Daejeon District Court-2012-Gu Partnership-4199 ( March 23, 2014)

Cho Jae-chul2012 Before 2202 (O6.29)

Even if it falls under a false tax invoice, it constitutes a negligence in the duty of good faith, and the imposition of an unfair underreporting penalty tax is wrong.

It constitutes a tax invoice different from the fact, and some transaction partners constitute a tax invoice subject to input tax, and it cannot be deemed that the Plaintiff recognized that some transaction partners would reduce national tax, and thus, the imposition of unfair under-reported additional tax is erroneous.

Daejeon High Court 2014Nu11340 Such revocation

00metallics

00. Head of tax office

Daejeon District Court Decision 2012Guhap4199 Decided 23, 2014

2015.03.26

oly 2015.23

1.The judgment of the first instance shall be modified as follows:

A. On November 1, 2012, the Defendant’s imposition disposition of value-added tax of KRW 3,573,55,350 for the first term portion of year 201 against a debtor of the rehabilitation industry 00 metal industry corporation is revoked in excess of KRW 909,550,200.

B. The plaintiff's remaining claims are dismissed.

2. 3/10 of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

On November 1, 2012, the Defendant revoked the disposition of imposition of value-added tax of KRW 3,573,55,350 on the first term portion of year 201 against the rehabilitation debtor 00 metal industry corporation.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. From July 4, 2006 to 000 00-00, while engaging in the non-ferrous metal manufacturing business, a decision was made on January 17, 2012 on the commencement of rehabilitation procedures and appointment of a manager as to the maximum of 00 representative director by the district court 201 Gohap000 on January 26, 2012. The maximum of 00 on January 26, 2012 was registered as a custodian.

B. In the taxable period of value-added tax for the first quarter of 201, 00 metals were purchased from each purchaser or trader listed below (hereinafter “each transaction party of this case”) and received a tax invoice corresponding to each purchase content (hereinafter “each tax invoice of this case”). As to the value-added tax for the first quarter of 201, the input tax amount under each tax invoice of this case was deducted from the output tax amount, and the Defendant filed a return of value-added tax for the pertinent taxable period by deducting the input tax amount under each tax invoice of this case from the output tax amount.

C. With respect to 00 metals on March 6, 2012, the Defendant denied the deduction of the relevant input tax amount on the ground that it constitutes a disguised business operator (so-called “data sales”) who issued a false tax invoice by each business entity Nos. 1 through 5 from among the transaction parties of this case without real transactions, and accordingly, the Defendant issued a revised and notified the input tax amount deduction on the ground that the tax invoice issued by the said business entity from each of the above transaction parties is also a tax invoice different from the fact, and the amount of value-added tax for the first period of January 201 (including additional tax) was also corrected and notified (hereinafter “disposition on March 6, 2012”).

D. In addition, with respect to 00 metal on November 1, 2012, the Defendant denied the relevant input tax deduction on the ground that the pertinent tax invoice issued by 00 metal from each of the aforementioned transaction parties is also a false tax invoice on the ground that it constitutes a false tax invoice (so-called data) and issued by each of the aforementioned transaction parties is also a tax invoice different from the facts. The Defendant issued a revised and notified the amount of value-added tax amount of KRW 258,096,570 (including additional tax) for the first period of November 1, 2012 (hereinafter referred to as "disposition issued on November 1, 2012"); and each of the above dispositions collectively referred to as "the disposition for which the final increase in value-added tax amount of KRW 3,573,55,350 is the final increase).

