It is difficult to recognize that there is no negligence on the part of the person who was unaware of the name and was unaware of the fact of the name.

Inasmuch as it is difficult to recognize that a person was unaware of the name of a tax invoice and was unaware of such fact, and there is no other evidence to acknowledge it, it shall not be deemed a good

Article 16 of the Value-Added Tax Act

2015Nu5169 Revocation of revocation of a disposition of revocation of purchase tax deduction

GG

○ Head of tax office

November 2016

on 16, 2015

1. The plaintiff's appeal is dismissed.

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

The first instance judgment of April 9, 2013 is revoked. The Defendant’s imposition of value-added tax of KRW 48,280,350 against the Plaintiff on April 9, 2013, value-added tax of KRW 190,622,70 for the first year of 2010, value-added tax of KRW 30,841,960 for the second year of 2010, and global income tax of KRW 23,476,220 for the second year of 2010 shall be revoked.

1. Basic facts

A. From June 21, 2005 to 0000 000 ○○○○ 1913, the Plaintiff has run a wholesale and retail business with the trade name called “HH commercial.”

B. The Plaintiff received a tax invoice of the aggregate amount of KRW 1,421,542,730 (hereinafter “instant tax invoice”) as listed below from R (J: J: Representative: BB) and BB (hereinafter “Transaction”) during the period of value-added tax from 2009 to 2010. The Plaintiff actually supplied the instant tax invoice to the Plaintiff was CCC, not the business parties. Meanwhile, the Plaintiff deducted the input tax amount under the instant tax invoice, and reported value-added tax for the pertinent taxable period to the Defendant, and added the supply amount under the tax invoice for 1 and 2 years from 2010 to 20.3 years from 2010 to 4 years from 2010 to 20 years from 2010 to 30 years from 20 years from 20 years from 200 to 30 years from 200 to 40 years from 200 to 20 years from 30 years from 200 to 4 years from 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1, 5 evidence, Eul evidence 1, 3, and 4 (including numbers, and hereinafter the following)

A. The plaintiff's assertion

The Plaintiff did not know that the supplier listed in the instant tax invoice is different from the actual supplier and did not know the fact. Thus, the instant disposition that the Defendant, on a different premise, did not deduct the said input tax amount, was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Determination

A. In light of the above legal principles, the actual supplier and the supplier cannot deduct or refund the input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the name of the tax invoice, and that there was no negligence on the supplier’s failure to know of the aforementioned disguised fact (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). (b) The following facts and circumstances can be acknowledged by comprehensively considering the aforementioned facts and evidence, Gap evidence and evidence, Eul evidence No. 13, and Eul evidence No. 2, and evidence No. 2, which were submitted by the court of first instance and the testimony of the witness CCC at the trial were insufficient to acknowledge that the Plaintiff did not know that the Plaintiff was unaware of the name of the tax invoice, and there was no other evidence to acknowledge it. The Plaintiff’s assertion that there was no negligence on the part of the supplier in terms of the Plaintiff’s duty to operate the sales business from 20 years ago.

② On November 20, 2009, the Plaintiff initially remitted the larger amount of KRW 300 million to a deposit account under the name of the JJ, which was the representative of the Plaintiff, while commencing transaction with the “R” on November 20, 2009, the Plaintiff itself acknowledges that the other party to the transaction (CCC) was not aware of the existence of the JJ through objective evidence, such as identification card.

③ In light of the fact that the Plaintiff’s “Transaction Book” (Evidence A No. 3) stated in the upper part of the transaction on January 2010 as the “JJ* private villagen”, the Plaintiff seems to have been aware that the other party to the transaction was not the JJ at that time.

④ On August 3, 2012, the CCC received an investigation from a tax official with respect to a charge of value-added tax (hereinafter referred to as “investigation of charge”), and stated to the effect that “the Plaintiff was aware that it was the actual president from the time when the transaction was commenced in the R’s name, and that “the Plaintiff, when receiving money from the Plaintiff, the nominal owner of the deposit account was the JJ and began transactions with the Plaintiff as the nominal owner of the deposit account was the JJ.” On August 9, 2012, upon receiving an investigation of suspicion of a crime, the Plaintiff stated to the effect that “the Plaintiff, from around 2000, is also aware of the customer that he/she carries out the business by engaging in the secondhand business in the debris area.”

On the other hand, on July 11, 2013 and September 30, 2013, under investigation by an investigation agency as to a witness of the case under violation of the Punishment of Tax Evaders Act by the Plaintiff in relation to the instant tax invoice, the CCC has reversed the statement at the time of investigation into the crime charge by stating to the effect that “the Plaintiff was engaged in a transaction that he was aware of the fact that he was the actual business operator,” and continued to maintain the reversed statement after attending the court as a witness. However, there is no obvious motive to make a false statement as to whether the CCC was aware of the fact that the Plaintiff was guilty at the time of investigation into the crime charge, and there is a possibility that the Plaintiff reversed the statement at the time of investigation into the crime charge by receiving the request of the Plaintiff in order to prevent the Plaintiff from being subject to criminal punishment due to the transaction with him at the time of investigation by the witness. In view of the above, it is difficult for CCC to easily believe the statement at the investigation agency and the party trial.

⑤ On June 30, 2010, the Plaintiff asserts that the CCC was aware of the fact only after hearing that it was not JJ but CCC and that it was operating RR under the name of due court. However, on May 18, 2010, the Plaintiff established a collateral security right on real estate owned by CCC’s BB and parent SS to secure the claim arising from transactions with RR, and received a promissory note with BB, CCC, and SS as a joint issuer. On June 8, 2010, the Plaintiff drafted a authentic deed to recognize compulsory execution based on the aforesaid promissory note. Since the Plaintiff appears to have been aware that there was a relationship between CB, BB, and S, it is difficult to accept the Plaintiff’s assertion.

6) Upon the request of the CCC, the Plaintiff acquired 292,828,396 won as advance payment debt arising between ○○ (representative BB) and R in the future, and commenced transactions with ○○ Non-Iron. However, BB, the representative of ○○ Non-Iron, upon the investigation of suspected criminal facts on August 12, 2012, stated to the effect that “BB, upon the registration of the representative of ○○ Non-Iron, only runs all business, and it does not have any copy of operating ○○ Non-Iron, nor did it make any call with the customer of ○○ Non-Iron, or made a direct transaction with the Plaintiff.” At the time of the prosecutor’s investigation, the proprietor stated that “B was directly traded with the Plaintiff.”

7) On October 15, 2013, the Plaintiff was subjected to a disposition of non-prosecution in relation to a case against the violation of the Punishment of Tax Evaders Act relating to the instant tax invoice at the ○○ District Public Prosecutor’s Office. However, the grounds for the disposition of non-prosecution (not guilty) merely on the grounds that the Plaintiff was unaware of the fact that the instant tax invoice was issued, and that there was insufficient evidence to acknowledge that the Plaintiff was issued with the knowledge that it was a false tax invoice, and whether the Plaintiff was negligent in not knowing that the instant tax invoice was a false tax invoice is not subject to determination in the disposition of the said non-prosecution (not guilty) cannot be deemed to have been proven due to the said disposition of non-prosecution.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and since the judgment of the court of first instance is just as it is concluded, the plaintiff's appeal is dismissed as it is without merit and it is so decided as per Disposition.