Changwon District Court-2016-Gu 50745 ( November 29, 2016)

propriety of a disposition that deducts input tax amount by deeming it a false tax invoice;

Even if the transaction of supplying goods, etc. actually exists, it constitutes a tax invoice entered differently from the issuer of the tax invoice by the supplier.

Article 17 (Payable Tax Amount)

2016Nu12182 (23, 2017.08)

○ Kim

○ Head of tax office

on October 28, 2016

on January 23, 2017

1. The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

Defendant on March 18, 2015, value-added tax for the second term portion of 2010 against Plaintiff on March 18, 2015, KRW 16,418,630, and KRW 2011

Value-added tax for one year, 13,838,00 won, value-added tax for two years, 201, 17,446,930 won, and 1 year 2012

Each disposition of imposition of value-added tax of KRW 8,222,060 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. From June 15, 2005 to 00, the Plaintiff is running a scrap metal business with the trade name of ○○○○-ro ○○○○○, 473-8 from 2005 to 300.

B. The Plaintiff received a supply of scrap metal of KRW 335,526,915 (hereinafter “instant scrap metal”) from the second to the first period of 2012 from the ○○ high-water shop, which is registered as a business operator under the name of both head of ○○, and received the relevant tax invoice (hereinafter “instant tax invoice”), and paid the value-added tax by deducting it as the input tax amount.

C. From May 19, 2014 to June 20, 2014, the Defendant: (a) determined that ○○○○○, which operates the ○○○ Personal Prize, actually operated the ○○ Personal Prize by borrowing the name of the ○○○○○○○○ from May 19, 2014.

D. Accordingly, the defendant's reasons that "as the actual supplier of the instant scrap metal purchased by the plaintiff is gambling ○, the tax invoice of this case constitutes a tax invoice written differently from the fact of the supplier."

On March 18, 2015, the input tax deduction was denied, and on March 18, 2015, the Plaintiff issued a revised notice of the value-added tax (hereinafter referred to as the “instant disposition”).

E. On June 16, 2015, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but was dismissed on December 30, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, and Eul evidence 1 to 9

numbered, including branch numbers, hereinafter the same shall apply), the purport of the whole pleading;

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

① Since the actual supplier of the instant scrap metal is both heading, the instant tax invoice does not constitute a tax invoice written differently from the fact.

② Even if the actual supplier of the instant scrap metal is Park ○○, the Plaintiff was unaware of such fact, and there was no negligence on the part of the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant tax invoice was written differently from the fact

A) “Tax invoices entered differently from the fact” under Article 17(2)1 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) where input tax deduction is denied for a tax invoice received in the course of transaction refers to a case where the requisite entries of the tax invoice do not coincide with those of the entity that actually supplies or is supplied with the goods or services, or the price and time of the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). Thus, even if a transaction of supplying the goods, etc. actually exists, the supplier is different from the fact that the tax invoice is “tax invoices entered differently from the fact of the issuer.”

applicable to this section.

B) Comprehensively taking account of the following facts or circumstances acknowledged by the aforementioned evidence, evidence Nos. 5 through 10, evidence Nos. 16, and evidence Nos. 16, evidence Nos. 5 through 16, witness Nos. 16, evidence No. 20, 200, witness Nos. 30, witness No. 30, and witness No. 30, and witness No. 300, respectively, the party who supplied the instant scrap metal to the Plaintiff can fully recognize that the Plaintiff is Park

① From January 1, 2008, ○○○○○○-gun, ○○○○○○○○○-gun, ○○○○○○○○-do operated ○○○○○○○ 268, and both ○○ was by collecting scrap metal with a relationship between ○○ and his/her own interest.

② On July 19, 2010, 2010, the name of both ○○○○ and the name of ○○○○○ was registered as a business operator. However, the ○○○ and the secondhand was used as a guidance on a customer or a part of a secondhand property without any connection with the succession, and the two ○○ and the second ○ ○ did not change from the transfer by taking charge of only the collection of scrap metal even after opening the business on the ○○

A person who agreed and decided on whether to sell scrap metal and the unit price for sales between ○○ and the trading company is ○○, and the person who decided on whether to sell scrap metal is leap, and the deposit and withdrawal of the purchase price of scrap metal and the accounting affairs were disposed of by ○○, who is his or her father and wife.

