The disposition of non-deduction of input tax amount did not violate the Value-Added Tax Act, and does not violate the principle of tax equality.

The burden of proving the invalidity is against the Plaintiff, and the disposition that deducts the input tax amount for the increased receipt of the tax invoice than the actual transaction is justifiable, and the disposition is properly conducted at the tax office having jurisdiction over the other party to the transaction, so it does not violate the

Daejeon District Court 2015Guhap102513 Nullification of the disposition of imposition of value-added tax, etc.

Park 00

00. Head of tax office

2016.06.08

oly 2016.17

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On June 3, 2013, the Defendant confirmed that the first value-added tax for the year 2009 against the Plaintiff was 9,572,950 won, the second value-added tax for the year 2009 8,322,910 won, the first value-added tax for the year 2010 14,54,710 won, the first value-added tax for the year 2011 24,315,280 won, the second value-added tax for the year 2011 37,53,290 won, the second value-added tax for the year 201 37,53,290 won, the second value-added tax for the year 201 37,217,50 won, the second value-added tax for the year 2009 47,680,440 won, the global income tax for the year 2010 33,304,1805.7

1. Details of the disposition;

A. From May 30, 1981, the Plaintiff engaged in the wholesale business in the name of Daejeon 0-Gu 00, Daejeon 00-Gu 00, 7, '00 drugs'.

B. On January 1, 2013, the Plaintiff filed an application for refund of KRW 75,545,071 upon reporting the input tax amount as KRW 107,757,207, and filed an application for refund of KRW 183,302,278, and the Defendant conducted an investigation on the Plaintiff from April 1, 2013 to April 19, 2014. During that process, the Plaintiff confirmed that the amount increased compared to the actual purchase price was deducted from the purchase tax invoice stating the purchase price as the supply price.

C. Accordingly, on June 3, 2013, the Defendant issued a false tax invoice to the Plaintiff by means of increasing the supply value of medicines supplied from a pharmaceutical medicine, and deducted the input tax amount in excess at the time of filing the return of the value-added tax, without deducting the relevant input tax amount, for the first period of value-added tax of 1,572,950, 209, 8,322,910, 209, 14,54, 710, 24, 315, 280, 24, 2011, 37, 233, 293, 290, 37, 217, 209, 47, 204, 205, 205, 37, 205, 205, 37, 205, 205, 207, 47, 205, 2014.

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Director of the Tax Tribunal on August 30, 2013, but the said appeal was dismissed on March 25, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Gap evidence 4-1 to 9, Gap evidence 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) After being supplied with drugs from 00 pharmaceutical drugs, the Plaintiff paid 00 pharmaceutical drugs with the purchase price of the remaining amount excluding discount in the ordinary price of the drugs, and received purchase tax invoices corresponding to the purchase price, and 00 pharmaceutical drugs separately paid sales incentives to the Plaintiff. According to the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter the same shall apply), the sales incentive amount is not included in the tax base but included in the tax base. Nevertheless, the Defendant issued the purchase tax invoice based on the premise that the sales incentive that 00 pharmaceutical drugs paid to the Plaintiff does not constitute the tax base of value-added tax by deeming the sales incentive paid to the Plaintiff as the amount of discount. The instant disposition was rendered based on the premise that the Plaintiff was issued the purchase tax invoice higher than the actual purchase price, and there is a serious and apparent defect contrary to the provisions of the Value-Added Tax Act.

2) The Defendant issued the instant disposition only to the Plaintiff, and did not impose any tax on the 00th transaction with the Plaintiff. The instant disposition is null and void in violation of the principle of tax equality.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant disposition violates the provisions of the Value-Added Tax Act

