(영문) 서울고등법원 2014. 11. 18. 선고 2013누29225 판결

The part that exceeds 40,181,818 won among the disposition of imposition of the principal value-added tax for the second period of value-added tax in 2007 against the plaintiff on April 4, 201; the part that exceeds 710,758 won among the disposition of imposition of the principal tax for the second period of value-added tax in 2007; the part that exceeds 2,746,784 won among the disposition of imposition of the additional tax for the first period of value-added tax in 2008 against the plaintiff on March 7, 2013; the part that exceeds 64,694,856 won among the disposition of imposition of the additional tax for the second period of value-added tax in 208; and the part that exceeds 596,186 won among the disposition of imposition of the additional tax for the second period of value-added tax for the second period of value-added tax in 2008.

2. The Plaintiff’s appeal against Defendant BBB Commissioner of the National Tax Service and the remainder of the appeal against DefendantCC Director is dismissed.

3. The costs of appeal between the Plaintiff and Defendant BBB Commissioner of the National Tax Service shall be borne by the Plaintiff, and the total costs of appeal between the Plaintiff and DefendantCC head of the tax office shall be ten percent thereof, and the remainder shall be borne by the Plaintiff, respectively.

Purport of claim and appeal

On April 4, 2011, the part of the judgment of the court of first instance against the plaintiff was revoked. ① The imposition of value-added tax of KRW 86,023,789 for the plaintiff on April 2, 2007, and of KRW 36,674,840 for the principal tax for the second period of value-added tax in 2008; ② the imposition of the additional tax for the first period of value-added tax in 2008 against the plaintiff on March 7, 2013, the imposition of KRW 332,864,760 for the second period of value-added tax in 208, and KRW 64,694,850 for the second period of value-added tax in 208; ③ the imposition of the additional tax for the second period of value-added tax in 207, the amount of bonus DD, income amount for the plaintiff on April 4, 2006; and the imposition of the additional tax for 203 years 2007,207.

Reasons

1. Quotation of judgment of the first instance;

The court's reasoning concerning this case is as follows, with the exception of Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, which are part of the judgment of the court of first instance concerning the legality of the disposition of this case and Article 2. C. (2) of the judgment of the court of first instance concerning the legality of the disposition of this case and Article 2.3 (3) of the judgment of the court of first instance concerning the legality of the disposition of additional tax. Thus, the court's reasoning is as follows.

2. The part to be mard;

(a) [1. Paragraph 1]

1. Details of the disposition;

A. The Plaintiff, a corporation engaged in a comprehensive construction business, performed the construction work of EEmerdi center from around 2006, FFL Village Construction work, GG City FF to 2-88 Line Construction Work, HHH HH 7 hotel facilities connected to GG Convention Center.

B. Defendant BBB Commissioner conducted a corporate integration investigation against the Plaintiff during the business year from 2005 to 2009, and notified the head of DefendantCC head of the tax office of taxation data containing the following:

(1) In relation to the construction of the E-Medi Center in the business year 2006, the Plaintiff recovered the original construction cost of KRW 179,901,342 + value-added tax of KRW 12,730,658) from the original construction cost, and accounted for the amount of short-term loans recovered at the time of recovery as the account book.

(4) As for the imposition of additional tax for less than 207 to 207, 207, 30G 208, 207, 207, 30G 28, 207, 207, 30G 96, 207, 207, 30, 207, 207, 30, 47, 207, 206, 30, 207, 30, 207, 206, 30, 207, 30, 47, 206, 206, 206, 307, 206, 30, 207, 306, 307, 40, 207, 307, 205, 207, 206, 207, 307, 207, 207,

E. On March 7, 2013, the Defendant revoked ex officio the disposition of imposition of KRW 332,864,760 for the first term portion of the penalty tax in 208, and KRW 64,694,850 for the second term portion of the penalty tax in 2008 on the grounds of defects in the notification procedure in the part of the disposition of imposition of the penalty tax in the instant case pending in the first instance trial. On the same day, the Defendant again imposed the penalty tax for the same amount by specifying the type of penalty tax and the calculation basis

【Facts without dispute over recognition, Gap evidence 1 through 3, Gap evidence 24, Eul evidence 1, 27(including the number, and the whole purport of the pleading.)

(b) [2.C. (2) and (3) parts]

(2) Whether the disposition of value-added tax of this case is legitimate

(A) Whether the disposition of imposition related to construction other than the construction of the hotel facility of this case is legitimate

On the other hand, the fact that the tax invoice received by the plaintiff from the transaction parties in relation to the construction of EEmerdiit Center, the construction of LL Village, and the construction of GG is false tax invoice that is different from the fact, and such false tax invoice is subject to the deduction of the input tax amount. Therefore, the defendant's imposition of value-added tax on this part is justified, while the plaintiff's assertion on this part is without merit.

