Cheongbuban201buban2164 (20 March 20, 2012)

A tax invoice entered differently from the fact by a scrap metal supplier constitutes a tax invoice, and the plaintiff's good faith and negligence can not be recognized.

The tax invoice of this case constitutes a tax invoice written differently from the fact by a scrap metal supplier, and the plaintiff who has engaged in scrap metal business for a long time is deemed to have been aware of the actual supplier if he paid general attention, and thus, it cannot be recognized as a good faith and negligence by the plaintiff.

Article 17 of the Value-Added Tax Act

2012Guhap2451 Revocation of Disposition of Imposition of Value-Added Tax

XX Stock Company

Head of North Busan District Tax Office

August 31, 2012

September 28, 2012

1. All of the plaintiff's claims are dismissed.

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

On April 1, 201, the Defendant’s imposition disposition of KRW 000 for the second term portion of value-added tax in 2008, KRW 000 for the first term portion of value-added tax in 2009, KRW 000 for the second term portion of value-added tax in 2009, KRW 000 for the second term portion of value-added tax in 2009, ④ KRW 000 for the first term portion of value-added tax in 201 (including each additional tax), ⑤ KRW 000 for the business year of 2008, and KRW 600 for the business year of 2009.

1. Details of the disposition;

A. The Plaintiff was established on July 28, 1981 for the purpose of steel and non-ferrous wholesale business, and was engaged in scrap metal transactions with office and steel processing facilities in Busan-dong 230-17, Busan-dong 230-2, Busan-dong, Busan-dong 651-42, Busan-dong 651-42.

B. The Plaintiff: (a) between October 2008 and February 2010, 200, the purchase tax invoice amounting to KRW 000 (based on the supply price; hereinafter the same shall apply) equivalent to the sum of KRW 29, ② from the OM (title KimB) to December 2009 to the purchase tax invoice amounting to the sum of KRW 12,000 from the OM (title KimB), ③ from April 2010 to June 201, after deducting the purchase tax invoice amounting to the sum of KRW 19, 4, 2010 from the purchase tax invoice amounting to the sum of KRW 00 from the YY metal (title KimCC) to the total amount of KRW 200,000 from the corporate tax amount on the name of the representative from March 3, 201 to May 20, each of the pertinent tax invoices and the pertinent tax invoice reverted to 2004 (hereinafter referred to as “the pertinent tax invoice”).

C. As a result of investigating the suspicion of false tax invoices received from the Plaintiff from November 2010 to the two months, the Defendant deemed that “the actual supplier of scrap metal supplied from the Plaintiff is E, and the actual supplier of scrap metal supplied from the O metal is F or Park G, and that each supplier listed in the column of supply (the name of the business registration), who is not the actual supplier (the name of the business registration), constitutes a false tax invoice that is written differently from the actual supplier (the actual business registration), and thus, included an additional tax of 00 won for 20 years for each of 0 years for 200 years for 20 years for 20 years for 20 years for 20 years for 20 years for 20 years for 200 years for 20 years for 20 years for 200 years for 20 years for 20 years for 20 years for 200 years for 20 years for 20 years for 200 years for 20 years for 200 years for 200 years for 2000 years for additional tax.

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on June 9, 201, but was dismissed on March 19, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1-1 to 6, Gap evidence 2, 3, 10, Eul evidence 1 and 3, Eul evidence 2-1 to 6, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Claim that the issuance of the tax invoice under the name of the actual supplier is not possible

The defendant judged that the actual supplier of scrap metal purchased from XX metal, YY metal, △△△, and O metal is E and MF. Even if they are actual suppliers, they cannot issue the tax invoice itself because they are not the business operators registered as taxpayers during the pertinent taxable period, and therefore, the plaintiff cannot receive the tax invoice from them. Thus, the disposition of this case on the ground that the plaintiff did not receive the tax invoice under their names from a person who is unable to issue the tax invoice under the law.

