A disposition that deducts input tax amount by deeming it as a false tax invoice (a prohibited amount)

Since the instant transaction is merely a nominal transaction and cannot be deemed to have been transferred the actual ownership, the issue is that the tax invoice is prepared without a real transaction or is prepared differently from the actual transaction by at least the supplier, and constitutes a “tax invoice different from the actual transaction.”

Tax amount paid under Article 17 of the Value-Added Tax Act

1. All of the plaintiff's claims are dismissed.

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

The Defendant’s imposition of KRW 22,051,640 on August 1, 2005, value-added tax of KRW 1,216,353,120 on KRW 1,204, and KRW 134,244,70 on KRW 130 on KRW 2,204, and KRW 572,760,30 on KRW 2,000 on KRW 2,000 on KRW 2,00, and KRW 300,151,620 on corporate tax for business year 203 and KRW 300,620 on corporate tax for business year 204.

1. Details of the disposition;

가. 원고는 2003.12.15 서울 ∇∇구 ∇∇동 264-33을 본점 소재지로 하여 금지금(金地金)의 도매 및 수출업 등을 목적으로 설립된 법인이다.

나. 원고는 별지 '이 사건 각 세금계산서 수취내역' 기재와 같이 2003.12.22부터 2004.9.17 까지 사이에 주식회사 ▲▲▲▲ 등 10개의 거래업체(이하 '이 사건 각 거래금액'라 한다)로부터 공급가액 합계 15,171,857,690원의 금지금 매입에 관한 세금계산서(이하 '이 사건 각 세금계산서'라 한다)를 수취한 후 이 사건 각 세금계산서에 관한 매입세액을 매출세액에서 공제하여 피고에게 2003년 2기분, 2004년 1기분 및 2004년 2기분 각 부가가치세를 신고하였다.

C. The director of the Seoul Regional Tax Office decided that each of the tax invoices of this case was false tax invoices, and notified the defendant thereof, upon conducting a tax investigation against the plaintiff.

D. The defendant, upon the notification of the director of the Seoul Regional Tax Office, failed to deduct the input tax amount on each tax invoice, and applied the non-taxation tax amount under the Corporate Tax Act to the plaintiff on August 1, 2005 on the ground that he received false tax invoices. The defendant imposed 2,051,640 won of value-added tax for 2,003, value-added tax for 1,216,353,120 won of value-added tax for 1,204, value-added tax for 2,204, and 134,24,700 won of value-added tax for 2,204, and refused to refund the amount of value-added tax for 572,760,300 won of value-added tax for 2,204, as non-taxation additional tax for 203, 308,000,151,200 won of corporate tax for 204, and each of the above dispositions and dispositions (hereinafter referred to as the above disposition of taxation).

E. The plaintiff filed a request for adjudgment with the Director of the National Tax Tribunal on November 22, 2005, but the Director of the National Tax Tribunal dismissed the request for adjudgment on December 12, 2006.

In the absence of dispute (in the absence of dispute, grounds for recognition), entry in the evidence 1 to 2, the evidence 1 to 1-2, the evidence 1 to 3-1, the evidence 1 to 2-2, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff, in fact, received each of the instant tax invoices from each of the instant traders, and subsequently exported them to a foreign country or sold them to a domestic trader. In addition, the Plaintiff did not conspired with the importing company, domestic company, and the foreign exporter, etc. to unlawfully refund the value-added tax. Even if the Plaintiff participated in the process of distributing the instant gold bullion, the Plaintiff was not aware of such a bomb as well as the Plaintiff’s failure to know, and the Plaintiff’s refusal to pay each of the instant tax invoices on the premise that each of the instant tax invoices was false or that the Plaintiff knew or could have known, was unlawful.

(2) As seen above, since the purchase of the gold bullion of this case is a normal transaction, each of the tax invoices of this case imposing an additional tax on lack of evidence on the premise that each of the tax invoices of this case is a false tax invoice is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) A general form of variable transaction for the purpose of tax evasion in the transaction of gold bullion

(A) Where the supply of exported goods is subject to zero tax rates, and export-related documents are purchased gold bullion from another wholesaler based on a purchase approval certificate (purchase certificate) with the foreign exchange bank, the zero-rate tax rate is applied to the input tax amount (Article 11(1)1 of the Value-Added Tax Act). Meanwhile, with respect to the trade of gold bullion, at least 995/1,000 at the present moment, the gold bullion and gold bullion business operators are supplied to gold craftsmen who are recommended by the tax-free gold business operators, and gold bullion business operators are exempted from the value-added tax for the trade of gold bullion imported by the tax-free gold importer upon the tax-free import recommendation from the tax-free gold importer (Article 106-3 of the former Restriction of Special Taxation Act (amended by Act No. 7577, Jul. 13, 2005).

