Seoul Administrative Court 2006Guhap38731 (O. 24, 2008)

Cho High Court Decision 2006Du0551 (Law No. 26, 2006)

Whether a processed tax invoice related to the transaction of gold bullion has been received

It is insufficient to recognize that gold bullion was shipped overseas for the purpose of refunding the value-added tax by abusing the zero tax rate system and the input tax deduction without the intention to export the gold bullion goods, and there is no other evidence to acknowledge it.

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

Article 17 (Payable Tax Amount)

Article 22 (Additional Tax)

1. The part of the judgment of the first instance against the plaintiff shall be revoked.

2. The Defendant’s imposition of value-added tax of KRW 1,783,219,050 for the second term of 2003 against the Plaintiff on October 4, 2005, value-added tax of KRW 1,965,621,440 for the first term of 2004, value-added tax of KRW 229,180,950 for the second term of 204, and each disposition of refusing to refund of KRW 1,148,718,50 for the second term of 204 is revoked.

3. The defendant's appeal is dismissed.

4. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The defendant's imposition of value-added tax for the second term of 203 against the plaintiff on October 4, 2005, of KRW 1,783,219,050 for the second term of 203, value-added tax for the first term of 2004, KRW 1,965,621,440 for the first term of 204, and KRW 229,180,950 for the second term of 204, and each disposition of refusing to refund KRW 1,148,718,550 for the second term of 204, and corporate tax for the second term of 203, KRW 287,140,730 for the business year of 204, KRW 50,83,30 for the corporate tax for the business year of 204, respectively, shall be revoked.

2. Purport of appeal

It is so ordered as per Disposition.

: Cancellation of the part of the judgment of the first instance, and the plaintiff's claim corresponding to the cancellation shall be dismissed.

1. Circumstances of the disposition;

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the following facts: Gap evidence 1 to 5, evidence 1 to 4-15, evidence 5-1 to 20, evidence 6-1 to 16, evidence 17-1 to 14, evidence 18 through 41, evidence 18-1 to 3, evidence 2-1 to 2-2, evidence 3, evidence 3-2 of evidence 35-2.

A. The Plaintiff is a corporation established on October 28, 2003 for the purpose of wholesale and retail business, precious metal export and import business, etc.

나. 원고는 별지 '국내매입ㆍ매출 관련 거래내역'과 '수출관련 거래내역' 기재와 같이 2003. 11. 6.부터 2004. 9. 16.까지 사이에 주식회사 ☆☆☆ 외 10개 매입처(이하 '이 사건 공급자'라고 한다)로부터 공급가액 합계 45,599,408,807원의 금지금(이하 '이 사건 금지금'이라고 한다) 매입에 관한 세금계산서(이하 '이 사건 세금계산서'라고 한다)를 교부받았고, 한편 위 기간 동안 이 사건 금지금을 홍콩 등 소재 외국회사에 수출하거나 ★★인터내셔날 주식회사 등 국내업체에 매도하였다.

C. The Plaintiff deducted the input tax amount from the output tax amount under the tax invoice of this case to the Defendant, and reported each of the taxes on the second period, the first period, and the second period, 2004, and 2004 to the Defendant. However, the head of the Seoul Regional Tax Office notified the Defendant that the tax invoice of this case and the tax invoice issued by the Plaintiff to each of the gold bullion sales offices, among the tax invoice of this case and the transaction details related to domestic purchase and sales, are different from the company's office.

D. According to the notification of the director of Seoul Regional Tax Office, the defendant did not recognize the deduction of the input tax amount for the tax invoice of this case, and imposed the additional tax under Article 22 of the Value-Added Tax Act with respect to the tax invoice of this case. With respect to the corporate tax, the additional tax for non-receiving evidence under Article 76 of the Corporate Tax Act was applied to the plaintiff on October 4, 2005, the amount of the 1,783,219,050, the 1,965,621,440, and the 229,180,950, the 2004, the 204, the 2004, the 204, the 2004, the 2209,148,718,50, the 2003, the 20530, the 2080, the 200530, the 2004, the 20038.

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

(1) The Plaintiff actually purchased gold bullion normally from the purchaser and subsequently exported the instant tax invoice or sold it to the domestic sales office. Moreover, even if the Plaintiff did not conspired with the importer, the domestic company, and the foreign exporter to unlawfully refund the value-added tax, and even if the Plaintiff involved in the distribution process of the domestic gold bullion, it was not known as the Plaintiff as well as the Plaintiff’s failure to know that the gold bullion was distributed for any way until the Plaintiff reached the immediately preceding purchase office. Accordingly, the disposition of imposition and refusal of refund of each value-added tax of the instant tax of the instant case, which was based on the false tax invoice or on the premise that the Plaintiff knew or could have known of the fact, was unlawful.

