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대법원 2008. 12. 11. 선고 2008두9737 판결

[부가가치세부과처분취소][공2009상,40]

Main Issues

[1] The person who bears the burden of proving that the case constitutes a “illegal tax invoice” under Article 17(2)1-2 of the Value-Added Tax Act (=the tax authority)

[2] The case holding that the exporter's purchase of gold bullion engaged in the bombing business of gold bullion constitutes a supply of goods subject to value-added tax, not a nominal transaction, and thus, the tax invoice delivered in the process does not constitute a "unlawful tax invoice" where the input tax deduction is denied

Summary of Judgment

[1] The burden of proving that a tax invoice received in the course of a specific transaction constitutes a “illegal tax invoice” under Article 17(2)1-2 of the Value-Added Tax Act where the input tax deduction is denied on the ground that the specific transaction is a nominal transaction without actual delivery or transfer of goods is in principle borne by the tax authority.

[2] The case holding that the purchase of gold bullion by an exporter involved in the bombing business of gold bullion constitutes a supply of goods subject to value-added tax, not a nominal transaction, and thus, the tax invoice delivered in the process does not constitute a "unlawful tax invoice" under Article 17 (2) 1-2 of the Value-Added Tax Act where the input tax deduction is denied

[Reference Provisions]

[1] Articles 1(1)1, 6(1), and 17(2)1-2 of the Value-Added Tax Act / [2] Articles 1(1)1, 6(1), and 17(2)1-2 of the Value-Added Tax Act

Reference Cases

[1] Supreme Court Decision 85Nu286 delivered on September 24, 1985 (Gong1985, 1441) Supreme Court Decision 92Nu2431 delivered on September 22, 1992 (Gong1992, 3034) Supreme Court Decision 99Du9247 delivered on March 13, 2001 (Gong2001Sang, 902)

Plaintiff-Appellant

Plaintiff Co., Ltd. (Law Firm Rate, Attorneys Shin Jae-jin et al., Counsel for the plaintiff-appellant)

Defendant-Appellee

Head of the tax office;

Judgment of the lower court

Seoul High Court Decision 2007Nu31630 decided May 28, 2008

Text

The judgment below is reversed and the case is remanded to Seoul High Court.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to grounds of appeal on imposition of value-added tax

Article 1(1)1 of the Value-Added Tax Act provides that “the supply of goods” is subject to value-added tax, and Article 6(1) provides that “the supply of goods shall be a delivery or transfer of goods on all contractual or legal grounds.” In light of the characteristics of value-added tax as multi-stage transaction tax, “delivery or transfer” under Article 6(1) of the Value-Added Tax Act includes all acts of causing the transfer of rights to use and consume goods, regardless of the existence of profits actually acquired (see Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 201; 99Du9247, Mar. 24, 2001). In this case, the issue of whether a specific transaction among a series of transactions constitutes the supply of goods under the Value-Added Tax Act shall be determined on the grounds that there is no specific transaction under Article 29(1)2 of the Value-Added Tax Act, including the purpose and attitude of each transaction party, the allocation, and the payment subject, and the payment.

According to the facts and records duly established by the court below, the plaintiff purchased 1,620 kilograms gold bullion (hereinafter "the gold bullion of this case") from 7 business operators, including the corporation from February 13, 2004 to November 4, 2004 (hereinafter "the supplier of this case"), and received the transfer of the gold bullion of this case on the date of purchase, and received all of the price (hereinafter "the tax invoice of this case"), and delivered 64 copies of the tax invoice under this case from the supplier of this case (hereinafter "the tax invoice of this case"). The plaintiff exported the gold bullion of this case to Hong Kong on or following the date of purchase of the gold bullion of this case and exported considerable profits in the process. Examining these facts and records in light of the aforementioned legal principles, it is difficult to conclude that a series of transactions from the date of import and export of the gold bullion of this case were all made only daily or within this framework, and the value-added tax was levied only on the person who actually supplied or exempted from the gold bullion of this case without being supplied with the gold bullion of this case.

