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Title
The propriety of the disposition not deducting the input tax amount in view of the transaction of gold bullion as a false processing transaction.
Summary
A gold bullion transaction cannot be deemed as a false tax invoice unless it appears that it has been traded in the form of exporting with the mind that the value-added tax is refunded. The imposition of additional tax due to the receipt of a processed tax invoice shall apply where it is not received the documentary evidence of expenditure even though the transaction was actually conducted. Therefore, it is unreasonable to impose additional tax not paid
Related statutes
Article 17 of the former Value-Added Tax Act
Article 76 (5) of the former Corporate Tax Act
Text
1. The Defendant’s disposition of imposition of KRW 248,856,960 against the Plaintiff on October 1, 2005 shall be revoked.
2. The plaintiff's remaining claims are dismissed.
3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.
Purport of claim
Disposition No. 1 and the Defendant’s disposition of imposition of KRW 1,322,612,10 on October 1, 2005 against the Plaintiff, and KRW 29,301,00 on February 2004, respectively, and the disposition of refusal of refund of KRW 147,495,00 on February 2004, respectively.
Reasons
1. Details of the disposition;
A. The plaintiff was established on December 26, 2003 for the purpose of running the current and precious metals wholesale and retail business, and purchased and exported gold bullion 780km (hereinafter referred to as the "gold bullion in this case") from March 5, 2004 to September 17, 2004, 9 of the purchase tax invoice (hereinafter referred to as the "tax invoice in this case") under the following 9 (hereinafter referred to as the "tax invoice in this case") from the seller, in purchasing and exporting the gold bullion 780km (hereinafter referred to as the "gold bullion in this case"). The plaintiff's purchase price and its prior purchaser are most forms of a corporation. The plaintiff's purchase price and its prior purchaser are most forms of a corporation; hereinafter referred to as the "stock company for convenience". The plaintiff received 9 (hereinafter referred to as the "tax invoice in this case"). The value-added tax amount shall be refunded as the input tax amount for the first period in 2004, and the purchase tax amount of KRW 147,4900,000.
No.
Date of purchase
Purchase Agency
Quantity (kg)
Value of Supply
Value-added Tax
Total
1
2004-03-05
○ ○ Apt
80
1,169,040,000
16,904,00
1,285,944,000
2
2004-03-09
○ ○ Apt
80
1,188,240,000
18,824,00
1,307,064,000
3
2004-03-10
○ ○ Apt
80
1,196,800,000
19,680,000
1,316,480,000
4
2004-04-28
○ ○ Apt
80
1,164,800,000
16,480,000
1,281,280,000
5
2004-04-29
○ ○ Apt
80
1,132,800,000
13,280,000
1,246,080,000
6
2004-04-30
○ ○ Apt
80
1,152,000,000
15,200,000
1,267,200,000
7
2004-05-12
○ ○ Apt
100
1,416,00,000
141,600,000
1,557,600,000
8
2004-05-13
○ ○ Apt
100
1,418,700,000
141,870,000
1,560,570,000
9
2004-09-17
○ ○ Apt
100
1,473,300,000
147,330,000
1,620,630,000
Total
780
11,311,680,000
1,131,168,000
12,442,848,000
B. The defendant issued the purchase tax invoice by the plaintiff from ○○ Art stated all or part of the requisite entry items differently from the fact, and issued the purchase tax invoice under Article 17 (2) 1-2 of the former Value-Added Tax Act (amended by Act No. 7318, Dec. 31, 2004; hereinafter referred to as "the imposition disposition of value-added tax" in addition to KRW 338,74,115, an amount of additional tax for KRW 1,322,612,10 (hereinafter referred to as "the imposition disposition of value-added tax of this case"), and the imposition disposition of additional tax for KRW 29,301,00 (hereinafter referred to as "the imposition disposition of value-added tax of this case") for the second half-year amount for which the application for refund was filed, which corresponds to 200,300,000 won of additional tax (hereinafter referred to as "the imposition disposition of value-added tax of this case") and 206,714,7.
