Busan District Court 2006Guhap2573 ( December 11, 2008)

National Trial 2005bu0316 (2006.03)

An illegal transaction of gold bullion constitutes a tax invoice different from the fact, and an input tax amount shall not be deducted in violation of the good faith principle.

It is difficult to view that the actual supplier constitutes a tax invoice different from the fact due to an irregular transaction of gold bullion, and that there is no negligence in not knowing or not knowing it, and furthermore, the Plaintiff’s claim for deduction and refund of the input tax amount cannot be permitted against the good faith principle

209Nu72 Revocation of Disposition of Imposition of Value-Added Tax, etc.

○○ Co., Ltd.

○ Head of tax office

Busan District Court Decision 2006Guhap2573 Decided December 11, 2008

March 30, 2011

May 18, 201

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's imposition of value-added tax of KRW 2,350,913,280 against the plaintiff on December 1, 2004 and the disposition of refusal to refund KRW 939,10,410 against the plaintiff on December 1, 200 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a company that ○○○○-dong 2 engaged in precious metal wholesale business in 601 with 2 ○○-dong 2 ○○○-dong 2.

B. During the first taxable period of 2004, the Plaintiff purchased gold bullion (hereinafter “instant gold bullion”) totaling KRW 27,417,197,835 from the domestic wholesaler during the first taxable period of 2004, and filed a refund of value-added tax by deeming the total value of supply at KRW 27,721,628,413 to be the zero-rate export with the value of supply at KRW 27,721,628,413. Of these, the Plaintiff returned refund of KRW 1,802,573,30 from January 204 to March, 204, and returned refund of KRW 939,106,410 from April 6, 2004 to June.

(c) The details of return and refund of the value-added tax by the Plaintiff are as follows:

라. 피고는 2004. 9.경 원고에 대한 세무조사를 실시한 결과, 원고가 조세포탈을 목적으로 정상적인 거래로 위장하여 부당하게 환급신고한 것으로 파악하고, 원고가 2004 년 제1기의 과세기간 동안 주식회사 ■■ 등 6개 업체(이하 '이 사건 매입거래처'라 한다)로부터 수취한 매입가액 합계 27,417,197,835원의 매입세금계산서(이하 '이 사건 세금계산서'라 한다)는 '사실과 다른 매입세금계산서'라는 이유로 이 사건 세금계산서상의 매입세액을 불공제하여, 2004. 12. 1. 원고에게 부가가치세 2,350,913,280원(가산세 548,339,950원 포함)을 경정고지하고, 환급신청한 939,106,410원의 환급을 거부하였다 (이하 '이 사건 처분'이라 한다).

E. On May 3, 2006, the Plaintiff filed an appeal with the National Tax Tribunal as the Korean Supreme Court Decision 2005Da316, but the National Tax Tribunal dismissed the Plaintiff’s appeal on May 3, 2006.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, Eul evidence 1, Eul evidence 2-1, Eul evidence 2-5, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff purchased the instant gold bullion normally, and paid the purchase price (including value-added tax) through financial transactions. The purchase price was exported to △△S located in Hong Kong through normal channels, and the purchase price was accurately deposited in the Plaintiff’s deposit account. Therefore, the instant gold bullion transaction is deemed to be a normal transaction consistent with the actual conditions. However, the Defendant’s disposal of the instant gold bullion solely based on several circumstances, including the fact that the Plaintiff had a company with a heavy carbon on the extension line of the Plaintiff’s trading company, is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

(1) A general form, etc. of an irregular gold bullion transaction for the purpose of tax evasion

(A) According to Article 11(1)1 of the Value-Added Tax Act, the zero-rate tax rate shall apply to the supply of exported goods, and Article 106-3 of the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002 and enforced from July 1, 2003) and Article 106-3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17829 of Dec. 30, 2002 and enforced from July 1, 2003) provide that the value-added tax shall be exempted for gold bullion supplied by gold craftsmen and refiners to gold craftsmen who received a recommendation for tax-free gold bullion trading trading from the tax-free gold bullion importer, and for gold bullion imported by gold craftsmen, etc. upon receiving a tax-free import recommendation from the tax-free gold bullion importer.