Nevertheless, the lower court determined that the instant tax invoice constituted “unlawful tax invoice” on the ground that the instant transaction was merely a nominal transaction without supplying goods, on the grounds that the transaction was included in the entire transaction of the instant case where the so-called wide coal company was opened. In so doing, the lower court erred by misapprehending the legal doctrine on “supply of goods” and “unlawful tax invoice” and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. As to the ground of appeal on imposition of corporate tax

According to Articles 76(5) and 116(2)2 of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006), Article 76(5) of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006), “In cases where a corporation is supplied with goods by an entrepreneur in connection with its business and fails to receive a tax invoice under Article 16 of the Value-Added Tax Act, the chief of the district tax office having jurisdiction over the place of tax payment shall collect an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount as corporate tax,” and Article 16 of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006) provides that “where an entrepreneur registered as a taxpayer supplies goods, it shall be delivered to the person who received the supply of the goods, including the registration number and name or title of the supplier, the registration number

As seen earlier, so long as it cannot be concluded that the instant transaction is not a supply of goods subject to value-added tax, it is difficult to conclude that the instant tax invoice received therefrom is not a legitimate tax invoice under Article 16 of the former Value-Added Tax Act. However, the lower court determined that the instant transaction does not constitute a supply of goods, and therefore, the instant corporate tax disposition was lawful on the premise that the instant tax invoice is a disguised tax invoice. In so doing, the lower court erred by misapprehending the legal doctrine on additional tax received as evidence, which affected the conclusion of the judgment, and the allegation in the grounds

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)

따름판례

- 대법원 2009. 6. 23. 선고 2008두13446 판결 공보불게재

관련문헌

- 조성권 조세법률 관계에 있어서 신의성실의 원칙의 적용요건에 관한 새로운 논의 특별법연구 10권 / 사법발전재단 2012

- 이전오 2008년 조세법 판례 연구 인권과 정의 391호 / 대한변호사협회 2009

- 최동렬 금지금 변칙거래에서 조세범처벌법 제9조 제1항의 ‘사기 기타 부정한 행위’해당 가능성 정의로운 사법 : 이용훈대법원장재임기념 / 사법발전재단 2011

- 하태흥 공급자가 사실과 다른 세금계산서와 명의위장사실에 대한 선의·무과실의 판단 요소 대법원판례해설 제98호 / 법원도서관 2014

- 신호영 조세소송에서의 증명책임 분배방안에 대한 연구 안암법학 36호 / 무지개출판사 2011

- 강석규 금지금 수출업자의 매입세액 공제ㆍ환급 주장과 신의칙 사법 17호 / 사법발전재단 2011

- 김주석 폭탄영업에 있어서 수출업자의 부가가치세 매입세액 환급ㆍ공제의 부인 : 대법원 2011.1.20.선고 2009두13474 판결을 중심으로 재판실무연구 2011 / 광주지방법원 2012

- 김백영 사실과 다른 세금계산서와 입증책임 부산법조 27호 / 부산지방변호사회 2009

참조판례

- [1] 대법원 1985. 9. 24. 선고 85누286 판결

- 대법원 1992. 9. 22. 선고 92누2431 판결

- 대법원 2001. 3. 13. 선고 99두9247 판결

참조조문

- [1] 부가가치세법 제1조 제1항 제1호 (위헌조문)

- 부가가치세법 제6조 제1항 (위헌조문)

- 부가가치세법 제17조 제2항 제1호의2호 (위헌조문)

- [2] 부가가치세법 제1조 제1항 제1호 (위헌조문)

- 부가가치세법 제6조 제1항 (위헌조문)

- 부가가치세법 제17조 제2항 제1호의2호 (위헌조문)

본문참조판례

대법원 1985. 9. 24. 선고 85누286 판결

대법원 2001. 3. 13. 선고 99두9247 판결

대법원 1992. 9. 22. 선고 92누2431 판결

대법원 2006. 4. 14. 선고 2005두16406 판결

본문참조조문

- 부가가치세법 제1조 제1항 제1호

- 부가가치세법 제6조 제1항

- 부가가치세법 제17조 제2항 제1호의2호

- 법인세법(구) 제76조 제5항

- 법인세법(구) 제116조 제2항 제2호

- 부가가치세법 제16조

- 부가가치세법(구) 제16조

원심판결

- 서울고법 2008. 5. 28. 선고 2007누31630 판결