Cho-2014-China-2767 (2015.05)

Whether a tax invoice is a false or processed tax invoice or whether a bona fide party has fulfilled its duty of care;

In the event that he/she is investigated on suspicion of violating the Punishment of Tax Evaders Act, etc., but is subject to a non-prosecution disposition, and receives the price by receiving goods from the floor-to-date company and being supplied with non-materials, he/she shall transfer the price to the bombed coal

Article 16 of the Value-Added Tax Act

2015Guhap8171 Revocation of Disposition of Imposition of Value-Added Tax

Korea

KimA

April 7, 2016

April 28, 2016

1. Each disposition of imposition of value-added tax for the first term of February 14, 2014, imposed by the Defendant on the Plaintiff on February 14, 2014, KRW 304,104,290, and value-added tax for the second term of February 2012, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

Order 1)

1. Details of the disposition;

A. On December 1, 201, the Plaintiff: (a) was a corporation that engages in the non-ferrous metal wholesale business in the OOOO-gun OOO under Article 639-7; (b) was issued 33 copies of the purchase tax invoice equivalent to the value of OOOO OM (hereinafter “the instant transaction”); and (c) was deducted from the output tax amount and reported and paid value-added tax by deducting the said input tax amount from the input tax amount.

B. As a result of the head of the OOO conducted a tax investigation on OM, the instant transaction was confirmed as a processed transaction and notified the Defendant. The Defendant deemed the instant tax invoice as a false tax invoice without real transaction and deducted the relevant input tax amount when calculating the value-added tax. On February 14, 2014, the Plaintiff notified the Plaintiff of the correction and notification of the value-added tax amount for the first half of 2012, OOO, OOOO of value-added tax for the second half of 2012, and OOO of the corporate tax for the second half of 2012 (hereinafter “instant disposition”).

C. On March 5, 2015, the Tax Tribunal issued a request for a judgment to the Tax Tribunal. On March 5, 2015, the pertinent transaction was deemed a real transaction or the instant tax invoice as an invoice different from the fact, and thus ordered correction of the amount of tax as to corporate tax and dismissed the disposition of imposition of value-added tax.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff was actually supplied with the closure of the tax invoice corresponding to the supply price stated in the instant tax invoice from OM, the instant tax invoice cannot be deemed as a false and processed tax invoice. Therefore, the instant disposition on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination of whether a specific transaction constitutes the supply of goods under the Value-Added Tax Act should be made individually and specifically by comprehensively taking into account various circumstances, such as the purpose and background of each transaction partner’s transaction, the volume and subject of profit-making, and payment relationship of consideration. The burden of proving that a specific transaction constitutes a “tax invoice different from the fact” under Article 17(2)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 (see, e.g., Supreme Court Decision 2008Du13446, Jun. 23, 2009).

2) In light of the following circumstances that can be seen by comprehensively taking into account the health team, Gap evidence Nos. 1 through 49, Eul evidence Nos. 3 and 4 (including serial numbers), the results of the service of documents to the OOO prosecutor's office and the OO prosecutor's office's office's entrustment of documents, the purpose of all pleadings, etc., as to the instant case, the mere fact that some of the pre-stage buyers of OM were confirmed as material and the Plaintiff's purchase price of the pre-stage metals from OM falls short of the notified price of the Public Procurement Service cannot be deemed to constitute a tax invoice different from the fact that the Plaintiff did not actually purchase the closed metal, or that the instant tax invoice constitutes a tax invoice different from the fact that the Plaintiff received the tax invoice was not a real transaction. Thus, the disposition of this case, which was issued by concluding that the Plaintiff was a tax invoice different from the fact that there was no real transaction, is unlawful, and the Plaintiff's assertion

① At each time the Plaintiff is supplied with an OM metal, the Plaintiff directly prepared, received, and kept documentary evidence accompanied by the actual transaction, such as tax invoices, measurement certificates, measurement confirmations, transaction specifications, and estimates, and the said documentary evidence includes photographs of the vehicle that actually transported the waste, video, and road toll receipts, if the Plaintiff did not actually trade the waste.

