintiff was aware of the circumstances of malicious business operators in the course of a series of gold bullion transactions.

The evidence submitted by the Defendant alone is insufficient to deem that the Plaintiff knew or was unaware of the fact that there was a malicious entrepreneur who makes an illegal transaction for the purpose of evading the output tax amount during a series of gold bullion transactions at the time of purchase of the tax invoice corresponding to zero tax rate sales.

Article 15 of the Framework Act on National Taxes

Article 11 of the Value-Added Tax Act and Article 17 of the Value-Added Tax Act

2010Guhap46074 Disposition of revocation of the imposition of value-added tax

AAD Co., Ltd.

Head of the tax office;

July 10, 2012

August 23, 2012

1. Each disposition imposed by the Defendant against the Plaintiff on March 1, 2010 on the first half of 2005, value-added tax of 000 won for the first half of 2005, value-added tax of 000 won for the second half of 2005, and value-added tax of 000 won for the first half of 2006.

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

The same shall apply to the order.

1. Details of the instant disposition

A. The Plaintiff is a corporation established on June 23, 1993 and engaged in gold, silver, retail business, etc.

B. The Plaintiff purchased gold bullion amounting to KRW 00 ( KRW 000 in 2005, KRW 2000 in 2005, KRW 2000 in 2005, and KRW 000 in 2005, KRW 000 in 2006, and KRW 995 in 2000 in 2006, in the status of raw materials such as gold and dubd, etc., and serially purchased gold bullion amounting to KRW 995 in 1,00 in 1,00 in 206, and received the purchase tax invoice (hereinafter referred to as “tax invoice of this case”). The amount was subject to the pertinent tax invoice of this case.

C. In September 2009, the Defendant deemed the instant tax invoice as a false tax invoice on the grounds that the instant gold bullion, which the Plaintiff entered from BB BB aggregate, was caused by an irregular transaction, such as going through a wide-scale coal company or data, at the transfer stage, and deducted the value-added tax amount from the input tax amount on March 1, 2010, and notified the Plaintiff of the correction and notification of the amount of value-added tax 00 won for the first half of 2005, value-added tax 00 won for the second half of 2005, and value-added tax 00 won for the second half of 2005, and value-added tax 00 for the first half of 206 (hereinafter “former disposition”).

D. On October 4, 201, when the instant tax invoice was pending in the lawsuit, the Defendant revoked the input tax credit for each input tax credit for the zero-rate tax transaction based on the purchase confirmation, etc. on the ground that the input tax credit for the input tax credit for the input tax credit for the taxation transaction in the instant tax invoice is not against the good faith principle, and the input tax credit for the zero-rate tax transaction is divided into the input tax credit for the taxation transaction and the input tax credit for the zero-rate tax credit for the transaction in the instant tax invoice, and the input tax credit for the taxation transaction is deducted for the first year of 2005 and 000 won for the second year of 2005 and 000 won for the first year of 2006, and the previous disposition was revoked as above (hereinafter referred to as the “former disposition”).

E. On October 11, 2011, the Plaintiff appealed against the instant disposition, and the Tax Tribunal dismissed the Plaintiff’s above request.

[Recognitions] The descriptions of Gap and Eul evidence 1 and 2, and Eul evidence 1 and 6 and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff purchased and received the instant gold bullion from BB Hyd and paid the price, and conducted a normal transaction, such as selling the gold bullion to a company located in the Republic of Korea after receiving the instant tax invoice from BB Hyd, and there was no fact that the Plaintiff engaged in an irregular gold bullion transaction with the so-called “exploitan company” in collusion with the so-called “exploitan company to unlawfully refund the value-added tax, and no fact was known. Therefore, the instant disposition made on a different premise is unlawful, even though the input tax deduction on the input tax deduction portion related to zero-rate transaction cannot be deemed as contrary to

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

1) Form, etc. of gold bullion transactions for the purpose of evading tax;

A) From 202 to 200, among the precious metal companies located in Jongno-gu Seoul Metropolitan Government, they abuse the zero-rate tax rate or tax exemption system, import gold bullion, and distribute it as zero-rate tax or tax exemption through various stages wholesalers, and the so-called so-called so-called "explosion enterprise" (which is called a "explosion enterprise" because it has no economic ability and closes its business with a view to tax evasion, and it is called a "explosion enterprise" as it is being exported to distribute it for taxation through various stages of wholesalers, and the "explosion enterprise" is limited to the so-called "explosion business" in which the transaction collected value-added tax is evaded, and the exporter is entitled to receive the value-added tax not yet paid, and it is more detailed about the form of "explosion business" as follows.