E. The Plaintiff, who was dissatisfied with the disposition taken on March 6, 2012, filed an appeal with the Tax Tribunal on April 17, 2012, but was dismissed on June 29, 2012. The Plaintiff, who was dissatisfied with the disposition taken on November 1, 2012, filed an appeal with the Tax Tribunal on February 6, 2013, but was dismissed on May 14, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, 132 through 135 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

00 Metals are supplied with actual closures, etc. and paid normally from each of the instant transaction parties as indicated in each of the instant tax invoices, and thus, each of the instant tax invoices is not different from the facts. Even if each of the instant tax invoices falls under the so-called data and thus constitutes a false tax invoice, 00 metal was unaware of such fact at the time of transaction, and directly visited and confirmed each transaction office at the time of transaction, and paid the price to each of the transaction. In light of the fact that each of the instant tax invoices was written with a measurement certificate stating the date of measurement, vehicle number, name, weight, volume, volume, volume, volume, etc. at each transaction, and written a written confirmation stating the driver’s signature and telephone number at each time of transaction, and thus, 00 metal is a person without fault, and thus, 00 metal is a person with no fault. Even if the good faith and without fault of a dead metal is not recognized, the portion of the instant penalty tax for unfair underreporting is illegal.

Therefore, the instant disposition should be revoked in an unlawful manner.

B. Relevant statutes

It is as shown in the attached Form.

C. Whether each of the instant tax invoices constitutes a false tax invoice

(1) Relevant legal principles

Article 17(2)2 of the Value-Added Tax Act provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the fact. The meaning that the entries of a tax invoice are different from the fact refers to cases where the necessary entries of a tax invoice do not coincide with the actual subjects, values, and timing of the supply of the goods or services, notwithstanding the formal entries of a transaction contract, etc. prepared between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

(2) Facts of recognition

The following facts are acknowledged in full view of each of the statements in Gap evidence 6-1, 2, 30-1, 54-1, 59-1, 79-1, 136-1, 2, 136-2, 13-1, 2, 17-2, 17-1 through 4, 18-1 through 6 of Eul evidence 18-1, 30-1, 54-1, 59-1, 79-1, 136-2, 13-1, 2, 17-1 through 4, and 18-1 through 6 of Eul evidence.

① Each transaction partner of the instant case closed his/her business without reporting or paying value-added tax.

② Although 00, which was registered as the representative director of 00 countries Co., Ltd. (hereinafter referred to as "0 countries") had never been engaged in the scrap metal-related business prior to the date of registration of business on January 10, 201, the 0 countries reported that they engaged in transactions of 22,516,000 won in purchase, and 21,976,000,000 won in purchase until the date of closure of business on June 30, 2011, and as a result of the tax investigation, the 00 scrap metal and 00 won claimed as the 0 countries purchaser were also determined as materials without substantive substance.

③ Although Song 00(0) was only a part of the automobile maintenance enterprise in around 2008, the person engaged in the business related to scrap metal has not been verified (However, around August 201, Song 00 stated to the effect that, upon undergoing a tax investigation around August 201, it was “the person engaged in scrap metal business with unregistered registration from around 2008.”

Until September 7, 2011, after completing business registration on August 26, 2010, the sales amount of KRW 46,600,000, KRW 470,000, and KRW 470,000 were reported to be traded. During the tax investigation process, the purchase data corresponding to the sales tax invoice was not submitted (i.e., the invoice cannot be disclosed), and most of the sales amount was deposited into the account of the principal on the day when the sales amount was deposited into the account of the principal.

④ Although it was not verified that the Plaintiff had been engaged in the business related to the purchase of waste, other than a simple restaurant and skin bank, the Defendant reported that the Plaintiff had engaged in the transaction of KRW 9,928,000,000, purchase amount of KRW 275,000,000 until the closure of business on March 7, 2011. During the course of the tax investigation, the Defendant did not submit the purchase data corresponding to the sales tax invoice other than the details purchased from 0 non-ferrous metals, and was a company accused of 0 non-metallic metals mado on the basis of the above data.

(5) Although it is not confirmed that a person engaged in the closed-dong distribution business had not been engaged in such business, he/she filed a report on discontinuance of business on June 30, 201 under the circumstance that he/she was delinquent in paying 4,913,000,000 won after business registration on January 3, 201, and reported that he/she engaged in a transaction of 49,258,000,000 won during the pertinent business period, but failed to submit purchase data corresponding to the sales tax invoice during the course of tax investigation.