② The Plaintiff confirms the fact that the purchase price was closed from April 10, 2012 to August 24, 2012 that the company bank account for OM was transferred respectively to the national bank account from April 17, 2012 to August 24, 2012, and the details that the OM was fully withdrawn from cash or returned to the Plaintiff’s account do not appear.

③ As a result of the tax offense investigation conducted against the Plaintiff, the Defendant considered each transaction with OO, Co., Ltd., OOOO, and OM as a normal transaction. This is due to the fact that the Defendant determined that OM constitutes data, and that the OM is a business entity that actually performs waste transport transaction rather than data.

④ Before commencing transactions with OM, the Plaintiff confirmed whether the OM is an actual business operator by visiting the place of business of the OM, and by delivering a business registration certificate, certified transcript of corporate register, copy of passbook for transactions, copy of a registration certificate, etc. from OM.

⑤ The representativeO of the O metal was investigated by the OOM office under suspicion of violation of the Punishment of Tax Evaders Act, etc. on June 13, 2014, but the OO was accused of the violation of the Punishment of Tax Evaders Act on the grounds that there was no evidence to acknowledge the processing transaction. After all, the OO was accused of the violation of the Punishment of Tax Evaders Act. At the time when the police conducted a witness investigation against the representative OO of the OM company, which is the main purchaser of the O metal, in relation to the above violation of the Punishment of Tax Evaders Act, the OO received without materials from the "OOM company," the OO received materials from the "OM company, so that the payments were received from the "OM company," and the OO received profits from the "OM company," and the O and the O were actually conducted in the process. Accordingly, the OO stated to the effect that it was a non-prosecution disposition on March 24, 2015.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.

Indication of related Acts and subordinate statutes

/ former Value-Added Tax Act (wholly amended by Act No. 11873, Jul. 1, 2013)

Article 16 (Tax Invoice)

(1) Where an entrepreneur registered as a person liable for tax payment supplies goods or services, he/she shall issue an invoice stating the following matters (hereinafter referred to as "tax invoice") to the person who receives the supply, as prescribed by Presidential Decree, at the time prescribed in Article 9 (where Presidential Decree prescribes otherwise, referring to the time prescribed otherwise), as prescribed by Presidential Decree. In such cases, a tax invoice may be amended and issued, as prescribed by Presidential Decree, if any ground prescribed by Presidential Decree, such as error or correction, occurs in connection

1. Registration number, name or denomination of the businessman who provides;

2. Registration number of the person who receives;

3. Supply value and value-added tax;

4. Date of preparation;

5. Matters prescribed by Presidential Decree, other than those under subparagraphs 1 through 4.

Article 17 (Payable Tax Amount)

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as "paid tax amount") shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as "purchase tax amount") from the tax amount on the goods and services supplied by him/her (hereinafter referred to as "sales tax amount"): Provided, That where an input tax amount exceeds the output tax amount, it shall be the refundable tax amount (hereinafter referred to as "repaid tax

1. The tax amount for the supply of goods or services used or to be used for his own business;

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The following input taxes shall not be deducted from the output tax amount:

1. An input tax amount where the list of total tax invoices by customer is not submitted under Article 20 (1) and (2), or the input tax amount on the portion not entered or the portion entered differently from the fact, where the whole or part of the registration numbers or supply values by transaction parties is not entered or differently entered from the fact, from among the entries on the list of total tax invoices by customer submitted: Provided, That in such cases as prescribed by Presidential Decree,

2. An input tax amount, in cases where a tax invoice under Article 16 (1), (2), (4) and (5) is not issued, or all or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as "necessary matters to be entered") on the tax invoice issued is not entered or entered differently from the fact: Provided, That the input tax amount in cases prescribed by Presidential Decree shall be excluded;