Whether the imposition of additional tax on non-tax invoice is legitimate

It is insufficient to recognize that the failure to issue a tax invoice was due to the other party's active refusal to receive the tax invoice, and the additional tax under the tax law is an administrative sanction imposed under the conditions as prescribed by the individual tax law.

Article 16 (Tax Invoice)

Article 22 of the Value-Added Tax Act

1. The plaintiff's request is dismissed.

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

the Gu Office's place of service and place of service

The judgment of the first instance shall be revoked. The defendant's imposition disposition of the value-added tax for the second period of 198 against the plaintiff on January 8, 2004, of the value-added tax for the second period of 1998, of the value-added tax for the first period of 1999, of the value-added tax for 6,964,00, of the value-added tax for the second period of 1999, of the value-added tax for 11,705,110, of the value-added tax for the second period of 1999, of the value-added tax for 12,505,220, of the value-added tax for 14,931,140, of the value-added tax for the second period of 200, of the value-added tax for 363,94, of the global income tax for 13,940,00, of the value-added tax for 201, of the value-added tax for 2 year 2093, 194

1. Details of the disposition;

A. The Plaintiff is a businessman who runs a beverage wholesale business under the trade name of ○○○○-dong ○○○○○○○-dong ○○○○○○○○○.

B. The Plaintiff did not issue a tax invoice equivalent to KRW 10,208,524,769 to the other party to the transaction during the period of two or one year of 198 to one year of 2003.

C. In addition, the Plaintiff, the other party to the purchase transaction, even though there was a tax invoice for cancellation of sales of KRW 9,910,770, the value of supply issued by the Plaintiff at the purchaser on September 30, 200 by the ○○○○ Branch Co., Ltd. (hereinafter referred to as “○○ beverage”) on September 30, 200 (hereinafter referred to as “instant tax invoice”), the Plaintiff deducted the input tax amount as is at the time of the return of the value-added tax for the second period of 200 and included it in necessary expenses at the time of filing

D. On January 8, 2004, the Defendant imposed and notified the Plaintiff on the non-issuance of the tax invoice as described in the above sub-paragraph (b) above, and imposed and notified the value-added tax (hereinafter referred to as the "instant disposition") as stated in paragraph (1) of the attached Table, and the purchase price under the tax invoice as described in the above sub-paragraph (c) was not deducted from the input tax amount and excluded from the necessary expenses, and imposed and notified the value-added tax and the general income tax (hereinafter referred to as the "sub-paragraph (2) of this case").

[Ground of recognition] Facts without any dispute, Gap evidence 1-1 to 10, Gap evidence 2, Gap evidence 8-3, Gap evidence 4, Gap evidence 5, Eul evidence 1 to Eul evidence 11, the purport of the whole pleadings, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The business partners that the Plaintiff sells beverages are small-scale online markets, restaurants, and street stores, and they refused to receive the tax invoice in return for the exposure of transaction size. As such, the Plaintiff’s active refusal to receive the tax invoice may not cause any negligence on the part of the business partners that failed to issue the tax invoice due to their failure to issue the tax invoice, even though there are justifiable grounds for not being able to cause any negligence on the part of the business partners, the first installment of this case on which the Plaintiff imposed the penalty tax due to the non-issuance of the tax invoice on the Plaintiff is in force at the time of the disposition (amended by Act No. 8142 of Dec. 30, 206; hereinafter

Article 22 (2) is illegal in violation of the legal principles.

(2) In addition to the Plaintiff, other companies engaged in the same type of business are also entitled to the deduction of the input tax amount of value-added tax if they receive purchase tax invoices, as well as the deduction of the input tax amount of value-added tax if they receive documentary evidence, such as the global income tax return, but it is against equity to impose penalty tax only for the Plaintiff, even though the tax authority impliedly declared such practice, if it is difficult for the transaction partner of the small-scale business with lack of knowledge on the tax law such as the belief that there are many taxes if they receive documentary evidence, such as the tax invoice, etc.

(b) Related statutes;

○ The former Value-Added Tax Act

Article 16 (Tax Invoice)

(1) If an entrepreneur registered as a taxpayer supplies goods or services, he shall deliver an invoice stating the following matters (hereinafter referred to as “tax invoice”) to the person who receives the supply as prescribed by the Presidential Decree at the time prescribed in Article 9: Provided, That in the case prescribed by the Presidential Decree, the delivery time 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.