If gold bullion is purchased as raw materials for export under the Value-Added Tax Act or the former Restriction of Special Taxation Act, the case holding that the value-added tax shall be levied upon the transactional portion from July 1, 2003 to June 30, 2005, by abusing the fact that the exemption rate of the value-added tax shall apply to the transactional portion of the value-added tax even if the zero-rate tax is applied and not exported, and then the transaction or export of gold bullion was conducted through a disguised or disguised wholesale process after importing gold bullion for the purpose of unfair refund of the value-added tax

(B) The appearance of gold bullion is distributed through the stages of 'foreign companies', 'import companies' ? ? 1 (s) ? 2(s) ? Maximum coal companies ? ? ? floor wholesale companies ? export companies ? foreign companies', and the transaction price is paid in sequence from the export company to the import company in the reverse direction. However, among the above distribution companies, it is limited to the issuance of tax invoices from the large coal companies to the floor wholesale companies, and there are many cases where gold bullion companies do not actually trade or transport gold bullion at the specific company's order.

(C) After purchasing gold bullion that has been distributed at the zero-rate tax rate at the previous stage, and selling it to the Do government company as an additional tax amount equivalent to 10% of the value-added tax, the Do government is unable to collect the value-added tax by withdrawing the profit within the short period in cash and closing the business. The amount equivalent to the value-added tax that the Do government received from the Do government company is successively transferred by each company after deducting the input tax through the tax invoice that the Do government received from the immediately preceding stage company. In the end, the exporter exports gold bullion and then then is entitled to refund from the State through applying zero-rate tax rate. Accordingly, the portion equivalent to the value-added tax refunded at the above value-added tax rate is the ultimate source of the profit accrued from the Do government's business. The above profit is distributed to the domestic company involved in the Do government's business in each stage of the transaction, or if it is separately paid to the Do government's profit (the remaining amount after deducting the purchase price from the import price), the difference between the export price and the Do government's.

(D) In order to maximize its profit, a wide amount of gold bullion can be distributed to the greatest extent within a normal short period. In order to prevent disputes, loss of price, etc. among the participating companies that may arise therefrom, most of the same states (referring to those who prepare for the import and settlement of gold bullion first from the outside of the large carbon business network) operate simultaneously with the exporting company and the importing company. (2) The former State places a firm substantially controlled or trusted by it to directly trade with the large carbon company, and (3) the former State actually determines the volume, unit price, and margin of the transaction at each stage of transaction, and (4) the series of transactions from the importing company to the exporting company are made at a very short time, and (5) the gold bullion is transported immediately with the exporting company by building up the trading stage (it is nothing more than a formal transport that is a normal transaction even if it is transported every stage of transaction).

(2) In the case of each of the instant tax invoices:

(가) 원고회사의 실질적 대표자인 ◎◎◎은 1968년생으로 1994.1에 미국 GIA(국제보석감정학원)를 수료하고 귀국하여 1997.9.29부터 2002.6.30 까지 ∇∇홈쇼핑에서 보석팀 MD로 근무하면서 5년간 귀금속업체 상담 및 상품개발, 거래처 개설 등의 업무를 담당하다가 경쟁사인 협력업체들의 요청에 따라 ●●홈쇼핑에서 금지금을 매입하여 협력업체에 우선 공급하고 협력업체의 판매상품금액으로 대체 결제하는 업무를 하다가 2003.12.15 그의 처인 □□□을 대표이사로 하여 원고회사를 설립하였다.

(B) The gold bullions in each tax invoice were all imported from a foreign country and distributed as tax-free gold by the importing company, and were converted from the importing company to the Plaintiff, and all stages of transactions were made within 6-7 days from the date of the import of the gold bullion, or within 2,3 days from the date of the import of the gold bullion.

