Cho High Court Decision 2009Du3308 ( December 31, 2009)

Whether a processing tax invoice which is not a real transaction related to the purchase of aggregate has been received

The tax authority must prove that the taxpayer was supplied aggregate from other companies, not from being actually supplied by the tax invoice issuer, and the plaintiff should prove that it is not a false tax invoice, but it is difficult to recognize the real transaction due to the evidence submitted.

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

○ Kim

Head of Yongsan Tax Office

1. The plaintiff's claims are all dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s imposition of value-added tax of KRW 8,560,50 (including additional tax) for the first term of 2007 against the Plaintiff on February 5, 2010 and the imposition of value-added tax of KRW 13,255,200 (including additional tax) for the second term of 207 shall be revoked.

1. Circumstances of dispositions;

가. 원고는 2006.4.3.부터 ○○ ○○구 ○○동 451-4에서 ☐☐이라는 상호로 건설업을 영위하여 온 사업자로서, △△골재를 운영하던 박AA으로부터 2007년 1기에 공급가액 50,000,000원 및 부가가치세액 5,000,000원 상당의 매입세금계산서 3장을, 2007년 2기에 공급가액 80,000,000원 및 부가가치세액 8,000,000원 상당의 매입세금계산서 3장을 각 교부받았고(이하'이 사건 각 세금계산서'라 한다), 피고에게 위 각 기간의 부가가치세를 신고할 때 매출세액에서 이 사건 각 세금계산서상의 세액을 매입세액으로 각 공제하여 신고하였다.

B. The Defendant issued each of the instant tax invoices on the grounds that the Plaintiff constitutes a false tax invoice issued by ParkA without any actual transaction, and issued each of the said input tax amounts for the first and second years in 2007, which was non-deductible from the output tax amount for each of the said periods, and corrected the Plaintiff’s value-added tax amount. On February 5, 2010, the Defendant issued each of the instant tax invoices to the Plaintiff for imposition of value-added tax of KRW 8,560,500 (including additional tax) and value-added tax of KRW 13,25,200 (including additional tax) for the first and second years in 207 (hereinafter “each of the instant dispositions”).

[Reasons for Recognition] Each entry of Evidence Nos. 1, 2, 3, and 4

2. Referral and Determination

A. The plaintiff's assertion

Since the Plaintiff actually received goods from ParkA and accordingly received each of the instant tax invoices, each of the instant tax invoices is not false. Therefore, each of the instant dispositions on the premise that each of the instant tax invoices is false, should be revoked.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1)In full view of the aforementioned evidence, evidence Nos. 6, 12, 13, and evidence Nos. 3,7,9,10,11, and 12, evidence Nos. 6, 12, and 3,7,9, 10,11, and 12 can be acknowledged, and in light of the above evidence, it is difficult to

①박AA은 △△골재라는 상호로 골재판매업을 영위하면서 매입세금계산서를 발행・교부해 준 업체들과 직접 실물거래를 한 경우도 있었으나, 대부분은 매입세금계산서상의 업체들과 직접 거래한 바 없이 건설공사현장에 실제 모래 등을 납품하는 업자에게 골재를 공급하고, 매입세금계산서는 위 실제 납품업자가 아닌 위 실제 납품업자가 지정하는 업체(■■트 주식회사, 주식회사 ♤♤월드, ☆☆물류 등)를 공급받는 자로 하여 발급해 주었다.

(2) The ParkA issued and issued most of the sales tax invoices in the first and second stages of January 2007 by the above methods without real transactions, and was convicted of committing a crime of violating the Punishment of Tax Evaders Act by filing a complaint with an investigation agency on such suspicion.

③ On March 5, 2006, the Plaintiff received a contract for the construction cost of approximately KRW 1.9 billion from the development of △△△△△△△△△△ Company. From around that time to December 2, 2007, the Plaintiff purchased approximately KRW 5530 square meters of aggregate amounting to KRW 160 million while performing the said construction work from around that time.

④ Park Jong-A supplied aggregate to dump truck business operators, etc. during the period of January and the second period of 2007, and dump truck business operators, etc. supplied aggregate to the Plaintiff and supplied it to the Plaintiff at the construction site of the ▽▽△ mountain training site, and then received aggregate amount from the Plaintiff. Park Jong-A issued and delivered each of the tax invoices of this case to the Plaintiff as the recipient of the Plaintiff.

(5) If the Plaintiff deposited the aggregate purchase price into an enterprise bank account of the resident who is the manager at the construction site, the Plaintiff paid the aggregate purchase price to the above account by a dump trucking business operator, etc. after withdrawing aggregate from the above account and either directly or by account transfer using Internet banking, etc.

(6) In 2007, approximately KRW 936,594,00 won was deposited in the said account of an immigration and approximately KRW 936,594,00 won was deposited in the said account. Of the above withdrawn amount, approximately KRW 910,248,00 was confirmed to have been used for the purchase counter-purchase’s transaction cost (pumper, dump dealer, boundary distributor, dump truck, heavy business operator, etc.), labor cost, labor cost, food expenses, oil expenses, etc. However, the money paid to ParkA was entirely remitted from the above account on July 12, 2007 to the account of ParkA, and approximately KRW 26,346,00 was not confirmed to have been used.

(2) According to the above facts, each of the tax invoices of this case is not prepared and delivered by ParkA with actual aggregate, but with respect to a person who is supplied with aggregate from other companies, and is found to have been falsely prepared. Thus, in order for each of the tax invoices of this case to be not false, the plaintiff must specifically prove that there was an actual transaction equivalent to the corresponding value of supply under each of the tax invoices of this case with ParkA, based on relevant evidence and data (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997), and it is insufficient to recognize it solely on the basis of each of the statements in Gap, 7, 9, 10, 11, 14, and 16.

Therefore, each of the dispositions of this case based on the premise that each of the tax invoices of this case was prepared by processing without actual transaction is legitimate, and the plaintiff's assertion is without merit.

3.In conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.