propriety of a disposition denying the zero tax rate under a written purchase approval

It is reasonable to see that gold bullion is not exported at the time of transaction. Thus, a disposition denying the application of zero tax rate under a purchase approval is legitimate.

Article 11 (Application of Value-Added Tax Act)

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Gu office's place of appeal and purport of appeal

1. Purport of claim

The defendant's disposition of imposition of value-added tax of KRW 274,242,40 in 2002 against the plaintiff on December 10, 2003 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, a corporation which completed the registration of incorporation for carrying on the business of wholesale, retail and trade business of precious metals on January 3, 2002, and a corporation ○○○○○○ (hereinafter referred to as “○○○○”) from March 4, 2002 to March 29 of the same month, presented a confirmation of purchase (hereinafter referred to as “purchase confirmation”) of raw materials for foreign exchange received by ○○○○○ from the head of a foreign exchange bank (hereinafter referred to as “purchase confirmation”), on the ground that the instant transaction constitutes a transaction to which zero-rate tax rate is applied under the Value-Added Tax Act, and was not reported and paid value-added tax pursuant to the instant transaction.

B. However, on the ground that ○○○○ purchases all of the purchase certificates presented to the Plaintiff at present and on the basis of a false or serious defect export contract, etc. prepared by △△△△△, a corporation selling ○○○○○, and △△△△△ (hereinafter “△△△△”) and △△, a corporation (hereinafter “△△△”), and the Plaintiff was well aware of such circumstances, the Defendant denied the application of zero tax rate under the Value-Added Tax Act for KRW 1,965,191,70, which is the supply value of the transaction of this case, and imposed KRW 274,242,40 as the value-added tax on December 10, 203.

Facts without dispute over the basis of recognition, Gap evidence 1, 2-1, 2-3-1 to 12, Eul evidence 1, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

(1) The plaintiff's assertion

The instant purchase certificate was lawfully issued by the president of the foreign exchange bank, and even if there was a defect in the issuance procedure, it cannot be said that the Plaintiff is obligated to verify whether the instant purchase certificate was lawfully issued. Thus, barring special circumstances, such as the Plaintiff’s knowledge that there was a defect in the issuance of the purchase certificate, the Plaintiff cannot be deemed to be lawful and the supply of the instant purchase certificate is excluded from zero-rate tax.

(2) The defendant's assertion

The Plaintiff’s letter of purchase presented by ○○○ constitutes a serious defect in the issuance procedure, and the current ordinary transaction behavior is hard to practice to issue a purchase confirmation using a false export contract, etc. for the purpose of reaching the exemption of value-added tax by applying the zero-rate tax rate although the purchaser did not intend to export. In light of the fact that the Plaintiff’s employees were a considerable number of past experience in zero-rate tax transaction, such circumstances should have been sufficiently known, and thus, the instant transaction cannot be deemed as a good-faith transaction party, and thus, the instant transaction

B. Relevant statutes

It is as shown in the attached Form.

(c) fact finding;

(1) The Plaintiff Company was in office as a school teacher for 10 years and was retired from office as a representative director. However, in fact, the △△△△△△ was established around August 199 and was trading now at around 199 and established by Nonparty 1, a model of the above Kim Jong-dong, which was a type of △△△△△△△, invested capital and employed employees working at the previous △△△△△△△△△△. The ○○○, a party to the instant transaction, is a business partner who was traded from the previous △△△△△△△△△△△

(2) The purchase confirmation presented by the Plaintiff Company was issued based on the export contract, etc. prepared by △△△△△ and △△△△△△△△, its own sales office, but the export contract of △△△△△△ was made by falsity. Since the export contract of △△△△ was also defective, the purchase confirmation was defective in the issuance procedure.

