Cho-2016-China68 (Law No. 16, 31 May 201)

Whether it can be deemed that a tax invoice was received under an actual transaction

The Plaintiff directly owned and operated the instant vehicle. However, the Plaintiff’s receipt of a tax invoice on the premise that the Plaintiff was provided with services on the premise that the instant transaction partner actually operated the instant vehicle, constitutes a false tax invoice.

Article 39 of the Value-Added Tax Act

Incheon District Court-2016-Gu 53214 (Law No. 31, 2017)

GyeongO Co., Ltd.

O Head of tax office

oly 2017.15

8.31.20

1. The plaintiff's claim is dismissed.

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

1. Details of the disposition;

A. On March 21, 2010, the Plaintiff, a corporation operating cargo brokerage business, entered into a "contract for transportation of a small president" with each of the business partners of this case from 2010 to 2013, and received a tax invoice for transportation service (hereinafter referred to as "tax invoice in this case") of a total amount of KRW 675,024,581 from each of the business partners of this case to 675,024,581 from 2010, after deducting the amount of each of the above value-added tax from the input tax return and payment of each of the above value-added tax.

B. From March 30, 2015 to April 18, 2015, the Defendant: (a) conducted an integrated investigation into the Plaintiff with respect to the Plaintiff; and (b) determined that the Plaintiff was deemed to have been operating as a vehicle by each of the instant transaction parties, even though all of the instant tax invoices were conducted by the Plaintiff; and (c) deemed that all of the instant tax invoices were false tax invoices, the Defendant did not deduct the input tax amount from the input tax amount; and (d) added the penalty tax for fraudulent tax invoices, the penalty tax for illegal underreporting, and the penalty tax for insincereful payment, the value-added tax was corrected and notified as indicated in the column of “the amount of tax after correction of the amount of tax after

C. Upon filing an objection on August 11, 2015, the Plaintiff filed a tax appeal on December 31, 2015. On May 31, 2016, the Tax Tribunal partially accepted the Plaintiff’s claim to the effect that each of the above value-added taxes is subject to the application of a general under-reported penalty tax, not an unfair under-reported penalty tax, and that the amount of the penalty tax paid in the name of each of the instant transaction parties is calculated and corrected based on the tax amount, and that the remainder of the claim was dismissed. Accordingly, the Defendant rendered a decision to dismiss each of the above additional taxes as stated in the “decision of Correction” column for each of the above additional taxes as stated in the “decision of Correction” column for correction (hereinafter the above correction of each additional tax, including each remaining additional tax after reduction and correction, refers to each of the disposition of imposition of value-added tax from January 2010 to January 2013).

[Ground of recognition] Facts without dispute, Gap 1-4, Eul 1-2 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. Summary of the Plaintiff’s assertion

(1) Each of the instant transaction parties entered into a contract with the Plaintiff for transportation of the president, and actually supplied transportation services to the Plaintiff using each of the instant vehicles owned by the Plaintiff. Accordingly, the instant tax invoice is not a false tax invoice.

(2) Since each of the instant transaction parties has already paid value-added tax corresponding to the instant tax invoice, the imposition of value-added tax on the same transportation service to the Plaintiff constitutes double taxation and is unlawful.

(3) Even if the instant transaction partner is a nominal transaction partner, only the remaining amount of tax shall be imposed upon the Plaintiff after deducting the value-added tax already paid by each of the instant transaction partners according to general rules 51-01 of the Framework Act on National Taxes and prior determination. Failure to deduct solely on the ground that the district tax office differs is unreasonably infringing on the taxpayer’s rights and interests, and thus violates the good faith principle under Article 15 of the Framework Act on National Taxes

(4) As to the instant tax invoice, there was an actual supply of goods and services, and there was no problem in the imposition of value-added tax at the transactional stage, and thus, it can be deemed as a legitimate tax invoice. Even if a tax invoice is false, penalty tax does not apply to a tax invoice issued before it is verified in the name in accordance with the National Tax Service’s established rules. Therefore, the imposition of penalty tax against the Plaintiff is

B. Determination

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

The burden of proving that a tax invoice is false is, in principle, against the tax authority. However, if the tax authority directly proves that it is reasonable and acceptable on the basis of evidence or circumstances, it is necessary to prove that the taxpayer who is dissatisfied with the tax invoice and who is easy to present relevant evidence and materials is not false (see, e.g., Supreme Court Decisions 2007Du1439, Aug. 20, 2009; 2010Du28076, Apr. 28, 201).

