National High Court Decision 2007Do3111 ( October 26, 2007)

Where there is no substantial burden of proof that a tax invoice has been issued without a real transaction, it shall not be deemed a processing transaction.

Inasmuch as the actual operator is different from the representative in the name of the actual operator, it cannot be readily concluded that only a tax invoice was received without a real transaction, and even if the seller was convicted of having been accused of the fact on the data, it shall not be readily concluded as a processing transaction unless it proves the content related

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

Article 17 of the Value-Added Tax Act

1. The Defendant’s imposition of global income tax of KRW 75,015,770 for the year 2002 against the Plaintiff on December 1, 2006 and global income tax of KRW 69,446,560 for the year 2003 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. From May 28, 2002 to October 15, 2004, the Plaintiff served as a representative director of ○○○-dong, Seoul, ○○○-dong, 117-○○-dong, and currently engaged in manufacturing, manufacturing, and wholesale business, ○○-ju (hereinafter “○○-ju”).

B. During the business year of 2002 and the business year of 2003, 002, 00 ○○○ Child (hereinafter “○○”) and ○○ Fund received purchase tax invoices (hereinafter “the instant tax invoice”) from a stock company (hereinafter “○○”) as follows, and reported and paid corporate tax by including the relevant value of supply in the necessary expenses.

C. Around April 2006, the head of the Nowon-gu Tax Office investigated a suspicion of material facts, and determined and imposed corporate tax for each business year of the ○○○○ through the exclusion of the supply value on the grounds of the processing tax invoice received without real transaction, and disposed of the amount including value added tax as a bonus to the plaintiff who is the representative, and then notified the change of each income amount to the plaintiff and the defendant who is the head of the tax office having jurisdiction over the domicile of the plaintiff.

D. In accordance with the above notice of change in the amount of income, the Defendant issued a disposition imposing the tax amount of KRW 179,223,00 in 202, and KRW 169,127,200 in 203 on each Plaintiff’s global income and imposed the tax amount of KRW 169,127,20 in the disposition (hereinafter the instant disposition) on the Plaintiff as global income for the year 2002 and for the year 2003 (hereinafter “instant disposition”).

[인정근거] 갑 제1, 2호증의 1, 2호증의 각 1, 2, 제4호증, 을 제1, 2호증, 제3, 4호증의 각 1~13ㅡ 제5호증의 각 기재

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant tax invoice is unlawful for denying the fact that the instant tax invoice is a tax invoice received by ○○○△△△△ and ○○○, which is in line with the actual transaction details, and is not a processing tax invoice, as the instant tax invoice was received by ○○○△△△ and ○○○.

B. Defendant’s assertion

In light of the following circumstances, the instant tax invoice is a processing tax invoice.

(1) As ○○○○○○○○○’s representative director, ○○○○○, in collusion with ○○○○ who established and operated ○○○○, issued a processing tax invoice in the future, as ○○○ received fees from ○○○○, from 80 to 850 won per money and sold the ○○○.

(2) In order for ○○○ to obtain approval for a tax-free gold transaction from the competent tax office, ○○○ was required to issue a processed tax invoice to the supplier of ○○○ gold without any actual transaction, at KRW 900,000, at KRW 950,000, which was paid from the customer and received fees from 950,000 per money.

(3) The early 00 and early 00 trillion won were convicted of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (new) and violating the Punishment of Tax Evaders Act.

(4) The Plaintiff, a real representative of the ○○○ △△ ice, does not normally engage in the wholesale business at present, and registered ○○ and Kim○-man as the representative for the purpose of disguisedly pretending that it is data.

(5) The early 00 and early 00 trillion won conspired in collusion with each other to complete the flow of the transaction price and to disguised the false transaction, such as the actual transaction, by issuing a tax invoice after the next.

(6) The Plaintiff did not submit evidentiary materials proving that ○○○△△△ and ○○○ was engaged in real transactions with the company, received a tax invoice accordingly, and wired the purchase price to the bank account of the said company.