2) Claim by a bona fide trading party

In light of the fact that the Plaintiff received a copy of the business registration certificate from each of the above high iron buyers, confirmed it, remitted the transaction price to a deposit account of a business title holder who underwent a real name verification by a financial institution, and there was no benefit from the receipt of the tax invoice in this case. The supply price of the tax invoice in this case is a small amount of annual purchase amount, and there was no interest in the Plaintiff in the business situation of the supplier, the Plaintiff constitutes a bona fide transaction party who did not know of the fact of the entry of the tax invoice in this case, and thus, the input tax amount should be deducted.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts may be acknowledged by comprehensively taking account of the whole purport of the pleadings in the evidence mentioned above, Gap evidence set forth in 5 to 9, Eul evidence set forth in 4 to 19 (including each number), and other evidence set forth in Gap evidence set forth in 11, witness EE, and M are not trustable.

1) XX metal-related parts

A) On May 19, 2004, the Switzerland was registered as the trade name of XX metal under its own name, and closed on July 20, 2006, and on May 15, 2007, the said place of business was closed ex officio on the ground that it was no business place on November 20, 2009. Meanwhile, the Switzerland was engaged in business activities in the Internet site from around 2007.

B) On June 28, 2010, the Switzerland runs the scrap metal business after registering its business with the place of business where the 'TE's name is the 'Tho Mari 98-1' as its place of business. The amount of national taxes in arrears of the Switzerland is approximately KRW 000.

C) From around 2007 to 2009, HH, registered as the nominal owner of the place of business, is currently 000 won of national tax, refusing to comply with the request for tax investigation, submission of evidentiary data, and request for verification of the number of the supplied vehicle. During the above period, the term “Sil Sil Sin 2314-15” did not have any facilities available for real transactions, and there was no fact that a lease contract was concluded, and the E’s mobile phone number is stated in the application for tax registration, value-added tax, etc.

D) On December 201, 201, the director of the tax office of interest and the director of the tax office conducted an investigation of suspicions of GATT metal and conducted a disposition of approximately KRW 000 in accordance with the Punishment of Tax Evaders Act to identify the E as the actual business operator, and the E paid it on February 1, 2012 without filing any objection or lawsuit.

E) The vehicles used in XX metal when transporting and supplying scrap metal to the Plaintiff are partially identical with Y metal, YM, △△△△, the vehicles that transported and supplied scrap metal to the Plaintiff, and the Switzerland opened business on June 2010 and used the same vehicle as the above vehicle even when it was traded with the Plaintiff. The Switzerland performed most of the overall tasks, such as contract negotiations, receipt of goods, tax invoices, and securing of transport vehicles.

2)Y metal-related parts

YMM is, under the name of SE, the mother of SE, in the name of the GE, the ‘PM 2314-15', whose place of business is the same as the location of the PP metal business, and is the scrap metal business opened on January 28, 2008. The KimCC has no business experience in the scrap metal-related business, is the delinquent taxpayer of national taxes of 00 won, and the investigating agency has refused to respond to the request for submission of documentary evidence, and has not complied with the request for submission of documentary evidence. In addition, the place of business is the site state after July 2009, and the cell phone number of E, which is the child, is written in its business registration application, lease contract, value-added tax, etc.

3) Parts related to △△△

△△△ is a scrap metal company that started business on January 22, 2010 in the name of DoD and opened business at x 1538-2 in the name of DoD, and there is no relevant facility at the location of the place of business, and there is no fact that the lease contract is concluded, and most of the transaction amount deposited into the deposit account of DoD was transferred to the deposit account of eE on the day or the following day to the deposit account of eE.

4) Parts related to OM

A) The OM is a high iron company located in Daegu-gu Dong-gu, Daegu-gu, whose official business was discontinued on March 1, 2009 in the name of KimB and on August 2010, for the reason that it was “not suspected or at the place of business,” and whose national tax arrears amount to KRW 00,00,000, and there is no commuting facility installed at the place of business.

B) The Gangseo-gu, Busan Metropolitan City, the upper place where scrap metal was traded between the Plaintiff and the OM and the Plaintiff, refers to the site located in the place of business, such as DM (ju) and Wluth (Wluth). Park GG stated that he/she lent the name of KimB in the course of the tax investigation that he/she engaged in scrap metal business.

C) On August 26, 2010, the head of the tax office of the Daegu filed a criminal charge on September 17, 2010 due to the suspicion of violation of the Punishment of Tax Evaders Act, such as tax evasion and breach of duty to issue tax invoices, etc. The actual business operator’s name was confirmed as a result of the tax investigation, and corrected the actual business operator into Park GB, LB, and actual business operator’s name. The criminal charge was filed on September 17, 2010, and the transaction amount deposited by the Plaintiff was also cashed at the Busan Gangseo-gu Office located in Gangseo-gu Busan Metropolitan City, the main business activity area of the relevant persons, such as the largest FF.