(2) As seen above, the Plaintiff’s purchase of gold bullion is a normal transaction, and thus, the instant tax invoice is a false tax invoice, and each of the instant tax disposition imposing penalty tax is unlawful on the premise that it is a false tax invoice.

(b) Related statutes;

It shall be as shown in the attached Form.

(c) Fact of recognition;

The following facts are together with the evidence adopted earlier, Eul evidence Nos. 4, Eul evidence No. 5-1 through 14, Eul evidence No. 6-1 through 4, Eul evidence No. 8-1, 2, Eul evidence No. 9, Eul evidence No. 10-1 through 6, Eul evidence No. 11-1 through 8, Eul evidence No. 25, Eul evidence No. 26, 27-1, 2, Eul evidence No. 28-1, 2, 3, Eul No. 29 through 32, Eul evidence No. 33, 34-1 through 9-2, Eul evidence No. 37-1 through 6, Eul evidence No. 38-4, Eul evidence No. 48-4, Eul evidence No. 5, Eul evidence No. 47, 4-1, 5-4, 5-1, 5-4, 5-4, 5-4, 5-4, and 5-1.

(1) From around December 2002 to December 31, 2004, the Special Tax Treatment Restriction Act was amended to abuse the value-added tax rate or tax exemption system between EMM and distribute gold bullion after importing it through various stages of zero-rate or tax exemption. The so-called wide-scale carbon company (an enterprise evading value-added tax by purchasing a prohibited gold with tax exemption and selling it with a tax exemption amount, and withdrawing and concealing the profit within a short period after selling it with a tax exemption, and then converting it into a taxation amount, and then exporting it to distribute it through a variety of stages of wholesalers, and the exporter did not pay value-added tax, and the exporter did not pay the value-added tax, and there was so-called wide-scale carbon business in the form of refund of the value-added tax that the exporter did not pay.

(2) The instant gold bullion purchased by the Plaintiff also was also traded as a tax-free gold if the importing company, such as the Geum-si Co., Ltd. imports the gold bullion subject to tax exemption from an overseas company, and converted it into a tax-free gold, and was exported through the Plaintiff or distributed through the Plaintiff at the middle stage of such import and export. Various transactions in the phase from the import to the export were conducted on the date of the import of the relevant gold bullion or within 2,000 days thereafter.

(3) 원고는 이 사건 금지금을 수출하는 경우, 호주의 Macq**** Bank에 수출한 일부는 국내 주식회사 ♥♥♥상사에 의뢰하여 22K나 18K의 반지, 목걸이 등으로 가공하여 수출하였고, 2004. 3. 17. 이후의 수출분은 금지금 상태 그대로 모두 홍콩에 있는 'Lucky Wise', 'Wing Fung', 'Multi Gold' 또는 'Grand Precious Metal Company'로 수출하였다.

(4) According to the statement of the transportation invoice, etc. in each of the gold bullion transactions in this case, there are cases where the pertinent companies are already stated as transported or have not been indicated as a way of transportation even before the gold bullion was imported and exported after the import declaration. Furthermore, the Plaintiff began to receive the export price in advance from the importer located in Hong Kong to transfer the gold bullion to the instant transaction entity in order after receiving the export price, and led to the previous stage wholesale business entity. The time required for the remittance of the price was made in a timely manner to the extent that it does not require several minutes for each stage, and there was a case where the settlement of the price was made earlier than the transportation of gold bullion.

(5) 한편, **금은, ●●스카이, ◎◎금은, ◇◇골드, ◆◆유 등 이 사건 금지금을 그 유통 중에 과세금으로 전환한 폭탄업체들은 모두 자신들이 매입한 금지금을 매입가액보다 낮은 공급가액(다만 여기에 부가가치세액을 더한 액수, 즉 공급대가는 매입가액 보다 높다)에 매출한 후 임의로 휴업 또는 폐업함으로써 부가가치세 납부의무를 이행 하지 않았고 관련자들은 모두 잠적하였다.

