beta
Title
Whether it is a zero-rate sale under a false purchase approval (gold)
Summary
Value-added tax shall be levied after excluding the application of the zero tax rate under a local letter of credit or letter of approval for purchase where there is any defect in the sales of the zero tax rate;
Related statutes
Tax amount paid under Article 17 of the Value-Added Tax Act
Text
1. As to the Plaintiff:
A. The portion exceeding 427,868,873 won of the disposition of imposition of value-added tax for the first term of 1999 on June 11, 2004, in excess of 427,868,873 won;
(b) Disposition of imposition of value-added tax of 306,606,680 won for the second period of December 1, 1999 on December 1, 2004
over KRW 2,064,972;
C. Each disposition of imposition of value-added tax for the first term of 2000 on July 1, 2005 and value-added tax for the second term of 2,135,803,790 on July 1, 200 shall be revoked.
2. The plaintiff's remaining claims are dismissed.
3. 5% of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.
Cheong-gu Office
The Defendant’s disposition of imposition of value-added tax of KRW 5,50,137,770 on June 11, 2004 exceeds KRW 13,84,472 on the imposition of KRW 13,84,470 on the first quarter of 1999, the part exceeding KRW 2,064,972 in the imposition of KRW 306,60,680 on the second quarter of December 1, 2004, exceeding KRW 2,064,972 in the imposition of KRW 306,68,543,430 on the first quarter of 200, and KRW 2,135,803,790 on the second quarter of 200, respectively, shall be revoked.
Reasons
1. Details of the disposition;
A. As between January 1, 199 and December 31, 2000, the Plaintiff, a corporation engaged in a general trade or current wholesale business, supplied (hereinafter referred to as “each of the instant transactions”) to the trading companies, including Co., Ltd. (hereinafter referred to as “each of the instant trading companies”), as indicated in the following table, and offered the land (hereinafter referred to as “each of the instant trading”), and the letter of approval for purchase of raw materials and the local letter of credit (hereinafter referred to as “each of the instant purchase approval, etc.”) issued by each of the said trading companies from a foreign exchange bank, the Plaintiff failed to collect the amount of value-added tax from each of the said trading companies, on the ground that each of the instant transactions constitutes a transaction to which zero-rate tax under the Value-Added Tax Act applies. The value-added tax corresponding to each of the instant trading was not reported and paid.
Taxation Period
Firm
Amount of transaction ( won)
zero-rate Document
For the first time, 199
OFIE
35,089,000,000
Purchase Approval
O precious metal
409,000,000
Purchase Approval
O-trade,
2,493,000,000
Purchase Approval
ju iceO
3,194,803,096
Purchase Approval
OENALNON
22,000,000
Purchase Approval
For the second time, 199
OFIE
2,224,00,000
Purchase Approval
ΔΔ
25,000,000
Purchase Approval
Doz.
92,000,000
Purchase Approval
1. 1. 1.200
△§§ 50
11,685,004,000
Local letter of credit
OO Rouritius
65,358,614,000
Local letter of credit
same as the same case
92,979,000
Purchase Approval
OMM
589,151,000
Purchase Approval
B. The Defendant: (a) imposed a disposition of imposition on the Plaintiff on June 11, 2004 by denying the application of zero percent tax rate under the Value-Added Tax Act on the supply price of each of the instant transactions on the following grounds: (b) the Plaintiff did not export the sales price of the instant transaction to the entity that it purchased from the Plaintiff; and (c) each of the instant purchase approvals, etc. presented to the Plaintiff was issued on the basis of an export contract or issued on the basis of a false shipment date, or after the expiry of the effective date or effective date; and (d) the Plaintiff was well aware of such circumstances; (b) on the grounds that the Plaintiff denied the application of zero percent tax rate under the Value-Added Tax Act on the supply price of each of the instant transactions; (c) the imposition disposition of five thousand five hundred,137,770 (including additional tax on the failure of tax invoices,84,472 won); and (d) three hundred, thirty6,606,680 won (including the zero value-added tax on December 199, 19999.
