Cho Jae-chul2010 to 2660 ( November 24, 2011)

A Lebcon is an independent supplier of goods independently from B Lebcon.

Since it is reasonable to view that the contract for the supply of ready-mixed entered into with the plaintiff ABcon is valid, and it is reasonable to view that the plaintiff ABcon fully belongs to the plaintiff ABcon, including the sales of this case received from the person ordering the ABcon, the plaintiff ABcon constitutes an independent supplier of goods under the Value-Added Tax Act, and there is no evidence to support that the sales of this case belongs to the plaintiff Bcon.

Article 14 of the Framework Act on National Taxes

Article 4 of the Corporate Tax Act

2011Revocation of disposition of imposition of value-added tax, etc.

xle-con et al.

Director of the Tax Office

December 29, 2011

February 2, 2012

1. On June 0, 2010, the Defendant’s imposition of each corporate tax and value-added tax as specified in paragraph (1) among the details of the imposition of the attached Form 1 against the Plaintiff Co., Ltd., Ltd., and the imposition of each value-added tax as specified in paragraph (2) against the Plaintiff Co., Ltd., Ltd., shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff Co., Ltd., established on December 11, 1999, and manufactured and sold the private or government-managed ready-mixed in Gyeyang-si, Seoyang-si. The Plaintiff Co., Ltd. was established on November 5, 2001, and the Plaintiff Co., Ltd. was established on November 5, 2001 and manufactured and sold the private or government-managed ready-mixed in Seocheon-si 746.

B. On July 6, 2010, the Director of the Ministry of Knowledge Economy issued a disposition of suspension of indication six months and suspension of sales for violation of Article 21(1) of the Industrial Standardization Act, Article 28 of the Enforcement Decree of the same Act, and Article 1(f) of the same Act, on the ground that "the director of the Ministry of Knowledge Economy, on the ground that "the director of the Institute of Knowledge Economy," "the person who obtained the certification marks the certification in disguised manner with the products of another certified person's own products."

C. Based on the above facts, the defendant explained the tax investigation on the plaintiffs from 2004 to 2008, and confirmed that the plaintiff's products manufactured at the plaintiff's OOB container were sold as if they were produced, then the plaintiff's revenue amount and purchase amount were released on the basis of the plaintiffs' electric power consumption prepared for the average power consumption of the same type of business as the plaintiffs, and on June 1, 2010, the plaintiff's OOB container omitted sales amount of 6.645.083.543 won (from 2004, "the sales amount of this case") as stated in the separate sheet 2 list 6.645.05.543 won (from 2004, "the tax base of this case") was added to 2004 to 2004 to 2008 (the tax base of this case was added to 200 to 200,000,0000 won to 200,000 tax base of the corporation tax of this case.

D. The Plaintiffs appealed to the instant disposition and filed an appeal with the Tax Tribunal, but the Tax Tribunal dismissed all the Plaintiffs’ appeals on November 24, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 8, Gap evidence 23 through Gap evidence 28, Eul evidence 1 to Eul evidence 4, Eul evidence 12 (including the number of each branch number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

1) Plaintiff XXD is a legal entity that has a human and physical organization separate from Plaintiff OB containers and supplied ready-mixed pursuant to a valid ready-mixed supply contract with the other party, and was paid the sales proceeds of ready-mixed. Accordingly, the sales proceeds of this case belong to Plaintiff XXD. Nevertheless, the imposition disposition of the corporate tax of this case and the imposition disposition of the value-added tax on Plaintiff OB containers on the premise that the sales proceeds of this case belong to Plaintiff OB containers are illegal, and so long as the sales proceeds of this case belong to Plaintiff XXD, the input tax amount related to the purchase of the corresponding raw materials should be deducted under the tax invoice, and thus, the imposition disposition of value-added tax on Plaintiff XXM is also unlawful.

2) Among the instant dispositions, the imposition disposition of corporate tax for the business year 2004 against Plaintiff OOBcon and the imposition disposition of each of the taxes for the first and second years against the Plaintiffs was unlawful since the lapse of five years from the exclusion period for imposition.

B. Relevant statutes

Attached Form 3 is as shown in the relevant statutes.

