Seoul Administrative Court 2006Guhap46312 ( November 05, 2008)

National High Court Decision 2006No1632 (Law No. 18, 2006)

Whether a processed tax invoice without actual transaction related to gold bullion has been received

In most cases, a series of entire transactions until gold bullion is imported and exported are conducted only on a day or two-dimensional basis, and a tax invoice is prepared and issued while supplying gold bullion at the middle stage, and so-called wide-scale coal companies that do not pay the amount equivalent to the value-added tax exist cannot be readily concluded that the supply of goods is not a supply of

The contents of the decision shall be the same as attached.

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant revoked each disposition of imposition of KRW 753,942,140 for the first year of December 9, 2005 against the Plaintiff, KRW 5,57,756,140 for the second year of 2003, KRW 6,164,741,920 for the second year of 2004, KRW 125,389,850 for the second year of 2004, and KRW 1,080,895,470 for the corporate tax of 2003, and KRW 1,052,230,630 for the corporate tax of 204 (the tax amount described in the purport of the request of correction in the statement of claim as of March 24, 2008).

2. Purport of appeal

In the judgment of the court of first instance, the part against the defendant is revoked and the plaintiff's claim corresponding to the above revocation is dismissed.

1. Details of the disposition;

Since the corresponding part of the judgment of the court of first instance is the same as the corresponding part of the judgment, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

This is the same as the corresponding part of the judgment of the court of first instance, and this is cited as it is.

(b) Related statutes;

Except for adding a lower part, it is identical to the corresponding part of the judgment of the court of first instance, and it is citing it as it is.

Article 1 (Taxable Objects)

Article 6 (Supply of Goods)

C. Determination

(1) First, we examine the imposition disposition of value-added tax in the instant disposition.

Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as a taxable object of value-added tax" and Article 6(1) provides that "the supply of goods shall be a delivery or transfer of goods on all contractual or legal grounds." In light of the fact that value-added tax has characteristics as a multi-stage transaction tax, "delivery or transfer" under Article 6(1) of the Value-Added Tax Act includes all acts of causing the transfer of authority to use and consume goods, regardless of the existence of profits actually acquired. In this case, the issue of whether a specific transaction constitutes the supply of goods under the Value-Added Tax Act shall be determined individually and specifically by taking into account all the circumstances such as the purpose, process and mode of the transaction, ownership of profits, and payment of consideration by each transaction party, and the burden of proving that a tax invoice received in the course of the transaction is denied on the grounds that the specific transaction is a nominal transaction for which no substantial delivery or transfer of goods is made (see, e.g., Supreme Court Decision 200Du1781, Feb. 2088.

돌이켜 이 사건에 관하여 보건대, 갑 제6호증의 1 내지 갑 제127호증의 28(가지번호 포함)의 각 기재에 변론 전체의 취지를 더하여 보면, 원고는 제1심 판결 별지 1 '세금계산서 내역'기재와 같이 2003. 5. 20.부터 2004. 8. 13.까지 사이에 엔우, 골드와이드, 선영금은 등 19개 업체로부터 97,030,922,977원 상당의 금지금을 매입한 사실, 원고는 위와 같이 매입한 금지금 중 위 별지 1 순번 제20, 21, 23, 24, 26, 27, 30, 31, 34, 35, 36, 37의 각 매입세금계산서와 관련하여서는 제1심 판결 별지 2 '원고의 매입 및 국내매출 내역'기재와 같이 공급가액 합계 934,190,040원 상당의 금지금을 @@@블유넷, @@아, @@석, @@@엔느 등의 국내업체에 매출하였고, 나머지 매입세금계산서와 관련하여서는 공급가액 합계 96,096,732,937원의 금지금을 이 사건 수출처에 수출한 사실을 인정할 수 있는바, 위와 같은 사실관계 및 기록에 나타난 여러 사정을 앞에서 본 법리에 비추어 살펴보면, 이 사건 금지금이 수입되어 수출되기까지의 일련의 전체거래가 대부분 하루 또는 이틀 만에 이루어지고, 그 중간 단계에 부가가치세가 면제되는 금지금을 매입한 다음 면세추천을 받지 아니한 자에게 부가가치세 과세대상이 되는 금지금으로 공급하면서 세금계산서를 작성ㆍ교부하고 그 부가가치세 상당액을 납부하지 않는 이른바 폭탄업체가 존재하고 있는 점 등의 사정만으로는 이 사건 일련의 거래 중의 하나인 이 사건 세금계산서에 기한 거래가 세금계산서만을 발행하여 수수하거나 실제 금지금이 인도되거나 대금이 지급되었더라도 폭탄영업을 실제거래로 위장하기 위한 명목상의 거래로서 부가가치세 과세대상이 되는 재화의 공급이 아니라고 단정하기는 어렵다.

Therefore, each disposition imposing value-added tax of this case on the premise that a transaction based on the tax invoice of this case is a nominal transaction without the supply of goods is illegal.

(2) Next, we examine the imposition disposition of corporate tax in the instant disposition.

According to Articles 76(5) and 116(2)2 of the former Corporate Tax Act, the chief of the district tax office having jurisdiction over the place of tax payment shall, in case where a corporation receives goods from an entrepreneur in connection with its business and fails to receive a tax invoice under Article 16 of the Value-Added Tax Act, collect an amount calculated by adding an amount equivalent to 2/100 of the amount not received as corporate tax. Article 16 of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006) provides, “When an entrepreneur registered as a person liable for tax payment supplies goods, he shall deliver a tax invoice stating the registration number, name or title, registration number, value of supply, value of value, value, etc. of the supplier to

However, as seen earlier, insofar as the instant tax invoice cannot be readily concluded that transactions based on the instant tax invoice are not supply of goods subject to value-added tax, it is difficult to readily conclude that the instant tax invoice received therefrom is not a legitimate tax invoice under Article 16 of the former Value-Added Tax Act.

Therefore, each of the instant dispositions imposing corporate tax on the premise that the instant tax invoice is a disguised tax invoice is also illegal.

3. Conclusion

Therefore, the disposition of this case is all unlawful. However, in the case of this case where the first instance court dismissed part of the plaintiff's claim, and only the defendant appealed against the part against it, it cannot be sentenced to a judgment unfavorable to the first instance court. Accordingly, the defendant's appeal is dismissed. It is so decided as per Disposition.