C. The Plaintiff filed an objection on September 27, 2005 with respect to the imposition of each of the dispositions on July 1, 2005, but was dismissed. The Plaintiff dismissed each of the above dispositions on September 28, 2006 by the Director of the National Tax Tribunal, on September 9, 2004, on the imposition disposition on June 11, 2004, on the imposition disposition on February 24, 2005, on the imposition disposition on December 1, 2004, and on the imposition disposition on July 1, 2005 on March 24, 2006, but the Director of the National Tax Tribunal dismissed each of the above appeals on June 14, 2006 and June 28, 2006.
(In fact that there is no dispute, Gap evidence 1 to 4, Gap evidence 1 to 1, Eul evidence 1 to 10, Eul evidence 2, and Eul evidence 10 to 2, Eul evidence 1 to 4
2. Whether the instant disposition is lawful
A. The parties' assertion
(1) The plaintiff's assertion
As long as each purchase approval, etc. of this case has been issued lawfully by the head of a foreign exchange bank, the requirements for applying zero-rate tax rate are met only by itself, and the existence of any defect in the documents required for the procedures for issuing the purchase approval, etc. or whether the goods have been actually exported at the present time shall not be related to the requirements for applying zero-rate tax rate, barring special circumstances that the plaintiff knew that there were any defect in the procedures for issuing each purchase approval, etc. of this case at the time of each transaction of this case, each purchase approval, etc. of this case shall be deemed lawful and that
(2) The defendant's assertion
In light of the position of the Plaintiff in the domestic transaction market, the fact that the illegal distribution process of domestic transactions is widely known, and other transaction situation between the Plaintiff and each of the instant transaction enterprises, the Plaintiff is legitimate to exclude the application of zero-rate tax rate on each of the instant transactions, since the Plaintiff knew that each of the instant transactions is not exported abroad but distributed domestically.
(b) Related statutes;
(c) Fact of recognition;
(1) The Plaintiff was an enterprise with at least 40% of domestic gold transactions, and had almost little of the Rocal exports on the domestic wholesale market prior to the 1999. However, from around March 199 to around July 2009, the Plaintiff purchased the present goods from a foreign country or from a domestic wholesaler and sold them again to a domestic company with raw materials for export, and subsequently exported them thereafter, made a performance of USD 200 million for about five months from that time to the end of July of the same year.
(2) The Plaintiff, daily, announced 9% of the international gold price as the purchase price, made gold transactions with the trading partner in response to the publicly notified price by publicly announcing 101% as the sale price. Meanwhile, in order to avoid the risk of price fluctuation arising from the rapid change of the international gold price, the Plaintiff secured the sales office in advance and made purchases with a view to preventing the distribution of gold inventories and securing a certain margin, and promptly distributing them as possible. Accordingly, the Plaintiff’s daily gold trading volume was enormous and actually caused purchase and sales within a short time by telephone and facsimile.
(3) As a result of the special investigation of the OO of the regional tax office, each of the instant purchase approvals, etc. received by the Plaintiff at the time of each of the instant transactions, were issued by the foreign exchange president (excluding four copies of purchase approvals issued by △O to the Plaintiff, as seen earlier) within the taxable period to which the goods were supplied, but each of the above purchase approvals, etc. had the following defects. In particular, among each of the above purchase approvals, four copies of purchase approvals issued by △OO to the Plaintiff during the first taxable period of 1999 (6,7,10,31 of the evidence No. 19-6,00) were omitted from the signature or seal of the foreign exchange president, and the above purchase approvals, etc. issued by the Plaintiff at the time of each of the instant transactions (this is consistent with the total transaction amount of △O in the taxable period of 199 among the instant transactions, which were sold by the Plaintiff to each of the instant intermediate sale of the Plaintiff to the Plaintiff.
Taxation Period
Firm
Details of defects in supporting documents
For the first time, 199
OFIE
(1) The date of sale, effective date, and loading date shall be the same as or the following day from the date of issuance.
