Gwangju District Court 2012Guhap4166 (20 June 20, 2013)

early 2012 Gwangju 2354 (2012.06)

If a supplier receives a false tax invoice, the supplier’s good faith or negligence may not be recognized.

In light of the fact that the representative of the Plaintiff is engaged in the wholesale and retail business for not less than 10 years and seems to have been well aware of the actual condition of data trading and the risk thereof, the Plaintiff’s bona fide and without fault may not be recognized in light of the fact that the Plaintiff purchased a non-ferrous metal from a new customer and did not verify whether it actually supplies it, and that the Plaintiff did not confirm the business registration certificate.

Article 17 of the Value-Added Tax Act

2013Nu1286 Revocation of Disposition of Imposition of Value-Added Tax

AABS Co., Ltd.

Head of Seogju Tax Office

Gwangju District Court Decision 2012Guhap4166 Decided June 20, 2013

November 28, 2013

December 19, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's imposition of value-added tax for the first term of March 2, 2012 against the plaintiff on March 2, 2012 shall be revoked.

1. Details of the disposition;

A. From January 11, 2006 to 206, the Plaintiff Company: (a) operated manufacturing and processing business of non-Iron; (b) used scrap metal and construction materials wholesale and retail business from 279-1 to 279-1; (c) notified the Plaintiff Company of the fact that the Plaintiff Company was not subject to tax investigation by 10 OB on April 13, 2010 and 1 copy of the supply tax invoice (OO value-added tax amount, OO value-added tax amount); (d) the Plaintiff Company was not subject to tax investigation by 10OB on April 16, 2010 to 200; and (e) the Plaintiff Company was not subject to tax investigation by 10OB on each of the instant tax invoices; and (e) the Plaintiff Company was not subject to tax investigation by 20OB; and (e) the Plaintiff Company was not subject to tax investigation by 10OB on each of the instant tax invoices.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1 through 5 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff company's assertion

(1) Since the Plaintiff Company purchased non-stocks from BB and received the tax invoice, each of the instant tax invoices is not a processed tax invoice without any actual transaction, and even if each of the instant tax invoices is written differently from the facts, the Plaintiff Company confirmed that the non-stocks were owned by the Plaintiff Company, and confirmed that the employees of BB, which loaded the non-stocks in currency with BB, were the name of the BB, and that the Plaintiff did not know that the suppliers under each of the instant tax invoices were entered differently from the facts.

(2) Therefore, the amount stated in each of the instant tax invoices should be deducted as an input tax amount, and the Defendant’s disposition that did not deduct it is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

(c) Fact of recognition;

(1) Tax investigation and criminal judgment on BB

(A) As a result of the investigation conducted by the Busan Regional Tax Office on BB and its representative KimCC from September 28, 2010 to October 26, 2010, ① OPO 19-1 is located in a panel building, and there was no particular business activity in the above field, and there was no basic facilities or equipment such as the field yard, high steel bars, and the house depot for high steel transportation, etc., which were essential for carrying on high steel business. ② Purchase during the taxable period of the value-added tax on January 30, 2010 after the opening of the business, was merely an OOOO, while sales, such as the issuance of the tax invoice of the OOOwon, are excessively excessive representative, KimCC did not properly identify the actual transaction details, etc., and file a complaint with theCC.

(B) On February 3, 2012, the Busan District Court found the following criminal facts guilty in the case 201Da718, 839 (combined) and sentenced to imprisonment with prison labor for three years and a fine OOOE. Accordingly, KimCC appealed appealed with the Busan High Court 2012No73, and the said court reversed the lower judgment on July 11, 2012, and sentenced to imprisonment with prison labor for two years and a fine OCC OOE. The said judgment became final and conclusive after the lapse of the period of appeal.

[Criminal facts in Busan District Court 201Gohap718, 839 (Joint)]

“Defendant KimD is a person who operates high-railroad sales market from February 2, 2009 to March 201 in the name of OO-type OO-type 507-9 to E non-ferrous metals. Defendant KimCC is a representative in the name of BB in the name of BB located in O-type O-type 19-1.

Defendant KimD issued a false sales tax invoice in the name of BB represented by Defendant KimCC, and had Defendant KimCC establish a business registration and bank account in the name of Defendant KimCC, and received documents, passbookss, and seals from Defendant KimCC.

(a) Violation of the Aggravated Punishment Act;

After the Defendants established BB in the name of Defendant KimCC without intent or ability to pay taxes, the Defendants issued false sales tax invoices as if Defendant KimD purchased scrap metal as non-data and sold them to the customer, and issued false sales tax invoices by either closing BB or suspending business operations in order to avoid tracking of the tax office upon the expiration of a certain business period.

From January 27, 2010 to June 30, 2010, Defendant KimCC established BB at the EE non-ferrous metal business establishment, opened an account, and transferred documents, such as passbook, to Defendant KimD. The fact is that Defendant KimD directly sold scrap metal to the customer after purchasing the scrap metal with no data, notwithstanding the fact, Defendant KimD sold scrap metal from BB to FF, etc., or sold scrap metal from BB to the customer through E non-ferrous metal in the name of BB, including each of the instant tax invoices, in order to pretend as if the scrap metal was sold from BB to the customer, the amount equivalent to 85 copies of false sales tax invoices and supply value in the name of BB, including each of the instant tax invoices, were issued, and then sold scrap metal sales amount including the relevant value-added tax was transferred to the account in the name of Defendant KimCC, and thereafter, Defendant Kim GG, an employee of the Plaintiff, and new H, were not liable to pay the purchase price under the name of BB, the representative agent, and the ESB.