(3) 이 사건 거래를 함에 있어 원고회사는 매출처인 ○○○로부터 선금을 입금받고는 일정한 마진을 공제한 나머지 대금을 매입처인 ▲▲▲▲ 주식회사(이하 '▲▲▲▲'이라고 한다) 등에 송금하면 ▲▲▲▲ 등에서는 금 운송업체를 통하여 주로 원고회사를 거치지 아니하고 직접 ○○○에 지금을 공급하는 방식으로 거래를 하였으며, 원고회사는 ○○○로부터 주문을 받으면 세금계산서를 먼저 발행해주고 사후에 지금을 공급하기도

was made.

(4) 한편, 수출용원재료에대한관세등환급에관한특례법(이하 '특례법"이라 한다.)에 따라 수출용원재료에 대한 관세를 환급받기 이하여 세관장으로부터 발급받는 관세 등의 납부세액을 증명하는 서류를 '분할증명서'라고 하고, 수출하려는 업체등이 수입한 지금을 순차적으로 매입하는 경우 각 매출업체는 분할증명서를 발급받아 매입업체에게 교부하여 최종적으로 지금을 매입하여 해외에 수출하는 업체가 관할 세관장에게 분할증명서를 제출하고 최초 지금 수입업체가 납부한 관세(이 사건 지금의 경우 물품가액의 3%)를 환급받는데, 원고회사는 ▲▲▲▲ 등으로부터 지금을 매입하면서 그때마다 분할증명서를 교부받았으나, 이 사건 거래와 관련하여는 매출처인 ○○○에게 교부하기 위해 세관장으로부터 분할증명서를 발급받은 적이 없다.

(5) Since March 2004, the Plaintiff Company sold the tax-free goods purchased between March 2004 and May 25, 2004 through a taxable transaction including value-added tax, and became a 's 'bomb' or 'bomb' that actually discontinued the collected value-added tax without reporting and paying it. In addition, the Plaintiff Company was accused of the Seoul Regional Tax Office Director of the Seoul Regional Tax Office on the ground that it received the false tax invoices total of 476 copies from the opening date to May 14, 2004.

(6) ○○○의 대표이사인 ■■■은 2000년경 영세율 및 면세로 구입한 지금을 과세거래로 매출한 다음 징수한 부가가치세를 신고·납부하지 아니하였다는 이유로 기소당하였고(현재 서울고등법원 2006노79호로 항소심 계류중이다), ○○○의 매출업체인 △△△△ 또한 영세율로 구입한 지금을 과세거래하고는 부가가치세를 신고·납부하지 아니하였다는 이유로 2002년 10월 ○○세무서장으로부터 고발당하였다.

(7) On the other hand, in the case of the present, domestic market price is higher than international market price, and there is a wide range of alternative trade in order to avoid the value-added tax in order to meet the price of smuggling. One of them is to obtain a defective purchase certificate using false export-related documents, such as the instant transaction, under the explicit and implied solicitation between the parties, and then purchase them at zero tax rate and sell them at zero tax rate to the temporary martan companies, and the large martan companies actually discontinue their business without reporting and paying the value-added tax collected for the purpose of distributing in Korea (the case where each party to the transaction evades value-added tax by actually closing their business without reporting and paying the value-added tax collected for the purpose of distributing in Korea). This is widely known among the parties to each transaction.

Each evidence set forth earlier than the basis for recognition, Eul evidence Nos. 2-1, 2-2, Eul evidence Nos. 3 and 4, Eul evidence Nos. 5-1, 2-2, Eul evidence Nos. 6-1 through 12, Eul evidence No. 7-1 through 39, Eul evidence No. 10, 11, 12, and 13-1, 2, Eul evidence No. 14-1 through 4, Eul evidence No. 15-1, 2, Eul evidence No. 17, Eul evidence No. 19, and the purport of the whole pleadings

D. Determination

(1) According to Article 11(1)1 of the Value-Added Tax Act and Article 24(2)1 of the former Enforcement Decree of the Value-Added Tax Act, the zero-rate tax rate shall apply to the exported goods, and even to the goods supplied by an entrepreneur through a local letter of credit or a purchase confirmation as determined by the Ordinance of the Ministry of Finance and Economy, the zero-rate tax rate shall apply to such exported goods. Article 9-2(2) of the former Enforcement Rule of the Value-Added Tax Act provides that the said purchase confirmation means a written confirmation issued by the head of a foreign exchange bank within 20 days after the end of the taxable period to which the time of supply for the goods or services belongs due to a local letter of credit under paragraph (1).

