Cho High Court Decision 2010Du3288 ( December 31, 2010)

Since it fails to present evidence of disguised and fictitious purchase, non-deduction of input tax amount is illegal.

In the case where the plaintiff's purchase price was accused of the data, the prosecutor's office made a decision without suspicion, and the tax office received the automobile parts from another fixed transaction office, and the tax invoice is deemed to have received the automobile parts from the data and deducted the input tax amount. However, since the tax office did not submit any evidence corresponding thereto, the disposition not to deduct the input tax

Article 17 (Payable Tax Amount)

2011Revocation of revocation of the imposition of value-added tax

XXUnUnemploymented Company

Director of the District Office

August 12, 2011

September 30, 2011

1. The Defendant’s disposition of imposing value-added tax of KRW 6,305,330 on the Plaintiff on July 1, 2010 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff received a purchase tax invoice of KRW 40,011,900 (hereinafter “instant tax invoice”) from 'Saridong 200, which is a corporation operating a taxi transport business in Gangseo-gu Seoul Metropolitan Government, in the 2006-year period of value-added tax, from 'Sari, retail business for automobile goods retail business', and deducted the value of supply from its input tax amount under the Value-Added Tax Act, and filed each return on value-added tax and corporate tax by including

B. On July 6, 2010, the Defendant deemed the instant tax invoice as a processing tax invoice received without real transaction and deducted the relevant input tax amount, and denied the inclusion of the said supply value in deductible expenses, and notified the Plaintiff on July 6, 2010 of value-added tax 6,305,330, and corporate tax 24,069,180 for the business year 2006.

C. On October 4, 2010, the Plaintiff appealed and filed an appeal with the Tax Tribunal. On December 31, 2010, the Tax Tribunal revoked the disposition imposing corporate tax by deeming the supply value as a disguised tax invoice based on the fact that the instant tax invoice was supplied by a third company, other than the “Seoul Special Metropolitan City Mayor Company”, as a real transaction, as a disguised tax invoice, to include the total amount of supply value in deductible expenses under the Corporate Tax Act; however, the disposition of non-deduction for the relevant input tax amount as it is maintained, and dismissed a claim for the

Facts without dispute over the basis of recognition, Gap's evidence 1 (including provisional number; hereinafter the same shall apply), 2, Eul's evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the characteristics of the type of business, the Plaintiff took the form of a transaction in cash in the automobile parts transaction office, such as the Do governor company, etc., in receipt of daily transportation income from taxi articles, and thus, the instant tax invoice cannot be deemed a tax invoice for a transaction without real transactions, and the instant tax invoice cannot be deemed a disguised tax invoice in that the Plaintiff purchased the automobile parts from another transaction party while there is no particular reason to receive the tax invoice from the Do governor company. Therefore, the instant disposition was unlawful

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On August 2009, the Defendant: (a) conducted the data-based investigation on the “Seoul Metropolitan City Mayor in order to issue the instant tax invoice to the Plaintiff; and (b) on the grounds that there is no evidentiary document that the customer paid the price of the goods to the company company company company company company company company company company company company company company company company of △△△△ in 2006, the Defendant considered the purchase amount of 334,380,000 won, which is 97% of the total purchase amount of 2006, on the ground that the transaction is denied or other evidentiary document is contradictory to each other.

2) Examining the current status of transactions of the Plaintiff’s second term automobile parts in 2006 are as follows.

According to ○ List 9, the Plaintiff stated that from July 4, 2006 to September 27, 2006, the Plaintiff purchased automobile parts, such as learning, flusing, etc., from his company in the Doctrine of Doctrine from July 4, 2006.

○ The Plaintiff received each of the instant tax invoices of KRW 12,895,00 on July 31, 2006 from 12,895,000, the supply price of KRW 14,460,000 on August 31, 2006, and KRW 12,65,000 on September 30, 2006, respectively, and there is a corresponding deposit sheet.

Three copies and three copies of an expenditure statement stating the procedures for internal goods and the fact of cash withdrawal from the cash expenditure for the purchase of automobile parts exist in the Plaintiff, and the said materials are consistent with the contents of the instant tax invoice.

○○ The Plaintiff’s cash receipt and disbursement statement, and the monthly automobile parts purchase statement from July to September 2006 by the president of the account in 2006, and the details of the instant tax invoice are consistent.

In comparison with the size of parts cost of the Plaintiff in 2004 and 2005 and the size of the transaction in this case from July to September 2006, the following table is as follows.

[The following table omitted]

3) On October 3, 2009, the Daegu District Prosecutors' Office rendered a decision of non-guilty suspicion against the portion related to the DW trade, which is related to the Doksan, which is another company operated by the Dok-gu Seoul Special Metropolitan City Mayor. However, on October 26, 2008, the Dok-dong Office of the Daegu District Prosecutors' Office rendered a decision of non-guilty suspicion against Dok-gu District Prosecutors' Office on November 26, 2008.

[Ground of recognition] Unsatisfy, entry of evidence Nos. 2, 3, 5, and 6, the purport of the whole pleadings

D. Determination

1) The burden of proving that the tax invoice is false, in principle, to the defendant who is the tax authority. As such, the defendant must prove that the tax invoice is not accompanied by real transactions on the basis of direct evidence or all the circumstances. However, in the case where the defendant proves considerable degree of proof as to this point to the extent that he reasonably acceptable, it is necessary to prove that the tax invoice is not false and that it is easy to present evidence and materials related to the plaintiff, who is the taxpayer disputing the illegality of the defendant's disposition, as the plaintiff, who is the taxpayer, should be able to present evidence and materials (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

2) In full view of the following circumstances acknowledged by the aforementioned evidence and the purport of the entire argument, it is difficult to view that the Defendant had proved that it was a process received without a real transaction, solely on the ground that it was impossible to verify the financial transaction details consistent with each of the instant tax invoices by the Plaintiff, and there is no other evidence to acknowledge it otherwise.

In accordance with the instant tax invoice, such as deposit slips, disbursement notes, and withdrawal money slips, which are internal data of the Plaintiff corporation, the monthly transaction records of the automobile parts by the head of the account of the Plaintiff corporation and the monthly transaction records of the Plaintiff corporation cannot be found to be different from the instant tax invoice.

While the purchase amount of the parts during the transaction period of the Plaintiff did not significantly differ from the purchase amount of parts in 2004 and 2005, the purchase amount during the transaction period of the instant case is merely 18% or 38% of the purchase amount of motive portion in 2004 and 2005.

In the case where the director of the tax office of the Daegu District Public Prosecutor's Office files an accusation against ICC, etc. in relation to the data, the competent public prosecutor's office has issued a summary order against some of the suspicions of Pacific Public Prosecutor's Office (The inside branch of the Daegu District Public Prosecutor's Office has issued a summary order against Pacific's

○ The Tax Tribunal dismissed an appeal on the value-added tax portion by deeming that the Plaintiff was actually supplied with the automobile parts from HD Motors, GS Commercials, etc., the fixed purchasing entity, and that the Plaintiff was actually supplied with the automobile parts. However, the Defendant did not submit any evidence consistent with this part.

3) Sub-decisions

Therefore, insofar as it is difficult to readily conclude that the instant tax invoice was received through a process without a real transaction, the instant disposition is unlawful as it misleads the fact.

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted on the ground of the reasons.