(B) Such abuse of the zero-rate or tax exemption system for value-added tax, thereby importing gold bullion and distributing it as tax exemption through various stages of wholesalers. The so-called so-called "large carbon business" (the gold bullion purchased through the value-added tax exemption is converted into the taxation amount, and the sales tax invoice is issued and issued upon the sale of gold bullion at a price lower than the purchase price, and the transaction partner is allowed to deduct the input tax amount, and the transaction partner is allowed to deduct the input tax amount without paying the value-added tax, and the "large coal business" is exported after being distributed through multiple stages of wholesalers, and the "large coal business" is exempted from the value-added tax collected by the transaction and the exporter is allowed to refund the unpaid value-added tax from 202 to 202, especially among the precious metal business located in △△△△△△△△△△△△△△△△△△△. In detail, the above "large coal business" type of the above "large coal business."

1) In appearance, gold bullion is distributed through the stages of ? Foreign Enterprises ? Import Enterprise ? Tax-Free Enterprise ? Tax-Free Enterprise ? Tax-Free Enterprise ? Taxation-Related Enterprise ? Export Enterprise ? Foreign Enterprise ? The transaction amount is paid in sequence from the exporter to the importer, but in particular, the taxation-related enterprise issues tax invoices according to the specific person or specific enterprise’s instructions and does not actually trade or transport gold bullion.

2) After purchasing gold bullion as a tax-free gold and selling it as a tax-free gold, the company evades the value-added tax by withdrawing, concealing, and closing its profit within the short period. In this case, the company sells gold bullion with the supply price lower than the purchase price, but the supply price added to the value-added tax is higher than the purchase price, and the value-added tax collected is not paid. Therefore, the company obtains a substantial benefit from the difference between the supply price and the purchase price.

3) Meanwhile, the value-added tax collected by a company in each phase after the transaction is successively transferred by means of deducting the input tax amount by using the tax invoice received from the immediately preceding phase company. Ultimately, the exporter’s export of gold bullion and then to be refunded by the State according to applying the zero-rate tax rate. As such, among the amount refunded by the State, the substantial portion of the value-added tax paid by the company is the ultimate source of the profits from the wide coal business. The profit is distributed to the domestic companies involved in the wide coal business in the form of marin at each transaction stage, or the amount calculated by the percentage of the profits of the wide coal company, which is separately paid to the participating companies. The difference between the import price and the export price (the export price is lower than the import price if based on the domestic companies) is allocated to the foreign companies involved in the large coal business.

4) If a trade structure of the gold bullion business is attempted, the following flow will be as follows.

5) In order to maximize profits, the maximum quantity of gold bullion in a short term is distributed to maximize profits. In order to prevent disputes among the participating companies, or accidents, such as loss of price, etc., most of the same poles (referring to persons preparing for the import fund of gold bullion from the outside of the bomb business network) operate simultaneously with the exporting company and the importing company, and place the former owner in direct transactions with the bombing company. The former owner shall determine the volume of the transaction, unit price, and mast, etc. at each stage of transaction, and the former owner shall have determined the volume of the transaction, unit price, and mast, etc. at each stage of transaction, and the former owner shall be transported immediately from the importing company to the exporting company, and the actual quantity of gold bullion is most likely to be transported immediately into the exporting company by hanging the transaction stage ( even if transported at each stage of transaction at each stage, this is merely a formal transport for a normal transaction).

(2) The details of establishment of the Plaintiff

(A) On January 10, 2004, the Plaintiff: (a) ○○○○○ Dong 2, 2004, 2000 ○○○○○○○○○○○○○○○○○○○○ 601, established as an executive officer, a representative director, a director-B, a regular managementCC, and an audit leapD; (b) was voluntarily closed on June 30, 2004; and (c) was actually closed on June 30, 2004; and (d) actually performed all duties at the △△△△△△△△○ 39-2, 401, △△△△△△△△△△△, located in △△△△△○ 39-2, and

(B) From January 1, 200 to June 30, 2004, this AA, the representative director of the Plaintiff, was engaged in 320 times Japan and 320 times Japan, and was engaged in her prompt funeral services. The Plaintiff’s business was not known at all. Of the funds invested by the Plaintiff, 200 million won is merely a representative director under the name, such as investing her funds in the form of lending her funds through EE.

