(영문) 수원지방법원 2008. 03. 19. 선고 2007구합7872 판결

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(영문) 수원지방법원 2008. 03. 19. 선고 2007구합7872 판결

하도급 공사를 한 사실만으로 실제 거래로 비용인정할 수 있는 지 여부[일부패소]

Title

Whether it can be recognized as expenses for actual transactions solely with the fact that the subcontracted project was conducted.

Summary

As long as the relevant tax invoice has been proved to be false, it shall be deemed that the corresponding cost has been proved to be reasonable, and if there is an actual expense, it shall be insufficient to prove it only by the evidence presented by the plaintiff, which is proved by the taxpayer.

Related statutes

Article 19 (Scope of Losses)

Text

1. On June 1, 2006, the part exceeding 15,393,129 won among the disposition of imposition of value-added tax for the first period of January 2001 against the plaintiff on June 1, 2006, and the part exceeding 35,430,83 won among the disposition of imposition of corporate tax for the business year of 2001, shall be revoked, respectively.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s imposition of value-added tax on June 1, 2006 25,740,990 won (2 period 3,442,600 won, 2,642,200 won for February 2, 1999, 16,291, 150 won for January 16, 2001, 365,040 won for January 3, 2002, and 49,640,430 won for corporate tax (1,87,420 won for business year 1,887, 420 for 1999, 6,87,930 for business year 6,87,930 for 200, 37,654,730 won for business year 201, 37,654,730 won for business year 202, 320,350 won for business year 20) shall be revoked.

Reasons

1. Details of the disposition;

"A. The plaintiff is a corporation operating landscaping construction business, etc., and four companies, such as so-called data merchants, etc., issued between November 10, 199 and April 30, 2002, by the purchase tax invoice Nos. 1 through 9 (the aggregate amount of KRW 112,842,00, hereinafter referred to as the "tax invoice of this case") issued by them, and deducted an amount equivalent to the tax invoice from the amount of value-added tax return for the second period of February, 200, 200, January 2, 200, 200, and January 200, 200, and included an input tax amount in deductible expenses from 199 to 202. However, on June 1, 2006, the defendant issued a notice of the tax invoice No. 1 to 10 of the tax invoice of this case as the input tax amount to the plaintiff, and issued corporate tax for non-taxation.

C. Upon receipt of an objection, the Plaintiff filed a request for a national tax trial on November 23, 2006. The National Tax Tribunal rendered a decision to rectify the tax base and tax amount by excluding the said tax invoice on the grounds that the tax invoice No. 10 No. 10 attached hereto was not actually submitted at the time of filing the return of value-added tax and corporate tax,

[Reasons for Recognition] Evidence No. 1, Evidence Nos. 1, 2, and 3-1 to 4, Evidence No. 4-1, 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Value-added tax portion

The Plaintiff subcontracted the construction work to the master contractor and paid the construction cost to him, and the above master contractor further subcontracted part of the subcontracted construction work to another construction business operator. Since the Plaintiff paid the construction cost to the other construction business operator and received it from the master contractor, the Plaintiff did not know that the instant tax invoice was false, the amount equivalent to the instant tax invoice should be deducted as the input tax amount of value-added tax.

(2) Corporate tax portion

Even if the instant tax invoice is a false tax invoice, and thus, cannot be deducted as the input tax amount of value-added tax, insofar as the Plaintiff actually disbursed the construction cost of KRW 21,723,00 with respect to the △△△△△△△△△△△△△△ Facility Protection Project, and received the instant tax invoice, the amount equivalent to the instant tax invoice shall be included in the deductible expenses in calculating the corporate tax.

(b) Related statutes;

/ former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006)

Article 16 (Tax Invoice)

(1) Where an entrepreneur registered as a taxpayer supplies goods or services, he/she shall deliver an invoice stating the following matters (hereinafter referred to as "tax invoice") to the recipient, as prescribed by Presidential Decree, at the time provided for in Article 9: Provided, That in cases prescribed by Presidential Decree, the time of delivery may vary:

1. Registration number, name or denomination of the businessman who provides;

2. Registration number of the person who receives;

3. Supply value and value-added tax;

4. Date of preparation.

Article 17 (Payable Tax Amount)

(2) The following input taxes shall not be deducted from the output tax amount:

1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a “necessary entry item”) is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be excluded;

m. Corporate Tax Act

Article 19 (Scope of Deductible Expenses)

(1) Deductible expenses shall be the amount of losses incurred by transactions which reduce the net assets of a corporation, excluding return of capital or financing, disposition of surplus funds, and what is provided for in this Act.

(2) The losses under the provisions of paragraph (1) shall be losses or expenses generated or spent in connection with the business of a corporation which are generally accepted as normal or directly related to profit, except as otherwise prescribed by this Act and other Acts and subordinate statutes.

(3) Matters necessary for the scope and types of losses under the provisions of paragraphs (1) and (2) shall be prescribed by Presidential Decree.

()) 원고는 모작시공자들에게 공사를 하도급하는 방식으로 공사를 시공하는데, 2000년경부터 2001년경까지 사이에 박♤♤에게는 □□□□□공사를, 양♧♧에게는 ○○○○공항시설기반조성공사를, 홍⊙⊙에게는 △△△△철도비탈면보호공사를 각 하도급하였다.