(1) In appearance, gold bullion is distributed through the stages of ‘foreign company ? importer ? Tax-free wholesale company ? Tax-free intermediate wholesale company (tentatively named ‘tax-free wholesale company’) ? Tax-free intermediate wholesale company (tentatively named ‘tax-free wholesale company’), ? Export company ? Foreign company ? The transaction price is paid in sequence from the export company to the import company, but in particular, the taxable wholesale company only issues tax invoices under the direction of a specific person or a specific company, and does not trade or transport gold bullion.

(2) The "exploitan company" purchases gold bullion as tax-free gold and sells it as tax-free gold, and evades the value-added tax by withdrawing, concealing, and closing its profits within a short term. The "exploitan company" sells gold bullion with the supply price lower than the purchase price, but the supply price added to the supply price is higher than the purchase price, and the sales price plus the added value-added tax is not paid, so the difference between the supply price and the purchase price is significant. Meanwhile, the value-added tax collected by the "exploitan company" is transferred in order by each of the following stages by using the tax invoice received from the immediately preceding stage companies to deduct the input tax amount, and then the exporting company is entitled to the refund from the country in accordance with the application of zero-rate tax rate after exporting the gold bullion, and the ultimate source of the profits calculated by the "exploitan company" in the form of the "exploitan trade" and the profits paid to the domestic company in the form of the "exploita" separately from the domestic price.

(3) In order to maximize profits, the term "large amount of gold bullion business" means distributing a large quantity of gold bullion in a short time, and to prevent disputes between and among the participating companies that may arise therefrom, or incidents such as loss of prices, etc. ① Most of the same former owners (on the outside of the wide carbon business network, a person who prepares for the import fund of gold bullion in the first place) operate both exporters and importers at the same time, and ② place a company substantially controlled or trusted by the former owner in direct transactions with a "large coaler", and ③ the former owner actually determines the volume of the transaction, the unit price and the margin, and the series of transactions from the importing company to the exporting company at a very short time, and the latter is transported promptly through the exporting company with a covering of the transaction stage at each stage (it is nothing more than a transportation with a normal transaction even if it is a formal transaction).

B) If the head of the competent tax office deems it necessary to preserve the value-added tax as a result of the amendment of the Restriction of Special Taxation Act by Act No. 7322 on December 31, 2004 in order to prevent tax evasion by the above methods, the security for tax payment was newly established and implemented on April 1, 2005 (Article 106-3(11)) and 268 tons of gold bullion import volume and 233 tons of export volume were reduced to 56 tons of import volume and 19 tons of export volume in 205 when the above tax payment system was implemented.

2) Circumstances and criminal punishment of the Plaintiff’s gold bullion

A) On May 1983, 1983, the Plaintiff’s representative director made operation of the wholesale company from the closing day to the “AAA company”, and around June 23, 1993, the Plaintiff established the Plaintiff, and the Plaintiff has grown into the largest domestic gold bullion wholesaler in Jongno-gu Seoul (OOO00), and the domestic sales unit price of the current domestic sales unit of the gold bullion publicly notified by the Plaintiff was determined on the domestic sales unit price of other companies.

B) Meanwhile, in around 2004, the competentCC received investigation into the case of evading value-added tax while illegally converting gold bullion purchased as raw materials for export by the zero-rate sales office into domestic waters and selling gold bullion purchased as raw materials for export into domestic waters.

C) As a result of the investigation, at least 90% of the gold bullion purchased as taxation between January 1, 200 and June 30, 2004 was 100 to 109 tons of gold bullion, and the maximum purchase price was continuously changed by 3-6 months, and the substantial part of the transaction was bicycle future (the large wholesaler sold to the intermediate wholesaler at zero tax rate, the intermediate wholesaler’s price is zero-rate rate to the intermediate wholesaler, and the large carbon company sells to the other intermediate wholesaler after converting it into taxation, and the company sells it to the large wholesaler, and the company sells it to the large wholesaler, and the large wholesaler again sells to the intermediate wholesaler at zero-rate rate, and the large wholesaler is confirmed to be a transaction structure where the value-added tax that was collected from the trading from the country is to be refunded).

