Whether the service provided solely with the unilateral notice of termination of the contract by the subcontractor constitutes a false tax invoice

Since the Plaintiff’s contract on key construction works with the customer cannot be deemed to have been concluded only with the unilateral notice of termination of the contract by the customer, the deduction of input tax amount on the purchase tax invoice is legitimate.

Article 39 (Non-Deduction of Value-Added Tax Act)

2017Guhap58236 Revocation of Disposition of Imposition of Value-Added Tax

AA

BB Director of the Tax Office

April 13, 2018

September 21, 2018

1. The Defendant’s imposition of value-added tax of KRW 149,769,720 (including additional tax) in 2010 against the Plaintiff on July 15, 2015 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

가. 원고는 토목건축공사업 등을 영위하는 회사이고, CCC 주식회사(이하 'CCC'이라 한다)는 2000. 8. 22.부터 2010. 12. 20. 폐업할 때까지 토공사업 등을 영위한 회사이다. CCC은 원고로부터 [별지1] 기재와 같이 18개 공사를 하도급 받아 시공하였다.

B. On May 30, 2010 and June 10, 2010, the Plaintiff received from CCC a tax invoice of KRW 858,377,597 (hereinafter “instant tax invoice”) in total of the supply values, such as the following table (unit: unit, “construction site” collectively referred to as “construction site”) and filed a return and payment of the first-term value-added tax for the year 2010 after deducting the input tax amount.

C. From June 25, 2015 to July 11, 2015, the Defendant: (a) conducted an investigation into the part of the value-added tax for the first time in 2010 with respect to the Plaintiff; (b) deemed that the Plaintiff was issued a tax invoice without having received construction services from CCC and received an unfair input tax deduction; and (c) on July 15, 2015, the Defendant issued a notice of correction and notification of KRW 149,769,720 (including additional tax) of the value-added tax for the first time in 2010 to the Plaintiff (hereinafter “instant disposition”).

D. On August 21, 2015, the Plaintiff appealed to the Board of Audit and Inspection, but was dismissed on December 30, 2016.

[Grounds for Recognition] Facts without dispute, Gap Nos. 1-10, 42, Eul evidence No. 1 (including more than one number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the parties' arguments

1) Plaintiff

CCC performed the key construction work by its employees until May 2010 and suspended after June 2010, the supplier of the service listed in the tax invoice on the key ingredients until May 2010 is CCC. Therefore, the key tax invoice does not constitute a false tax invoice by the supplier.

2) Defendant

Of the key tax invoices, Nos. 1 to 5 and 7, the number 1 to 7, according to the Plaintiff’s coercion, has been inevitably approved by the field manager of the CCC. Of the key tax invoices, the tax invoices related to the 6’s Subcheon-Do 2-Do Do construction, which are the supplier, are either omitted the signature and seal of the CCC, or forged (Evidence No. 6-6 and electronic tax invoices) (A). In addition, since CCC returned to the construction on April 30, 2010 and carried out the construction directly directed workers who were left at the site, the supplier of the relevant service is the Plaintiff. Therefore, the issue of the tax invoice is invalid or is different from the fact that the supplier is a supplier.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The subcontract on key construction works between the Plaintiff and CCC includes the following provisions:

2) On April 21, 2010,CC notified the Plaintiff of the return of all remaining construction works as of April 30, 2010 on the ground that it could no longer perform construction works due to accumulated factors with the Plaintiff on April 21, 2010, on the one hand, on April 27, 2010, it requested on April 30, 201 that the Plaintiff would have no ability to pay the re-subcontract payments any more due to cumulative factors in the field.

3) On May 31, 2010, CCC notified the Plaintiff to the effect that construction was suspended on June 1, 2010 and returned the former site on the ground that the Plaintiff could no longer perform construction work due to accumulation.

4) The Plaintiff urged CCC to resolve accounts payable to re-subcontracts and perform the duties as listed below.

5) On June 2010, the Plaintiff terminated all of the construction contracts with CCC by notifying the CCC of the termination of the construction contract as listed below.

6) On June 2010, the Plaintiff: (a) the key issue between CCC was terminated; (b) and (c) before selecting a follow-up company; and (c) withheld the wage and salary income of workers during the direct management period; and (d) prepared and submitted a statement of payment. The specific details of the Plaintiff’s direct management are as follows.