"(다) 원고는 이 사건 거래를 통하여 공급받는 금지금(이하 '이 사건 금지금'이라 한다)을 수출하는 경우, 금지금인 상태 그대로 모두 홍콩에 있는 '▩▩▩

◇◇◇' 또는 '□□□'로 수출하였다고 하는데, 서울지방국세청의 조사결과 위 '▩▩▩' 및 '□□□'는 모두 '○○○' 이라는 자가 실제로 운영하고 있는 회사로서 사실상 동일업체이고, 이 사건 금지금의 국내 수입업체인 주식회사 ∇∇ Ltd 및 ●●에 금지금을 수출한 홍콩 소재 '∇∇∇∇∇의 실제 운영자 역시 '○○○'으로 밝혀졌는데, 이들 업체는 수출입 관련 서류 및 거래대금 등에 관한 장부를 제시하지 못하고 있고, 사업장이 불분명한 등 정상적인 사업체가 아닌 것으로 확인되었다.",(라) 이 사건 각 세금계산서 상의 거래에 관련된 자들의 상당수는 다음에서 보는 바와 같이 원고의 주매입처 중의 하나인 주식회사 ★★★상사를 중심으로 특수관계에 있는 자들로 구성되어 있을 뿐만 아니라 정당한 이유 없이 거래가 중첩되거나 매출처와 매입처가 역전되는 교차거래가 빈번하게 이루어졌다.

① 원고의 매입처 중 하나인 ◎◎◎◎◎ 주식회사 대표이사 ○○○은 ★★★ 상사의 대표이사 ▩▩▩의 처남이다.

② 원고의 매출처인 주식회사 ▲▲▲▲의 대표이사 ◇◇◇은 ★★★상사의 주주인 동시에 ★★★상사의 대표이사 ▥▥▥의 자인 ◇◇◇과 고교 동창이다. 또한 ▲▲▲▲의 주주 ◆◆◆과 ▲▲▲▲의 직원 ∇∇∇은 ★★★상사의 대표이사 ▩▩▩의 처제이다.

③ 원고의 매입처 중 하나인 주시회사 ▩▩▩▩의 주주 △△△(◇◇◇의 장모)은 현재 ★★★상사의 직원인 ▲▲▲의 어머니이고, 주주 및 직원인 ◇◇◇은 ★★★상사의 주식 8,160주를 보유하고 있는 ★★★상사의 주주이다.

④ 원고의 매입처 ∇∇∇∇을 운영하고 있는 박한규는 ★★★상사의 주주이고, ★★★상사의 대출과 관련된 하나은행의 지점장이었다.

⑤ 원고의 매입처 중 하나인 주식회사 ▲▲▲▲의 대표이사 ◎◎◎은 ★★★상사의 대표이사 ▩▩▩의 이종사촌이다.

(E) The wholesalers (the so-called store) that converted the gold bullion of this case into the customs gold in the course of circulation did not fulfill the liability to pay value-added taxes by selling the gold bullion that they purchased at a price lower than the purchase price (However, the amount added to the value-added tax amount, i.e., the price for supply, higher than the purchase price), and voluntarily closing or closing the gold bullion. The current status of the business entities related to the gold bullion of this case is as follows.

Name of a business entity

(F) The price exported by the Plaintiff was always set lower than the import price of the domestic importer, as seen in the following table:

Date of Transaction

(G) In each of the instant transactions, the parties to the transaction, including the Plaintiff, did not receive at all the divisional certificates under the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export, which are necessary for the exporter to get refund of 3% of customs duties while exporting gold bullion. The serial numbers of gold bullion traded on February 16, 2004 are not written or not submitted at all except 30 KK at the same time.

(H) Meanwhile, according to the description of the transport invoice, etc. in each of the instant transactions, there are cases where the pertinent companies are already stated as transported or have not been indicated as scheduled hours even before the gold bullion was imported and taken out after the import declaration. Furthermore, the Plaintiff started to receive the export payment from the exporter located in Hong Kong after receiving the export payment from the exporter located in Hong Kong and then transfer it to the instant trader in order, resulting in the importing company in the entire phase. The time required for the remittance of the payment was promptly settled to the extent that it does not cover about five to fifty minutes in each phase. The time required for the remittance of the payment was completed by the exporter, and the payment was completed by the exporter to the importer and the payment was completed by the importer until the importer.