C. Facts of recognition

1) The capital stock of the Plaintiff OEM is KRW 50,000,000 for shareholders: bothA and 41% for shareholders, HanB (Share 49%) and ParkCC (Share 10%). The capital stock of the Plaintiff XXM is KRW 50,000,00 for shareholders in both A (Share 25%), HanB (Share 49%) and ParkCC (Share 26%).

2) From 2004 to 2008, Plaintiff OEM 10 to 7 are less than 10, and Plaintiff XXM 10 to 8 are less than 10 officers and employees, separately employ each of the above officers and employees, withhold the labor income tax for the above officers and employees, and pay the insurance premium, such as employment insurance and industrial accident insurance.

3) The Plaintiff’s Ombcon has manufacturing facilities such as cement storage facilities, aggregate storage and transportation facilities, mixed materials storage facilities, mixing facilities, etc. 271(150С/hr and 210С/hr), concrete transport vehicle 11 units, etc. at the place of business located in Gyeyang-si 746 located in Gyeyang-si, Seoyang-si. The Plaintiff’s Ombcon each owns manufacturing facilities such as one (150С/hr) and eight concrete transport vehicles, etc. at the place of business located in Seocheon-si 568 (150С/hr) and 8 concrete transport vehicles.

4) From around 2004 to 2008, most of the Plaintiff’s business establishment produced ready-mixed using the Plaintiff’s above ready-mixed manufacturing facilities at the Plaintiff’s business establishment. Some of the Plaintiff’s products manufactured using the above ready-mixed manufacturing facilities at the Plaintiff’s business establishment. The two companies did not clarify their classification, and the Plaintiff’s products produced using the Plaintiff’s manufacturing facilities could not be accurately calculated. The officers and employees worked at the Plaintiff’s business establishment, most of the officers and employees, and worked at the Plaintiff’s business establishment only when they manufactured ready-mixed using the Plaintiff’s manufacturing facilities.

5) Around November 2004, Plaintiff XX ready-mixed entered into a cement supply contract with Non-Party ▽△ cement Co., Ltd. and paid the price upon purchasing cement and aggregate raw materials and receiving a tax invoice during the instant taxable period. The above supplied ready-mixed raw materials were not stored separately from the raw materials purchased by Plaintiff OB-con at the warehouse located in the place of business of Plaintiff OB-con.

6) Upon receipt of an order from the other party to the transaction for the supply of ready-mixed, the Plaintiff: (a) input of the raw materials stored in the storage of the Plaintiff’s OOB containers into the manufacturing facilities of the Plaintiff’s OOB containers; (b) prepare a daily bulletin on the shipment of ready-mixed; (c) provide them using one’s own or the Plaintiff’s OB containers transport vehicle; and (d) prepare a delivery slip on the part of the transaction partner, on-site name, size, transport vehicle number, departure time, supply volume, etc.; and (e) prepare a delivery slip and sign it on the column for the confirmation of the buyer at the time of supply; and (e) conduct the supply of ready-mixed in the way of receiving the supply price after issuing a tax invoice.

(7) around September 2007, Plaintiff XXM issued a tax invoice after receiving a request for the supply of ready-mixed with 206 square meters in total from △△△△△△△, and preparing a supply sheet. The Plaintiff was paid KRW 12,923,966 from the said company on October 25, 2007 and traded to supply ready-mixed with the consumers in the aforementioned way during the pertinent taxable period. Most of the owners of ready-mixed did not know that the ready-mixed supplied by Plaintiff XXM is manufactured using the Plaintiff’s manufacturing facilities.

8) On the price received from sales of ready-mixed including the sales of this case during the instant taxable period, the Commission reported and paid the corporate tax and value added tax to the sales of the ready-mixed.

9) Meanwhile, Plaintiff XXD did not pay a separate fee or usage fee for the production of ready-mixed using Plaintiff’s manufacturing facilities to Plaintiff OBD, and the Plaintiffs did not prepare the above production contract and consignment contract for the aforementioned production.

10) On December 14, 2010, the Defendant issued a false tax invoice to the Cheongju District Prosecutors’ Office as if the Plaintiff manufactured and supplied ready-mixed at Plaintiff OOB Con, and the Plaintiff filed a complaint against the Plaintiffs for violating the Punishment of Tax Evaders Act on the grounds that the Plaintiff failed to issue the tax invoice despite the actual manufacture of ready-mixed. On December 14, 2010, the Cheongju District Prosecutors’ Office’ Branch Office issued a false tax invoice to the Plaintiffs on the ground that the Cheongju District Prosecutors’ Office did not correspond to the case where the Plaintiff XX Con does not issue a false tax invoice.