(7) Even if the Plaintiff’s domestic affairs indicated the details of the purchase price between ○○○△△ and ○○○○○○, based on the financial data, it is merely an altered evidence for a long-term period, as if it were a real transaction.

C. Determination

(1) In the administrative litigation seeking the revocation of taxation on the grounds of illegality, the tax authority bears the burden of proving the legality of the taxation scope and the existence of the taxation requirement fact. Therefore, the tax authority shall bear the burden of proving necessary expenses that constitute the basis for determining taxable income. However, the tax authority shall prove that a tax invoice on some of the expenses reported by the taxpayer was prepared in falsity without real transactions, and there are special circumstances, such as where it is disputed as to whether it is real expenses or not, and where it is proved to the extent that the taxpayer’s assertion and the other party to the payment were false, it is necessary to prove that it is easy for the taxpayer to present data such as books and evidence as to the fact that such expenses were actually paid (see Supreme Court Decision 2005Du16406, Apr. 14, 2006).

(2) However, even based on all the evidence submitted by the Defendant, the instant disposition is unlawful, since it cannot be deemed that the instant tax invoice was prepared in falsity without a real transaction, as follows.

(A) According to the statements in Eul evidence Nos. 6-10 from June 28, 2002, the plaintiff started business at ○○○○○dong-dong-gu Seoul on Oct. 15, 2004 and moved its business to ○○○○dong-dong-dong-dong-dong-gu, Seoul on Dec. 31, 2004, which was ex officio closed down on December 31, 2004; from May 28, 2002 to Oct. 16, 2004 to Nov. 19, 2004, the tax invoice No. 2009-dong-dong-dong-dong-dong-dong-dong-O○○○○○○○dong-dong-dong-dong-dong-si was not a company for which the director of the Labor Relations Office voluntarily closed its business; and from the date of the tax invoice No. 2004 to the date of November 28, 2004 to the date of the tax invoice No. 25.

(나) 을 제10호증(조사종결복명서)에는 ○○○쥬얼 리가 자료상으로 확정 고발된 ○○○쥬얼리와 ○○금은으로부터 실물거래 없이 가공세금계산서를 수취하였다는 조사결과만 기재되어 있을 뿐 이를 뒷받침할 아무런 자료도 첨부되어 있지 않은 점, 을 제 11호증의 1 (판결문), 2(범죄일람표)에 기재된 서울서부지방법원 2004고합368, 2005고합 2("‡합), 2005고합42(병합), 2005고합49(병합) 사건의 범죄사실은 ○○○골드 주식회사를 운영하는 조○수가 사실은 ○○○쥬얼리로부터 지금을 매입하지 않았음에도 세금계산서에 기재된 금의 중량에 따라 돈당 800원 내지 850원의 수수료를 주고 허위의 매입세금계산서를 교부받았다는 것일 뿐 ○○○쥬얼리와 ○○○쥬얼리 사이의 거래는 전혀 재판의 대상이 되지 않았던 점, 을 제12~14호증(각 피의자신문조서)에 기재된 조○수의 진술도 ○○금은을 설립하여 운영하면서 돈당 900원에서 950원 정도의 수수료를 받고 ○○금은 주식회사, 주식회사 ○○금은에게 가공세금계산서를 발행하였고 ○○○쥬얼리로부터 가공세금계산서를 수취하였다는 것일 뿐 ○○○쥬얼리와 관련된 아무런 내용이 없는 점에서 위 증거들도 이 사건 세금계산서가 가공세금계산서라는 점을 인정하기에 부족하다.

(C) Nos. 1 through 5 (including additional numbers) are limited to documents prepared in the course of determining the global income tax amount to be imposed on the Plaintiff on the premise that the instant tax invoice is false, and there is no evidence to acknowledge that the instant tax invoice is a processed tax invoice, other than the above evidence.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.