National High Court Decision 2007Du4696 (O. 21, 2008)

Appropriateness of this disposition in respect of the construction work of a building by a false tax invoice;

The contract document does not contain specific standards for the method of payment of the price, and does not provide a specific basis for calculation even in relation to the issuance of the tax invoice. The plaintiff's assertion itself is a confirmation that the subcontractor paid the construction price to the subcontractor without distinction from the tax invoice of this case, and thus constitutes a false tax invoice.

The contents of the decision shall be the same as attached.

Article 17 of the Value-Added Tax Act

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of value-added tax of KRW 222,907,590 for the second term portion of 2002 against the Plaintiff on July 2, 2007 is revoked (it appears to the purport that the Plaintiff contests the pertinent amount among the disposition of imposition of value-added tax of KRW 238,854,480 for the second term portion of 202 September 7, 2007).

1. Details of the disposition;

가. 원고는 부동산 임대업을 영위하는 사업자로서, 사업장인 서울 ○○구 ○○동 1130-○○ 소재 지상 6층의 ○○오피스텔 건물(이하 이 사건 건물이라 한다)을 2002.8.12. 착공하여 2003.1.30. 사용승인을 받으면서, 2002.8.9. 주식회사 ○○종합개발(이하 소외 회사라 한다)꽈 이 사건 건물 신축을 위한 건축공사(이하 이 사건 공사라 한다)에 관한 도급계약을 각 체결하고, 소외 회사로부터 2002.9.30.자 공급가액 350,000,000원, 2002.10.30.자 공급가액 400,000,000원, 2002.12.30.자 공급가액 400,000,000원의 세금계산서(이하 위 3장의 세금계산서를 이 사건 세금계산서라 한다)를 교부받은 다음, 원고 사업장 소재지를 관할하는 피고에게 제출하여 2002년 제2기분 부가가치세 신고ㆍ납부시에 매입세액 공제를 받았다.

B. The Defendant received from the head of Sung-nam Tax Office having jurisdiction over the location of the place of business of the non-party company the notice of taxation data that the non-party company issued and delivered only the tax invoice of this case to the plaintiff without real transaction, and conducted a tax investigation on the plaintiff, and subsequently recognized only 36,019,000 won that the plaintiff paid to the non-party company among the tax invoice of this case as real transaction, and deducted the remaining input tax on the ground that it is not true tax invoice. On July 2, 2007, the Defendant corrected and imposed the value-added tax amount of 22,907,590 won for the second period of 202 to the plaintiff (hereinafter the first disposition

C. According to the Plaintiff’s request for pre-assessment review on July 11, 2007, the Defendant revoked the first disposition of this case, and rendered a decision not to accept the Plaintiff’s request on August 7, 2007, and subsequently re-revision and imposed value-added tax of 223,854,480 won on the Plaintiff on September 7, 2007 (hereinafter “instant disposition”).

[Reasons for Recognition] Evidence Nos. 1 through 3, Evidence Nos. 1 through 6-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

After entering into a contract for the instant construction project with the non-party company, the Plaintiff paid the construction cost to the non-party company in accordance with the said contract, and received the instant tax invoice. However, as the non-party company suffered from extreme financial difficulties around August 2002, it was only paid a part of the construction cost directly to the subcontractor by cash, etc. on behalf of the non-party company and the subcontractor at the request of the non

(b) Fact of recognition;

The following facts may be acknowledged either as disputed between the parties or as a whole by taking into account the following facts: evidence of recognition and evidence of evidence of Nos. 4, 5, 8-1 through 12-2; evidence of No. 7-1 and No. 7-2; and witness Park ○○'s testimony.

1) In relation to the instant construction project, the Plaintiff entered into a contract for construction work with the non-party company (hereinafter the instant contract) with the supply value of KRW 1,150,000 on August 9, 2002, and entered into an insurance relationship with the non-party company as the policyholder of the industrial accident compensation insurance on August 19, 2002, and entered into a technical guidance contract with the non-party company on August 21, 2002.

2) The instant contract merely stated three times as to the timing and method of payment completed in addition to the period of construction and the contract amount, and did not state at all the warranty period, the warranty bond rate, the warranty bond rate, and the liquidated damages rate, etc., and did not entirely state the grounds for calculating the amount of payment as to the issuance of the instant tax invoice more than three times.

3) The non-party company was registered as a business operator on August 30, 199 and the construction work was closed on April 28, 2003. The head of Sungnam District Tax Office filed an accusation against the non-party company on the grounds that the non-party company filed a tax investigation with respect to the non-party company on the second period of 2002, immediately before the closure of the business, the purchase amount was 1,175,093,000 won, and the sales amount was 11,392,853,000 won plus the value of supply during the first half of 200 to the first half of 203, on the ground that the non-party company filed a tax investigation with respect to the non-party company on the grounds that the non-party company was issued and issued a false tax invoice of 11,413,930,000 won including the value of supply in this case, but there was no suspicion that the non-party company's representative director was submitted "the construction contract, industrial accident insurance and employment insurance contract".

4) At the time of the instant construction, Park Jong-chul, a director of the non-party company at the time of the instant construction, and the construction site manager, stated in this court that “The construction works in charge of the non-party company other than the instant construction works, together with the Plaintiff, constructed ○○○○○ Dong-dong ○○○○○,” and that “no earned income was paid at all by the non-party company,” and that “the non-party company, upon the commencement of the construction work around August 2002, paid directly money to the sub-party company due to the crisis of the non-party company, and paid in full the money to the sub-party company and the profits to be paid by the non-party company.”

5) The Plaintiff’s presentation of evidence out of the Plaintiff’s assertion that he paid directly to the subcontractor on behalf of Nonparty Company does not include a deposit certificate of KRW 20,000,000 for the same-sex name (the sales of the same-sex name company between the second half of 2002 and the first half of 2003 were reported in total of KRW 20,225,000.

C. Determination

In light of the following circumstances as revealed in the above facts, i.e., (i) the Plaintiff did not specify the specific criteria for the method of paying the price in the contract of this case; (ii) the Plaintiff did not present any specific basis for calculating the price in relation to the issuance of the tax invoice of this case; (iii) the Plaintiff’s assertion itself paid the price to the subcontractor directly; (iv) the sales report was rapidly increased in 2002, immediately before the closure of the business; and (iii) the value added rate was reported rapidly; (iv) the Plaintiff did not work for the non-party company except for the Plaintiff; (iv) the amount verified that the Plaintiff directly paid to the non-party company is merely about 36,01% of the supply price of the contract of this case; and (v) it is difficult to view that the Plaintiff did not directly provide the construction services to the non-party subcontractor; and (v) the Plaintiff’s assertion that it was extremely difficult to deem that the Plaintiff did not directly provide the relevant construction services to the non-party company.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.