* In the case of September 17, 204

internal stations

(c) Price, etc. of gold bullion;

In the case of gold bullion, a large-scale wholesaler, etc. provides a daily gold bullion market price via the Internet or telephone, taking into account the international market price and exchange rate. However, the Plaintiff always exported gold bullion at a price lower than the domestic and international market price, regardless of the above market price, at a price lower than the domestic and international market price. If the Plaintiff or each transaction entity of this case did not export gold bullion and distributed gold bullion in the Republic of Korea, the Plaintiff or each transaction entity of this case could have much more advantage than export

[Ground of recognition] Gap evidence 2-4, Eul evidence 4-1 to Eul evidence 78, and the purport of the whole pleadings

D. Determination

(1) Disposition of value-added tax and refusal of application

(A) Whether each of the tax invoices of this case constitutes "unlawful tax invoice"

1) As a matter of principle, the burden of proving that a tax invoice is false, the defendant must prove that the tax invoice is not accompanied by real transactions, on the basis of direct evidence or overall circumstances as to it. In a case where the defendant proves that the tax invoice is not false and that it is considerably acceptable, it is necessary to prove that it is consistent with his/her own assertion in view of the position that it is easy for the plaintiff, who is a taxpayer to dispute the illegality of the defendant's disposition, to present evidence and materials (see, e.g., Supreme Court Decision 96Nu8192, Sept. 29, 197) and Articles 6(1), 7(1) and 16(1) of the Value-Added Tax Act, and if the taxpayer did not know that he/she actually supplied or supplied goods or services, such as the supplier or the supplier did not know that he/she was not aware of the fact that he/she was not aware of the fact that the supplier or the supplier was not aware of the fact that the supplier or the supplier was not aware of the fact that the supplier or the actual supplier did not know of the tax invoice.

"2) 이 사건에 돌아와 보건대, 위 인정사실에서 나타난 다음과 같은 사정들, 즉 ① 원고의 이 사건 금지금 거래 당시 이른바 '폭탄영업'은 이미 금지금 도매업계에 널리 알려져 있었고, 원고의 실제 대표자인 ◎◎◎ 역시 그 경력에 비추어 폭탄영업에 관하여 충분히 할 수 있는 위치에 있었다고 보이는 점, ② 원고가 이사건 각 세금계산서와 관련하여 금지금을 수출하였다는 홍콩 소재 '▩▩▩' 및□□□'는 당해 금지금을 국내에 수출한 홍콩업체인 '∇∇∇∇∇와 그 실제 운영자가 동일하여 사실상 동일한 실체이고, 위 업체들이 수출입 관련 서류 및 거래대금 등에 관한 관련 장부를 제시하지 못하고 있으며 사업장이 불분명한 등 정상적인 사업체가 아닌 것으로 확인된 점, ③ 이 사건 금지금은 수입에서 수출까지 매우 짧은 기간 내에 여러 단계의 도매업체들을 거처 유통되었고, 전부가 아무런 가공 없이 수입과 수출을 반복하고 있었는바, 이는 거래업체들간에 밀접한 협력관계가 없이는 불가능할 것으로 보이는 점, ④이 사건 금지금의 수출가격은 수입가격보다 낮았을 뿐만 아니라 국내시세 및 국제시세와 비교하여도 상당히 저렴하였는바, 원고가 이 사건 금지금을 국내에 유통시킬 경우 훨씬 더 많은 이익을 취득할 수 있었음에도 국이 수출을 반복하였는데, 이는 부가가치세 환급을 목적으로 하지 않고는 도저히 설명할 수 없는 거래행태인 점,",⑤ 이 사건 금지금의 유통과정에서는 전형적인 폭탄영업에서의 폭탄업체와 동일한 특성 및 형태를 보이는 업체들이 반드시 관여하였던 점, ⑥ 이 사건 각 거래에 있어서 원고를 비롯한 거래당사자들이 수출업자가 금지금을 수출하면서 관세를 환급받기 위하여 필요한 분할증명서를 전혀 수수하지 않은 것은 정상적인 실물거래에 있어서는 발생하기 어려운 점, ⑦게다가 원고를 비롯하여 이 사건 각 거래업체들이 2004.2.16 수출한 금지금 30kg을 제외하고는 거래된 금지금의 일련번호를 전혀 기재하지 않았거나 제출하지 않았다는 것은 금지금의 거래에 있어서는 중량·순도 등과 관련하여 거래대상물의 특정이 중요한 점에 비추어 볼 때 경험칙상 납득하기 어려운 점 등의 사정을 종합하여 고려하면, 이 사건 거래과정에서 폭탄업체와 그 전후 거래업체 사이에서 이루어진 거래는 오로지 영세거래를 과세거래로 전환하기 위하여 세금계산서만을 발행하여 수수하는 명목상의 거래로 보이고, 또한 그 후 원고에 이르기까지의 거래에 관여한 과세도매상을 역시 단지 원고로부터 받은 대음을 그 매입처에 송금하여 전달하고 세금계산서를 수수한 다음 이러한 개입의 대가로 장차 포탈할 부가가치세액의 일정 부분을 매출가액과 매입가액의 차액이라는 형태로 취득하는 사업자들로서, 이들과 원고 사이에서 이 사건 금지금이 인도되고, 대금이 지급되는 등의 매매거래가 이루어지는 외형을 갖추었다고 하더라도 이는 실제거래로 위장하기 위한 명목이라고 봄이 상당하다.