(2) 원고는 □□□□□공사와 관련하여 박♤♤에게 2000. 10. 28.부터 같은 해 5. 12.까지 사이에 12회에 걸쳐 합계 156,200,000원을, ○○○○공항시설기반조성공사와 관련하여 양♧♧에게 2001. 4. 30.부터 같은 해 7. 28.까지 사이에 3회에 걸쳐 합계 110,169,000원을, △△△△철도비탈면보호공사와 관련하여 홍⊙⊙에게 2001. 5 7.과 2001. 7. 31. 2회에 걸쳐 합계 21,723,000원을 각 공사대금 등으로 지급하였다.

(Grounds) Evidence Nos. 2 through 12, Evidence No. 13-1, 2, and the purport of the whole pleadings

D. Determination

(1) Value-added tax portion

구 부가가치세법(2006. 12. 30. 법률 제8142호로 개정되기 전의 것) 제17조 제2항 제1의2호, 제16조 제1항 제1호의 각 규정을 종합하면, '공급하는 사업자의 등록번호와 성명 또는 명칭'이 사실과 다른 세금계산서는 허위의 세금계산서로서 매입세액으로 공제하지 아니 하는바, 앞서 본 바와 같이 이 사건 세금계산서는 ◇◇건기 등의 업체가 발행한 것이고, 실제 거래 상대방들은 모작시공자들인 위 박♤♤, 양♧♧, 홍⊙⊙이므로, 이 사건 세금계산서는 그 세금계산서상의 공급자와 실제 공급하는 사업자가 다른 허위의 세금계산서라고 할 것이고 앞서 든 각 증거에 비추어 보면, 원고 또한 이 사건세금계산서가 그 발행명의인들로부터 그 기재와 같은 재화나 용역을 공급받지 않고 발행된 것임을 잘 알고 있었다고 볼 수밖에 없으므로, 원고의 이 부분 주장은 이유 없다.

(2) Corporate tax portion

(A) If a taxpayer asserts that some of the expenses reported by the taxpayer are not actual expenses, it shall be proved to the extent that the taxpayer's use of the expenses claimed by the tax authority and the other party to the payment are false. If the taxpayer asserts that there was another expense disbursement equivalent to the same amount while the taxpayer did not incur any expense according to the details of the report, it shall be deemed that it is necessary for the taxpayer to prove that it is easy for the taxpayer to present all the data, such as the account books and evidence on the specific expense spending facts and the amount of other expenses (see Supreme Court Decision 94Nu3407, Jul. 14, 1995).

(나) 그런데, 이 사건 세금계산서가 허위로 판명된 이상 그에 상응하는 비용도 허위임이 상당한 정도 입증되었다고 할 것이고, 따라서 원고로서는 같은 금액만큼의 비용지출이 있었다는 점을 입증하여야 할 것인데, 원고가 박♤♤에게 2000. 10. 28.부터 같은 해 5. 12.까지 사이에 12회에 걸쳐 합계 155,200,000원을, 양♧♧에게 2001. 4. 30.부터 같은 해 7. 28.까지 사이에 3회에 걸쳐 합계 110,169,000원을, 홍⊙⊙에게 2001. 5. 7.과 2001 7. 31. 2회에 걸쳐 합계 21,723,000원을 각 지급한 사실은 앞서 본 바와 같으나, 위 인정사실만으로는 원고가 위 박♤♤ 등에게 공사대금을 지급하고 이 사건 세금계산서를 수취하였다고 인정하기에 부족하고, 달리 원고가 비용을 지출하고 이 사건 세금계산서를 발급받았다고 볼 만한 증거도 없으므로, 위 세금계산서의 공급가액과 같은 금액의 비용지출이 있었다고 할 수 없어, 원고의 이 부분 주장도 이유 없다.

(3) Determination ex officio (related to tax invoices already submitted)

Although the tax invoice Nos. 10 of the attached tax invoice Nos. 10 (value 4,109,000) was not submitted to the defendant, the defendant should be deemed to have submitted the above tax invoice by mistake, and at the time of revision of the value-added tax for the first period of January 2001, the fact that the above supply price is not deducted from the input tax amount, and the above supply price is calculated by deducting the above supply price from the deductible expenses in the event of revision of the corporate tax for the business year 2001 is as seen earlier. Thus, the amount of supply of the above

In the above calculation, the value-added tax for the first period of January 2001 is KRW 15,393,129 (the amount of the tax in the previous disposition of imposition has decreased by KRW 898,021), and the corporate tax for the business year 2001 is KRW 35,430,883 (the amount of the tax in the previous disposition of imposition has decreased by KRW 2,223,847 (the amount of the tax in the previous disposition of imposition of the value-added tax is the same as the details of the calculation of the value-added tax and the calculation of the corporate tax), and the amount exceeding KRW 15,393,129 in the disposition of the imposition of the value-added tax for the first period of January 2001 by the defendant shall be revoked, respectively, by unlawful means.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.