[Ground of recognition] Unsatisfy, Gap evidence 1 through Gap evidence 22, Gap evidence 29 through Gap evidence 38, Eul evidence 5, Eul evidence 8 through Eul evidence 11 (including the number of each branch number), the witness's testimony and the purport of whole pleadings

D. Determination

1) Review of relevant legislation

A) Article 14 of the Framework Act on National Taxes provides that if the ownership of the income, profit, property, act or transaction subject to taxation is merely nominal and there is another person to whom such income, profit, property, act or transaction belongs, the tax law shall apply to the person to whom such income, profit, act or transaction belongs, and the provisions on the calculation of the tax base shall apply in accordance with the substance regardless of the name or form of the income, profit, act or transaction, and where it is deemed that the benefit of the tax law is to be unduly created by indirect method through a third party or by means of two or more acts or transactions, the relevant party shall be deemed to have made a direct transaction, or the tax law shall apply

B) In addition, Article 4 of the Corporate Tax Act provides that where the corporation to which all or part of the revenues generated from assets or business legally accrue and the corporation to which the revenue actually accrues are different, this Act shall apply to the corporation to which the revenue actually accrues, and the provisions on the calculation of the amount of taxable income of the corporate tax shall apply to the calculation of the amount of taxable income, notwithstanding the name or form of the income

C) Meanwhile, when a taxpayer initially engages in economic activities, one of the several legal relations may be selected in order to achieve the same economic purpose, and the tax authority shall respect the legal relations chosen by the parties, except in extenuating circumstances.

2) Determination as to the plaintiff's request for Ombcon

A) Comprehensively taking into account the facts acknowledged earlier and the overall purport of oral arguments, ① there is a special relationship between the Plaintiff and the Plaintiff’s company operating the same kind of business as the Plaintiff’s members, but the Plaintiff’s equipment and material facilities are operated for each individual’s account. ② The Plaintiff’s ready-mixed supplied its own name to the other party, as well as the supplier, supplied its tax invoices to the other party, and the owner of the ready-mixed supplied its products with the Plaintiff’s input tax invoice with the Plaintiff’s knowledge of the supply of the products to the other party, and ③ the effect of the contract on the Plaintiff’s manufacturing and supply of the products upon the Plaintiff’s supply of the products on the basis that the Plaintiff’s use of the products on the manufacturing and supply of the products on their own, including the Plaintiff’s duty to supply the products on the manufacturing and supply of the products on their own, is no more effective and efficient, and the effect of the contract on the Plaintiff’s products on the supply of the products on the part of the other party’s manufacturing and supply of the products on their own.

B) Therefore, the Defendant’s imposition disposition of the instant corporate tax and the imposition disposition of the value-added tax on Plaintiff OOB containers on the premise that the instant sales amount belongs to Plaintiff OOB containers are unlawful.

3) Determination on the imposition of value-added tax on Plaintiff XX Contac

In full view of the following circumstances, i.e., (i) Plaintiff XXD entered into a cement supply contract with Plaintiff XXV cement Co., Ltd., and received tax invoices, and paid the price for the purchase of ready-mixed raw materials such as cement and aggregate, and (ii) the Plaintiff’s request for the purchase of ready-mixed with the aforementioned raw materials; and (iii) as seen in light of the fact that the sales amount of this case is familiar with the fact that Plaintiff XXD purchased and received ready-mixed raw materials; and (iv) the sales amount of this case is familiar with the fact that Plaintiff XXMM is familiar, and on the premise that the sales amount of this case reverts to Plaintiff XXMM, it is unlawful to impose value-added tax on Plaintiff XXM by taking account of the fact that the tax invoices were purchased and issued.

4) Sub-committee

Therefore, the defendant's disposition of this case based on the premise that the sales amount of this case belongs to the plaintiff's OEM is unlawful without considering the remaining points.

3. Conclusion

Therefore, since the plaintiffs' claims are well-grounded, it is decided as per Disposition by admitting all of them.