(6) On July 5, 201, 201, 2000 won was reported to be traded in the amount of 41,653,000,000 won, and 138,000,000 won was not disclosed in the course of the tax investigation, even though the person was engaged in the closed wholesale and retail business without confirming the career of engaging in the closed wholesale and retail business, and was in a bad credit standing position, until the business operator reported the closure of business on July 5, 201, and the purchase details corresponding to the reported amount was not presented in the course of the tax investigation, but did not submit financial data or loan certificates related to the commencement of the business, and if the sales amount was deposited into the account of 00 principal, the sales amount was immediately transferred to the account in the name of several principal and subsequently withdrawn in cash.

7) From around 2008, Kim 00 (Large-0) had a career of operating ** Resources. However, on November 20, 2010, after the registration of business operator of 00 resources, the sales tax invoice equivalent to KRW 22,287,00,000 was issued for six months, and the value-added tax was closed on June 30, 201 without paying KRW 222,00,000. Upon the commencement of the tax investigation, the contact was interrupted. At the end of the tax investigation, there was no purchase related to closed-dong during the tax period for the first half of January 201, and if the sales amount was deposited into the account of Kim 00, the sales amount was immediately transferred to several personal accounts and then withdrawn in full in cash.

⑧ 엄00(한0비철)는 폐동 유통업에 종사한 경력이 확인되지 아니함에도(다만,엄00는 2009년경 @@자원에서 일용직으로 근무한 적이 있다) 2010. 8. 24. 한0비철 사업자등록을 하였다가 2011년 1기분 부가가치세 과세기간 중 매입 없이 380,000,000원 상당의 매출세금계산서를 발행하고 부가가치세 42,000,000원을 체납한 상태로 2011. 6. 17. 폐업하였는바, 엄00는 세무조사를 받는 중에도 위 거래명세서상 폐동의 매입과 관련한 매입자금, 매입 방법 등에 관한 객관적인 자료를 전혀 제출하지 않으면서 매입처에 관하여 밝힐 수 없다고 하였으며, 역시 매출대금이 엄00 본인의 계좌로 입금되면 즉시 수개의 본인 명의 계좌로 이체된 후 다시 전액 현금으로 인출되었다.

(9) The period, frequency, scale, etc. of each transaction partner of this case with 00 metals and each transaction partner of this case shall be as follows:

(Omission of Table)

(3) Determination

In full view of all the circumstances revealed in the above facts, each of the transaction parties of this case is "data, not a company that purchases normally closeddong, etc. and sells it again," and it is reasonable to deem that the actual closing Dong, etc. to 00 metal in connection with the transaction of each of the tax invoices of this case is a third party, not a transaction party of this case. Thus, each of the tax invoices of this case stated in the name of each transaction party of this case by a supplier of closed Dong, etc. received 00 metals, shall be deemed to constitute a false tax invoice, namely, a false tax invoice

D. Whether to recognize good faith and negligence with 00 metal

(1) Relevant legal principles

The actual supplier and the supplier on a tax invoice that is different from the supplier on a tax invoice

Unless there is any special circumstance that the purchaser was unaware of the fact that he/she was unaware of the fact that he/she was unaware of the name of the invoice, the input tax amount cannot be deducted or refunded, and the supplier was unaware of the fact that there was no negligence on the part of the purchaser of the above fact that he/she was unaware of the fact that he/she was unaware of the above name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002): Provided, That in cases of waste resources, such as waste roads, it cannot be deemed that the supplier of the relevant goods was obligated to actively investigate whether the other party was a disguised business operator due to the characteristics of the distribution structure and transaction, and therefore, there is sufficient circumstance to suspect that the other party was a disguised business operator in light of the facts revealed in the process of collecting data to determine whether the other party was a person eligible to be a disguised business operator. However, the other party was negligent in failing to know the fact that he/she

(2) Facts of recognition

Evidence adopted earlier, and evidence adopted earlier, and evidence 6 through 119, 122, 123, 136, 138, 140 through 142, 144

The following facts are acknowledged in full view of each description of evidence of 154, 156, Gap evidence of 126 through 130, 142-6, 143, and 155, and the whole purport of the pleadings with respect to the witness testimony of the first instance court, and the whole purport of the pleadings.