(6) The export price of the gold bullion of this case was lower than the import price, and was considerably low compared with the domestic market price (the wholesale price of the gold bullion publicly announced daily by Samsung, a wholesale company of major gold bullion, via the Internet or automatic response telephone) and international market price.

D. Determination

(1) Article 1(1)1 of the Value-Added Tax Act provides for "the supply of goods as taxable subject to value-added tax", and Article 6(1) provides that "the supply of goods shall be a delivery or transfer of goods on all contractual or legal grounds." In light of the characteristics of value-added tax as multi-stage transaction tax, delivery or transfer under Article 6(1) of the Value-Added Tax Act includes all act of causing transfer of authority to use or consume goods, regardless of the existence of profit gained (see, e.g., Supreme Court Decisions 85Nu286, Sept. 24, 1985; 9Du9247, Mar. 13, 2001; 99Du9247, Sept. 24, 2001; 2009Du9247, Sept. 24, 2001). The issue of whether a specific transaction among a series of transactions constitutes the supply of goods under the Value-Added Tax Act, including the purpose and attitude of each transaction, and the delivery of goods, 2.

In light of the above legal principles, as seen earlier, gold bullion was actually distributed from the importer to the exporter, and the Plaintiff purchased the gold bullion from the supplier of this case from November 6, 2003 to September 16, 2004, and received it on the date of purchase, and then received the tax invoice from the supplier of this case (hereinafter referred to as "the transaction of this case"), respectively, and received the tax invoice for this case from the supplier of this case. The tax invoice for this case was issued Macq*** * * all a series of transactions between the import and export of the gold bullion, and all transactions until the import of the gold bullion were made within a short period of time, and if it is difficult to readily conclude that the gold bullion was actually supplied to the supplier of this case, who purchased the gold bullion at the intermediate stage, and prepared and supplied the gold bullion as value-added tax invoice and paid the amount equivalent to the value-added tax, or that it is difficult to conclude that the gold bullion was actually supplied under the pretext of the transaction of this case.

The defendant argues that the plaintiff's taking the gold bullion of this case out to a foreign country is merely a formal disguised export for the purpose of acquiring the national tax class through the method of converting the tax-free gold bullion into the taxation amount by abusing the zero tax rate system and the input tax deduction for the exporters rather than normal goods export, and merely using the wide carbon industry for the purpose of acquiring the tax-free gold bullion through the method of converting the tax-free gold bullion into the taxation amount. However, the defendant's submission of the evidence alone is insufficient to recognize that the plaintiff carried the gold bullion of this case out to a foreign country only for the purpose of refunding the value-added tax by abusing the zero rate system and the input tax deduction without the intention to export the goods normally, and there is no other evidence to support this,

(2) In addition to the portion of the additional tax resulting from the documentary evidence of corporation

Meanwhile, according to Articles 76(5) and 116(2)2 of the Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006), "the chief of the district tax office having jurisdiction over the place of tax payment shall collect an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount to the corporate tax in case a corporation is supplied with goods by an entrepreneur in connection with its business and fails to receive a tax invoice under Article 16 of the Value-Added Tax Act," and Article 16(1) of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006; hereinafter the same) provides that "where an entrepreneur registered as a taxpayer supplies goods, a tax invoice stating the registration number, name or title of the supplier, the registration number of the recipient, the value of supply, value-added tax, etc. shall be delivered to the person who receives the supply."

However, as seen earlier, so long as the instant transaction cannot be readily concluded that it is not a supply of goods subject to value-added tax, the instant tax invoice received accordingly shall not be readily concluded that the instant tax invoice is not an irregular tax invoice under Article 16 of the former Value-Added Tax Act.

E. Sub-committee

Therefore, the disposition of this case, which did not deduct input tax amount on the premise that the tax invoice of this case falls under the "unlawful tax invoice prepared differently from the actual one," or which applied the provision of penalty tax not received as evidence, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted for all reasons. Since the judgment of the court of first instance is unfair for different conclusions, it accepted the plaintiff's appeal and revoked the part against the plaintiff in the judgment of the court of first instance, and the defendant's appeal of this case against the plaintiff on October 4, 2005 is revoked, and it is so decided as per Disposition by the defendant on October 4, 2005 that the value-added tax for the second period of No. 1,783,219,050, value-added tax for the second period of No. 2003 against the plaintiff on October 4, 2005, value-added tax for the first period of No. 1,965,621,40, value-added tax for the second period of No. 2004, value-added tax for the second period of No. 229,180,950, value-added tax for the second period of 204