(2) Issuance after the expiry of the effective date.
(3) No underlying documents for exportation are available.
(4) Date of issuance, effective date and non-entry in loading date.
O precious metal
None of the underlying documents for export
O Trade
(1) No underlying documents for exportation are available.
(2) Non-entry on the valid date.
(3) Issuance after the expiration of the effective date.
ju iceO
(1) No underlying documents for exportation are available.
(2) The same date as the date of sale, effective date, and date of loading as the date of issuance.
(3) Omission of signing or sealing by the president of a foreign exchange.
ΔΔ쥬얼리
(1) Issuance after the expiration of the effective date.
(2) The month of issuance and sales of applicable documents for export;
For the second time, 199
OFIE
(1) No underlying documents for exportation are available.
(2) The effective date and non-entry of the loading date.
ΔΔ
(1) No underlying documents for exportation are available.
(2) The effective date and non-entry of the loading date.
Doz.
(1) No underlying documents for exportation are available.
(2) The same date as the date of sale, effective date, and date of loading as the date of issuance.
200.1 and 10
2 Initials
△§§ 50
The date of sale, the effective date, and the date of issuance of the shipment;
OO Rouritius
False Export Contracts
same as the same case
(1) No underlying documents for exportation are available.
(2) The date of issuance of the first purchase approval shall be later than the date of issuance of the second purchase approval.
OMM
None of the underlying documents for export
(4) Meanwhile, on May 7, 199, the Plaintiff prepared a false export contract on June 8, 199 and June 29 of the same year and illegally received a letter of approval for purchase of raw materials for foreign exchange earnings from OO Bank Commission, and purchased the payment from the same duds and O precious metal.
Each entry of evidence A3-1, 2, 4, 16, 17, 16, 19-1 through 56, 20-1 through 80 of evidence A3-2, and the purport of the whole pleadings.
D. Determination
(1) The validity of the purchase approval
According to Article 24(2)1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17460 of Dec. 31, 2001), Article 9(2) of the former Enforcement Rule of the Value-Added Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 193 of Apr. 3, 2001), and Article 9(1) of the former Regulations on External Trade (amended by Ordinance of the Ministry of Commerce, Industry and Energy No. 2001-71 of Jun. 26, 2001), a written purchase approval is sufficient when the head of a foreign exchange bank issues a document confirming whether an applicant purchases goods on the grounds of an export letter of credit, export contract, foreign currency purchase certificate, local letter of credit, etc., and it is not sufficient that the head of a foreign exchange bank issues a document within the taxable period to verify whether the goods
Therefore, in order to be subject to zero tax rate under the Value-Added Tax Act, it shall be a transaction by a purchase approval issued by the president of foreign exchange within the taxable period to which the goods are supplied.
(2) In full view of the facts of recognition and relevant laws and regulations as to transaction difficulties under Chapter 4 of the purchase approval issued by juiceO, the four copies of the purchase approval issued by juiceOO to the Plaintiff in the first taxable period of January 1999 are the transactions conducted by the purchase approval issued by the head of the foreign exchange bank and the Plaintiff for the total amount of KRW 3,184,803,096, which is the sum of KRW 3,184,803,096, in accordance with the invalid purchase approval. Thus, the part denying the application of zero tax rate of KRW 3,184,803,096, among the disposition imposing the value-added tax of January 1, 199, is legitimate.
(3) Determination as to the transaction under the remaining purchase approval, etc.
(A) The issue of whether the goods are actually exported to be subject to zero-rate tax rate under the Value-Added Tax Act shall not affect the application of zero-rate tax rate to the supplier at present. The fact that there are defects such as either an export contract issued based on the export contract or a false shipment date or an issuance issued after the expiry of the effective date or the effective date of the purchase approval does not necessarily mean that the purchase approval issued by the head of a foreign exchange bank cannot be deemed as null and void a year. Unless there are special circumstances, such as that the supplier of the goods knows the defect in the issuance of the purchase approval, the supply of the goods made by the purchase approval can not be immediately excluded from zero-rate tax rate under the Value-Added Tax Act, and such special circumstances must prove that the Defendant bears the burden of proving the legality of the tax imposition disposition and the existence of the taxation requirements (see, e.g., Supreme Court Decisions 2005Du13735, Jan. 26, 2006; 200Du91020, Aug. 304).