[Basis] Facts without dispute, Gap evidence 1-1 to Gap evidence 2-3, Gap evidence 5-1 to 6, Gap evidence 7-2, Eul evidence 1-1 to Eul evidence 2, the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The plaintiff's assertion
In fact, the Plaintiff purchased the instant gold bullion from ○○ Art as the supply price indicated in the purchase tax invoice, and paid the sales price and value-added tax. The Plaintiff had never known that the instant gold bullion was traded by the method planned in advance from the import to the export for the purpose of embezzlement of value-added tax. Therefore, the instant disposition that was based on the premise that the instant tax invoice was false or that the Plaintiff knew or could have known of the fact 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) Since the zero tax rate is applied to the supply of goods for export, if the gold bullion is purchased from another wholesaler on the basis of a purchase approval certificate (purchase certificate) obtained by presenting export-related documents to a foreign exchange bank, the zero tax rate is applied to such input tax amount (Article 11(1)1 of the Value-Added Tax Act); on the other hand, with respect to the trade of gold bullion at least 995/1,000 at the present time by the wholesalers and current refiners, the gold bullion business operators are supplied to gold craftsmen who received the tax exemption recommendation from the duty-free gold importer, and the gold bullion business operators are exempted from value-added tax for the trade of gold bullion imported from July 1, 2003 to June 30, 205 (Article 106-3 of the former Restriction of Special Taxation Act (amended by Act No. 7577 of 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 where the value-added tax was paid after importing gold bullion for the purpose of unfair refund of value-added tax and selling or exporting gold bullion in disguisedly or disguisedly through the various stages of wholesale after importing gold bullion for the purpose of unfair refund of value-added tax, and then the case where the value-added tax was paid among precious metal companies in Jongno-gu, Seoul.
(B) The appearance of gold bullion is distributed through the stages of ‘foreign companies ? ? importer companies ? ? ? ? 2 (Omission) companies ? ? Domination companies ? ? Export companies ? ? Foreign companies’. The transaction price is paid in sequence from the exporter to the importer companies. However, among the above distributors, it is limited to the issuance of the tax invoice from the narrow coal company to the floor wholesaler, to the specific person or the specific company’s instructions, and there were many cases where gold bullion is not actually traded or transported.
(C) After purchasing gold bullion that has been distributed at the zero tax rate at the previous stage, and selling it to the Do government 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 government is successively transferred by each company after deducting the input tax through the tax invoice issued by the Do government in the immediately preceding stage. Ultimately, after exporting the gold bullion, the exporter is entitled to refund the input tax through applying the zero-rate tax rate. The portion equivalent to the value-added tax that the Do government has not paid by the Do government after exporting the gold bullion. The above profit is distributed to the domestic company involved in the Do government's trade in each stage of the Do government, or if the amount calculated by deducting the purchase price from the import price is separately distributed to the foreign company in the form of the Do government's share in the export price.
(D) In order to maximize its profit, a wide amount of gold bullion is distributed within a normal and short period of time. ① In order to prevent disputes between the parties involved in the transaction, which may arise therefrom, or accidents such as loss of prices, most of the same states (this refers to a person who prepares for the first gold bullion import and settlement from the outside of the heavy carbon business network) operate simultaneously with an exporting company and an importing company. ② The former State shall place an exporting company to directly deal with an exporting company. ② The former State shall determine the volume, unit price, and margin of the transaction at each stage of the transaction, ③ the former State shall have determined the volume, unit price, and margin of the transaction at each stage of the transaction, ④ the series of transactions from the importing company to the exporting company shall be made at a very short time, and ⑤ the gold bullion shall be transported immediately through the exporting company beyond the actual transaction stage (limited to the formal transport for disguised transactions even if it is transported every phase of the transaction stage).
(2) In the case of the instant tax invoice transaction
(A) The details of the purchase and export of the gold bullion of this case not less than nine times are as follows:
Details of purchase;
Details of export
Profit Profit Profit
Date of transaction
Value of supply (,00 won)
Quantity(g)
Unit Price (won/g)
Date of Export
Value of supply (,00 won)
Quantity(g)
Unit Price (won/g)
Unit Price (won/g)
Total marginal profits (won)
04.03.05
1,169,040
80,000
14,613
04.03.05
1,170,914
80,000
14,636
23
1,874,432
04.03.09
1,188,240
80,000
14,853
04.03.09
1,198,064
80,000
14,976
123
9,824,868
04.03.10
1,196,800
80,000
14,960
04.03.10
1,201,227
80,000
15,015
5
4,427,578
04.04.28
1,164,800
80,000
14,560
04.04.28
1,167,544
80,000
14,594
34
2,744,312
04.04.29
1,132,800
80,000
14,160
04.04.29
1,127,183
80,000
14,090
70
5,616,453
04.04.30
1,152,000
80,000
14,400
04.04.30
1,151,402
80,000
14,393
7
597,589
04.05.12
1,416,00
100,000
14,160
04.05.12
1,429,619
100,000
14,296
136
13,619,055
04.05.13
1,418,700
100,000
14,187
04.05.13
1,421,280
100,000
14,213
26
2,580,203
04.09.17
1,473,300
100,000
14,733
04.09.17
1,483,262
100,000
14,833
100
9,962,909
Total
11,311,680
780,000
14,502
11,350,499
14,552
50
38,819,315
(B) The instant gold bullion was all imported from a foreign country to distributed as a tax-free gold, and was converted from an importer to a total of 5-9 stages from the importer to the Plaintiff. All stages of transactions were conducted on the date of import of the relevant gold bullion, and the Plaintiff exported all the instant gold bullion on the date of purchase. The export price of the instant gold bullion was lower than the price imported by the importer.
