early 2014west 4310

It is difficult to recognize that the Plaintiff received waste transport services from an enterprise which was accused of the data.

Each of the tax invoices of this case may be deemed to constitute a nominal transaction, even though the transaction is not a processing transaction, and each of the tax invoices of this case shall be deemed to have been written differently by the actual supplier. Thus, each of the tax invoices of this case constitutes a false tax invoice.

Articles 16 and 17 of the former Value-Added Tax Act;

2015 Gohap5819 Demanding revocation of Disposition of Imposition of Value-Added Tax

AA environment corporation

Director of the District Office

September 17, 2015

November 5, 2015

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 for the first term of January 7, 2014 against the plaintiff on January 7, 2014 and the imposition of value-added tax for the second term of December 2010 and value-added tax for the second term of February 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a company established on October 25, 2007 for the purpose of collecting and transporting construction waste and conducting business from December 1, 2007.

B. On June 30, 2010, the Plaintiff received each purchase tax invoice (hereinafter “each of the instant tax invoices”) stating that it was provided with waste transport services on each construction site on July 31, 2010, fromCC (hereinafter “CC”) which operates high iron wholesale and retail business, and each of the said supply values was deducted as the input tax amount, respectively, upon filing a return of value-added tax for the first and second years on January 2010.

C. From March 5, 2012 to May 4, 2012, the Incheon Tax Office conducted a survey related to the transaction order of value-added tax with respect toCC, and confirmedCC as an enterprise that issued and received tax invoices without real transaction during the period from February 2, 2009 to February 2, 2010, and notified the Defendant of the taxation data.

D. Accordingly, the Defendant deemed each of the instant tax invoices as “tax invoices different from the facts” under Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201; hereinafter “former Value-Added Tax Act”), and denied the Plaintiff’s deduction of the input tax amount on January 7, 2014, and denied the Plaintiff’s deduction of the input tax amount.

2,959,260 won was corrected and notified respectively (hereinafter referred to as the "disposition of this case").

E. The Plaintiff filed an appeal with the Tax Tribunal on August 12, 2014 upon filing an objection on April 11, 2014, but the Tax Tribunal dismissed the Plaintiff’s appeal on December 22, 2014.

[Ground of Recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 8-1, 2, Gap evidence 9, Gap evidence 10-1, 2, Eul evidence 1-1, 2, and Eul evidence 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff paid the price for the actual provision of construction waste transport services using the vehicle ofCC that it manages through BB, and accordingly received each of the instant tax invoices. Since the Plaintiff did not engage in the processing transaction, the instant disposition based on the premise that it is a processing transaction is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Legal principles

In principle, the burden of proving that a tax invoice received from a specific transaction constitutes an "tax invoice entered differently from the fact" under Article 17 (2) 2 of the former Value-Added Tax Act where the deduction of an input tax amount is denied on the grounds that such transaction is a nominal transaction for which the actual delivery or transfer of goods or the supply of services is not a nominal transaction (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008). However, if it is discovered that a tax requirement is established in light of the empirical rule in the specific litigation process, unless the other party proves that the pertinent transaction was not eligible for the application of the empirical rule, it cannot be readily concluded that the pertinent tax disposition was an unlawful disposition that failed to meet the taxation requirement (see, e.g., Supreme Court Decision 2009Du6568, Sept. 24, 2009).

Here, the meaning that the entries of a tax invoice under the Value-Added Tax Act are different from the facts. In light of the purport of Article 14(1) of the Framework Act on National Taxes, which provides that if the ownership of income, profit, calculation, act or transaction subject to taxation is merely nominal and there is another person to whom such ownership belongs, the person to whom such ownership belongs shall be liable as a taxpayer, the requirement entry of the tax invoice refers to a case where the necessary entries in the tax invoice are inconsistent with the actual supplier, the supplier, the supplier, and the supplier, regardless of the formal entries in the transaction contract, etc. prepared between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). Specifically, the specific transaction includes a case where the supplier is a so-called so-called "counter transaction that is different from the issuer of the tax invoice even if the specific transaction is a nominal transaction without the delivery of goods or the supply of services (see, e.g., Supreme Court Decision 2012Du959, Apr.

Furthermore, in cases where an entrepreneur and a supplier on a tax invoice receive another tax invoice, in principle, the input tax amount cannot be deducted or refundable, but where there are special circumstances, such as where the entrepreneur was unaware of the nominal name and did not commit negligence, the input tax amount may be deducted or refundable from the output tax amount (see, e.g., Supreme Court Decision 2013Du6527, Jul. 25, 2013).

2) Whether each of the tax invoices of this case constitutes a false tax invoice

In full view of the evidence Nos. 1, 2, 2-1, 2-2, 3-1, 4-1, 2, 13-2, 18-1, 18-2, and 13-1, 18-2, and 18-2 of Gap evidence Nos. 1-2, and the purport of the entire pleadings as a whole, the plaintiff was provided with construction waste transport services over two occasions through B-B by the newD Co., Ltd. (hereinafter referred to as "newD"), and upon the request of B-B, the plaintiff was provided with construction waste transport services over two occasions, and it is difficult to view that the plaintiff was provided with the supply price of KRW 22,700,000 ( KRW 20,700, value-added tax 2,070,000, value-added tax 2,000, value-added tax 16,000 won (value-added tax 10,000,00 won).

However, considering that Gap evidence Nos. 5, 16, Eul evidence Nos. 2, 3, and 4, Eul evidence Nos. 5-1 through 4, Eul evidence Nos. 6 and 8, each of the following circumstances, i.e., "CC" opened on Nov. 20, 2009 and closed its business on Dec. 20, 2010; the plaintiff issued and received false tax invoices without real transactions until 209, and the deposited transaction price was confirmed as data for immediate withdrawal; ② The plaintiff's representative in the above investigation process stated that "CC" was traded with this BB, which is an employee ofCC; ④ The plaintiff did not provide new kinds of data for transportation from March 9, 2010 to 201; ④ The plaintiff did not provide new data for sale within the category of CC's 2, 201, but did not provide new data for sale.

Thus, each of the tax invoices of this case may be deemed as a nominal transaction even if the transaction is not a processing transaction, and each of the tax invoices of this case shall be deemed to have been entered differently from the actual supplier. Thus, each of the tax invoices of this case constitutes a false tax invoice.

3) Whether the Plaintiff is bona fide or without fault

According to the above legal principles, if there are special circumstances, such as the Plaintiff’s failure to know that it was a nominal nominal transaction and there was no negligence on the part of the Plaintiff, the input tax amount can be deducted. Therefore, whether the Plaintiff is bona fide and without fault on the nominal nominal transaction is acknowledged or not.

In light of the following circumstances: (a) evidence No. 6-1 is difficult to believe; (b) there is no objective evidence to recognize that this BB is an employee ofCC; (c) this BB is indicated as a deputy head of NewD; and (c) there is no document on transportation, waste collection, transportation, and disposal in the business registration certificate issued by the Plaintiff, even though the Plaintiff was aware of the fact that the Plaintiff was nominal, or was not aware of such fact, and due care was paid to the extent generally required for the transaction, it is difficult to find thatCC did not provide waste transportation services; and therefore, (d) it is difficult to find that the Plaintiff was not aware of the fact that the name was false, or was not aware of such fact.

4) Sub-committee

Therefore, each of the instant tax invoices cannot be deemed as false tax invoices, and cannot be deemed as any error in the instant disposition that did not deduct the value of supply as the input tax amount.

3. Conclusion

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