(C) The Plaintiff’s director JeongB is the former part of the ParkFF, which has been operating a gold wholesaler for a long time, and only operated a retail business selling cash from May 5, 2001 to April 29, 2003, and it does not operate precious metal wholesale business.

(D) On June 2, 2003, the Plaintiff’s managing director, as the head of MaBB’s department (i.e., the former head of ParkF), and on June 2, 2003, ○○○○○ Dong 3, a gold bullion exporter, opened and operated a gold bullion exporter, from 33-15 to mbF, and closed down February 28, 2004 (ArticleCC was subject to a disposition of suspension of indictment at the prosecution on April 29, 2008). The Plaintiff, a corporate company, established the Plaintiff, and placed the Plaintiff in the △△ office, and operated the Plaintiff practically.

(E) The Plaintiff’s auditor leD merely takes charge of facsimile arrangement and office management at the ○○ Office, but has no capability to operate precious metal wholesale business.

(3) Matters concerning the sales agency of the instant case

(가) 이 사건 매입거래처는 주식회사 AA드, 주식회사 ■■, 주식회사 ▽▽금은, 주식회사 BB금은, 주식회사 ◇◇사, CC금은 주식회사 등 6개 업체인데, 이들은 주식회사 DD피, 주식회사 EE션, 주식회사 FF통상, 주식회사 GG금은, 주식회사 HH금은, 주식회사 II금은, 주식회사 JJ씨 등 전형적인 폭탄 업체와 주식회사 KK금은, 주식회사 LL골드, 주식회사 MM골드, 주식회사 NN골드 등 도관업체를 거쳐 이 사건 금지금을 매입하였다.

(B) The Plaintiff’s major buying and selling company, AAD Co., Ltd., which is the Plaintiff’s major buying and selling company, was convicted of having been convicted of the fact that the representative director, who is the Plaintiff’s major buying and selling company, had an office on the 7th floor of the ○○ Office where the △△△△ Office of the Plaintiff Company was located, and closed on October 15, 2004. The ParkF and the largestG had kept a trading statement and issued a false tax invoice as if they sold gold bullion on March 2004 (the ○○ District Court Decisions 2004Da856, Jun. 10, 2005; 2005No382, Sept. 15, 2005; 2005Do729, Dec. 22, 2005; 2005 He had established the instant gold bullion export and selling company’s gold bullion, which was an export and import business entity of this case.

(다) 원고의 주요 매입거래처인 주식회사 ■■는, 그 명의상 대표이사는 안II이 나 심JJ이 실질적으로 지배하고 운영하는 회사로서, 심JJ은 "금지금 수입업체(주식회사 ◆◆통상 등), 폭탄업체(주식회사 HH금은, 주식회사 II금은 등), 도관업체(주식회사 MM골드, 주식회사 ■■, 주식회사 BB금은 등) 등을 실질적으로 지배하고 운영하면서 부가가치세를 부정하게 환급받아 포탈하였다"는 범죄사실 등으로 2007. 6. 13. △△고등법원에서 징역 9년 및 벌금 2,320억 원을 선고 받았고(△△고등법원 2007. 6. 13. 선고 2007노321 판결), 이에 불복하여 대법원에 상고하였으나 2007. 10. 11. 상고가 기각되었다(대법원 2007. 10. 11. 선고 2007도5577 판결).

(D) The Plaintiff’s purchase and sale business entity, the Plaintiff, was sentenced to KRW 85 billion of the total value-added tax in collusion with this KK and by using the said BB funds, etc. as a Doing enterprise, etc., and was sentenced to KRW 88 years of imprisonment and a fine of KRW 170 billion (Supreme Court Decision 2008No385 Decided July 24, 2008, and Supreme Court Decision 2008Do7099 Decided December 24, 2008).

