early 208west4059 ( October 17, 2009)

Whether construction services have been actually provided or not;

However, the evidence submitted cannot be recognized only by the fact that the construction service was actually provided.

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

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Each disposition of imposition of value-added tax of KRW 1,688,90 (including additional tax; hereinafter the same shall apply) on September 8, 2008 by the Defendant against the Plaintiff on September 8, 2008, value-added tax of KRW 9,846,510 on January 200, and value-added tax of KRW 5,954,550 on February 200 shall be revoked.

1. Circumstances of the disposition;

가. 원고 회사는 1997. 10. 30.부터 서울 강남구 ☆☆동 203-1 ★★타운 철근콘크리트공사 및 토공사를 영위하는 사업자로서, 1999년 1기, 2000년 1기, 2000년 2기의 부가가치세 과세기간 중 아래 표와 같이 문○○(상호 : ●●중기), 유◎◎(상호 : ◇◇건설기계), 류◆◆(상호 : □□건설기계), 김■■(상호 : △△중기), 안▲▲(상호 : ●●중기)(이하 '문○○ 등'이라 한다) 등으로부터 공급가액 63,240,000원 및 부가가치세액 6,324,000원 상당의 매입세금계산서(이하 '이 사건 세금계산서'라 한다)를 교부받았고, 피고에게 위 각 기간의 부가가치세를 신고할 때 매출세액에서 위 세금계산서상의 세액을 매입세액 으로 각 공제하여 신고하였다.

B. The Defendant, on the ground that the instant tax invoice constitutes a false tax invoice that the Plaintiff received from the suppliers indicated in the tax invoice without actual service transaction, assessed the Plaintiff’s value-added tax amount by deducting the said input tax amount from the output tax amount for each of the above period of 1999, 200, and 2000, respectively. On September 4, 2008, the Defendant imposed the Plaintiff the value-added tax amount of KRW 1,68,90 for the first period of 1999, value-added tax of KRW 9,846,510 for the first period of 200, and value-added tax of KRW 5,954,550 for the second period of 200 (hereinafter “each of the instant dispositions”).

[Reasons for Recognition] Gap evidence Nos. 1, Eul evidence No. 1-1, 2, and 3

2. Referral and Determination

A. The principal of the Plaintiff Company

The dismissal of this case shall be revoked because it is illegal as the following reasons.

(1) The Plaintiff Company received services from the actual door-to-door, etc. and received the instant tax invoice accordingly, and thus, the said tax invoice does not constitute a false tax invoice.

(2) Even if the actual service supplier was not a door-○, etc., the Plaintiff Company did not know the fact of false name, but did not have been negligent.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On October 16, 1996, from around September 25, 200 to around September 25, 2000, the door-gu △△△△△ business registered the construction machinery rental business under the trade name, which was “BBB”. However, during the above period, the door-gu ○○ issued a false sales tax invoice in total 346 in the name of the Plaintiff company and other companies.

(2) 유◎◎은 1997. 4. 30.경부터 2000. 7. 30.경까지 사이에 ◇◇건설기계라는 상호로, 류◆◆은 1993. 4. 15.경부터 □□건설기계라는 상호로 각 건설기계대여업 사업자 등록을 하였으나, 위 유◎◎ 등은 실제로는 ◇◇건설기계, □□건설기계의 지입차주에 불과하였고, 최▼▼ 및 김◁◁는 ◇◇건설기계, □□건설기계와 원고 회사 사이에 실제 용역거래가 없었음에도 유◎◎, 류◆◆의 명의를 도용하여 원고 회사에게 허위의 매출 세금계산서를 발행하였다.

(3) 김◀◀은 1995. 11. 1.부터 장모 김■■의 명의를, 1996. 6. 20.부터 안▲▲ 명의를 빌려 각 △△중기, ●●중기라는 상호로 건설기계대여업 사업자등록을 하였으나, 위 기간 동안 △△중기, ●●중기와 원고 회사 사이에 실제 용역거래를 하지 아니하였음 에도 원고 회사에게 김■■, 안▲▲ 명의로 허위의 매출세금계산서를 발행하였다.

[Reasons for Recognition] Each entry of Gap evidence Nos. 2, 3, 4, and 5-2, 3, and Eul evidence Nos. 2 through 5 (including paper numbers), and the purport of the whole pleadings

D. Determination

(1) Determination as to the assertion in paragraph (1) of the Plaintiff Company

According to the above facts, it can be reasonably accepted as to the fact that the tax invoice of this case was prepared and delivered without being provided with services from the door ○○, etc., and was prepared in falsity. Thus, in order to determine that the tax invoice of this case is not false, the plaintiff company should specifically prove that there was an actual transaction equivalent to the corresponding value of supply under the tax invoice of this case (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997). The evidence No. 2-1, 6, 7, 8, 3-1, 5 through 11, Gap evidence No. 5-1, 6, 7, 8, 8, 13 through 22, and evidence No. 4-1, 5-1, 5-1, 5-1, 6, 8, 13, and 222-1, 5-1, 7, 8, and 13 through 222.

Therefore, this part of the Plaintiff Company’s assertion is without merit.

(2) Determination as to the assertion in paragraph (1) (2) of the Plaintiff Company

If a actual supplier and a supplier on a tax invoice intend to deduct or refund an input tax amount on the grounds that the actual supplier and the supplier on a tax invoice are unaware of the name of the tax invoice and that there was no negligence by not knowing that the supplier was unaware of the name of the tax invoice, a person who claims the deduction or refund of the input tax amount shall prove such circumstances (see, e.g., Supreme Court Decisions 94Nu13206, Mar. 10, 1995; 97Nu4920, Jun. 27, 1997).

The descriptions of Gap evidence 2-2 through 5, evidence 3-2 through 5, evidence 3-9 through 12, evidence 4-2, 3, 4, evidence 5-2 through 5, and 9 through 12 are insufficient to recognize that the plaintiff company was unaware of, and was not negligent in, the fact that the tax invoice of this case was issued due to the disguised name of Do○ et al. even though the Do○ et al. was not the actual supplier, and there is no other evidence to prove otherwise.

Therefore, this part of the plaintiff company's assertion is without merit.

3. Conclusion

Thus, the plaintiff company's claim of this case is dismissed as it is without merit.