As to this, it is clear that the Plaintiff received gold bullion from the purchaser, and each export was made with goods transport certificates, export declaration certificates, and transport securities, etc. at each time of export. Thus, each tax invoice is in conformity with the facts. However, each of the above transaction methods is bound to be deemed as losses on the premise of the payment of legitimate tax amount from the beginning. As such, the transaction method is a structure that can only be seen as the premise of the payment of the tax amount from the beginning. In the end, it can be seen that the amount equivalent to the value-added tax, which is ordered by the report of business closure, was the only source of profit and the motive of the transaction that can be presented in the transaction, and in reality, it does not mean that the reduction of tax revenue or the loss would be caused by the National Treasury. Thus, even if the tax invoice was issued and delivered in the form of transaction and the tax base and tax return were made normally, if the value-added tax was paid after being issued and received by the transaction for the purpose of refund of the value-added tax, it can be deemed as impossible or significantly difficult to collect the value-added tax as a whole (see Supreme Court Decision 2005Da45.

(B) Whether the Plaintiff acted in good faith and without negligence

In addition, the Plaintiff asserts to the effect that he did not know and did not know about the transaction prior to each of the instant transactions. However, in light of the aforementioned facts and circumstances, the Plaintiff’s existence is essential for the Plaintiff, such as the Plaintiff, who was paid value-added tax from the State while exporting gold bullion finally in order to complete tort by deceiving the National Treasury in a manner of refund of the zero-rate tax system and value-added tax related to the export and import of gold bullion by abusing the zero-rate tax system and the refund system of value-added tax related to the export and import of gold bullion, and as long as the Plaintiff appears to have engaged in a transaction with the form of exporting gold bullion in consideration of the refund of value-added tax without any separate negotiation with the transaction partner, it is difficult to view that the Plaintiff was unaware of such series

(C) Sub-decisions

Therefore, each tax invoice of this case is prepared without actual transactions or prepared differently by at least the supplier, and thus constitutes a false tax invoice. Therefore, the defendant's rejection of application for refund of each tax of this case is legitimate, and the plaintiff's allegation in this part is without merit.

(2) Imposition of corporate tax

Under the tax law, where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, the taxpayer's intention and negligence is not considered as administrative sanctions imposed as prescribed by the individual tax law. On the other hand, such sanctions cannot be imposed in cases where there is a justifiable reason that it is unreasonable for the taxpayer to be unaware of his/her obligations, or where it is unreasonable for the taxpayer to expect the fulfillment of his/her obligations, etc., and additional taxes under the Corporate Tax Act are also a kind of administrative punishment that is imposed when the taxpayer neglects his/her obligations to ensure the appropriateness of taxation under the law (see, e.g., Supreme Court Decisions 85Nu229, Feb. 24, 1987; 2003Du13632, Jan. 27, 2005).

On the other hand, according to the above facts, each of the tax invoices of this case is a false tax invoice, which is different from the fact, and thus, the plaintiff neglected the duty to receive a legitimate tax invoice pursuant to the transaction. On the other hand, there is no evidence to acknowledge that there is a justifiable reason for not being attributable to the plaintiff's failure to perform his duty. Therefore, the imposition disposition of each of the corporate tax of this case as a sanction on the plaintiff's failure to perform his duty is lawful (in the absence of the purpose and calculated tax amount of the above additional tax, even if there is no additional tax, the imposition disposition of each of the corporate tax of this case is legitimate, and in light of the purport of collecting additional tax, it shall be interpreted that Article 76 Paragraph 5 of the Corporate Tax Act includes not only the case where the goods or services are supplied, but also the case where the tax invoice is not received with a different tax invoice but also

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.