In the imposition of value-added tax of this case, only part related to the hotel facility construction of this case shall be examined.

(B) Facts of recognition

1) Relationship between II and J, PP City and Plaintiff’s operators

The representative director of II and JJ is operating a PP city, and the representative director of the plaintiff and DD are co-generations of MM.

2) The reasons why the construction contract between the Plaintiff and J is concluded

(A) Section II and J as the operator of the hotel in this case, and as OO Construction Co., Ltd. (hereinafter "OO Construction"), signed a contract for construction project management (CM) with the PP city on March 31, 2007. The main contents of this contract were 0: (a) to appoint a PP city as a construction project manager for the inside of the hotel in this case; (b) to be provided with services such as process and cost management from the PP city; (c) effective quality, fairness, and quality control under the supervision of the contractor; (d) to maximize the proceeds of the hotel facility in this case (Article 1 of the contract) and to maximize the construction of the hotel facility in this case; (e) to 0:00,000,000,000,0000,0000,000,0000,000,0000,000,0000,000,0000,000,000).

3) Method of concluding and paying the construction cost between the Plaintiff and the subcontractor

A) The construction project manager who is the construction project manager of II and J participated in the selection and management of the sewage supplier even after the operator of the hotel facility construction of this case was changed from the OO to the Plaintiff, and the Plaintiff entered into a construction contract under his own name with a total of 43 sewage supplier (a sanitary apparatus supplier, a private house supplier, a hotel landscaper, etc.) including K, as proposed by the PP City and II and JJ from December 2007 to June 2008.

나) II와 JJ은 공사비용의 총괄적 관리를 위하여 원고 명의의 통장을 직접 보관하였는데, 원고가 하수급업체의 기성고를 확인한 후 PP도시에 하수급업체에 지급할 공사대금을 알려주면서 원고의 법인인감증명서를 송부하면，II와 JJ은 원고의 하수급업체에 해당 공사대금을 위 통장에서 이체해 주었다(세무조사 과정에서 작성된 DDD에 대한 문답서 기재 중에는 원고 명의의 통장 뿐 아니라 인감도장도 II와 JJ에게 맡겨 두었다는 취지의 기재가 있으나，이는 원고 경영지원본부 이사 QQQ의 진술 및 DDD의 나머지 진술과 상반되어 그대로 믿기 어렵다).

C) Meanwhile, sewage companies, which did not receive the construction cost, have directly demanded the Plaintiff to pay the price of sewage construction directly, and the companies RR, SS, and TT were urged several times to pay the construction cost to the Plaintiff, and UU, and V were provisionally seized or seized the Plaintiff’s claim for the construction cost against the Plaintiff as the preserved claim, and WW of the Company filed a lawsuit against the Plaintiff.

4) Payment of actual expenses and construction cost between the Plaintiff and J and II

A) On January 10, 2008 and March 12, 2008, the Plaintiff filed a claim for public fraud with II and J on two occasions, and II and J transferred construction price to the account in the name of the Plaintiff upon receiving facility loan from Gyeongnam Bank.

B) On April 30, 2008, May 29, 2008, and June 29, 2008, the Plaintiff, and J changed the terms and conditions of the instant contract by making the extension of the construction period on three occasions. Upon completion of the instant hotel facility construction, the Plaintiff and J decided to calculate the final construction cost according to the actual cost settlement method on August 31, 2008 and reduce the original construction cost to KRW 11,830,000,000 as KRW 9,748,30,000.

5) The Plaintiff’s business related to the instant hotel facility construction

A) On December 15, 2007, the Plaintiff purchased employment insurance and industrial accident compensation insurance with respect to the instant hotel facility construction, and paid each insurance premium around March 31, 2008.

B) Of the 43 companies that entered into a subcontract, the Plaintiff received the performance guarantee insurance (contract) securities or the performance guarantee insurance securities from some companies.

C) The Plaintiff confirmed the progress of the construction, and performed on the spot, on the spot, work consultation, supervision, etc., of the company, YYY, ZZ, AB, BA, CAA, DA, EA, EA, FA, and GA.

D) On April 23, 2008, the Plaintiff used equipment such as scools to carry out a guest-to-air business directly. Accordingly, the GG market judged that the hotel landscape project of this case constituted a fugitive dust generation business under the Clean Air Conservation Act, and conducted a field investigation, and conducted a field investigation, the Plaintiff’s representative director DD requested confirmation of violation of the Clean Air Conservation Act from DD, and notified the Plaintiff of the imposition of a fine for negligence due to the violation of the Clean Air Conservation Act on April 25, 2008. The Plaintiff reported the dust scattering business and the specific construction work in advance.