5. Matters as prescribed by the Presidential Decree other than those under subparagraphs 1 through 4.

Article 22 (Additional Tax)

(2) Where an entrepreneur falls under any of the following subparagraphs, an amount equivalent to 1/100 of the value of supply shall be added to the payable tax amount or deducted from the refundable tax amount:

1. If the tax invoice as provided in Article 16 (1) is not delivered, or the requisite entries of the tax invoice on the delivered portion are not wholly or partly entered, or are different from the fact;

○ Enforcement Decree of the Value-Added Tax Act

Article 53 (Tax Invoice)

(2) Where a person who is supplied with goods or services is not a business operator, he/she shall enter an identification number, name and resident registration number of the person provided with the goods or services pursuant to Article 8 (2) in lieu of the registration number under Article 16 (1) 2

(4) In case where an entrepreneur transmits an account statement according to the methods as prescribed in the following subparagraphs and keeps it, it shall be deemed that he delivers a tax invoice under Article 16 (1) of the Act:

1. Where matters falling under each subparagraph of Article 16 (1) of the Act are transmitted through an information and communications network (excluding transmission through the method under subparagraph 2), and are stored in the information processing systems, computer tapes, diskettes, etc. in electronic form;

2. Where information under each subparagraph of Article 16 (1) of the Act is transmitted through the Internet through a certification system capable of verifying the identity of the originator, whether to change the invoice, etc., and such information shall be kept in the electronic form, such as an information processing system, computer tape or diskettes;

C. Determination

(1) Each entry of Gap 6, 9, 12 evidence, Gap 10, and 11 evidence is insufficient to recognize that the plaintiff's failure to issue a tax invoice equivalent to KRW 10,208,524,769 to the other party to the transaction during the taxable period of February through 1, 2003 was due to the plaintiff's active refusal to receive the tax invoice, and there is no other evidence to recognize otherwise. Even if it is true in domestic affairs, additional tax under the tax law is an administrative sanction imposed under the conditions as prescribed by individual tax laws and does not take into account the taxpayer's intention or negligence: Provided, That it is unreasonable for the taxpayer to know his/her duty, or it is unreasonable for the other party to expect to fulfill his/her duty, and thus, it cannot be deemed that the plaintiff's refusal to issue the tax invoice to the other party to the transaction without any justifiable reason that the plaintiff's failure to receive the tax invoice is a kind of legitimate basis for the delivery of additional tax under the Enforcement Decree of the Value-Added Tax Act (see Supreme Court Decision 2020Du461, Dec. 11, 2, 20003).

(2) Even if there was a practice in which the Plaintiff and identical business entities did not issue a tax invoice to a small party who received the tax invoice as alleged by the Plaintiff and reported the transaction by retail transaction at the time of the return of value-added tax, such practice is not only a violation of the provisions of Article 16 of the former Value-Added Tax Act concerning the duty to deliver the tax invoice as seen earlier, but also a concealment of such violation and a false tax return cannot be received. Thus, regardless of whether to impose additional tax on the other business entities, the instant first disposition against the Plaintiff cannot be deemed to contravene the principle of equity, and thus, the Plaintiff’s assertion on this part is without merit.

3. Whether the second disposition in this case is legitimate

A. The plaintiff's assertion

The Plaintiff unilaterally prepared the instant tax invoice, which is different from the fact, even though the purchase was revoked and the products were not returned, even though the Plaintiff did not return the products, and the Plaintiff did not receive the said tax invoice. Nevertheless, the instant disposition, which was made by the Defendant based on the instant tax invoice, which is different from the fact, was unlawful.

○ Value-Added Tax Act

Article 21 (Settlement and Correction)

(1) The head of a district tax office having jurisdiction over a place of business, the Commissioner of the competent Regional Tax Office, or the Commissioner of the National Tax Service shall determine or correct the tax base of value-added tax or tax amount

1. Where the final tax return is not filed;

2. Where there are any mistakes or omissions in details of the final tax return;

○ Income Tax Act

Article 80 (Settlement and Correction)

(2) If a person who has made a final return on tax base pursuant to Articles 70 through 72 or 74, falls under any of the following subparagraphs, the head of a regional tax office having jurisdiction over the place of tax payment or the head of a regional

1. Where an omission or error exists in the contents of return;

C. Determination

In full view of the purport of the arguments in Gap evidence Nos. 4 and Eul evidence Nos. 13 and Eul evidence Nos. 17, the plaintiff returned 23,017,416 won of beverages such as "○" while purchasing beverages from ○○ beverages during one month from September 1, 200 to October 30 of the same month; "○○" was discovered in the product, causing serious social damage and heavy recovery around September 200; the tax invoice of this case was issued on September 30, 200, and the tax return was filed; the plaintiff made on Oct. 27, 2003; the plaintiff made a tax invoice of this case to a tax official on the above return amount of 9,910,70 won and the confirmation document of global income tax as necessary expenses; and thus, the plaintiff's tax invoice of this case was unlawful.

4. Conclusion

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

Table 3

1. Additional tax on the value-added tax for two years, 198; 4,525,590 won; and

Value-added tax for a period of one year 199 6,964,000 won

Value-added tax for a period of two years in 199 11,705,110

Value-added tax for a period of one year 200 12,505,220 won

Value-added tax for a period of two years in 2000 KRW 13,323,620

Value-added tax for a period of one year 2001 16,948,870 won

Value-added tax for the second period of 201 10,195,780 won

Value-added tax for a period of 1 year 2002 11,147,930

Value-added tax for the second period of 202 5,494,220 won

Value-added tax for a period of one year 2003 9,374,060 won

2. Value-added tax for two years, 200 (value-added tax 91,084 won + 616,436 won);

Global income tax for 200 6,269,320 won (principal tax 3,963,382 + additional tax 2,305,938 won)

Finally.