(E) On April 3, 2001, from April 3, 2001 to May 10, 2004, the Plaintiff’s purchasing and trading office (CCF’s dong) purchased gold bullion from the 45 wide coal companies, including △△△, as taxation, and transferred the transaction amount (including value-added tax) to the △△△△△ companies after hearing taxation, and the above 45 large coal business operators evaded value-added tax amounting to about 74 billion won by means of not almost remaining in the pertinent company’s name (including value-added tax), which was sentenced to five years imprisonment with labor at the Central District Court of △△△△△, and a fine of KRW 150 billion, which was sentenced to a fine of KRW 2000,000,000,000,000,0000 from △△△△△△△△△△△△△△ Decision, which was sentenced to a final judgment of 2008.268,2008.

(4) Specific details of the instant gold bullion transaction

(A) All the instant gold bullion transactions were conducted in the form of export to Hong Kong on the date of import by Hong Kong or on which the Plaintiff, who is the exporter, was finally engaged in the export business through the 2-3 wholesale business at the 2-stage 3rd stage.

(B) The data that was conducted in each stage of the instant gold bullion transactions are submitted, but no evidence was presented to prove that the instant gold bullion was transported at each stage.

(다) 이 사건 금지금의 수출은 운반책을 이용하여 직접 △△스에게 전달하는 소위 '핸드캐리(Hand carry)' 방식으로 이루어졌는데, 운반책인 김OO, 박PP, 오QQ, 김RR 등은 원고의 사무실이 아닌 주식회사 AA드의 사무실에서 조CC(원고), 안II(주식회사 ■■), 최GG(주식회사 AA드) 등으로부터 금지금을 분배받고, 그 지시에 따라 이를 운반하였다.

(D) The Plaintiff’s export price was the price lower than the international market price, as well as the domestic market price on the date of exportation.

(E) On the other hand, gold bullion importers pay customs duties equivalent to 3% of the price of gold bullion at the time of the import of gold bullion, which is included in the transaction price of gold bullion and transferred to the purchaser, and gold bullion exporters are entitled to refund 3% of customs duties paid to the purchaser. For that purpose, gold bullion exporters shall be entitled to refund from the purchaser and the purchaser shall obtain a divisional certificate under the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export from the purchaser and the parties to the transaction, including the Plaintiff, did not receive at all necessary divisional certificates for refund of customs duties. Accordingly, the Plaintiff exported the gold bullion, while exporting the gold bullion, did not refund customs duties at the time of the initial import.

[Based on recognition] Gap evidence 2-1, 2, Eul evidence 4-1 through 80, Eul evidence 5-1, 2, Eul evidence 6, Eul evidence 2-1 through 5, Eul evidence 5-1 through 4, Eul evidence 7, 8, 9, Eul evidence 11, Eul evidence 12-1 through 4, Eul evidence 24, 25, Eul evidence 26, Eul evidence 27, 28, 29-1, Eul evidence 30, Eul evidence 31-1, Eul evidence 32, 33, Eul evidence 34-1, 2, Eul evidence 35 through 38, Eul evidence 4-1, Eul evidence 4, Eul evidence 5-1, Eul evidence 4, Eul evidence 5-1, Eul evidence 4, Eul evidence 5-1 to 4, Eul evidence 5-1, Eul evidence 5-1, Eul evidence 4-1, Eul evidence 5-1 to 4, Eul evidence 5-1-4, evidence 5-1 to 4.

D. Determination

(1) Determination as to whether the instant tax invoice was false or false

(A) The burden of proving that the tax invoice is false, in principle, to the defendant who is the tax authority. As such, the defendant must prove that the tax invoice is not accompanied by real transactions on the basis of direct evidence or all the circumstances. If the defendant has proved to the extent that it is reasonably acceptable, it is necessary to prove that the tax invoice is not false and that it is easy for the plaintiff who is the taxpayer disputing the illegality of the defendant's disposition to present relevant evidence and materials (see, e.g., Supreme Court Decision 2004Du14168, Jun. 10, 2005).