① The 00 metal received a delivery proposal from each of the instant transaction partners and received a business registration certificate, a copy of passbook, a copy of identification card, and the name of the representative before commencing the transaction, and confirmed the receipt. Moreover, prior to commencing the transaction, the 00-metallic director or maximum 00 representative visited and confirmed the site of each of the instant transaction partners, and interview with the representative, etc., and affix a photograph of the signboard on the spot.

② On January 21, 201, the first transaction with 00 metals was conducted on January 10, 201, and the first transaction was conducted on January 10, 201, the 111th day prior to the date of the first transaction. Moreover, even though the 00 metals, among each transaction party of the instant case, were never engaged in the closed-dong distribution business, the 00 metals began with the trading with the 0 country. In addition, even though the 00 metals, among the transaction parties of the instant case, were operated on January 10, 201 and the 7th day prior to the first transaction, was not verified as having been engaged in the closed-dong distribution business, etc., the 00 metals commenced the trading with the 00 trillion won.

③ On the other hand, each of the transaction partners of the instant case stated that, at the time of the first transaction with the metal of about 00 and about 3 months and 6 months prior to the first transaction, the companies had been engaged in the business related to the scrap metal of about 00 (0.0 metal), 00 (0.00), 00 (0.00) and 00 (00.0) had been engaged in the business related to the scrap metal of about 00 (0.00). In the course of the tax investigation, the companies stated that they had been engaged in the business related to the scrap metal of about 00 (00.0) from around 208, and that they had been engaged in the business related to the scrap metal of about 00 (00.0).

④ 00 metals were supplied by each of the instant transaction parties, each of the instant transaction parties confirmed the actual weight by classifying the waste movement, etc. from each of the instant transaction parties, and prepared a written confirmation of measurement by determining the supply value through the procedure to determine the volume of figures, and prepared a written confirmation, stating the date of measurement, the vehicle number, the name of the business entity, the measurement sheet stating the weight, and the entry and exit of the vehicle, and the screen tallying log, stating the class and weight of the waste agreement entered.

⑤ The 00 metal remitted the value of supply calculated through measurement to a passbook in the name of each of the instant transaction parties on the date close to the date of issuance of the tax invoice.

(3) Determination

(A) Parts of the transaction [the part in which good faith and negligence of 00 metals are recognized] with respect to the transaction [the part in which good faith and negligence of 00 metals are recognized]

1) In full view of the following circumstances revealed in the above facts, i.e., ① 00 metal was made efforts to verify whether the above transaction partners actually engaged in the business of closing, etc. before commencing the transaction with the above transaction partners; ② 00 metal was transported from the above transaction partners in the course of being supplied with closed, etc. from the above transaction partners; ③ 00 metal was normally remitted from the above transaction partners’ name to the above transaction partners; ④ 00 metal was considerably less than the general transaction price at the time of the transaction; and ④ there was no evidence to presume that there was no abnormal transaction, such as that there was no knowledge that the name of the supplier of each tax invoice in this case was different from the actual supplier; and there was no negligence in failing to know such fact.