Article 17 (1) of the former Value-Added Tax Act provides that "The amount of value-added tax payable by an entrepreneur shall be the amount calculated by deducting the amount of tax in each of the following subparagraphs (hereinafter referred to as "purchase tax amount") from the amount of tax on the goods or services supplied by him/her (hereinafter referred to as "sales tax amount")." Article 17 (2) of the same Act provides that "the amount of tax on the supply of the goods or services used or to be used for his/her own business shall not be deducted from the output tax amount," and Article 17 (2) of the same Act provides that "the following input tax amount shall not be deducted from the output tax amount." In cases where the whole or part of the registration numbers or supply values by transaction parties are not entered or differently entered from the fact in the list of total tax invoices by seller submitted by the purchaser, the input tax amount on the increased portion may not be deducted from the output tax amount:

With respect to this case, the Plaintiff asserted that the purchase tax invoice corresponding to the purchase price was issued on the basis of the purchase price of the drugs supplied from the 00 pharmaceutical, except for the discount amount, from the ordinary purchase price of the drugs supplied from the 00 pharmaceutical. However, in an administrative litigation claiming the invalidity of the administrative disposition as a matter of course, the Plaintiff is liable to assert and prove the ground for invalidity of the administrative disposition (see, e.g., Supreme Court Decision 99Du11851, Mar. 23, 200). Accordingly, the Plaintiff’s assertion that the purchase price of the pharmaceutical supplied from the 00 pharmaceutical is the same as the actual purchase price of the pharmaceutical supplied from the 00 pharmaceutical, and that the purchase tax invoice issued from the 00 pharmaceutical is not issued on the ground that the Plaintiff received the increase in the purchase price of the pharmaceutical supplied from the 00 pharmaceutical, but on the ground that the Plaintiff received the increase in the purchase price of the pharmaceutical supplied from the 00 pharmaceutical purchase price.

2) Whether the principle of tax equality is violated

The Plaintiff alleged that the instant disposition violated the principle of tax equality because the tax authority did not impose any taxation on the 00 pharmaceutical drugs. However, as seen earlier, the Plaintiff’s supply price stated in the purchase tax invoice issued by the 00 pharmaceutical drugs was increased compared to the actual purchase price. In light of the overall purport of the pleadings, the Defendant notified the Plaintiff of the data on the 00 tax base for the excessive receipt of the purchase tax invoice, and the head of the tax office decided to refund the value-added tax by reducing the sales tax invoice that stated the increased amount of 00 pharmaceutical drugs as the actual sales price after conducting the tax investigation on the 00 pharmaceutical drugs. Accordingly, the Plaintiff’s assertion that the 00 pharmaceutical drugs are not subject to the refund of the value-added tax in relation to the instant disposition, is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Relevant statutes

/ former Value-Added Tax Act (Amended by Act No. 11873, Jun. 7, 2013)

Article 13 (Tax Base)

① 재화 또는 용역의 공급에 대한 부가가치세의 과세표준은 다음 각 호의 가액(價��)을 합한 금액(이하 공급가액 이라 한다)으로 한다. 다만, 부가가치세는 포함하지 아니한다.

1. Where payments are given in money: The payments;

2. 금전 외의 대가를 받는 경우: 자기가 공급한 재화 또는 용역의 시가(��價)

3. Where payments for the supply of goods are unjustifiably low or no payments are made: The current market price of goods supplied by the supplier himself/herself;

4. Where payments for the services rendered are unjustifiably low or no payments are made: The current market price of such services rendered by the relevant supplier;

5. Where the business is closed down: The current market price of inventory goods.

(2) The following amounts shall not be included in the tax base:

1. The amount of discount;

③ 재화 또는 용역을 공급한 후의 그 공급가액에 대한 대손금(������)・장려금(������)과 이와 유사한 금액은 과세표준에서 공제하지 아니한다.

Article 17 (Payable Tax Amount)

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

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 a list of total tax invoices by customer is not submitted under Article 20 (1) and (2), or an input tax amount on the portion not entered or differently entered 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 the input tax amount in such cases as prescribed by Presidential Decree

2. Any tax that has not been issued a tax invoice under Article 16 (1), (2), (4) and (5) or has been issued;

An input tax amount, where 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") are not entered or entered differently from the fact in a gold account statement: Provided, That the input tax amount in cases prescribed by Presidential Decree shall be excluded.