Based on the relevant legal principles, considering the following circumstances, which can be acknowledged by comprehensively taking into account the following circumstances, such as Gap 1, 5-10, Eul 3-11, and Eul 3-11’s testimony and the entire purport of oral argument, including the circumstances of nominal use, the degree and scope of involvement of each of the transaction parties of the instant case, and the internal responsibility and accounting relationship, there is considerable room to regard the actual business operator who provided transportation services using each of the instant vehicles as the plaintiff who is not the transaction party of the instant case, and therefore, it is reasonable to deem that the instant tax invoice with the content that each of the transaction parties of the instant case provided transportation services to

① The Plaintiff asserts that the actual provision of transportation services is the instant transaction partner only because he paid expenses incurred in the operation of each of the instant vehicles on behalf of the Plaintiff and paid them on behalf of the Plaintiff according to the “syptop transport contract for each of the instant vehicles”. However, each of the instant vehicles is covered by ownership registration and automobile insurance under the Plaintiff’s name, including the cost of insurance premium, oil cost, and vehicle repair cost, and the actual payment of wages for each of the instant transaction partners, including the cost of insurance premium, automobile repair cost, etc., appears to have been involved in the instant vehicle at the re-examination level with introduction under the Plaintiff’s name of the Plaintiff (According to the partial statement of the ○○○○, the ○○○ appears to have been involved in the operation of each of the instant vehicles, such as driver and transportation item, without any particular interest in the operation of the instant vehicle (the trade name of the Plaintiff, which appears to be an individual business entity, appears to have not been well known).

② The ○○○○ and Kim Jong-young, the operator of each of the instant transaction partners, prepared a written confirmation that the instant vehicles were handled by the Plaintiff as the vehicles directly operated by the Plaintiff or as the vehicles with which they enter, and issued the instant tax invoice. It is difficult to find any special circumstances to reject the credibility of the instant confirmation, such as that the written confirmation was forced to sign and seal against the will of the originator. The Plaintiff also asserted that, when operating the instant vehicles directly through the agent during the process of tax appeals, there were many losses, and that even if the instant vehicles were operated by the agent, they were disguised to reduce the loss (see, e.g., assertion related to additional tax).

③ The Plaintiff asserted to the effect that each of the instant transaction parties was leased and used each of the instant vehicles by the method that each of the instant transaction parties bears the installment of each of the instant vehicles, but it is difficult to evaluate that the rent and installment of the instant vehicle were the same. In addition, according to the account books prepared by the Plaintiff regarding each of the instant vehicles, the Plaintiff appears to have been in the month in which the Plaintiff took place after deducting the expense and installment from the profit. On the other hand, the Plaintiff testified to the effect that ○○ invested a certain amount in this court and received a security of KRW 1 million through KRW 1.5 million. Each of the instant transaction parties appears to have been in a disguised relationship with each of the instant vehicles as a disguised company, and it seems that the risk burden and internal responsibility related to each of the instant vehicles was actually borne by the Plaintiff.

(2) Appropriateness of the disposition imposing value-added tax on each customer of the instant case

㈎ 이중과세에 해당하여 위법한지 여부

As seen earlier, the Plaintiff is not the party who provided the transportation service corresponding to the instant tax invoice. Therefore, the value-added tax on the said transportation service is borne by the Plaintiff, not each of the instant transaction parties, in accordance with the substance over form principle, and thus, it cannot be deemed double taxation on the ground that there is the value-added tax already paid by each of the instant transaction parties (the value-added tax paid by each of the instant transaction parties is merely the subject of refund through due process).