7) CCC requested the Plaintiff to inspect the completed portion of the construction at issue, as described below, of May 2010.

8) The Plaintiff, as indicated in the table below, paid instead of, or paid in direct payment of, the price that CCC did not pay to sub-subcontracts or material enterprises by May 2010, and deducted it from the base price for CCC.

9) On the daily newspaper, employees, such as GGG, etc., belonging to CCC from May 2, 2010 to May 31, 2010, were stationed in the construction site and carried out construction work at the construction site.

10) On May 2, 2010 and May 30, 2010, the Plaintiff signed by employees, such as the name of the head of the site office, to which CCC belongs, as a participant of the construction project, at the time the Plaintiff requested the responsible supervisor to conduct the inspection. On May 18, 2010, at the time of requesting the responsible supervisor to conduct the inspection, the employees, such as cCC’s proxy Park Dong-dong, etc., as a participant of the construction project, signed on the construction project at the time of requesting the responsible supervisor for the inspection.

11) On July 29, 2010, the responsible supervisor sent to the head of the Busan Regional Construction and Management on May 24, 2010 a public notice demanding the performance of construction works on May 24, 2010, which was partially suspended due to the CCC’s financial resources, and submitted a public notice demanding the performance of construction works on May 24, 2010. On May 31, 2010, the CCC submitted a public notice demanding the full suspension of construction works and the on-site return return of construction sites, and sent a public notice demanding the performance of construction works on June 17, 2010 with content proof, although there was no measure to demand the performance of construction works on June 17, 2010.

12) On July 5, 2010, the Plaintiff claimed, to the Specialized Construction Mutual Aid Association, for the failure of CCC to perform the contract for the “Sacheon-Do 2 National Road Construction” among the construction works, advance payment 4) surety insurance (Yacheon-do 2) after June 2010, and received the payment.

13) ACCC’s construction-related tax invoice between the Plaintiff and the On-Site manager filed a claim for payment to the Plaintiff each month, and, if the Plaintiff enters it into the on-house ERP system, the instant tax invoice was issued in an electronic way through the process of approving the on-site manager of the CCC. An Nos. 1 through 5, and 7 of the instant tax invoice was issued in the aforementioned manner. Although the tax invoice was otherwise drawn up, the No. 6 (No. 42-6 of the instant tax invoice) was written on a different basis, all essential matters, such as the business registration number and name, the Plaintiff, the recipient, the value-added tax amount, the date of preparation, and the Plaintiff’s seal impression is affixed.

14) Since CCC received KRW 95,075,353 from the Plaintiff on May 25, 2010, there is no deposit related to the project at issue.

[Reasons for Recognition] The aforementioned evidence, Gap evidence Nos. 11-73 (including above numbers), Eul evidence Nos. 2-1 and 2-2, witness FF testimony, witness EE testimony and the purport of the whole of the arguments

D. Determination

1) Whether the tax invoice at issue is valid

A) Of the issues tax invoices, the number 1 to 5 and 7 claims for the flag price of the field manager of CCC, entry of the Plaintiff’s internal ERP system, and the approval procedure of the field manager of CCC is not sufficient to recognize that the witness EE’s testimony alone was approved against the Plaintiff’s will, and there is no other evidence to acknowledge otherwise, each tax invoice is legally issued with the approval of the competent person of CCC.

B) According to Article 16(2) of the former Value-Added Tax Act (amended by Act No. 10409, Dec. 27, 2010), a corporate entrepreneur may issue a hand-off tax invoice until December 31, 2010. Of the tax invoices drawn up, no sequence 6 also contains essential descriptions, and the representative seal impression is affixed to the CCC construction. As the CCC head office in relation to the CCC’s construction project suspended construction work on April 2010, the Plaintiff did not claim for the pre-sale price of May 2010, and the Plaintiff appears to have the effect of issuing the pre-sale tax invoice on May 20, 2010, on the other hand, the Plaintiff’s request for the pre-sale 20% of the Plaintiff’s certificate No. 21 ( political authority), and the Plaintiff’s testimony cannot be deemed to have violated the Plaintiff’s overall purport of the CCC’s 20-1, 2010.

