Review Division 2010-0064 (Law No. 17, 2010)

Whether a processed tax invoice without real transactions related to precious metal wholesale has been received

It is difficult to deem that there was no real transaction due to the fact that the customer was subject to a decision on suspicion of violation of the Punishment of Tax Evaders Act and no data was returned to the customer.

1. The Defendant’s disposition of imposition of value-added tax of KRW 2,696,100 against the Plaintiff on December 1, 2009 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On November 12, 2001, the Plaintiff is a business operator who engages in wholesale and manufacturing business of precious metals, etc. under the trade name of ○○○○-dong 136 ○○○-dong 136 △△△△△△△△△ in 127.

B. The Plaintiff received the purchase tax invoice equivalent to KRW 17,200,000 (hereinafter “instant tax invoice”) from the △ District Co., Ltd. (hereinafter “△ District”) during the period of the value-added tax for the first year of 2007, and filed a return by deducting the tax amount under the instant tax invoice from the output tax amount when filing the return of value-added tax for the said period to the Defendant, as the input tax amount.

C. On the ground that the instant tax invoice is a false tax invoice for which no real transaction is conducted, the Defendant corrected the Plaintiff’s value-added tax amount by making the said input tax amount undeductible from the output tax amount for the said period, and notified the Plaintiff of the correction by increasing the value-added tax amount for the first period of December 1, 2009 and increasing the KRW 2,696,100 for the first period of time

[Reasons for Recognition] Facts without dispute, Eul evidence Nos. 1, 4, and 7

2. Referral and Determination

A. The plaintiff's assertion

The Plaintiff actually purchased 1kg from △ branch at present, and paid the purchase price.

Therefore, the instant disposition based on the premise that the instant tax invoice is the processed tax invoice is unlawful.

B. Determination

(1) In principle, whether a transaction, such as the supply of goods or services, which is a taxation requirement under the Value-Added Tax Act, exists or the burden of proving the value of supply, which is the tax base, is imposed on the tax authority (see, e.g., Supreme Court Decision 92Nu2431, Sept. 22, 1992): Provided, That if the facts alleged in light of the empirical rule in the specific litigation process are revealed, unless the other party proves that the facts in question are not eligible for application of the empirical rule, it cannot be readily concluded that the pertinent taxation disposition is illegal disposition that fails to meet the taxation requirement (see, e.g., Supreme Court Decision 97Nu13894, Jul. 10, 19

(2) According to the above legal principle of burden of proof as to whether the instant tax invoice is processed as a processing transaction, the Defendant determined that the instant tax invoice was fictitiously traded by accepting the amount of false tax invoices without real transaction and manipulating the actual transaction evidence, etc., through the investigation into △△ District. The Defendant determined that the instant tax invoice was false, which was the representative director of the instant company, and imposed the instant tax invoice on the following grounds: 10,96,000,000 among the total purchase amount reported during the taxable period from January to January 2004 (9.8%) among the total purchase amount reported during the taxable period from January 2004 (9.8%) 101,063,000,000 won (9.8%) among the total purchase amount reported during the taxable period from January 200 to January 207, it was recognized that the instant tax invoice was also false.

However, according to the evidence Nos. 3, 4, 5, and 11, the plaintiff remitted 18,920,000 won, which is the same amount as the tax invoice of this case, to △△ Branch on January 25, 2006, and Kim Sung-sung was found to have received a decision of non-suspect on the violation of the Punishment of Tax Evaders Act at the Suwon District Prosecutors' Office on June 17, 2008, and there is no evidence to receive a return of the money remitted by the plaintiff from △ branch along with the above recognized facts, the above circumstance that the defendant used as the ground for the disposition of this case cannot be readily deemed to have been a non-real transaction process, and the disposition of this case cannot be deemed to have satisfied a legitimate taxation requirement. Accordingly, the plaintiff's assertion on this issue is with merit.

3. Conclusion

If so, the disposition of this case is unlawful and revoked, and it is so decided as per Disposition.