Cho-2015-China-480 ( December 09, 2015)

The purchase tax invoice of this case is different from the fact.

The actual supplier of the goods entered in the purchase tax invoice of this case is a false tax invoice prepared differently from the fact by the supplier, and the plaintiff cannot be deemed a bona fide transaction party.

Article 17 of the Value-Added Tax Act

2015Guhap8782 Revocation of Disposition of Imposition of Value-Added Tax, etc.

AA, a rehabilitation company

○○ Head of tax office

May 3, 2016

June 7, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of value-added tax of KRW 19,694,70 for the second quarter of July 1, 2011 against the Plaintiff, KRW 2,121,340 for the second quarter of 201, KRW 161,760,370 for the first quarter of 201, and KRW 161,760 for the first quarter of 201, KRW 17,945,440 for the first quarter of 2012, respectively, shall be revoked.

1. Details of the disposition;

A. The Plaintiff received each tax invoice of KRW 1,003,341,000 (hereinafter “each of the instant tax invoices”) from the FF company’s DD during the period of two years of 201 and one year of 2012, from the FF company’s DD during the tax period of BB, and included the supply value after deducting the relevant input tax amount from the output tax amount in deductible expenses. The Plaintiff reported and paid each of the value of supply for the two years of 201 and 1 year of 2012, and the corporate tax for the business year of 2011 and 2011 and 2012.

B. As a result of conducting a tax investigation with respect to the instant transaction partner from December 10, 2012 to February 27, 2013, the Defendant: (a) determined that the FF firm was data; and (b) deemed that the instant tax invoice constituted a false tax invoice; (c) on July 1, 2014, the Plaintiff corrected and notified the Plaintiff of KRW 161,760,370, value-added tax of KRW 161,760,370, and KRW 17,945,440, and KRW 17,945, and40 for the corporate tax of 2012 for the business year (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed a request for review with the Board of Audit and Inspection on October 1, 2014, but was dismissed by the Board of Audit and Inspection on May 7, 2015.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 2, 3, Eul evidence 1 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff’s actual transaction with FF companies is confirmed by a measurement certificate, raw materials storage list, and details of payment settlement, each of the instant tax invoices cannot be deemed a false tax invoice, and even if each of the instant tax invoices is different from the facts, the Plaintiff was unaware of such fact, and was not negligent. Therefore, the instant disposition on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether the instant tax invoice constitutes a false tax invoice

A) Article 16(1) of the Value-Added Tax Act provides goods or services to a business owner registered as a taxpayer.

Article 17(2)2 of the Value-Added Tax Act provides that the input tax amount shall not be deducted from the output tax amount in cases where all or part of the requisite entries are not entered or are entered differently from the fact in the tax invoice issued under Article 17(2)2 of the same Act. In this context, it means that the ownership of the income, profit, calculation, or transaction subject to taxation is nominal, and where there is another person to whom such income, profit, act, or transaction belongs, and there is another person to whom such income, profit, or transaction belongs, the person to whom such income, profit, or transaction belongs shall be liable as a taxpayer, in light of the purport of Article 14(1) of the Framework Act on National Taxes, which provides that the necessary entry in the tax invoice refers to a case where the necessary entry in the tax invoice is inconsistent with the original entry in the transaction contract, etc. prepared between the parties to the goods or service, regardless of the form of the transaction contract, etc., in which the goods or service is actually supplied or the price and time of the supplied.

B) The evidence mentioned above, Gap evidence, Eul evidence Nos. 1, and Eul evidence No. 1 (including evidence No. 1)

In other words, according to the re-examination of the tax offense investigation conducted from around December 201 to February 201, DD, the representative of the FF company, received the request from GG to transfer the name of the business operator, and thereafter offered documents related to the registration of the business operator and offered the passbook to GG, and DD was not involved in the FF company's business affairs other than the provision of the above documents and the opening of the passbook, and FF company was registered with HH J JJJK LL 60-gil 18, HHJJJJK LL 60-ro, and it was confirmed that the Defendant had no place of business in the above address as a result of the tax offense investigation conducted from around December 2012 to February 2013. At the time of the tax offense investigation conducted by GGG, it is recognized that the FF company's business affairs and tax invoices issued by the FG company, and all of its business affairs, including value-added tax reporting, were dealt with.

C) In full view of the legal principles as above in the above facts of recognition as a whole, the representative of the FFF company;

The actual supplier of the goods entered in the tax invoice under the name of the branch is shown to GG, not to be DD, and DD merely lent its name, but did not actually operate the FG, so the tax invoice of this case is issued in the name of DD. Thus, the tax invoice of this case can be deemed to be a false tax invoice prepared correctly by the supplier. Accordingly, the plaintiff's allegation in this part is without merit.

2) Whether the Plaintiff acted in good faith and without negligence

(A) where the supplier on the tax invoice is different from the actual supplier, the person receiving the tax shall pay the tax;

Unless there is any special circumstance that there was no negligence on the part of the person who was unaware of the name of the person who was unaware and was unaware of such fact, the input tax amount pursuant to the relevant tax invoice may not be deducted or refundable. Furthermore, the fact that the person who was supplied was not aware of the fact that the person was not negligent should be attested by the party who claimed the deduction or refund of the input tax amount (see, e.g., Supreme Court Decision 2011Du2228, Dec. 2

B) The following circumstances revealed through the aforementioned evidence and the purport of the entire pleadings

In other words, at the time of the investigation into the tax offense conducted by the Defendant, the Plaintiff stated to the effect that “GG was first aware of the fact that it was in the course of the examination that it was engaged in the FF business in the name of DD,” and that “the Plaintiff was engaged in the FF business in the name of DD.” The Plaintiff did not visit the FF business once during each of the instant tax invoices transaction; the Plaintiff transferred the amount equivalent to the goods price to the account of the community credit cooperatives in the name of DD; the Plaintiff traded with GG and received each of the instant tax invoices in the name of DD while it was in the actual name of DD.

It is insufficient to recognize that the Plaintiff did not know that the supplier and the actual supplier stated in each of the instant tax invoices are different, and that there was no negligence, and there is no other evidence to prove otherwise. Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.