Early High Court Decision 2013J 1139 ( October 16, 2013)

The actual supplier and the supplier under the tax invoice constitute a different tax invoice from the actual supplier

The instant tax invoice constitutes a different tax invoice from the actual supplier and the supplier on the tax invoice, and it is difficult to deem that the Plaintiff constitutes a transaction party with good faith and negligence without knowledge of the actual supplier’s name.

2013Guhap7699 Revocation of Disposition of Imposition of Value-Added Tax

ZO

OO Head of the tax office

July 17, 2014

September 25, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The imposition of the value-added tax for the first period of November 29, 2012 imposed by the Defendant on the Plaintiff on November 29, 2012 is revoked.

1. Details of the disposition;

A. On August 2, 2011, the AA, AA, and the Plaintiff (hereinafter collectively referred to as “the Plaintiff, etc.”) acquired ownership of the first OO or OO on August 2, 201.

B. The Plaintiff et al. performed a remodeling project (hereinafter “instant construction project”) from August 16, 201 to January 7, 2012 in order to operate the said commercial building after acquiring the said commercial building, and received a tax invoice of KRW OO (hereinafter “instant tax invoice”) from thisA on January 7, 2012, and filed a return for early refund of the value-added tax base for the first year of 2012 with the head of an OO tax office after deducting the input tax amount from the relevant output tax amount. Accordingly, the Plaintiff et al. was refunded the value-added tax OO on March 19, 2012.

C. As a result of an investigation on the return of value-added tax submitted by the Plaintiff, etc., the head of the OO head of the instant construction project confirmed that the actual supplier of the instant construction project received the tax invoice from thisA and notified the Defendant thereof. On November 9, 2012, the Defendant: (a) deemed that the instant tax invoice was a false tax invoice for the supplier; and (b) did not deduct the relevant input tax amount from the output tax amount; and (c) notified that the head of the OOO head of the instant construction project corrected the input tax amount for the first year (i.e., principal OO head + additional OO head; hereinafter referred to as the “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on February 8, 2013, but was dismissed on May 16, 2013.

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

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant tax invoice was prepared by reflecting the content of the actual transaction, and thus, is not a false tax invoice.

2) Even if it is assumed that the instant tax invoice constitutes a false tax invoice, the Plaintiff is not negligent in not knowing the fact of false name, since it fulfilled its duty of care as a party to a transaction, and thus constitutes a bona fide trader.

B. Relevant statutes

/ former Value-Added Tax Act (Amended by Act No. 11129, Dec. 31, 201)

Article 16 (Tax Invoice)

(1) Where an entrepreneur registered as a taxpayer supplies goods or services, he/she shall issue an invoice stating the following matters (hereinafter referred to as "tax invoice") to the person who receives the supply, as prescribed by Presidential Decree, at the time specified in Article 9 (referring to the time specified otherwise by Presidential Decree, if any). In such cases, a tax invoice may be revised and issued, as prescribed by Presidential Decree, if any ground prescribed by Presidential Decree, such as error or correction, occurs after the issuance of the tax invoice:

1. Registration number, name or denomination of the businessman who provides;

2. Registration number of the person who receives;

3. Supply value and value-added tax;

4. Date of preparation;

5. Matters prescribed by Presidential Decree, other than those under subparagraphs 1 through 4.

Article 17 (Payable Tax Amount)

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as the "paid tax amount") shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as the "in-house tax amount") from the tax amount on the goods and services supplied by him/her (hereinafter referred to as the "the output tax amount"): Provided, That in cases of an input tax amount exceeding

1. The tax amount for the supply of goods or services used or to be used for his own business;

(2) The following input taxes shall not be deducted from the output tax amount:

1. Where the list of total tax invoices by customer is not submitted pursuant to Article 20 (1) and (2), the input tax amount on the portion not entered or the input tax amount on the portion entered differently from the fact, where the whole or part of the registration numbers or supply values by transaction parties from among the entry items on the list of total tax invoices by customer submitted or the list of total tax invoices by customer is not entered or entered differently from the fact: Provided, That

2. An input tax amount, in cases where a tax invoice under Article 16 (1), (2), (4) and (5) is not issued, or all or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as "necessary matters to be entered") are not entered or entered differently from the fact on the issued tax invoice: Provided, That the input tax amount in cases prescribed by Presidential Decree shall be excluded;

Article 21 (Settlement and Correction)

(1) The head of a tax office, the commissioner of a regional tax office or the Commissioner of the National Tax Service having jurisdiction over the place of business (hereinafter referred to as "head of a tax office, etc.") shall investigate the tax base and amount of value-added tax payable or refunded

2. Where any error or omission exists in details of the final tax return. The end;

(c) Fact of recognition;

1) On August 17, 2011, the Plaintiff et al. entered into a contract with the OOO for the instant construction project with the construction period from August 16, 2011 to October 25, 201 (Evidence A3).

