Cho 2018, 1924, 3701 ( November 20, 2018)

The evasion of value-added tax through the Plaintiff’s unauthorized sale and excessive purchase constitutes fraud and other unlawful acts.

The Plaintiff’s evasion of value-added tax by using the borrowed name account, etc. under the name of the representative director constitutes fraud or other unlawful acts.

The period of exclusion from the imposition of national taxes under Article 26-2 (1) of the Framework Act on National Taxes

2019Guhap53631 Disposition of revocation of imposition of value-added tax, etc.

○ ○

○ Head of tax office

October 17, 2019

November 5, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The imposition of each value-added tax (including additional tax) listed in the attached Table 1 that the Defendant made against the Plaintiff shall be revoked. It is confirmed that each value-added tax (including additional tax) listed in the attached Table 2 that the Defendant against the Plaintiff is all null and void.

1. Details of the disposition;

A. The Plaintiff is a corporation that runs stone materials supply business and stone construction business in Songpa-gu Seoul ○○○○○.

B. The Defendant received the tax invoice from February 0, 2017 to April 0, 2017, and from March 0, 2018 to May 0, 2018, and after conducting an investigation into the Plaintiff, the Plaintiff: (a) during the taxable period of the value-added tax for the second period from February 1, 2007 to May 2, 2018, using bank accounts in the name of representative director Aa (hereinafter “the instant tax invoice”) in the name of the 2nd taxable period of the value-added tax; (b) received the tax invoice in excess of KRW 16 of the actual purchase amount (hereinafter “the instant tax invoice”); and (c) received the difference between the actual purchase amount and the purchase amount stated on the tax invoice; and (d) sold 00 won without data to five companies, such as Cccc. (hereinafter “the instant seller”); and (c) rendered the Plaintiff’s disposition and disposition (including the notice of exclusion of imposition of value-added tax, as stated in attached Table 10/ [Attachment 21]

C. The Plaintiff filed an appeal with the Tax Tribunal on the imposition of each value-added tax (including additional tax) listed in attached Table 1, but all of the appeals were dismissed on November 0, 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In case where a taxpayer prepares a false contract and receives a deduction or refund of an input tax amount by a false tax invoice received as a result, it should be perceived that the taxpayer would receive a deduction or refund of an input tax amount by a false tax invoice, other than the awareness that such an act is subject to a deduction or refund of an input tax amount by a false tax invoice, the taxpayer should be aware that it would result in a decrease in the national tax revenue by having the taxpayer receive a deduction of an input tax amount by filing a return or payment of the tax base and tax amount of the value-added tax except for the output tax amount on the tax invoice, or by filing a request for correction after filing a return or payment in whole on the tax invoice.

In the instant case, the Plaintiff received an excessive tax invoice from the instant purchasing entity or issued a tax invoice with excessive supply value to the instant selling entity. However, the Plaintiff knew that the instant purchasing entity would report and pay value-added tax on the amount of the tax on the excessive supply value, and the instant sales entity also knew that there was no tax invoice issued in proportion to the amount of the tax on the excessive supply value, and thus, the Plaintiff did not receive input tax deduction.

Therefore, since the plaintiff did not have awareness of the reduction of value-added tax revenue, it does not constitute "Fraud or other unlawful acts", the exclusion period for imposition of five years, which is not ten years, should apply.

Therefore, each of the dispositions in this case on different premise is null and void because the defect is serious and clear, and thus seek revocation of the dispositions in the attached Table 1 among them, and seek confirmation of invalidity of the dispositions in the attached Table 2.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) The main sentence of Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter the same) provides that national taxes shall not be imposed after the expiration of the following period, and where a taxpayer evades national taxes, obtains refund or deduction by fraudulent or other unlawful means prescribed by Presidential Decree, 10 years from the date on which national taxes can be imposed, and where a taxpayer does not fall under subparagraphs 1, 1-2 and 2 of subparagraph 3 of Article 26-2(1) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 29534, Feb. 12, 2019; hereinafter the same shall apply) provides that "any of the acts referred to in Article 26-2(1)1 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Act No. 29534, Feb. 1, 2019; hereinafter referred to as "any of the acts committed fraud or other unlawful acts prescribed in Article 26(1) of the former Punishment Act.

An act of not doing, or an act of not doing, a tax invoice, a list of invoices, a list of total tax invoices, a list of total tax invoices, 7, or any other act of fraudulent means or of not doing so.

Meanwhile, “Fraud or other unlawful act” under Article 3(6) of the former Punishment of Tax Evaders Act refers to an act which enables the evasion of taxes by social norms, i.e., fraudulent means or other active act which makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute mere failure to file a return under tax law or making a false report without accompanying any other act (see, e.g., Supreme Court Decision 2001Do3797, Feb. 14, 2003). However, in addition to circumstances where active concealment is revealed, such as false entry in books or means of payment, repeated use of multiple borrowed accounts, etc., it is difficult to determine that the imposition and collection of taxes was impossible or considerably difficult. In addition, it is difficult to see Supreme Court Decision 9Do5041, Aug. 23, 2007; 2006Do5041, Feb. 14, 2007).

2) In full view of the following circumstances acknowledged in light of the above legal principles, Gap evidence No. 3, and the purport of the entire pleadings, the Plaintiff’s evasion of value-added tax by using the borrowed name account, etc. constitutes fraud or other unlawful act. Therefore, the Plaintiff’s assertion on a different premise is without merit.

① As to the portion of non-taxable sales, the amount of tax payable or refundable in the value-added tax is the portion that deducts the input tax amount from the output tax amount (Article 37(1) of the Value-Added Tax Act); where an entrepreneur supplies goods or services, the portion equivalent to the output tax amount shall be traded, and the tax invoice for the supply of goods or services shall be issued (see Articles 31 and 32(1) of the Value-Added Tax Act). However, when an entrepreneur fails to issue a tax invoice for the supply of goods and services, and fails to report the relevant output tax amount, the reduction of national tax revenue naturally takes place. In this part, even though the Plaintiff sold 0 won at the instant place, the Plaintiff did not issue a tax invoice or did not report the output tax amount. In particular, it appears that the Plaintiff appears to have used the Plaintiff’s account under the name of the representative director, who is not the Plaintiff’s business account, but the Plaintiff’s representative director, and it is difficult for the representative director to trace the excess purchase amount from the Plaintiff’s active purchase account.

③ The Plaintiff was aware of the fact that the Plaintiff reported and paid value-added tax on the amount of tax on the amount of tax on the supply price excessively supplied by the purchaser, and the Plaintiff also knew that there was no tax invoice issued on the amount of tax on the amount of tax on the excessively supplied supply price, and thus, did not constitute “Fraud or other unlawful act,” and thus, did not constitute “Fraud or other unlawful act.” However, in light of the following, the Plaintiff’s assertion is difficult to accept if the Plaintiff did not issue a tax invoice despite the fact that there was no tax invoice on the amount of tax on the excessively supplied supply price, and it is difficult to deem that the Plaintiff would have paid value-added tax normally or that there was no data that the Plaintiff would have paid value-added tax on the normally excessive purchase price, and there was no data that the Plaintiff would have paid value-added tax on the portion of the excessively excessive purchase.

3. Conclusion

Therefore, the plaintiff's claim is dismissed in entirety as it is without merit. It is so decided as per Disposition.