E) Meanwhile, for the instant hotel facility construction, the Plaintiff established a site office in GG, HA Dong 370-1, located 66 meters away from the construction site, and the Plaintiff’s representative director DD, management directors IA, other employees JA, and KA had been living in the said site office and dealt with the instant hotel facility construction work.

F) In order to establish an employee accommodation of the employees residing at the site, the Plaintiff borrowed No. 13 207 of the MAA Dong 38, MAG apartment No. 13 and 207 at all times, and was granted a right to lease on a deposit basis.

6) Receipt of the Plaintiff’s tax invoice

"The plaintiff issued the tax invoices of KRW 9,748,30,00 for supply price of KRW 9,748,30,00 for the second period from 207 to 2008 ( KRW 8,900,000 for the first period of 2008) and value-added tax of KRW 974,830,00 for the second period of 2008 and KRW 974,830,00 for the second period of 2008, and from K, to KRW 9,272,259,67 for the supply price of KRW 458,419,750 for the second period of 208 + KRW 1,7,600 for the second period of 208, KRW 207,94,300 for the second period of 207, KRW 207,300 for the second period of 207, KRW 297,361,297,27

1) Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) provides that input tax shall not be deducted from the output tax amount in cases where the details of a tax invoice are different from the facts. The meaning of the case is different from the fact, where the ownership of the income, earnings, property, act or transaction subject to taxation is merely nominal, and where there is a person to whom the tax invoice actually belongs, the person to whom the tax invoice belongs shall be liable to pay taxes in light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that the necessary entry in the tax invoice shall be applied to the person to whom the tax invoice belongs and the person to whom the goods or service is actually supplied and the person to whom the goods or service is supplied and the person to whom the tax invoice is supplied, regardless of the formal entry in the transaction contract prepared between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 200).

2) In full view of the following circumstances, it is difficult to view that the Plaintiff merely lent its name to II and J, and there is no evidence to support that the instant tax invoice was false on the basis of the following circumstances: (a) the background behind the conclusion of the instant contract, the developments leading up to the involvement of the PP City in the selection of the Plaintiff’s sewage supplier; (b) the Plaintiff’s duties related to the instant hotel facility construction; and (c) the relevant sewage supplier’s perceptions; and (d) the evidence presented by the Defendant is insufficient to deem that the Plaintiff merely lent its name to II and J; and (b) the instant tax invoice was false.

① At the beginning of the instant hotel construction work, II and J had the Plaintiff separately ordered the instant hotel facility construction work by way of actual cost settlement, taking into account the various circumstances surrounding the instant hotel facility construction work.

② Meanwhile, before entering into the instant contract with the Plaintiff, the PP City and the J had already concluded a construction industry management service contract with the Plaintiff, and the PP City was anticipated to be actively involved in the selection and management of sewage suppliers and construction management, regardless of who the hotel facility construction works in the instant case. In fact, since the Plaintiff entered into the instant contract with the J and the J, the PP City had already been actually selected as a large number of sewage suppliers by conducting a market research in accordance with the said service contract.

③ In order to reduce the cost of the hotel facility construction of this case, II and J adopted a method of determining the cost of construction by the method of settlement of actual cost rather than entrusting the Plaintiff with the entire management of the cost of construction of the instant hotel facility construction. As such, even if II and J transferred the cost of construction directly to the Plaintiff’s sewage supplier while managing the passbook under the name of the Plaintiff, it may be deemed as the purpose of settlement of actual cost, and it is difficult to view that the subcontract between the Plaintiff and the sewage supplier is unreasonable in the form of

④ From among the hotel facility construction of this case, the Plaintiff directly performed the landscaping construction and the ancillary civil engineering construction. The rest is the majority of the supply or installation of finished products, and there was no need for the Plaintiff to directly perform the duties of managing sewage-based companies to perform such construction works. In fact, sewage-based companies performed the large part of the said construction works. The Plaintiff appears to have performed the duties of preparing a document by comparing the contract amount with inputs for the settlement of actual cost when a sewage-based company completes the construction work for the settlement of the instant contract.