2) 피고는, "폐동은 고가의 폐자원으로서 공급이 부족한 상태인데, 00금속은 상당 기간 폐동 거래를 해왔으므로 이와 같은 폐동의 공급구조, 유통경로, 거래형태,자료상의 거래실태 및 위험성에 대하여 잘 알고 있었을 것이라는 점, 위 거래처들이모두 00금속과 거래를 개시하기 불과 몇 개월 전에 사업자등록을 한 신생업체들이고, 비교적 단기간에 거액의 거래가 이루어진 점, 송00(서0금속)의 경우 제출한 임대차계약서와는 달리 임대차계약을 실제로 체결한 적이 없는 점 등에 비추어 보면 00금속의 이사 신00 등이 위 거래처들의 현장을 제대로 방문・조사한 것인지 의심스럽다"는 등의 사유를 들어 00금속이 거래상의 주의의무를 다하지 않았다고 다툰다. 그러나 ㉠ 이 사건 거래대상인 폐동과 같은 폐자원의 경우 소규모 고철상들이 수집한 물건들을 중간상이 사들여 00금속과 같은 금속 제조업체에 매도하는 방식으로 거래가 이루어지므로, 00금속의 경우 자신과 직접 거래하는 중간상이 정상적인 업체인지를 확인하는 것에서 더 나아가 그 중간상이 폐동 등을 매입한 매입처(소규모 고철상들)를 일일이 확인하여 이른바 피고가 주장하는 '폐동 매입경로'를 확인하는 것은 현실적으로 어렵고, 거래처들의 영업비밀로서 이를 공개하지 않을 가능성이 높은 점, ㉡ 또한 폐동의 거래는 운송비의 절감과 거래의 편의상 중간도매상들이 각지에서 폐동을 수집하여 이를 자기의 사업장에 상・하차하지 않고 직접 폐동을 싣고 가서 00금속과 같은 납품처에서 계근과 대금 수령 및 세금계산서의 교부 등을 동시에 하는 경우가 적지 않으므로 야적장이나 계근대가 없다고 하여 폐동의 공급자가 될 수 없다고 단정할 것은 아닌 점, ㉢ 폐동의 거래시장은 수요에 비해 공급이 부족한 공급자 우위의 시장인 점, ㉣ 달리 00금속이 위 거래처들의 거래적격자 해당 여부를 판단하기 위한 자료를 수집하는 과정에서 밝혀진 사실관계에 비추어 위 거래처들이 위장사업자라고 의심할 만한 충분한 사정이 있었다고 볼 자료가 없는 점 등을 고려해 볼 때, 00금속이 앞서 취한 조치들 외에 추가적으로 위 거래처 업주들의 이전 경력이나 폐동의 이동경로를 구체적으로 조사・확인을 하지 않았다는 사정만을 이유로 거래상 과실이 있었다고 단정할 것은 아니라고 판단되므로, 피고가 주장하는 위 사유들은 00금속의 선의・무과실을 인정하는 데에 방해가 되지 아니한다.

3) Therefore, the part of the disposition of this case, which denied the input tax deduction under each tax invoice received from 00 (0.0 metal), 00 (0.00), 00 (00), 100 (0.00) and 200 (00.0) and imposes tax on the Plaintiff, is unlawful. The Plaintiff’s assertion on this part is with merit.

(B) Transaction parts with zero and 00 (Gyeong-00) (the portion in which good faith and negligence with or without metals is not recognized)

As can be seen from the above facts, in light of the fact that 00 metals are traded with the above transaction partners, and the date of measurement, vehicle number, vehicle access details, etc. are prepared and the money corresponding to the closed operation is remitted to the account of the above transaction parties, etc., it is recognized that 00 metals are actually paid and are provided with closed operation, etc. as specified in the tax invoice.

However, in light of the above facts acknowledged as a whole, ① zero metal was registered as a business operator on January 23, 1978 and operated the old metal processing business. From July 4, 2006, it continued to operate 000-00 non-metallic metal manufacturing business by establishing 00 metals continuously, and the maximum number of 00 metals was continuously installed and operated. Thus, it seems that the above 00 metal manufacturing business was sufficiently informed of the general forms and methods of transactions in the pertinent industry, the actual condition of transactions in the above industry, and the risks of the above industry were not sufficiently known to the above 00 metal manufacturing business operator’s use of non-distincing materials for the above 00 metal sales business operator’s use of non-distincing materials, and there was no other evidence that the above 0-distincing business operator did not know about the non-distincing business operator’s use of non-distincing materials at the time of 00,011.

