Daegu District Court 2008Guhap1551 (209.03)

early 207Gu4649 (Law No. 21, 2008)

Whether there is a real transaction that was remitted to the bank account, or whether there is a real transaction

The fact that the amount equivalent to the value of supply under the tax invoice was remitted to the bank account of the purchaser does not immediately mean that such transaction actually existed, and it should be considered comprehensively taking into account the details and circumstances of the entry and withdrawal before and after the transfer, the existence of other evidentiary data on the facts of the existence of the actual transaction, and the degree of credibility thereof.

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

1. The plaintiff's appeal is dismissed.

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

The decision of the first instance is revoked. The defendant revoked each disposition of the value-added tax of 540,414,510 won for the first term of 2003 against the plaintiff on April 1, 2007, value-added tax of 318,662,630 won for the second term of 203, value-added tax of 49,18,340 won for the second term of 204, value-added tax of 2003, corporate tax of 29,636,170 won for the second term of 203, and corporate tax of 37,850,570 for the second term of 204.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation concerning this case is as follows, and the reasoning for the court’s decision is as stated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Parts to be corrected due to any clerical error;

The 3rd of the judgment of the court of first instance shall be corrected as the purchase tax invoice of this case, and the 7th of the 5th of the 7th shall be corrected as the defendant, respectively.

3. Parts to be dried;

The sections between the first island judgment and the 9th line shall be as follows.

(3) In order to determine whether the instant transaction on the purchase and sale tax invoice is an actual transaction, and whether it is a processed transaction, the key issue should be examined as follows, and the Plaintiff’s degree of proof on that part is as follows.

(1) As to the fact that the purchase tax invoice was deposited in the bank account of the Seoul Special Metropolitan City, Metropolitan City, and Do Governor

In this case, the Plaintiff is aware that the Plaintiff deposited the transaction price on the purchase tax invoice of this case into the bank account of the Seoul Special Metropolitan City in Do. In other words, approximately KRW 17.8 billion from January 2003 to December 2004, which is the taxable period, deposited KRW 17.8 billion into the Seoul Special Metropolitan City in the transaction price of gold bullion, and there is insufficient evidence to acknowledge that the Plaintiff received the said money again and then received it from the Plaintiff.

On the other hand, it is true that the circumstance of remitting the transaction price in general commercial transactions is the only basis to conceal the actual transaction price. However, in the case where the false tax invoice was issued for the purpose of tax refund or evasion of value-added tax without any actual transaction relationship, or where it was intended to conceal the transaction price through the various stages of wholesale after importing gold bullion solely for the purpose of unfair refund of value-added tax in the transaction of gold bullion, there are many cases where the circumstances of remitting the transaction price intentionally in preparation for the subsequent tax investigation. In the case where there is considerable proof that the tax invoice was not accompanied by the real transaction, the fact that the amount equivalent to the supply price in the tax invoice was remitted to the bank account of the purchaser cannot be seen as immediately concluding that the actual transaction was made, and the authenticity of the remittance details should be further reviewed by comprehensively taking into account the details and circumstances of the entry and withdrawal before and after the transfer, the existence and degree of credibility of other supporting materials as to the existence of the actual transaction, etc.

As to the instant case, it is difficult to view that the Plaintiff’s actual transaction of gold bullion was conducted on April 14, 200, 40,920,00 won, on the grounds of abnormal distribution and settlement of gold bullion transactions, absence of actual gold bullion transport, and absence of inventory receipt. As seen earlier, the judgment became final and conclusive as seen earlier, and the Plaintiff’s payment of gold bullion purchase price to the Seoul Special Self-Governing City Special Self-Governing City Special Self-Governing City Special Self-Governing Province Special Self-Governing Province Special Self-Governing Province Special Self-Governing Province Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Self-Governing Province Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Commercial City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City City City City Municipal City City City City City.

(2) Whether the Plaintiff actually transported gold bullion purchased

원고는 ☆☆종합상사로부터 매입한 금지금을 운송업체인 ★★★코리아, ●●통상, 주식회사 ○○○코리아 대구지사와 행낭운송계약을 체결하여 실제로 전달받았기 때문에 이 사건 매입세금계산서상의 금지금 매입거래는 정상거래라고 주장하면서 그 근거로 갑 제3 내지 12호증을 제시한다.