D) The highest FF stated that in the course of the investigation, the FF performed the project in accordance with the direction of ParkG, but was only acting as a broker in return for the introduction fee.

D. Determination

1) Determination on the assertion that the issuance of the tax invoice under the name of the actual supplier is not possible

Article 5 (1) of the Value-Added Tax Act provides that "any business operator shall register with the head of the competent tax office having jurisdiction over the place of business within 20 days from the date of commencement of the business, as prescribed by Presidential Decree: Provided, That any person who intends to commence a new business may register before the date of commencement of the business," and therefore, any business operator who supplies scrap metal for the same business as this case has the obligation to register with

Therefore, the plaintiff who purchased scrap metal is confirmed as to whether the genuine supplier fulfilled the above business registration obligation, and if the real supplier did not perform the business registration under his/her name, he/she could be supplied with the scrap metal after fulfilling his/her business registration obligation, and he/she could have received the tax invoice under his/her name. Therefore, this part of the argument that the plaintiff could not receive the tax invoice under his/her name due to his/her failure

2) Determination on the assertion of good faith trading parties

A) Where an entrepreneur who actually supplies goods or services and a supplier on a tax invoice are different, the tax invoice constitutes “where any description is entered differently from the fact” under Article 17(2)2 of the Value-Added Tax Act, and the actual supplier and the supplier on a tax invoice are not entitled to deduct or refund the input tax amount unless there are special circumstances where the supplier was unaware of the fact that the supplier was unaware of the fact that the nominal name was not known, and the supplier was not negligent in not aware of the fact that there was no negligence on the part of the supplier (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). Additional tax is a sanction imposed without considering the intention or negligence when a taxpayer violates the duty to pay taxes without good cause. Meanwhile, Article 76(5) of the former Corporate Tax Act applies to cases where a corporation receives a document evidencing expenditure from a person who was not the supplier of goods or services (see, e.g., Supreme Court Decision 2012Du46564, Apr. 26, 20120).

B) First, we examine whether the instant tax invoice constitutes a tax invoice different from the facts, and examine the evidence and the purport of the entire pleadings as to whether it constitutes the aforementioned facts. In addition to the evidence and the purport of the entire pleadings, the actual supplier of the scrap metal transaction listed in the instant tax invoice issued by the Plaintiff is E, and the actual supplier of the scrap metal transaction listed in the instant tax invoice issued by the Plaintiff is the maximum amount or Park GG. Since the instant tax invoice is written respectively by the supplier, the instant tax invoice constitutes “tax invoice written differently from the facts” under Article 17(2)2 of the Value-Added Tax Act, the instant tax invoice constitutes “tax invoice written differently from the facts” under Article 17(2)2 of the Value-Added Tax Act, and on this premise, the instant disposition to apply the non-deduction of the input tax amount and the additional tax for collecting the documentary evidence of disbursement is legitimate unless there are special circumstances.

6) Since the Plaintiff alleged that the Plaintiff had no knowledge of the fact that the Plaintiff had no knowledge of the fact that the Plaintiff had no knowledge of the fact that the Plaintiff had been engaged in the Plaintiff’s trade with the 5-year YM metal business from around 00 to 23, the Plaintiff had no knowledge of the fact that the Plaintiff had no knowledge of the fact that the Plaintiff had been engaged in the Plaintiff’s trade with the 9-year YM metal business, and that there was no knowledge of the fact that the Plaintiff had no knowledge of the fact that the Plaintiff had been engaged in the Plaintiff’s trade with the 9-year YM metal business from around 00, and that there was no knowledge of the fact that the Plaintiff had no knowledge of the fact that the Plaintiff had been engaged in the Plaintiff’s trade with the 9-year YM business, and that there was no knowledge of the fact that the Plaintiff had no knowledge of the fact that the Plaintiff had been engaged in the Plaintiff’s trade with the 9-year YMM business from around the 9-year 0-year Y trading.

3. Conclusion

Therefore, the plaintiff's claim is dismissed in entirety as it is without merit. It is so decided as per Disposition.