라) 이에 따라 원고의 대표이사 권CCCC은 특정범죄 가중처별 등에 관한 법률 위반(조세 ) 등으로 기소되어， 1심 {서울중앙지방법원 2006고합1298， 2006고합1399(병 합)， 2007고합156(병합)}에서 김DD(폭탄업체 EEEE 실제 운영자)， 추FF(폭탄업체 GG무역 대표이사)，우HH(폭탄업체 II쥬얼리 대표이사)，김JJ(폭탄업체 KK쥬얼리 대표이사)，한LL(과세도관업체 EEEE 대표이사)，정MM(폭탄업체 NN금속 대표 이사)，김PP(폭탄업체 QQ무역 대표이사)，양RR(과세도관업체 SSS쥬얼리 및 TTT골드 실제 운영자)，염UUUU(폭탄업체 VV무역 대표이사)，강WW(폭탄업체 XX보석 대표이사)，이YY(폭탄업체 ZZ쥬얼리 대표이사)，박aa(폭탄업체 ZZ쥬얼리 실제 운영자)，강aa(과세도관업체 cc금은 대표이사)， 김bb(폭탄업체 dd쥬얼리 대표이사)，김순옥(폭탄업체 hh쥬얼리 대표이사)，민gg(폭탄업체 hh쥬얼리 실제 운영자)，허ee(과세도관업체인 ff금은 실제 운영자)，김ii(폭탄업체 jj쥬얼리 대표이사) 등과 순차로 공모하여 금지금에 관한 일련의 거래에 있어서 위와 같은 금지금 변칙거래의 방식으로 부가가치세를 포탈하였다는 등의 범죄사실이 인정되어 2007. 8. 24. 징역 7년 및 벌금 000원의 유죄판결을 선고받았고， 항소심{서울고등법원 2006노 2975， 2007노1924(병합)}에서도 위 범죄사실이 인정되어 2007. 12. 6. 징역 8년 및 벌금 2，100억 원의 유죄판결을 선고받았으며，그 후 상고심(대법원 2007도11258)에서 2008. 4. 24. 상고기각판결을 선고받아 위 판결이 확정되었다(이하 이 판결을 '관련 형사판결'이라 한다).

3) Matters concerning the transaction of the gold bullion of this case

A) From January 2005 to January 2006, the Plaintiff purchased gold bullion as listed in the following table (hereinafter “the taxable period of this case”). From the above period, the Plaintiff purchased gold bullion from BBBE (it was opened on June 23, 2003, closed on September 30, 2006, and its actual operator was closed on September 30, 2006). The gold bullion supplied to BBE (it is newk) was supplied from staldrads, malds, ethds, nthds, nthds, nthds, and tweds, rrds, tweds, and uous metal (it is the state of escape, diving, and twedthds that were in arrears with large value-added taxes, while the Plaintiff supplied the remainder of gold bullion that was purchased from V in the process of the gold bullion trading (hereinafter referred to as “the instant heavy company”). In particular, it was found that five gold bullion products were supplied from the latter.

B) In the instant taxable period, the Plaintiff sold approximately KRW 000 gold bullions, and the major selling places are AAFmera Co., Ltd. (in the instant taxable period, approximately KRW 000 gold bullions were sold, and its percentage was 56.1% of the total sales amount), and other sales to manufacturers and general retailers were approximately KRW 50.8 billion, and there was no suspicion of disguised or processing transactions in one transaction with them.

다) 원고의 연도별 영세율 거래의 규모는 아래 표와 같고， 이 사건 과세기간에 주요 영세율 매출처는 ww큐빅， xxx무역， yyy쥬얼리， zz쥬얼리， ㄱㄱㄱ， ㄴㄴ쥬얼리， ㄷㄷ산업， ㄹㄹㄹ쥬얼리 등(이하 '이 사건 영세율 매출처'라 한다)이다.

D) During the pertinent taxable period, the Defendant specified the Plaintiff’s input tax deduction portion under the instant tax invoice among the Plaintiff’s sales revenue during the pertinent taxable period (where the Plaintiff purchased gold bullion only from BBE on the date of sales at zero tax rate, and where the Plaintiff did not have any details of purchase of gold bullion on the date of sales at zero tax rate, the Plaintiff purchased gold bullion from BBE on the date nearest day and sold gold bullion. The Plaintiff was convicted of tax evasion (the facts of the crime are related to gold bullion transactions made up until 2004) and the Plaintiff’s representative director rightCC did not file a complaint with an investigation agency regarding the transaction during the instant taxable period.