③ The funds for the purchase of scrap metal on ○○’s secondhands are most most from 00 leaps. The money for the sale of scrap metal on the 00 ○○○’s secondhands deposited in the passbook, while managing the agricultural bank passbook in 00 amblings or amblings, used the money for the sale of scrap metal on the 00 ○○○’s secondhands deposited

④ In relation to the supply of scrap iron, etc. to Chosung on January 28, 2015, the two head of ○○○○○○○○○○○ was Park ○○ and the head of ○○○○○○○○○○○○’s actual representative on the ○○ high-water, which was related to the provision of scrap iron, etc. to Cho Sung-sung from July 1, 2010 to June 30, 2012, and the head of ○○○○○○○○ was registered as a representative upon the request of Park○○, and the head of ○○○○○ was recognized as having participated in the business, and the authenticity of the entire document is presumed to have been established. The Plaintiff asserted that a part of the written confirmation was altered or forged. While the witness’s testimony was consistent with this court’s testimony, there was no evidence to acknowledge that there was no credibility in light of the process of preparation, form and content of the written confirmation, and there was no other evidence to acknowledge that ○○○○’s actual title was aware of the sales.

⑤ With respect to the grounds for the instant disposition, the Prosecutor issued a disposition not to institute a prosecution on the ground that he/she was not suspected of being suspected of having lelelele (defluence of evidence). However, in full view of each of the facts acknowledged earlier, inasmuch as it is impossible to adopt a factual determination of the above-mentioned suspicion as it is, the rejection of such determination and the fact that is sufficiently recognized may

C) The instant tax invoice should have been written by the supplier in Park ○, but it constitutes a tax invoice in which the name of the supplier, which is a requisite entry, is written differently from the fact. The Plaintiff’s assertion relating to this is without merit.

2) Whether the Plaintiff is bona fide and without fault or not

A) Unless there are extenuating circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the relevant input tax amount unless there is any negligence on the part of the person who was supplied with the other tax invoice in the name of the tax invoice, and that the person who was provided with the tax invoice was not negligent in not knowing the above fact of the false name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). In light of the volume of transaction between the person who was provided with the tax invoice and the person who claimed the refund of the input tax amount, if there are sufficient circumstances to doubt whether the person who was provided with the false name was not the nominal one, it cannot be said that there was no negligence in not knowing the fact (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

B) In full view of the following facts and circumstances acknowledged by the purport of the entire evidence and pleadings as seen earlier, the Plaintiff is deemed to have known, or was negligent in not knowing, that the actual supplier of the instant scrap metal was not a good-resistant (in-depth).

① Since 2008, the Plaintiff had been engaged in scrap metal transactions with ○○○ (○○ high-water shop) since 2008, before commencing ○○ high-water shop and scrap metal transactions.

② While having been engaged in scrap metal transactions by up to January 2010, the Plaintiff was proposed to engage in a transaction under the name of ○○○ (○○ high-water), the Plaintiff mainly consulted with ○○○ upon the trading volume, price, etc., and the tax invoice was delivered to ○○, an employee of ○○, and thus, there is sufficient room to deem that ○○ was aware of the fact that ○○ was an actual operator of ○○ high-water.

③ Even though the Plaintiff was unaware of the fact that the actual operator on the ○○ Building was gambling, it should have been carefully examined the identity of the actual operator on the ○○○ Building. As such, inasmuch as the Plaintiff’s business offered a competitive transaction and offered substitute for the transaction itself on the sole basis that the actual operator on the ○○○ Building was a relative, the Plaintiff should have been carefully examined as to the identity of the actual operator on the ○○○ Building Building. In full view of the fact that the opening date of the ○○○ Building Building was July 2010, and the place of business was in a state where the ○○○ Building Building was in a state where the ○○○ Building Building was in a state where the ○○○ Building Building was in a state where the ○○ Building Building Building was in a state where the ○○ Building Building was not in a place of business, and that the ○○○○ Building was in a state where the ○○ Building Building

C) The Plaintiff’s assertion that the instant tax invoice did not know that it was written differently from the fact, or that it was not negligent in not knowing the fact is without merit.

3. Conclusion

Then, the plaintiff's claim of this case shall be dismissed as it is without merit, and the first instance court shall dismiss it.

The judgment is unfair on the contrary of this conclusion, and the plaintiff's claim is revoked and dismissed.

this decision is delivered with the judgment of the court.