Seoul Administrative Court-2015-Gu Partnership-12397 ( October 24, 2016)

A tax invoice prepared after the expiration of the taxable period shall constitute a false tax invoice, even if the date of preparation is retroactively prepared at the time of supply.

(As with the judgment of the first instance court), even if a tax invoice prepared after the expiration of the taxable period was prepared retroactively at the time of supply, since part of the requisite entry items under the main sentence of Article 39 (1) 2 of the Value-Added Tax Act is different from the fact, the input tax amount in this case shall not be deducted from the output tax amount.

Article 39 of the Value-Added Tax Act

2016Nu55317 Revocation of Disposition of Imposition of Value-Added Tax

Yellow AA

O Head of tax office

Seoul Administrative Court Decision 2015Guhap12397 decided June 24, 2016

October 20, 2016

November 17, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of value-added tax of KRW 2,088,532 (including additional tax) that the Defendant rendered to the Plaintiff on April 15, 2015 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as follows, except for the addition of the judgment on the plaintiff's argument at the appellate court to the following, and thus, it is consistent with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Judgment on the plaintiff's assertion of appeal

A. The plaintiff's assertion

Even in cases where the Plaintiff received a tax invoice after the lapse of the taxable period following the amendment of Article 75 subparagraph 3 of the Enforcement Decree of the Value-Added Tax Act, if the Plaintiff received the tax invoice only within the time limit for filing a final return of value-added tax for the taxable period of the transaction, it would be possible to obtain the input tax deduction. This is an anti-discrimination measure to correct the illegality of the previous provision, and Article 75 subparagraph 3

B. Determination

1) Article 75 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 26983, Feb. 17, 2016) provides that "cases prescribed by Presidential Decree" in the proviso to Article 39 (1) 2 of the Act refer to any of the following cases," and provides that "tax invoices issued after the time of supply for goods or services are supplied under subparagraph 3, which have been issued after the time of supply for the taxable period in which the relevant time of supply belongs, and

2) Article 75 Subparag. 3 of the Enforcement Decree of the Value-Added Tax Act provides that input tax shall be deducted only when a tax invoice is issued in the previous taxable period during which the goods or services are supplied. However, in order to reduce a taxpayer’s burden, even when a tax invoice is issued by the deadline for final return for the taxable period during which the time of supply falls. This can be deemed as a measure taken from policy consideration to reduce a taxpayer’s burden, and thus, Article 75 Subparag. 3 of the former Enforcement Decree cannot be deemed as unconstitutional. Therefore, the Plaintiff’s above assertion on a different premise is without merit.

3. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.