On the other hand, Articles 6(1), 7(1) and 16(1) of the Value-Added Tax Act provide that a person who supplies goods or services, such as a person who delivers or provides services, etc. due to contractual causes, shall receive a tax invoice from the supplier, and deliver the tax invoice to the supplier. Furthermore, the person liable to pay value-added tax shall be deemed to be the person who actually performs the transaction of supplying the goods or services to the person who actually supplies or receives the services from the supplier, not from the supplier or the person who establishes a nominal legal relationship with the supplier (see, e.g., Supreme Court Decision 2002Do4520, Jan. 10, 2003). Other tax invoices of the actual supplier and the supplier under the tax invoice shall be deemed to be the person who actually performs the transaction of supplying the goods or services to the supplier (see, e.g., Supreme Court Decision 2002Do4520, Feb. 27, 2002).

(나) 이 사건에 관하여 보건대, 앞서 인정한 사실 및 앞서 채택한 각 증거에 의하여 알 수 있는 다음의 사정 즉,① 원고는 이 사건 금지금 거래 직전인 2004. 1. 10. 귀금속 등의 제조 ・ 도소매업을 목적으로 하여 설립된 회사로서 자본금이 1억 원에 불과한 점,② 원고의 주주구성은 대표이사 이AA, 이사 정BB, 상무 조CC, 감사 윤DD인데, 대표이사인 이SS은 ▲▲은행 ▲▲동 지점장으로 근무하다가 퇴직한 자로서 무역업에 종사한 경험이 전혀 없었을 뿐 아니라, 2004. 1. 1.부터 2004. 6. 30.기간 동안 일본을 30회(출국일수 90일) 왕래하면서 농산물 등을 수입판매하는 업무에 종사한 점,③ 그럼에도 원고의 설립 첫해에 수십 차례에 걸쳐 거액의 이 사건 금지금을 매입한 점,④ 이 사건 금지금은 수업에서 수출에 이르기까지 매우 짧은 기간 내에 여러 단계의 도매업체들을 거쳐 유통되었으나 그 과정에서 부가가치의 창출은 전혀 없었으며, 수출가격이 수입가격보다 더 낮아 전체적으로 손해를 보면서 수출을 하는 비정상적인 거래구조였으며, 각 거래당사자가 얻는 수입의 궁극적인 원천은 수출업체가 국가로부터 환급받은 부가가치세 중 폭탄업체가 납부하지 않은 부분이었던 점,⑤ 이 사건에서 금지금의 유통과정에 전형적인 폭탄영업에서의 폭탄업체와 동일한 특성 및 행태를 보이는 업체들이 관여하였고, 위 업체들에 박FF, 심JJ 등 통일한 인물이 계속적으로 관여되어 있는 것으로 보이는 점,⑥ 즉, 원고의 전단계 거래자인 주식회사 AA드, ■■, BB금은, CC금은 주식회사 등의 악의적 사업자들은 오로지 매출세액을 포탈하여 이를 이윤으로 삼을 의도 하에 면세로 공급된 수입 금지금을 매입하여 의도적으로 면세추천을 받지 아니한 과세사업자들에게 저가로 공급하면서 그 매출세액을 국가에 납부하지 아니하고 폐업해 버리는 등의 수법으로 부가가치세를 포탈함으로써 형사처벌을 받은 점,⑦이 사건 금지금의 수출가격은 국제시세 및 국내시세와 비교하여도 상당히 저렴하여, 이 사건 금지금거래는 부가가치세 환급을 목적으로 하는 거래로 밖에 설명할 수 없는 점,⑧ 원고가 이 사건에서 금지금 거래를 할 당시 이른바 '폭탄영업'은 이미 금지금 업계에 널리 알려져 있었고, 원고를 실질적으로 운영한 조CC 역시 그 경력에 비추어 폭탄영업에 관하여 충분히 알 수 있는 위치에 있었던 점,⑨ 이 사건 금지금이 국내 유통과정에서 실제로 운반되었다고 볼 아무런 자료가 없을 뿐만 아니라, 원고의 △△사무실과 같은 건물에 소재한 AA드 사무실에서 원고를 거치지 않고 바로 홍콩으로 수출되었던 점,⑩ 원고가 금지금을 수출한 증거로 제시하는 수출신고필증(갑 4호증의 15 내지 6)은, 수출대금의 지연 ・ 과소 ・ 이중입금, 입금사유 및 입금처 불명, 수출전 입금 등 여러 사유로 볼 때 이를 그대로 믿기 어려운 점, ⑪ 원고는 이 사건 금지금의 거래로 인한 이득보다 더 큰 3%의 관세를 환급받을 수 있었음에도, 관세환급에 필요한 '분할증명서'를 전혀 수수하지 아니한 점 등의 제반 사정을 종합하여 보면, 이 사건 금지금 거래의 과정에서 폭탄업체로부터 이 사건 매입거래처까지 사이에서 이루어진 거래는 오로지 영세율 또는 면세거래를 과세거래로 전환하기 위하여 세금계산서만을 발행하여 수수하는 명목상의 거래로 볼 수밖에 없고, 이 사건 매입거래처 역시 단지 원고로부터 받은 대금을 그 전단계 매입처에 송금하여 전달하고 세금계산서를 수수한 다음 이러한 개업의 대가로 장차 포탈할 부가가치세액의 일정 부분을 매출가액과 매입가액의 차액이라는 형태로 취득하기 위하여 원고와 이 사건 금지금 거래를 한 것으로 보이므로, 비록 이 사건 매입거래처와 원고 사이에 실제로 금지금이 인도되고 대금이 지급되는 등의 매매거래가 이루어지는 외형을 갖추었다고 하더라도, 이는 실제거래로 위장하기 위한 목적이었다고 볼 수밖에 없다.