(C) The Plaintiff purchased the instant gold bullion on credit from ○○○art, and exported it to Ltd., all Hong Kong located in Hong Kong, on credit. The export payment began to be paid after the sale, and the Plaintiff’s transfer of the gold bullion to ○○art, resulting in the Plaintiff’s distribution company in the previous phase’s order, leading to the importing company. The transfer of the gold bullion was done promptly to the extent that each phase of the Plaintiff’s payment would be paid in full within 4-5 hours from the time of receiving the export payment.
(D) The instant gold bullion purchased by the Plaintiff from ○○ Art is deemed to have been carried out on behalf of the Plaintiff for export transportation by accepting a transport request from the Plaintiff at the office of ○○ Art by the Plaintiff and accepting the said gold bullion from the person who is an employee of the Plaintiff, at the office of ○○ Art.
(E) The wholesalers (so-called, a business entity) converting the gold bullion of this case into the taxable 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 the Enterprise
The date of trading the gold bullion of this case
Opening date of business
Closure
Amount of deficit tax (cost)
○○ Doice
September 17, 2004
2002-01-01
2004-10-01
3,271,060,000
○ Rara
September 17, 2004
1998-07-07
2004-09-30
6,033,434,390
○ ○
Mar. 5, 2004, Mar. 9, 2004, 3.10
2002-03-21
2004-03-31
38,156,007,020
○ ○ Trade
April 28, 2004
2003-01-10
2004-05-22
14,897,987,310
○○ Dod
April 29, 2004, April 30
199-09-15
2004-06-30
6,014,722,780
○ ○○ ice
April 12, 2004, 5.13
2002-12-17
2004-06-30
2,961,214,100
(F) 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 necessary for the exporter to refund 3% of customs duties while exporting gold bullion.
(G) In the case of gold bullion, a large-scale wholesaler, etc. provides a daily gold market price via the Internet or telephone, taking into account the international market price and exchange rate. However, regardless of the gold market price, the Plaintiff exported gold bullion at a price lower than the domestic market price and international market price at a lower than the domestic market price and international market price. If the Plaintiff or each of the instant traders did not export gold bullion and distributed it in the Republic of Korea, the Plaintiff or each of the instant traders could have much more profit than export.
Date of transaction
Details of export
Domestic Gold Time Tax
International gold tax;
Quantity(g)
Export price ($)
Unit Price ($$/g)
Won/g
US$ /g
Applicable Exchange Rate
Maximum ($$/g)
Minimum ($$/g)
2004-03-05
80,000
99,159.00
12.49
15,813
13.49
1,171.90
12.90
12.60
2004-03-09
80,000
1,021,020.00
12.76
16,053
13.68
1,173,40
13.05
12.86
2004-03-10
80,000
1,026,164.00
12.83
16,133
13.78
1,170,60
13.00
12.77
2004-04-28
80,000
1,012,790.00
12.66
15,867
13.76
1,152.80
12.81
12.34
2004-04-29
80,000
975,241.00
12.19
15,653
13.54
1,155.80
12.46
12.14
2004-04-30
80,000
986,043.00
12.33
15,653
13.41
1,167.70
12.55
12.39
2004-05-12
100,000
1,202,978.00
12.03
15,467
13.01
1,188.40
12.34
12.11
2004-05-13
100,000
1,202,335.00
12.02
15,467
13.08
1,182.10
12.18
11.98
2004-09-17
100,000
1,293,957.00
12.04
16,213
14.14
1,146.30
13.08
12.96
Average
780,000
9,719,687.00
12.46
13.55
12.71
12.46
(h) On December 26, 2003, 2003, ○○○, a de facto representative of the Plaintiff Company, had been receiving benefits from ○○ Free Savings Depository operated and controlled by ○○○○○○○○○○, ○○○ Goods Distribution, and ○○ Industries, etc. Around December 1996, ○○○, a de facto representative of the Plaintiff Company, had registered ○○ as the Plaintiff’s representative director. On December 26, 2003, ○○, a de facto representative of the Plaintiff Company, had paid the share capital with the amount loaned by ○○○○○○○
(i) The ○○○○○○ was a company established on July 20, 2002 by Kim Jong-soo, and began to acquire and operate the ○○ on September 25, 2003. In addition to the Plaintiff, the ○○○○○○○ K KHHH HD, exported to the Plaintiff, supplied gold bullion to the Plaintiff, and the ○○○○ KHGT was a company that received the total amount of the share capital from the ○○○○ at the time of incorporation, as in the Plaintiff Company, and the ○○○GT was a distribution company established separately on November 20, 2003.