⑤ DD’s representative director’s statement is that only about 4 billion won invested directly by the Plaintiff among the total construction cost in the course of a tax investigation, including a company specializing in commercialization, etc., and the remaining 33 companies except this is attached to the contract when the Plaintiff and J select a subcontractor, and that they did not actually receive delivery from the above 33 companies. However, it is doubtful that DD’s statement made in the course of a tax investigation is contradictory to the Plaintiff’s statement as to whether the Plaintiff is in charge of seal imprint or the process of reducing the contract amount, and it is insufficient to provide a statement or data on the specific process of separating 10 companies and 33 companies as above, grounds, etc., and the above statement was made in the process of explaining that the Plaintiff and J and PP cities led the Plaintiff’s selection of a subcontractor and paid the construction cost to a subcontractor. Furthermore, the Plaintiff’s statement made in the process of tax investigation cannot be seen as being directly made against the Plaintiff’s subcontractor and the Plaintiff’s entire subcontractor.

On the other hand, some of the representatives of sewage companies knew of the PP City or II in the course of tax investigation with J. At the time of the contract, they concluded with the Plaintiff at the request of the Plaintiff’s representative director or staff at the time of the contract. However, the representative director of the PP City, Inc., one of the written confirmation, PAA, at the criminal case against DD (GG District Court QA support 201 high-class 66 case), testified that there were some different parts of the written confirmation, and that it was difficult to view the Plaintiff’s representative director of the PP City as the above YA’s testimony in the criminal case, based on the fact that it was difficult for the Plaintiff’s employees to have participated in the tender, and that there was no other evidence from each of the above written confirmations that the Plaintiff’s testimony was made by the above YA’s representative director at the time of the initial tax investigation, and that the Plaintiff’s testimony was made by the above 1st executive officer at the time of the instant criminal case.

④ The Plaintiff, upon entering into the instant subcontract with the J and II, had a substantial burden of risk as a trading entity, such as industrial accident management and default liability with respect to the instant hotel facility construction. Furthermore, the Plaintiff had a comprehensive construction license and experience in performing other civil engineering works or construction works, and the Plaintiff was able to directly perform part of the instant hotel facility construction, and actively participated in changing the contract amount of the said construction in accordance with the actual settlement of actual expenses. Although the Plaintiff’s representative director and actual operator were the same as the MM in II and J’s representative director, the Plaintiff appears to have been operated independently from the J and II, and the Plaintiff appears to have failed to find any defect in the Plaintiff’s supply of the instant hotel facility construction by the actual settlement method between II and J, and the Plaintiff did not appear to have evaded the Plaintiff’s input tax invoice by taking account of the Plaintiff’s ability to receive the relevant tax invoice as a special relationship with the J and II, and the Plaintiff did not appear to have been granted any other tax invoice.

3) Therefore, the disposition imposing the value-added tax in this case, which was conducted without excluding the deduction of the purchase tax amount under the premise that the tax invoice in this case is a tax invoice different from the fact, shall be unlawful. Thus, the part concerning the second period of 2007, which was 45,841,975 won, and the second period of 2008, which was 35,964,081 won related to the hotel facility construction in this case, shall be revoked to the extent that

(3) Whether the imposition of additional tax in this case is lawful

A) Whether procedural illegality exists

When a single tax payment notice imposes both a principal tax and a penalty tax, the tax amount and the basis for calculation of the principal tax must be stated in the tax payment notice separately, and where several kinds of penalty taxes are imposed together, it is reasonable for the taxpayer to have the content of each taxation place known by classifying the tax amount and the basis for calculation of the tax amount by type, etc., even between the penalty taxes. Thus, the tax imposition disposition cannot be exempted in cases where only the total amount of penalty taxes are stated without disclosing the type thereof and the basis for calculation of the tax amount in itself (see Supreme Court Decision 2010Du12347, Oct. 18, 2012).

In this case, on March 7, 2013, the director of the tax office revoked ex officio the imposition of KRW 332,864,760 and KRW 64,694,850 of the value-added tax of KRW 2008 and KRW 64,694,850 of the value-added tax of KRW 332,864,760 and the value-added tax of KRW 2008, and on the same day, he/she further imposed the same tax amount by specifying the type, basis for calculation of the value-added tax. Therefore, there is no procedural illegality in the imposition of the

B) Whether substantive illegality exists

As seen earlier, as long as the imposition of the principal tax related to the hotel facility construction of this case is illegal among the disposition imposing the value-added tax in this case, the additional tax related to the hotel facility construction of this case is also illegal. Therefore, this part of the disposition should also be revoked.

3. Conclusion

If so, the plaintiff's claim of this case is reasonable within the above scope of recognition, and the judgment of the court of first instance is unfair with some different conclusions, and it is so decided as per Disposition by the court of first instance to revoke part of the judgment.

심급 사건

-서울행정법원 2013.09.27.선고 2012구합28209

서울고등법원 2014.11.18.선고 2013누29225

-대법원 2015.04.09.선고 2014두15719

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