Accordingly, the Defendants conspired to file a value-added tax return by fraud or other improper means, and on July 26, 2010, the time limit for the return and payment of value-added tax base and tax amount was expired, and the Defendants evade the total OO won of value-added tax.

(b) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes;

No one shall issue a tax invoice under the Value-Added Tax Act without supplying any goods or service.

Nevertheless, on February 1, 2010, the Defendants conspired and issued 85 false sales tax invoices equivalent to the total value of OOOO in the same way from January 27, 2010 to June 30, 2010, including the issuance of one tax invoice of OOOO of the supply price, as if the Defendants were to supply scrap metal from BB representing Defendant KimCC to EOM, although there was no fact that the scrap metal was supplied from BB to EO, the representative of Defendant KimCC issued 85 false sales tax invoices equivalent to the total value of OOO in the same way, including the instant tax invoices.

(2) The details of the purchase of the non-performance of the Plaintiff Company

(A) Voluntary II, the representative director of the Plaintiff Company, has been engaged in the wholesale and retail business since 1998. The Gwangju regional tax office's investigation was conducted from October 21, 2008 to November 24, 2008 on the suspicion of receiving disguised tax invoices, and there is a reasonable amount of collection of the relevant tax amount, etc., by deeming that the OOOOO is based on the tax invoice written differently from the fact.

(B) On March 2010, the Plaintiff Company was introduced KimCC, a representative of BB, from the JB-based relationship, and agreed to purchase the instant non-stock by receiving the phone from the person claiming to be the employee of BB after LB.

(C) On April 13, 2010, the Plaintiff Company: (a) on April 13, 2010, the 20,716km-dong 14,777km-dong Haak-dong 16, 2010, and on April 16, 2010, purchased the said Haak-dong 14,77k-dong Haak-dong 14,77k-dong Haak-dong 16, without accurately ascertaining who is a supplier of the said Haak-dong; (b) issued each of the instant tax invoices to the person on board the automobile, along with the vehicle transporting the instant non-Iron in question, from the person on the spot, who was on board the vehicle

(D) On the other hand, on April 13, 2010, the Plaintiff Company remitted the total amount of OOOO to the deposit account of a national bank bank account of BB on April 13, 2010, and OOOO on April 16, 2010. The amount remitted by the Plaintiff Company to the account of BB was fully withdrawn in cash immediately after the transfer.

[Reasons for Recognition] The facts without dispute, Eul's statements in Eul's 1 to 7, Eul's witness of the trial court and the purport of the whole pleadings

D. Determination

(1) Whether the entries of a tax invoice are different from the facts

(A) Article 17(2)2 of the former Value-Added Tax Act provides that input tax amount in a case where the entries of a tax invoice are different from the facts shall not be deducted from the output tax amount. In this case, the meaning that it is different from the facts is stipulated that if the ownership of income, profit, calculation, act or transaction, which is the object of taxation, is only nominal and there is a separate person to whom such income, profit, or transaction belongs, the person to whom such income, profit, act or transaction belongs shall be liable for tax payment and the other person to whom such tax is applied, regardless of the formal descriptions of a transaction contract, etc. made between the parties to the goods or service, the requisite entries of the tax invoice refer to the case where the contents of the transaction do not coincide with the actual supplier, price, and time of the transaction (see, e.g., Supreme Court Decision 9

(B) Comprehensively taking account of the overall purport of the arguments in the above evidence, the Plaintiff Company was KimD operating EE non-metallic metal, not BB, and the Plaintiff Company was aware that it received each of the tax prides of this case from the supply of the instant non-stock, which is the necessary entry of each of the tax invoices of this case to BB, and the content of the supplier, which is the necessary entry of each of the tax invoices of this case, does not coincide with the supplier of the instant non-stock. Thus, each of the tax invoices of this case constitutes "a case where the entries of the tax invoice of this case are different from the fact." Therefore, this part of the Plaintiff’s assertion is without merit, and whether there was no negligence in not knowing the fact of false name."

(A) Unless there are special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence on the part of the person who received the tax invoice in the name of the actual supplier and that there is no negligence on the part of the person who received the tax invoice, and the person who asserts the deduction or refund of the input tax amount should prove that there is no negligence on the part of the person who received the tax invoice in the said name. (Supreme Court Decision 2002Du2277 Decided June 28

(B) It is insufficient to find that the Plaintiff Company was not aware of the fact that the Plaintiff Company was not negligent due to the fact that the Plaintiff Company was not aware of the fact in the name of each of the instant tax invoices, and that there was no other evidence to support the stability of the evidence.

Rather, in addition to the above facts and the purport of oral argument, the following circumstances are revealed: (i) the non-stock industry issued a false tax invoice as if it were supplied with the non-stock; and (ii) the business operator to whom the non-stock is supplied without paying the output tax and corporate tax are deemed necessary to verify the same as the supplier on the tax invoice; (ii) the representative of the Plaintiff was engaged in non-stock and retail business for over 10 years from 1998, and was collected by additional tax payment; (iii) the Plaintiff company did not know that the non-stock company was not the actual supplier of the non-stock industry’s name and the method of the supply of the non-stock; and (iv) the Plaintiff company did not appear to have been aware of the fact that the non-stock company was not the actual supplier of the non-stock industry’s name and the fact that the non-stock company was not the supplier of the non-stock market at the time of its purchase; and (v) the Plaintiff company could have claimed that the non-stock company was the actual supplier’s purchase of the non-stock.

(3) Sub-determination

Therefore, the defendant's disposition of this case based on the premise that each of the tax invoices of this case is false is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed without merit, and it is so decided as per Disposition.