㈏ 이 사건 각 거래처가 기납부한 부가가치세액을 공제하여야 하는지

In a case where a tax authority imposed a tax on a business title holder as a separate business owner, the legal relationship between the business title holder and the tax authority is established. This legal relationship is separate from the legal relationship between the actual business title holder and the tax authority, and even if the actual business owner paid the tax in the name of the business title holder or shared the payment of the tax, the legal effect of the tax payment is attributable to the business title holder, who is the other party to the tax disposition, and it cannot be said that the actual business owner paid the tax amount in the legal relationship between the actual business title holder and the tax authority. Therefore, in a case where the tax amount was paid in the name of the business title holder due to the tax disposition, but the tax assessment was invalidated or revoked, the right to claim the refund of the tax amount paid in the name of the business title holder shall be deemed the direct party to the legal relationship between the business title holder and the tax authority to which the legal effect of the tax payment belongs (see Supreme Court Decision 2013Da212639, Aug. 27, 2015).

First of all, even if the testimony of ○○○ and the evidence presented by the Plaintiff are gathered, it is insufficient to recognize that the value-added tax of this case was reported and paid on the Plaintiff’s funds or account in the name of each business partner of this case as the Plaintiff’s assertion (the Plaintiff appears to have stated that each business partner of this case was actually engaged in the transportation service business of each of the instant vehicles during the tax trial process that the value-added tax was paid). There is

Even if the value-added tax in this case was returned and paid on the Plaintiff’s funds or account, it cannot be deducted as the already paid tax in light of the relevant legal principles. Article 51-01(2) of the General Rule of the International Framework Act provides that the amount of tax paid by the nominal business owner on the Plaintiff shall be deducted from the amount of tax actually paid by the business owner, not only is it premised on the cancellation of the determination of the amount of tax paid by the nominal business owner, but also is merely an administrative rule with no legal effect, and cannot be invoked in this case

This part of the Plaintiff’s assertion is rejected.

㈐ 이 사건 세금계산서에 대하여 가산세를 부과한 것이 위법한지 여부

Article 48(1) of the Framework Act on National Taxes provides that “Where an additional tax is imposed under this Act or other tax-related Acts and subordinate statutes, if a taxpayer has justifiable grounds for non-performance of his/her obligation, the pertinent additional tax shall not be imposed.” Accordingly, when the issue is whether a taxpayer has justifiable grounds for exempting from additional tax, it shall be determined on the basis of whether the taxpayer is not aware of his/her obligation, or where it is unreasonable to expect the taxpayer to fulfill his/her obligation due to circumstances that make it unreasonable to deem that the taxpayer was not aware of his/her obligation, or that it is unreasonable to expect him/her to fulfill his/her obligation (see, e.g., Supreme Court Decisions 2014Du39760, Oct. 13, 2016; 2016Du31920, Nov. 10, 2016).

As seen earlier, the instant tax invoice constitutes a tax invoice different from the fact, and it appears that each of the transaction parties in the instant case did not actually provide the Plaintiff with transportation services, and there is no clear evidence to deem otherwise that there exists any special circumstance to exempt the Plaintiff from additional tax (or false tax invoice, general tax return, and tax payment in good faith).

The Plaintiff asserts that the entry of the instant tax invoice does not have any problem in the imposition of value-added tax according to the transaction stage, but as long as each transaction partner of the instant case appears to not provide the Plaintiff with transportation services, it is reasonable to deem that the transaction stage was added to one of the transaction stages that do not exist due to the instant tax invoice. Accordingly, the Plaintiff’s assertion on a different premise is unacceptable

In addition, the National Tax Service's established rules alleged by the Plaintiff purporting that no penalty tax shall be imposed on the Plaintiff when the Plaintiff was unaware of the fact of deception in the name of each customer of this case in good faith and without negligence, and it is difficult to view that the Plaintiff was unaware of the fact of deception as the actual operator of each of the instant vehicles.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.