(j) At the time of the instant transaction, ○○○○○ was the representative director of the instant gold bullion, and Kim Jong-sung was the shareholder of ○○ V, ○○○○ Global, ○○ Global, ○○○ Blus, and ○○○ Lits, a distributor, which constitutes the transaction phase of the instant gold bullion, as the representative director and the representative director of the instant gold bullion import company. Kim Jong-sung was the shareholder of ○○ Mits, a same distributor. Kim Jong-Un was the shareholder of ○○ Mits, a same distributor. The Hong Pits was the shareholder of ○○ ○x and ○GT.
(k) On March 21, 2004, the YO, Cho Jong-su, Kim Jong-sung, and Kim Jong-Un, departing from Hong Kong as the person responsible for the ○○○ Gold Group Lt. Ltd. On May 5, 2004, the YO, Yellow ○, Yellow ○, Cho Jong-young, Cho Jong-young, Kim Jong-Un, Kim Jong-young, on May 21, 2004, the Yellow ○○, Sul, Cho Jong-young, Kim Jong-young, Kim Jong-young, and on May 28, 2004, the Yellow ○○, Yellow ○, Kim Jong-sung, Kim Jong-sung, Kim Jong-young, and Kim Jong-sung, ○○, Kim Jong-sung, Kim Jong-sung, and on May 28, 2004, around 200.
(l) In the investigation of the Seoul Regional Tax Office, YO stated that, upon introduction of ○○○ and Han Sang-si, Lt. Lt., Lt. was engaged in gold bullion transactions in trust of neighboring companies that had been engaged in transactions in the past. At the time of trading, tax invoices were issued along with gold acceptance certificates, and when the export amount was deposited, immediately transferred money to ○○○○○○ upon deposit, and Kim Jong-sung was in a pro rata relationship with an elementary school, and that it started gold bullion export business upon receipt of a proposal to supply gold bullion amount from Han Sang-si.
(m) Meanwhile, ○○○○○’s representative director was sentenced to the suspended sentence of 4 years and a fine of 11,600,000,000 won in two years and six months, due to the crime of violating the Punishment of Tax Evaders Act, which was publicly recruited and contained in the gold bullion business such as Kim Jong-sung.
[Basis] Facts without dispute, Gap evidence 4-1 through 9, Gap evidence 6-1, 2, 7, 9 through 11, Gap evidence 8, Gap evidence 9-2, Eul evidence 3 through 14, Eul evidence 18-26, Eul evidence 27-1 through Eul evidence 54-7, the purport of the whole pleadings, and the purport of the whole pleadings
D. Determination
(1) The instant disposition imposing value-added tax, refusal to refund, and imposition of penalty tax
(A) Whether the instant tax invoice constitutes “illegal 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, based on direct evidence or overall circumstances. If the defendant proves that the tax invoice is not false and that it is not accompanied by real transactions, 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 disposition, to present evidence and materials (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997). In addition, in Articles 6(1), 7(1) and 16(1) of the Value-Added Tax Act, the defendant falls under the category of "person who supplies or provides goods or services, such as a person who has not been aware of the fact that the person who actually supplied or provided goods or services was not aware of the fact that the person who actually supplied goods or services was not aware of the fact that the person who actually supplied goods or services was not aware of the fact that the supplier did not know of the fact.