2) Whether the issue issue tax invoice is a false tax invoice for a supplier

A) In light of the purport of Article 14(1) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter “former Framework Act on National Taxes”), the meaning that the entries in a tax invoice under the Value-Added Tax Act are different from the facts is that the ownership of income, profit, calculation, act or transaction subject to taxation, and if there is a separate person to whom such income, profit, or transaction belongs, the ownership of such income, profit, act or transaction shall be subject to taxation, the person to whom such income, etc. actually belongs shall be liable for tax payment, and Article 14(1) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter “former Framework Act on National Taxes”), where the necessary entries in a tax invoice are inconsistent with those in a transaction contract, etc. made between the parties to the goods or service, regardless of the formal entries in the transaction contract, etc.

B) The facts acknowledged earlier, in light of the following circumstances revealed by the witness FF’s testimony, witness EE’s testimony, and the purport of the entire pleadings, the evidence presented by the Defendant alone is insufficient to acknowledge that the actual supplier of the service indicated in the tax invoice on the key ingredients up to May 2010 is the Plaintiff, and there is no other evidence to acknowledge it, and it is reasonable to deem that the supplier of the service indicated in the tax invoice is the CCC as indicated above. Therefore, the issue at which CCC is a supplier is not a tax invoice different from the facts, and thus, the instant disposition on a different premise is unlawful.

(1) On April 21, 2010, CCC notified the Plaintiff of the purport that it will return all construction works as of April 30, 2010, and notified the Plaintiff of the purport that it will suspend construction works and return the construction site to the former site on June 1, 2010 on the ground that it cannot perform construction works any more accumulated in the Plaintiff, as of May 31, 2010. If CCC ceased construction works on the preceding site as of April 30, 2010, it is difficult to conclude that CCC ceased construction works on April 30, 2010 solely with the notice given as of April 21, 2010.

(2) On May 2010, 2010, CCC requested the Plaintiff to inspect the completed portion of the construction at issue. The Plaintiff, upon the consent or request of CCC, pursuant to Article 20(6) and (7) of the CCC regarding the construction at issue, paid or paid in lieu of the amount that CCC did not pay to sub-subcontracts or material companies and wages that it did not pay to their employees, and deducted the amount from the cCC’s cCC’s cCC’s cCC’s cCC’s cCC’s cCC’s cCC’s cCC’s cCC’s cCC’s cCC’s cCC’s wages.

(3) At the time of the request for the inspection of construction by alternative bypass to national highways, which was made in May 2010, the head of the site office and employees belonging to the CCC signed as participants in the construction work. On May 2010, employees, such as the head of the site office at the CCC, were stationed in the construction site and carried out construction work at the construction site.

(4) In particular, with respect to subconstition for subconstition for subconstition among subconstition for subconstition for subconstition for subconstition for subconstition for subconstition for subconstition for subconstition for subconstition for subconstition for subconstition for subconstition for subconstition for subconstition, ② under a subcontract agreement, the Plaintiff may pay the preconstition for subconstition for subconstition for subconstition for the wages, material costs, mid-term costs, etc. of the CCC, and the CCC shall cooperate with it, ③ a subcontract was terminated after June 201, ④ the on-site director and employees of the CCC at the time of request for the inspection made on May 19, 201, ⑤ the Plaintiff’s performance of the contract for subconstition for subconstition for subconstition for nonconstition for the following.

(5) Since the subcontract agreement on key construction works between the Plaintiff and CCC was lawfully terminated on June 2010, it was obligated for CCC to implement the construction contract as a contractor until May 2010. As such, in the situation where the subcontract relationship is maintained at the time of May 2010, if the Plaintiff provided support for the unpaid price and wages of CCC based on the subcontract agreement in lieu of payment or direct payment of wages, and performed construction works through the head of the site office and employees belonging to CCC, the supplier of the relevant construction work should be deemed CCC.

(6) The fact that CCC received KRW 95,075,353 from the Plaintiff on May 25, 2010 and did not receive direct payment with respect to the construction at issue is that the Plaintiff directly paid the unpaid price and wages of CCC based on the subcontract or deducted the direct payment from the prepaid price.

3. Conclusion

If so, the plaintiff's claim is reasonable, and it is decided as per the disposition.

(c)

For the purpose of transfer of sex to judge