However, under the value-added tax system, the application of zero-rate tax rate is recognized only for exports in order to prevent double taxation, and it is equivalent to the above exports with respect to domestic consumption, and it should be recognized only in exceptional and limited cases where it conforms to the national policy purpose of the encouragement of foreign exchange and the collection of value-added tax to the extent that it

(see, e.g., Supreme Court Decision 83Nu409, Dec. 27, 1983)

In light of the purport of applying the zero-rate tax rate and the relevant laws, etc., ① where a supplier of goods sells goods by applying a zero-rate tax rate with the knowledge of the defect in obtaining a false purchase certificate in collusion with the buyer or having the knowledge of the defect in obtaining a purchase certificate, ② the buyer’s use of a purchase certificate in a domestic sales without the purpose of export is hard in light of transaction practices to evade taxes, and the supplier of goods, who is sufficiently aware of such circumstance, applies the zero-rate tax based on a lawful purchase certificate presented by the buyer, thereby undermining the order of collection of value-added tax.

(2) In the instant case, the lower court, the actual manager of the Plaintiff Company, had been engaged in the instant transaction before the instant transaction, and had been engaged in the instant transaction with ○○○○, which had been well aware of the current illegal distribution process for the evasion of value-added tax, purchased the current price including 3% customs duties from the Plaintiff Company. As such, if the Plaintiff did not receive the certificate of subdivision, it was sufficiently known that the general transaction rate should be 0.3% from the current sales rate, and that it would be faced with the situation of exporting the 2% to 2.7% from the current sales rate. However, the lower court did not issue the certificate of subdivision to the ○○○, even if it was aware of the fact that the Plaintiff had been aware of the fact that the instant transaction would not be exported to the said ○○○○ through the said ○○○, and that it would not have been distributed to the Plaintiff Company for a short period of time after the Plaintiff’s purchase or sale of the instant sales to the Plaintiff Company, as it did not appear that it would have been an illegal sales method.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed, and since the judgment of the court of first instance differs from this conclusion, it shall be revoked, and the plaintiff's claim shall be dismissed and it shall be so decided as per Disposition

public official law, order of law,

Value-Added Tax Act

Article 11 (Application of Zero Tax Rate)

(1) zero tax rates shall apply to the supply of goods or services falling under any of the following subparagraphs:

1. Exported goods;

Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827, Dec. 30, 2002)

Article 24 (Scope of Export)

(1) Exports provided for in Article 11 (1) 1 of the Act shall be as follows:

1. Shipping domestic goods (including marine products arrested by Korean vessels) out of Korea;

2. Where transactions, such as contract and receipt of consideration, are conducted at a domestic place of business, which falls under any of the following items:

(a) Export by means of brokerage trade under the Foreign Trade Act;

(2) The exported goods under Article 11 (1) 1 of the Act shall be deemed to include the following goods:

1. Goods supplied by a businessman by means of a local letter of credit or a written confirmation of purchase;

Enforcement Rule of the Value-Added Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 299 on January 25, 2003

Article 9-2 (Scope of Local Letters of Credit, etc.)

(2) The term "purchase confirmations under Article 24 (2) 1 of the Decree and Article 26 (1) 2-2 of the Decree" means confirmations which the head of a foreign exchange bank issues under Articles 38-2 and 116 (14) of the Enforcement Decree of the Foreign Trade Act within 20 days after the end of the taxable period to which the time of supply for goods or services belongs, corresponding to a local letter of credit under paragraph (1), and on which the documents, such as the export letters of credit, etc., the number thereof, effective date, shipment date, etc.