E. Whether the part of the disposition of this case relating to illegal underreporting was lawful

(1) In light of the language, structure, etc. of relevant provisions, such as Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201; hereinafter “former Framework Act on National Taxes”), even if a taxpayer obtained a false certification and under-reported the tax base, the taxpayer cannot be deemed to fall under “in cases where a taxpayer under-reported the tax base by improper means” if he/she did not know that there was a false certification, and it does not change because the taxpayer was unaware of the fact that he/she was under-reported by gross negligence. In addition, in order to constitute “where a taxpayer under-reported the tax base by improper means” under Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter “former Framework Act on National Taxes, other than the fact that a taxpayer who issued a tax invoice is subject to a deduction or refund of an input tax amount under one-one five (15).

(2) As to the instant case, the following circumstances, which are acknowledged in full view of the purport of the entire pleadings, are: (a) 00 metal is deemed to have been actually supplied at the volume of supply and price specified in each of the instant tax invoices at the time stated in each of the instant tax invoices; and (b) subsequent to the payment of the purchase price and the total value-added tax thereon through the account of each of the instant transaction parties; (c) even if so, despite the fact that the metals were issued by each of the instant transaction parties and received the input tax deduction, the evidence submitted by the Defendant alone is insufficient to deem that “the fact that each of the instant tax invoices is different from the fact,” and “each of the instant transaction parties” reported and paid the tax base and tax amount of value-added tax except for the output tax under each of the instant tax invoices, or received the deduction of the input tax amount by evading the liability to pay the input tax amount by filing a request for correction after filing a tax return on and paying all of the output tax amount under each of the said tax invoices.”

Therefore, with respect to 00 metals, an additional tax for underreporting under Article 47-3 (1) of the former Framework Act on National Taxes should be imposed, not for an unfair underreporting under-reported additional tax under Article 47-3 (2) of the same Act. As such, the portion in excess of the amount for which an additional tax for underreporting was imposed, not for an unfair under-reported additional tax for an additional tax for an additional tax for an additional tax for an additional tax for an additional tax for the disposition of this case, is unlawful [the portion related to tax invoices received from the invoice0 (00 metal), 00 (00 commercial), 00 (0 commercial), 00 commercial), and 00 (00 US commercial), all of which are related to tax invoices received from 0 countries and 00 (00 commercial resources) of the disposition of this case, is unlawful. Accordingly

(f) The calculation and scope of revocation of the value-added tax;

(1) Determination of the legality of a disposition in a lawsuit seeking revocation of taxation is based on whether it exceeds a legitimate tax amount. The parties concerned may submit objective tax base and tax amount, as well as arguments and materials supporting such tax amount until the closing of arguments in the fact-finding court. When a legitimate tax amount to be imposed lawfully is calculated based on such materials, only the portion exceeding the reasonable tax amount should be revoked (see, e.g., Supreme Court Decision 94Nu13527, Apr. 28

(2) As seen earlier, the part of the disposition of this case, which denied the deduction of the input tax amount pursuant to each tax invoice received from 00 metal (0.0 metal), 00 (0.00), 00 (0.00), Do 00 (00.0) and Do 00 (00.0), and the part which is imposed by denying the deduction of the input tax amount pursuant to each tax invoice received from 00 metal from 00 and 100 (0.0.00), which exceeds the amount that is not an unfair under-reported additional tax, but an unfair under-reported additional tax, shall be revoked as it is unlawful. The legitimate part of the disposition of this case, which is a tax invoice received from 00 metal from 0,000 (0.00 resources), shall be subject to revocation of the deduction of the input tax amount pursuant to each tax invoice received from 0,000 (00.0 won and less than 90,5010,000 won (hereinafter the same shall apply).

(3) Therefore, the portion exceeding the reasonable tax amount of KRW 909,550,200 among the instant disposition should be revoked as it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, the defendant's appeal is partially accepted and the judgment of the court of first instance is modified as above, it is so decided as per Disposition.