2) On October 12, 2011, the Plaintiff, etc. terminated the previous contract with the OO representative director KimB and KimO on October 12, 201 (Evidence 5) and entered into a contract for the change of the contractor between OO, EA, and KimO and OO on October 15, 2011 (Evidence 5). The details thereof are as follows.

--asy as possible --

On the other hand, on October 18, 201, KimO prepared a letter (Evidence No. 8) to the effect that the Plaintiff et al. will be held responsible for the remaining construction works of the instant construction as the chief management officer.

3) ThisA was a person who was in charge of only the electrical construction during the original construction. At the request of KimO, on October 13, 201, thisA registered a business operator (on October 17, 2011, opening the opening date) on the basis of interior, electricity, and removal among the construction businesses of the type of business, and on the basis of the type of construction business, he opened a bank passbook in the name of the principal, and thereafter opened the bank passbook in the name of the principal, the above passbook, the business operator registration certificate, the discretionary identification certificate, and the seal imprint affixed to KimO.

ThisA was paid 18,00,000 won as the price for electrical construction during the instant construction by KimO.

4) Meanwhile, until October 12, 2011, the Plaintiff et al. paid KRW 95,000,000 to the account under the name of the representative director KimB of OOO Co., Ltd. for the instant construction cost, and KRW 35,00,000 to the account under the name of KimCC, a parent of OO, and paid KRW 161,250,000 to the account under the name of thisA after October 12, 2011. As seen earlier, the Plaintiff et al. did not know of the deposit of the said money because the said passbook was dryed to O.

5) In the process of tax investigation related to the instant construction, KimO recognized that the instant construction was directly executed by the principal, and that the instant tax invoice was prepared and issued, and thisA also did not prepare and deliver the instant tax invoice during the said investigation process, and that it did not separately file a value-added tax return regarding the instant construction.

[Reasons for Recognition] Unsatisfy, Gap evidence 3 to 10 evidence, Eul evidence 3 to 5, Eul evidence 6-1

each entry in section 3 of this title, the testimony and the purport of the whole pleadings of this title.

D. Determination on the first argument

1) The phrase “tax invoice different from the fact” under Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201) where the input tax deduction for the tax invoice received in the course of transaction is denied refers to a case where the necessary entries of the tax invoice do not coincide with those of the entity that actually supplies or is supplied with the goods or services, or with the price and time that the goods or services are provided (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196); even if a transaction of supplying goods, etc. actually exists, the supplier constitutes “tax invoice different from the fact that the name of the issuer of the tax invoice is different.”

On the other hand, in the event that a tax invoice submitted by a taxpayer for value-added tax as a basis for input tax deduction is falsely prepared without a real transaction, or that the entries in a tax invoice are different from the fact, it is disputed whether it is an actual purchase or the authenticity of the entries in a tax invoice. In the event that a transaction with a supplier stated in a tax invoice claimed by a taxpayer has been proved to a considerable extent that it is false, it is necessary for a taxpayer to prove that it is easy for him/her to present data, such as books and evidence, regarding the actual transaction with a supplier listed in the tax invoice (see, e.g., Supreme Court Decision 2007Du1439, Aug.

2) The following circumstances revealed through the aforementioned evidence and the facts of recognition, i.e., ① the construction of this case and the person who issued the tax invoice, are recognized to be KimOO in fact, in full view of the following circumstances: ① the construction of this case and the person who actually performed the construction of this case and issued the tax invoice, ② the KimO appears to have directly participated in the termination, modification contract, and preparation of the previous contract related to the construction of this case; ③ the Plaintiff, etc. paid the construction price to the account under the name of thisA after the contract for the change of the construction of this case; however, the KimO paid the construction price to this case to the account in advance, but it appears that the KimO received the above passbook, seal impression, certificate of seal impression, etc. from this case in fact, and it can be deemed that it was actually paid to this case only in external form, and ④ it is difficult to see that this is not a supplier under the tax invoice, but it is reasonable to deem that the actual supplier who actually supplied the construction of this case constitutes the Plaintiff’s tax invoice.

E. Judgment on the second argument

1) Unless there are extenuating 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 other tax invoice in the name of the tax invoice, and the person who asserts the deduction or refund of the input tax amount shall prove that the person who received the tax amount was not negligent in not knowing the above fact of deception (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009).

2) The evidence submitted by the Plaintiff alone is insufficient to recognize that the Plaintiff was not negligent due to the Plaintiff’s failure to know the above facts, and there is no other evidence to prove otherwise.

Rather, in full view of the following circumstances that can be seen by comprehensively taking account of the overall purport of the arguments revealed earlier, namely, ① the Plaintiff entered into a contract for termination or modification of the previous contract of the instant construction project with KimO, ② the Plaintiff was in receipt of a written statement related to the instant construction project from KimO, and thus, it cannot be deemed that the Plaintiff was not negligent in not knowing the above fact. Therefore, the Plaintiff’s assertion on this part

3. Conclusion

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