As seen above, each purchase approval, etc. of this case (hereinafter referred to as "the remaining purchase approval, etc. of this case") of this case except for Chapter 4 of the purchase approval, issued by juiceO to the Plaintiff in the first taxable period of January 1999, is recognized as having the same defects as the export approval, or it is issued on the basis of a false export contract, or the remaining purchase approval, etc. was issued after the expiry of the effective date or the effective date or the effective date of shipment, which is necessary matters to be stated. However, if the remaining purchase approval, etc. were issued by the head of foreign exchange bank within the taxable period to which the goods are supplied, the remaining purchase approval, etc. cannot be deemed as null and void a year. Accordingly, in order to avoid applying zero tax rate to the remaining purchase approval, etc. of this case, the defendant must prove the special circumstances that the plaintiff was aware that there was a conspiracy to evade value-added tax with each of the trade of this case or a defect in issuing the remaining purchase approval, etc.
(B) Even if the Plaintiff conspired to evade value-added tax with each of the instant trading entities, or even if so, it was aware of the defect in each of the instant purchase approvals, the Defendant cited the following circumstances as follows: (i) the Plaintiff purchased the pertinent business entities at zero tax rate for export, and then illegally distributed them in Korea using false purchase approvals, etc.; (ii) the Plaintiff was aware of the possibility that domestic wholesalers were not able to file a return of value-added tax for the purpose of enhancing the export performance at the beginning of the first 199; and (iii) the Plaintiff purchased the goods at zero tax rate for the purpose of export; and (iv) the Plaintiff purchased the goods at zero tax rate for the purpose of exporting at the beginning of the first 199 at the time of the first 5-year export performance at the time of the purchase; and (v) the Plaintiff was not able to file a return of value-added tax at the time of the purchase; and (v) the Plaintiff purchased each of the instant goods at the time of 195-year export performance from each of the instant trading entities at the latest 195-year export performance.
However, it is insufficient to acknowledge that the Plaintiff knew that there is a defect in the issuance of the purchase authorization of this case with each of the following items: (i) although the purpose of the purchase authorization system is to review basic documents, such as export contract, and to issue the purchase authorization, it is difficult to find that there is a difference between the Plaintiff’s sales price and the actual sales price for each of the following items: (ii) it is difficult to find that there is no possibility for the Plaintiff to request that the Plaintiff engage in the purchase approval of this case without considering the fact that there is a significant difference between the Plaintiff’s sales price and the domestic sales price for the purpose of the purchase approval of this case, and (iii) it is difficult to find that there is a difference between the Plaintiff’s sales price and the domestic sales price for the purpose of the purchase approval and the domestic sales approval, because it is difficult for the Plaintiff to directly review the export approval of this case or to verify whether the goods were exported at the market price for the purpose of the purchase approval of this case.
E. The legitimate tax amount is against KRW 3,184,803,096, which is the aggregate of the transaction amounts under Chapter IV of the purchase approval letter that is invalid due to the omission of the signature or seal of the president of foreign exchange in the imposition of value-added tax for the first period of January 1999. The application of zero-rate tax under the Value-Added Tax Act is denied for the remaining transaction, and when the value-added tax is calculated for the first period of January 1, 1999 by applying zero-rate tax rate, 427,868,873 (the plaintiff is a partial withdrawal of the lawsuit as of October 8, 2007, which exceeds 5,500,137,700, 770, and 13,84,472, and 294, 206, 206, 2976, 207, 2096, 306, 297, 2096, 2006, 2096, 194.
3. Conclusion
Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.