[Based on Recognition] 3, 4, 2 through 5, 7, 8, and 9, and the purport of the whole pleadings

D. Determination

1) Article 15 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same shall apply) declares that the principle of good faith applies to the field of tax law by stipulating that a taxpayer is able to carry out his/her duties. This principle is natural (Article 1 and Article 3(1) main text of the former Framework Act on National Taxes). Therefore, even if a malicious entrepreneur does not know that the input tax amount is to be evaded from the first stage of a series of transactions under the current VAT system, it should be applied only to those cases where the exporter does not pay taxes in bad faith, but also to those cases where the exporter does not have a duty of care to deduct taxes in light of the principle of good faith and good faith so that the exporter does not have a duty of care to deduct taxes from the second stage of a series of transactions where the exporter does not know that the exporter does not have a duty of care to deduct taxes from the second stage of the first stage of transactions.

2) In light of the following circumstances, it is difficult to view that the Plaintiff knew or did not know by gross negligence that there was a malicious entrepreneur who makes illegal transactions for the purpose of evading the output tax amount at the time of the purchase of the tax invoice corresponding to zero tax rate among the instant tax invoice, and the evidence submitted by the Defendant alone, based on the health cost, and the fact that the Plaintiff was aware of the purchase transaction of the tax invoice corresponding to zero tax rate sales. Accordingly, the Plaintiff’s above assertion is with merit.

① On December 3, 2004, the Seoul Regional Tax Office Director of Seoul Regional Tax Office on January 1, 200

From June 30, 2004 to June 30, 2004, an accusation was filed against the criminal fact that the value-added tax was evaded by means of an irregular transaction, and subsequently was investigated and tried. In such a situation, it is difficult for the Plaintiff to deem that the Plaintiff evaded the value-added tax in collusion with a multilateral carbon company in the same manner as above, and there is no other evidence to acknowledge it. Meanwhile, there was no accusation or punishment for the gold bullion transaction during the pertinent taxable period.

② Following the amendment of the Restriction of Special Taxation Act after December 31, 2004, in order to prevent tax evasion through the aforementioned variable transaction formula, the amount of gold bullion exports and imports was rapidly reduced, the Plaintiff’s zero tax rate sales amount was reduced since 2004, and the ratio of zero-rate sales amount during the pertinent taxable period to the total sales amount of the Plaintiff is only 7.2%.

③ According to the Defendant’s findings, in the instant taxable period, the suspicion of disguised or fictitious transactions was not found, except BBB aggregate in the Plaintiff’s purchasing places, and the suspicion of disguised or fictitious transactions was not found for the Plaintiff’s selling places.

④ According to the relevant criminal judgment, the plaintiff was purchased between January 1, 200 and June 30, 2004, and about 90% or more of gold bullion 109 tons, and the maximum purchase price was continuously changed on a 3-6-month basis, and the substantial part of the transaction was confirmed as bicycle future, while the transaction during the taxation period of this case was not made through a bB aggregate, and there was no change during the taxation period of this case, and there was no circumstance to regard the maximum purchase price of gold bullion ( approximately 56% of the total purchase price) other than BB aggregate, and there was no change in the purchase price during the taxation period of this case, and there was no reason to see that the most uniform share owner operated both the exporting company and the importing company at the same time, and there was no evidence to see that the former share owner operated the zero tax rate of this case at the same time with the exporting company (in particular, there was no evidence to see that the former share owner operated the zero tax rate).

⑤ In addition, gold bullion transactions in the relevant criminal judgment are related to the transaction between January 1, 200 and June 30, 2004. Therefore, the transaction period between the gold bullion transaction and the pertinent gold bullion transaction period are different, and the width coal business entity and its operators appearing in the relevant criminal judgment are entirely different from the instant coal business entity and its operators, as well as the BBB aggregate and Hyk, which led the instant gold bullion transaction, are irrelevant to gold bullion transactions in the relevant criminal judgment.

(6) It is difficult to find the Defendant’s assertion on the relevant criminal judgment merely because the transactions of gold bullion and the instant gold bullion have been opened by the breadthed coal business that led to the distribution process, and the details of the relevant criminal judgment vary from the subject, timing, size, distribution channel, etc. of gold bullion transaction.

3. Conclusion

The plaintiff's claim is justified and accepted.