General Rules 11-24-9 of the Value-Added Tax Act (goods supplied by local letters of credit or written confirmation of purchase)

The zero tax rate shall apply to goods supplied for the purpose of export after the supply, regardless of whether such goods are used for the purpose of export after the supply.

Article 4-2-7 of the Regulations on External Trade Management (Application, etc. for Issuance of Purchase Certificates)

(1) The head of a foreign exchange bank may issue written confirmation of purchase pursuant to one of the following subparagraphs:

1. The export letter of credit, the export contract, the certificate of foreign currency purchase (deposit), the local letter of credit; 4. The letter of credit, the certificate of purchase;

(2) An application for confirmation of purchase shall be filed with the head of a foreign exchange bank, along with the following documents:

1. One copy of a document falling under any subparagraph of paragraph (1);

2. A contract for supply of goods or a certificate for sale of goods for foreign exchange earnings;

Special Cases concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export

Article 9(1) The customs collector, when the goods are offered for export, shall refund the customs duties, etc. levied on raw materials for export of the imported goods within 2 years retroactively from the date prescribed by the Presidential Decree.

Article 13(1) The Commissioner of the Korea Customs Service may, when it is deemed necessary to simplify the refund procedure of customs duties, etc. on export goods with special production processes such as those produced simultaneously by two or more products from a single raw material for export and on export goods from small and medium enterprises, determine and publicly notify the fixed refund rate table for each export goods on the basis of the average refund amount of customs duties, etc. or average

(2) The amount set in the fixed refund rate table pursuant to paragraph (1) shall be refunded, considering the customs duties, etc. paid, when raw materials for export required for producing the relevant goods are imported.

Enforcement Decree of the Act on Special Cases concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (amended by Presidential Decree No. 17791, Dec. 5, 2002)

Article 10 (Calculation of Period for Transactions by Local Letters of Credit, etc.

(1) "Period prescribed by Presidential Decree" in Article 9 (2) of the Act means one year.

(2) The head of a customs office may issue a document certifying the amount of customs duties, etc. on the goods transacted in an import (referring to purchase in the course of transactions under a local letter of credit, etc.)

(3) Any person who intends to have a document attesting the amount of customs duties, etc. payable under paragraph (2) issued shall file an application stating the following matters with the head of the competent customs office:

1. Transferor and transferee;

2. Transfer date;

3. The name and specification of the goods;

4. The quantity and tax amount to be transferred.

5. Other matters necessary to certify the amount of customs duties, as determined by the Commissioner of the Customs Service.

Notice of refund of customs duties, etc. on raw materials for export

ARTICLE 1-1-2 (Definition of Terms) The definitions of terms used in this Notice shall be as follows:

1. The term "amount of average tax amount" means a document proving the average amount of tax per unit for export (hereinafter referred to as "amount of average tax") by the item number (H or 10 unit) of raw materials for export imported each month, in quantity divided into the quantity;

2. The term "certificate of tax payment on basic raw materials" means a document attesting the payable amount of the raw materials for export supplied by the local letter of credit, etc. (hereinafter referred to as "certificate of tax payment");

3. The term "division certificate" means an import declaration certificate, ordinary certificate, or a certificate of payment in installments (hereinafter referred to as "certificate") in order to certify the amount of tax payable on the goods that have been supplied in the original condition of import or purchase;

Article 4-3-1 (Persons subject to Issuance of Subdivision) Cases where decentralization may be issued pursuant to Article 10 (2) of the Decree shall be as follows:

1. Where raw materials are transferred in the state of import or purchase of raw materials to an exporter or a producer of export goods or a person who produces interim raw materials to be used in producing export goods;

2. Where all or part of the goods, the Pyeongtaek certificate of which has been issued pursuant to the provisions of Article 4-1-2, are transferred as referred to in subparagraph 1 without manufacturing and processing them;

3. Where a transferee of raw materials referred to in paragraph 1 of Article 4-2-1 has transferred them in the same manner as subparagraph 1 has been purchased. The end;