National High Court Decision 2007J2815 ( December 14, 2007)

Whether the amount remitted to the borrowed account is a consideration for purchase of non-data

After the purchase of non-data, the amount was taxed by converting it into sales with regard to the remittance of the amount to the borrowed account of the purchaser. However, the reason why the amount was paid in excess of the credit purchase amount was asserted as the repayment of credit, and the reason why the borrowed account was opened cannot be deemed to have been paid by the tax invoice because the reason why the borrowed account was established is the purpose of raising non-financial funds.

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

Article 21 (Rectification of Value-Added Tax Act)

1. The plaintiff's claim is dismissed.

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

The Defendant revoked the disposition of imposition of KRW 27,654,880, which was imposed on the Plaintiff on January 17, 2007 by the Plaintiff.

1. Details of the disposition;

A. On April 1, 2001, the Plaintiff entered into an agency contract with ○○○○ Group Co., Ltd. (hereinafter referred to as “non-party company”) and carried out clothing retail business with the trade name called “○○○○○ Dong-dong ○○○○ in Sungnam-si”.

B. From July 2, 2001 to November 19, 2001, the Plaintiff deposited KRW 148,800,000 in a total of 14 times to the ○ bank account under the name of the non-party company’s name account (hereinafter “the borrowed account”). Around December 2, 2006, the Seoul Regional Tax Office notified the non-party company that there was a suspicion of transaction of non-data on the deposit amount of the borrowed account.

C. On January 17, 2007, the defendant converted the omitted amount into sales on the ground that the plaintiff purchased 148,800,000 won from the non-party company as non-data, and notified the correction of 31,626,090 won of value-added tax for 2,001 on the ground that it purchased 148,80,000 won from the non-party company as non-party company, but on February 15, 2008, 17,525,50 won of value-added tax for 31,626,090 won of value-added tax for 3,971,212 won (hereinafter the original 31,626,090 won to 3,971,212 won to 3,212 won, and 27,680 won to 27,580 won of value-added tax for 2,500 won to 2,500 won (hereinafter referred to as non-party tax base of this case)

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2, Eul evidence 14-15, Eul evidence 1-2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

At the request of the non-party company, the Plaintiff deposited the clothing purchase price into the corporate account or the borrowed name account of the non-party company, and received a tax invoice for all the purchase price.

In other words, the non-party company's transaction details stated in the tax invoice (No. 3-1-9) issued by the plaintiff in 2001 are all the transactions of the plaintiff and the non-party company, and the money deposited by the plaintiff to the borrowed account of the non-party company in 2001 (217,80,000 won) remains in excess of 203,936,382 won in the account ledger of the non-party company's account. However, the defendant issued the disposition of this case by considering that the non-party company did not receive the purchase tax invoice equivalent to the above borrowed account amount from the non-party company merely because the money deposited to the borrowed account was not entered in the account ledger of the account ledger of the credit sales. This is an illegal disposition that misleads the facts.

B. Determination

(1) In full view of Gap evidence 3-3, 5-9, Eul evidence 3-1, 2, Eul evidence 4, 5-2, Eul evidence 6-1, 2, Eul evidence 7-1, 16-3, Eul evidence 16-1, and 16-3, and the whole purport of the oral argument in part of the testimony of the witness Kim Yong-Nam, the whole purport of the oral argument is as follows: (i) Park ○ Fund and Kim Nam-Nam, the representative director of the non-party company of the non-party company and the vice president of the non-party company of the non-party company of 217,800,000 won (the amount deposited by the plaintiff in the second half of 201) deposited by the plaintiff in the name account of the non-party company of 217,800,000 won (the amount deposited by the plaintiff in the second half of 201).

(3) The account ledger of the account of the non-party company in 2001 stated that the sum of the credit sales to the plaintiff in the account book of the non-party company in 2001 is 458,525,50 won and the balance of the credit sales amount remains, and stated that the amount of the non-party company's money deposited into the account of the non-party company in 2005 is 157,343,766 won calculated on the basis of the non-party company's omission of sales.

(2) Generally, in a lawsuit seeking the revocation of a tax imposition disposition, the burden of proof as to the facts requiring taxation should be borne by the imposing authority. However, if it is revealed that the facts alleged in light of the empirical rule in the course of a specific lawsuit are proven, the other party cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that fails to meet the taxation requirements unless the other party proves that the facts at issue are not eligible for application of the empirical rule (see, e.g., Supreme Court Decision 2005Du5604, Nov. 15, 2007).

As seen in the above facts, the Plaintiff’s money deposited into Nonparty Company’s name account for 2001 is KRW 217,80,000, and the remaining account sales account amount to Nonparty Company’s Plaintiff in 2001 exceeded KRW 203,936,382. On the other hand, the Plaintiff did not clearly state the circumstances or details that exceed the account sales amount were paid to Nonparty Company, and it is the purpose of raising funds to receive money from the Plaintiff, etc. using the borrowed account. However, it is difficult to view that the Plaintiff did not submit the tax invoice as objective evidence of the transaction, and it is difficult to view that Nonparty Company was normally issued to Nonparty Company 1, such as the Plaintiff, without issuing the tax invoice, and that Nonparty Company 2 did not have any duty to submit the tax invoice to Nonparty 1, the amount of money deposited in the account book for 200,000, and the Plaintiff did not have any other duty to submit the tax invoice to Nonparty 1, the Plaintiff’s account book as an agent and the non-party 2’s account holder.

(3) Therefore, the Defendant’s disposition of imposition of this case is lawful by deeming the purchase amount of this case as non-data transaction. Therefore, the Plaintiff’s assertion 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.