그러나 앞서 본 바와 같이 ★★★코리아는 2002. 6.부터 2003. 8.까지 주식회사 ☆☆금은과 원고 사이의 행낭운송만을 한 사실이 인정되고 갑 제3 내지 6호증의 각 기재 도 위 사실을 인정하는 근거가 될 뿐이라는 점, 이에 대하여 원고는 주식회사 ☆☆금은과 ☆☆종합상사는 사실상 동일한 회사로서 위 ☆☆금은과 원고와의 행낭운송이 바 로 ☆☆종합상사의 금지금을 원고에게 운송한 것이라고 주장하나, 원고가 제출한 매입처별세금계산서합계표(갑 제24호증의 1)에 의하면 원고는 ☆☆종합상사와 별도로 주식회사 ☆☆금은으로부터의 매입 사실도 확인되므로, 위 두 회사는 별도로 운영되는 회사로 보일 뿐만 아니라, 남대문세무서에서 ☆☆종합상사의 금지금 운송내역에 대해 ★★★코리아를 상대로 확인한 결과, '☆☆종합상사의 요청에 의하여 실제 운송수행 없이 운송료만 수령하고 세금계산서를 교부한 사실이 있다'고 ★★★코리아가 확인해 준 사실도 있으며, 한편 ★★★코리아의 위 회신에 의하더라도 ☆☆금은과의 위 행낭운송의 내용물에 대해서는 전혀 알 수 없다는 것이고, 위 운송거래에 대한 최고배상한도 역시 불과 500만 원에 불과하여 과연 그것이 이 사건 금지금의 배송인지 여부도 매우 불명확하다는 점, 또한 ○○○코리아가 ☆☆종합상사에서 행낭을 받아 대구까지 운송을 하고, ●●통상을 운영하는 이종한이 ○○○코리아로부터 행낭을 받아 원고에게 배달하였다는 원고의 주장 자체도 갑 제7 내지 10호증의 각 기재내용과 상이한 것으로 보이고, 나아가 주식회사 ○○○코리아는 2003. 1.부터 2004. 12.까지 사이에 ☆☆종합상사에서 원고에게 물류운송을 한 사실이 없다고 분명히 확인하고 있는 점(이에 대하여 원고는, 서울 종로구에 있는 ○○○코리아 본사에 확인하지 않고 서울 강서구 공항동 소재 국제화물청사에 있는 ○○○코리아에 잘못 확인하였다는 취지로 납득하기 어려운 주장만 되풀이하고 있다) 등에 비추어 볼 때, 원고가 제출한 위 증거들만으로는 원고와 ☆☆종합상사와의 사이에 실제 그 주장과 같은 금지금의 운송이 있었다는 점을 인정하기 어렵고, 달리 이를 인정할 아무런 증거가 없다.

③ The Plaintiff’s assertion in this case regarding the authenticity of sales on the sales tax invoice of this case is that: (a) the Plaintiff actually purchased gold bullion from the Seoul Special Self-Governing Province General Company; and (b) it actually sold it to the retail store nearby Daegu Special Metropolitan City. Therefore, not only the falsity of the sales tax invoice but also the material to determine whether the purchase tax invoice of this case was false or processed.

However, as seen earlier, only 156 companies, among the Plaintiff’s sales offices, have vindicated as to the Defendant’s demand for explanation, and most of them failed to submit any documentary evidence verifying actual transactions other than the tax invoice and deposit sheet by asserting cash transactions. Even if most of them asserted as cash settlement, it is difficult to obtain a good credit even if considering the actual circumstances of the transactions, and the process of raising funds is very unclear (e.g., in the case of a company among the sales offices, the total purchase price of gold bullion from the Plaintiff during the period from January 2003 to February 2004 was 485,939,000 won, and the total purchase price of gold bullion from the Plaintiff was 42,98,000 won, and the remainder was 42,951,000 won, and the Plaintiff sold gold bullion only to retail stores, and the Plaintiff’s purchase price invoice and retail sales amount was 1000,0000 won after the Plaintiff’s sales account was issued.

Ultimately, in full view of all the above circumstances, it is reasonable to view the purchase and sale tax invoice of this case as a false tax invoice that leads to the actual transaction.

4. Conclusion

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.