(C) Ultimately, in full view of the fact that the instant tax invoice constitutes another tax invoice by the actual supplier and the supplier on the tax invoice, and that the Plaintiff’s purchase transaction account was revealed in the relevant criminal cases as well as that the Plaintiff’s purchase transaction account for the company and BB was involved by a typical gas supplier at the transfer stage of the instant purchase transaction office including the said company, and that the Plaintiff did not keep any record that could verify the manufacturer or brand name, serial number, and net level of gold bullion that could be a flexible means of proof at the time of the occurrence of the subsequent dispute, it is difficult to view that the Plaintiff was not aware or was not negligent in not knowing the difference between the actual supplier and the supplier on the tax invoice.

(D) Therefore, the instant disposition based on the premise that the instant tax invoice constitutes a false tax invoice is lawful, and the Plaintiff’s assertion that the instant disposition violates the principle of base taxation on different premise is without merit.

(2) Determination as to whether the instant input tax deduction and refund claim violate the principle of good faith

(A) Even if the instant tax invoice constitutes a tax invoice consistent with the actual supplier’s tax invoice, the principle of good faith can also be applied to the legal relationship concerning value-added tax, as it serves as an amendment to the legal relationship concerning the issue of no taxation without law. Under the value-added tax law adopting the so-called tax credit system, it is impossible to maintain the system of value-added tax unless the output tax amount is paid to the corresponding country. As such, in a series of consecutive transactions, it is difficult for the Plaintiff to use the same as that of the Plaintiff’s malicious business operator to evade value-added tax from the beginning, and rather, if the Plaintiff did not know that there was an abnormal transaction, which would be only damages if the Plaintiff did not evade value-added tax, and thus, if the Plaintiff did not know that there was an abnormal transaction, such as the exporter’s subsequent transaction, it would be difficult to view that the Plaintiff would not have been aware of the existence of tax revenue in light of the principle of no taxation without good faith, and thus, it would be difficult for the Plaintiff to use the same as the Plaintiff’s annual tax revenue to be excessively reduced beyond 10.

(B) Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

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