Seoul Administrative Court 2014Guhap6722 ( December 11, 2014)

trade takes the same appearance as receiving the supply of goods, but the intermediate transaction constitutes a false tax invoice which is merely a mere form.

Although the intermediary takes the same appearance as receiving the goods by paying the price, it is possible to see that the intermediate transaction is merely the form of the intermediary transaction. The transaction should be determined individually and specifically by comprehensively taking into account all the circumstances, such as the purpose, process and mode of the transaction of the transaction party, the subject to whom the profit is attributed, the process of movement of the goods in reality, the payment of the price, etc.

Article 17 (Payable Tax Amount)

2015Nu30960 Revocation of Disposition of Imposing Value-Added Tax

AAA, Inc.

Head of Yeongdeungpo Tax Office

Seoul Administrative Court Decision 2014Guhap6722 decided December 11, 2014

July 21, 2015

September 1, 2015

1. Revocation of the first instance judgment and the plaintiff's claim is dismissed.

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

1. Purport of claim

On August 27, 2012, the Defendant revoked each disposition of the value-added tax for the first term portion of the year 2008 against the Plaintiff, the second term value-added tax for the second term portion of the year 2008, the first term portion of the value-added tax for the year 2009, the second term portion of the value-added tax for the year 2009, the first term portion of the value-added tax for the year 2010, the second term part of the value-added tax for the year 2010, the second term part of the value-added tax for the year 201, and the first term portion of the value-added tax for the year 201.

2. Purport of appeal

Judgment as described in paragraph (1).

1. Details of the disposition;

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance 1. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The court's explanation on this part is based on Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, since the reasons for this decision are the same as the reasons for 2. A. of the judgment of the court of first instance.

(b) Fact of recognition;

이 법원이 이 부분에 관하여 설시할 이유는 제1심 판결의 이유 2.의 나. 인정사실 중 증거부분인 "[인정근거]" 앞에 아래의 ㈖, ㈗항을 추가하고, [인정근거]란에 을 제18, 19호증, 당심 법원의 BB무역에 대한 사실조회결과를 추가하는 외에는 제1심 판결의 이유 2.의 나.항 기재와 같으므로 행정소송법 제8조 제2항, 민사소송법 제420조 본문에 의하여 이를 인용한다.

㈖ 포항세무서장은 2012. 11. 5.부터 2012. 11. 23.까지 CC제강에 대한 세무조사를 실시한 다음 CC제강이 포항공장 등에서 발생한 고철을 실제 원고에게 매도하였음에도 원고가 아닌 BB무역에 매출세금계산서를 발급하였다는 이유로 2013. 1. 9. CC제강에 대하여 2008년 제1기분부터 2011년 제1기분까지의 부가가치세를 경정・고지하였음에도 CC제강이 그 처분의 취소를 구하는 소를 제기하지 않았다.

The head of BB Tax Office: (a) filed a lawsuit seeking revocation of each of the instant dispositions with the Seoul Administrative Court on the grounds that BB trade did not constitute a processing tax invoice; (b) filed an application for alteration of the purport of the claim seeking revocation of the instant disposition on April 27, 2015, on the grounds that BB trade did not constitute a processing tax invoice; and (c) filed an application for alteration of the purport of the claim seeking revocation of the value-added tax and the corporate tax rectification disposition with respect to the instant tax invoice on the grounds that BB trade did not constitute a processing tax invoice; and (d) withdrawn all of the claims related to the instant tax invoice.

C. Determination

1) Criteria for judgment

Article 17(2)2 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter the same) provides that an input tax amount shall not be deducted from the output tax amount in cases where the details of a tax invoice are different from the facts. In such cases, the meaning of different facts is that where the ownership of income, profit, calculation, act or transaction subject to taxation is nominal, and there is a separate person to whom such income, profit, or transaction actually belongs, the person to whom such income, profit, or transaction belongs shall be liable for tax payment in light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that where the necessary entries in a tax invoice do not coincide with those of the parties to the transaction concerning goods or service, regardless of the formal entries in the contract, etc. prepared between the parties to the transaction concerning the goods or service, the taxpayer shall be deemed to have actually supplied the goods or service, and the taxpayer shall bear the burden of proving that the transaction constitutes a different tax invoice.

2) Specific determination

In full view of the following circumstances acknowledged as seen earlier and the overall purport of arguments, even though the Plaintiff entered into a basic contract for the trading of scrap metal with BB in connection with the instant scrap metal transaction, and then entered into a contract between the Plaintiff and the Plaintiff for the trading of scrap metal each time of individual scrap metal transaction, or the transaction between the parties in the instant scrap metal transaction must be directly involved in the real transfer, the actual supplier of the Plaintiff in the instant scrap metal transaction is the CC system, and it is reasonable to view that BB was engaged in the transaction in the instant scrap metal transaction as if it were the intermediate merchant who purchased the relevant scrap metal from the CC system and supplied the Plaintiff.

① On April 14, 2008, the Plaintiff was supplied with scrap metal generated at each factory ofCC 1, 200, based on the purchase and sale agreement between the EEC andCC 1. On the basis of the 2008 BCC 1, the parties under the contract who agreed to supply scrap metal generated at each factory ofCC 1 on May 1, 2008 were changed into BB trade. ② On the grounds that the 20th executive director of the BB trade and the 1st executive director of the 20th executive director of the 20th executive director of the 207th executive director of the 20th executive director of the 20th executive director of the 20th office, and the 1st executive officer of the 20th office did not take part in the 1st executive officer of the 20th office’s 207th office’s 0th office and the 20th office did not take part in the 1st executive officer’s 20th office’s 0th office.

Therefore, the Plaintiff’s assertion cannot be accepted because the instant tax invoice constitutes a false tax invoice.

3. Conclusion

Therefore, the plaintiff's claim is dismissed, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided