Cho Jae-2017-China-0530 ( October 15, 2017)

The burden of proving false tax invoices

Unless there are special circumstances that the actual supplier and the supplier on the tax invoice are not negligent, the actual supplier and the supplier on the tax invoice shall not be allowed to deduct or refund the input tax amount, and that the person who claims the deduction or refund of the input tax amount is not negligent in not knowing the above nominal name.

Article 16 of the Value-Added Tax Act

2017-Gu Partnership-881 Revocation of Disposition of Imposing Value-Added Tax

AAAA

o Head of the tax office

8.06.21

2018.30

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of value-added tax of KRW 115,365,770 (including additional tax) and value-added tax of KRW 20,806,070 (including additional tax) for the first period of July 13, 2016 against the Plaintiff on July 13, 2016 shall be revoked, respectively.

1. Details of the disposition;

A. Since its establishment on December 15, 1993, the Plaintiff is a company that manufactures and sells melting bars, etc. at 00 :00 :00 :00.

B. During the value-added tax period from the first to the second period in 2011, the Plaintiff purchased BBB from BB (hereinafter “BB”) and received 625,560,000 won (the first period portion in 201) and the tax invoice of 116,30,000 won (the second period portion in 201) (hereinafter “instant tax invoice”) were deducted from the output tax amount during the pertinent taxable period, and filed and paid the value-added tax for each taxable period by deducting the input tax amount from the output tax amount during the pertinent taxable period.

C.** After conducting a tax investigation with respect to BBB from September 11, 2012 to May 31, 2013, the regional tax office determined that BBB was issued or issued a false sales and purchase tax invoice at approximately 99% for the taxable period from September 2, 2010 to May 1, 2012, and that BBB was known to the Defendant, the head of the tax office having jurisdiction over the Plaintiff, who received the tax invoice issued by BBB.

D. Accordingly, the Defendant determined the instant tax invoice received by the Plaintiff from BBB after conducting a tax investigation with respect to the Plaintiff as a false tax invoice. On July 13, 2016, the Defendant issued a revised and notified the Plaintiff of the value-added tax amounting to KRW 115,365,770 (including additional tax) for the first term portion of value-added tax in 201, and KRW 20,806,070 (including additional tax) for the second term portion of value-added tax in 2011 (hereinafter collectively referred to as the “instant disposition”) without deducting the input tax amount pursuant to the instant tax invoice pursuant to Article 17(2)2 of the former Value-Added Tax Act.

E. On January 13, 2017, the Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on January 13, 2017, but the appeal was dismissed on May 15, 2017.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 1 to 4

Each entry, the purport of the whole pleading, including the number

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

1) The Plaintiff confirmed the BBB’s business registration certificate, confirmed the net degree and weight of the receipt, and remitted the amount to the account of BBB on the date of receipt of the tax invoice. In addition, since the regional tax office confirmed that the BBB was a part of the transaction details in fact while conducting the tax investigation on BBB, it cannot be readily concluded that the BBB was a data. Accordingly, the Plaintiff actually purchased the BBBB from the BBB, and the instant tax invoice is not a false tax invoice.

2) Even if the instant tax invoice is a tax invoice different from the fact, it is reasonable to deem that the Plaintiff fulfilled the duty of care necessary for the transaction at the time when considering the aforementioned circumstances, and that the BBB believed that the Plaintiff would actually supply the Plaintiff with the duty of care. Therefore, it is unreasonable to hold the Plaintiff liable for not deducting the input tax amount.

(b) Related statutes;

It is as shown in the attached Form.

C. Whether the instant tax invoice constitutes a false tax invoice

1) Relevant legal principles

The burden of proving that the tax invoice is false, in principle, to the defendant who is the tax authority, the defendant must prove that the tax invoice is not accompanied by real transactions, on the basis of 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 conforms to his own assertion considering that the plaintiff, who is the taxpayer disputing the illegality of the defendant's disposition, is in a position of easy presentation of relevant evidence and materials (see, e.g., Supreme Court Decision 2004Du14168, Jun. 10, 2005).

2) Specific determination

In full view of the following circumstances acknowledged by the developments leading up to the above disposition, Eul’s respective statements in subparagraphs 2 through 5, and the purport of the entire argument, the tax invoice in this case was proved to be false, and it is insufficient to recognize that the transaction, such as the entry of the tax invoice in this case, was actually made only with the evidence submitted by the plaintiff, and there is no other evidence to acknowledge this otherwise. Therefore, this part of the Plaintiff’

A)** The regional tax office determined that BBB was issued or received without a false tax invoice with the transaction partner including the Plaintiff during the second to 1, 2012 taxable period from September 2012, 2012;* the director of the tax office determined BBBB’s purchase and sale tax amount as property and imposed the corrected value-added tax for the period from February 2 to 2013, 2010, respectively, based on the above data, * the director of the tax office determined BBBB’s purchase and sale tax amount as property and imposed the corrected value-added tax from February 2 to 2013, 2010.

B) Accordingly, BBB filed a lawsuit against the director of the tax office seeking revocation of value-added tax. On January 17, 2018, the court rendered a judgment that the tax invoices issued for the same period of time (including the instant tax invoices) were acknowledged as false tax invoices for the same reason, on the grounds that BB had the capacity to conduct real transactions, such as not having any structure to measure the weight and degree of weight during the taxable period from 2BB to 2010 to 2011, and that the appellate court also rendered a judgment that the instant tax invoices were false for the same reason.

C) The Plaintiff’s representative director, CBBBB, under the investigation by the Defendant in connection with the instant case, refers to the question of whether BBBB is aware of the details of the transaction with BBBB, and then, at the “BBBBB,” the phone call was defective and the net level was confirmed to be more than 9.9%, and the contact was made from the BBBB, and the contact was not memory, and the contact was not made from the one who delivered the precious metal, and the other is memory.” The answer is not known, and even if the BBB knows where it was collected, the question is not known, and the answer is not made, even if the source or customer did not know of the fact that the delivery was made in advance, and it is not clear that the delivery was made by the BBB, and it is also confirmed that the delivery was made in conformity with the general concept of delivery, such as non-delivery, and it is also confirmed that the delivery was made by the BBBB, even if the source or customer did not know the delivery transaction.

D) The CCC asserted that it would be a normal transaction because it confirmed the BBB BB’s business registration certificate and tax invoice at the time. However, in light of the tax invoice issued on January 11, 201 and February 15, 2011 (Evidence A 3-1, 201-2), at the time of the first transaction with BBB, the address of BBBBB’s business place is “office ***.” Furthermore, considering the tools, storage places, employees, etc. used to measure weight and degree of weight, it is difficult to purchase the separate building of general officetels as its place of business. Since the Plaintiff was established in around 193, it is difficult to view that the Plaintiff received the tax invoice from the person in charge of the instant transaction and received the tax invoice from the person in charge of the instant transaction for about 18 years from the time of the instant transaction (the Plaintiff did not know whether the Plaintiff received the tax invoice from the person in charge of the instant case at the time of the transaction).

E) On the date of receipt of the instant tax invoice, there was a statement that the money was deposited in the Plaintiff’s inventory management ledger, and on the same day, the details of transfer of money on the Plaintiff’s tax invoice to the account of BBB in the Plaintiff’s name were shown. However, in light of the circumstances in which the purchaser and the delivery contractor’s personal information were not indicated in the above ledger, it is insufficient to recognize that the same day was actually entered or that the land was supplied by BBBB. Moreover, in light of the various circumstances supra, there is room to regard the account transfer details as a formal monetary transaction for writing out the appearance that appears to conform to the contents of the tax invoice.

D. Whether the plaintiff acted in good faith and without negligence

An actual supplier and a supplier on a tax invoice may not deduct or refund an input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the fact of misrepresentation of the tax invoice, and that the supplier was not negligent in not knowing the fact of misrepresentation of the name, the person who asserts the deduction or refund of the input tax amount must prove that the supplier was not negligent (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

In accordance with the above legal principles, in order for the Plaintiff to obtain input tax deduction as a bona fide trading party, the Plaintiff was supplied with funds from suppliers other than suppliers under the tax invoice of this case, and disbursed expenses, and was unaware of such fact, and was not aware of such fact, and there was no negligence. The evidence submitted by the Plaintiff alone is insufficient to recognize that the Plaintiff was issued the instant tax invoice in the name of BBBBB, while it was actually supplied from suppliers other than BBBB. However, there is no other evidence to acknowledge this differently (and, in light of the characteristics of precious metal, the Plaintiff is different from the actual supplier and the actual supplier under the tax invoice.

The plaintiff's assertion of this part is without merit, if he did not know the fact or did not know such fact, it is extremely difficult to understand it.

3. Conclusion

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