2) The following circumstances revealed in the instant case: (i) it appears that the so-called so-called “gold bullion business” was widely known at the time of the Plaintiff’s trade in gold bullion; (ii) it appears that the actual representative of the Plaintiff could have easily known the fact that the Plaintiff’s actual transaction was part of gold bullion business; (iii) it was distributed through various stages of wholesalers within a very short period of time from the import to the export; and (iii) it was continuously being exported under the trading structure where the export price of gold bullion was lower than the import price of the gold bullion was less than the import price; and (iv) it appears that the Plaintiff did not receive value-added tax if the export price of gold bullion was to be refunded due to the export process, and it was considerably difficult for the Plaintiff to receive value-added tax for the purpose of the purchase and sale of gold bullion, including the purchase price of gold bullion; and (v) it appears that the Plaintiff did not receive value-added tax from the domestic market price and international market price.
The Plaintiff asserted that the instant tax invoice is a tax invoice consistent with the facts since it is clear that the gold bullion was delivered from the purchaser, and each export is prepared with goods transport certificates, export declaration certificates, and transport securities, etc., and exported normally at each time. However, the aforementioned transaction method is a structure that can only be viewed as losses on the premise of the payment of legitimate tax from the beginning. Ultimately, the tax authority is bound to collect the value-added tax from the counter-party, while the amount equivalent to the value-added tax exempted from the payment by the report of business closure is the sole source of profit and the motive of the transaction that can be presented in the above transaction, and in reality there is no meaning that the reduction of the 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 determination of the amount of value-added tax was made normally by submitting the tax invoice and the tax base and tax return return, if the tax invoice was received for the purpose of refund of the value-added tax, it can be said that the overall collection of value-added tax was impossible or considerably difficult (see, Da.
(B) Whether the plaintiff acted in good faith and without negligence
In addition, the Plaintiff asserts that he did not know and did not know about the transaction prior to each transaction of this case. However, in light of the aforementioned facts and circumstances, if all or part of the requisite entries in the tax invoice were entered differently from the facts, it is difficult to view that the Plaintiff was unaware of the transactional relationship of gold bullion, and there is no other evidence to acknowledge this differently, so long as the Plaintiff appears to have done a transaction in the form of export in consideration of the transactional volume, unit price, etc. of gold bullion in consideration of the refund of value-added tax without any separate negotiation with the transaction partner, in order for the Plaintiff to complete a tort by deceiving the national treasury in the manner that the transaction partner is entitled to receive value-added tax not paid by the preceding transaction partner by abusing the zero tax rate system and the refund system of value-added tax related to the export and import of gold bullion.
(C) Sub-decisions
Therefore, the tax invoice of this case is prepared without any actual transaction or prepared differently by at least the supplier, and thus constitutes a false tax invoice. Thus, the defendant's imposition of value-added tax of this case and the rejection of refund, and the imposition of additional tax on this premise is legitimate, and the plaintiff's assertion on this part is
(2) Disposition of imposition of corporate tax of this case
On October 1, 2005, the Defendant applied Article 76(5) of the former Corporate Tax Act on the ground that the instant tax invoice is a tax invoice different from that of the actual supplier, thereby imposing KRW 248,856,960 equivalent to KRW 2/100 of the total purchase price of the instant transaction by applying Article 76(5) of the former Corporate Tax Act.
However, in light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws is to be interpreted as a single law, and it is not allowed to be expanded or analogically interpreted without reasonable grounds. Article 76(5) of the former Corporate Tax Act provides that an amount equivalent to 2/100 of the unpaid amount may be collected in addition to the case where an entrepreneur is provided with goods or services and fails to receive evidential documents as provided in any of subparagraphs of Article 116(2) of the former Corporate Tax Act. However, the same does not apply to the case where a corporation receives evidentiary documents different from the actual amount (i.e., provision of goods or services).
The purpose of Article 76(5) of the Corporate Tax Act is to enhance transparency in the expenditure content of a corporation and induce other business operators to cultivate the tax base, and it is difficult to achieve such legislative purpose merely by imposing a duty of bona fide return on a business operator subject to the training of tax base. Therefore, in light of the fact that the business operator to whom goods or services are supplied receives regular expenditure documents and imposing sanctions to additionally pay an amount equivalent to a certain percentage of the amount not received for the breach of such duty (see Constitutional Court Order 2004Hun-Ga7, Nov. 24, 2005; Order 2006Hun-Ba88, May 31, 2007). The penalty tax under the above provision shall be applied where the documents of disbursement are not received even if the actual transaction was made, and it is not applicable to the act of disguisedly accepting the payment documents and accepting the documents without the actual transaction, such as the tax invoice in this case. Therefore, the defendant's disposition of imposing corporate tax in this case that applied the above provision to the transaction in this case is unlawful.
3. Conclusion
Therefore, the disposition of imposing the corporate tax of this case among the plaintiff's claims should be revoked as illegal. Thus, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.