Seocho 208west 2464 ( November 11, 2008)

Whether it constitutes a processing tax invoice related to the purchase of gold bullion;

It is difficult to readily conclude that gold bullion is not subject to surtax solely on the basis of the fact that the representative director of the supplier has been subject to criminal punishment for the crime of issuing a processed tax invoice.

The contents of the decision shall be the same as attached.

1. The Defendant’s imposition of value-added tax of 157,943,180 won (including value-added tax; hereinafter the same shall apply) for the second period of 2003 against the Plaintiff on April 4, 2008, 545,780,830 won for the first period of 2004, 19,760,860 won for the business year of 2003, and 74,864,350 for the business year of 204 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. From December 2, 2003 to March 17, 2004, the Plaintiff engaged in the wholesale and retail business of gold bullion (gold bullion with a net altitude of at least 995/1,000) from December 2, 2003 to March 17, 2004.

B. In February 2003 and January 2004, the Plaintiff purchased gold bullion equivalent to KRW 4,301,269,020 (hereinafter referred to as “the gold bullion of this case”) from AAAEd Co., Ltd. (hereinafter referred to as “AAEd”), and received tax invoices 24 (hereinafter referred to as “the instant tax invoice”), and filed a final tax return and corporate tax base return as follows.

C. On April 4, 2008, the Defendant deemed that the Plaintiff received the instant tax invoice without real transaction, and notified the Plaintiff of the amount of KRW 157,943,180 for the second period of value-added tax, KRW 545,780,830 for the first period of 2004, KRW 19,760,860 for the business year of 2003, and KRW 74,864,350 for the business year of 2004 (hereinafter “instant tax disposition”).

[Ground of recognition] Facts without dispute, Gap 3, 17 evidence, Eul 1 through 4 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

The Plaintiff actually received the instant gold bullion from AAABD and exported it to a foreign country. The instant disposition of taxation should be revoked in an unlawful manner on the premise that the Plaintiff conspired with wholesalers, etc. for the purpose of evading taxes.

(2) The defendant's assertion

The Plaintiff’s transaction of the gold bullion in this case is only the appearance of the transaction, and it constitutes a systematic disguised transaction to evade taxes, and thus, it constitutes a processing transaction that cannot be conducted in normal commercial transactions. The disposition in this case is legitimate.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On June 2007, the head of Sungdong Tax Office conducted a tax investigation with respect to AAB World. The result of the investigation is as follows: (a) the above company closed its business on April 14, 2003 and closed its business ex officio on August 26, 2004; (b) the company received a purchase tax invoice from the taxation conversion (hereinafter referred to as "one-person carbon company") that plays a role in converting the tax-free gold bullion into taxation during the tax period of January 2003 and January 2004; and (c) the company received the purchase tax invoice from the taxpayer in the middle of taxation, zero-rate exporters, precious metal retailers, etc., and conducted a trade brokerage for the refund of the pertinent input tax by issuing the transaction tax invoice in disguised manner as normal transaction transactions to the exporter, precious metal exporters, etc.; and (d) the company provided the Internet banking with prior public offering with all import and all traders, and received the tax invoice related to the transfer and conversion through the Internet banking in accordance with the predetermined contents (307).5g.

(2) As a result of the above investigation, the head of Sungdong Tax Office: (a) notified the relevant tax authority to the non-party company and the transaction partner that received the tax invoice of the non-party company including the Plaintiff, by deeming that the total sales and purchase of the non-party company from January 2003 to February 2, 2004 were processed (a total of KRW 115,786,00,000 in total of the supply price of the sales tax invoice; and (b) filed a criminal charge against the non-party company and its representative director under the Punishment of Tax Evaders Act on the grounds of the suspicion that the non-party company issued and received the processed purchase and sales tax invoice without actual supply of the goods.

(3) On February 14, 2008, 2008, AAAABCC’s representative director: (a) issued 2,861,351,137 won (not included in the instant tax invoice) in total of 22 false sales tax invoices; and (b) received a judgment of conviction as to facts constituting a crime for which the total amount of KRW 5,93,497,212 was issued in total of 21 false purchase tax invoices; and (c) the said judgment became final and conclusive on February 22, 2008.

(4) Recognizing the fact that the above ArticleCC issued false sales tax invoices to some of the traders at the time of the prosecution investigation, it stated that, while 50% of the false sales tax invoices were actually traded, it received the amount corresponding to the value of supply in the tax invoice, and then delivered gold bullion equivalent to the amount corresponding to the actual transaction portion to the transaction partner, and returned the amount corresponding to the actual transaction portion to the transaction partner in cash, and made a transaction by deducting 1.5% from the commission fees. In the case of the Plaintiff, all of them were the actual transaction and there was no fact that the false sales tax invoices were issued.

(5) The payment remittance was made through a bank with respect to each gold bullion transaction falling under the instant tax invoice, and the purchased gold bullion was exported through a normal export procedure, and the export price was also remitted from a foreign country.

[Reasons for Recognition] Facts without dispute, Gap, 4, 7, 8, 9, 11, 12, 13, 14, 15, Eul evidence, Eul evidence, and the purport of the whole pleadings

C. Determination

(1) In the administrative litigation seeking the revocation of a taxation disposition on the grounds of illegality, the tax authority has the burden of proving the legality of the taxation disposition and the existence of the taxation requirement fact, so in principle, the tax authority shall bear the burden of proving necessary expenses, which are the basis of the determination of taxable income. However, insofar as there are special circumstances such as where the tax invoice on some of the expenses reported by the taxpayer was proved to be false without real transactions, the tax authority must prove that it is reasonable to determine whether it is real expenses, and where it is proved to the extent that the taxpayer's assertion and the other party to the payment was proved to be false, it is necessary to prove that it is easy for the taxpayer to present data, such as books and evidence, regarding the fact that such expenses were actually paid (see, e.g., Supreme Court Decision 2005Du16406, Apr.

(2) Examining the instant case in light of the aforementioned legal principles, the Plaintiff paid the price for the instant gold bullion to AABD, the Plaintiff, and received the tax invoice 24. The Plaintiff exported the instant gold bullion through normal process, and the Plaintiff issued a false sales tax invoice, but traded at least 50% of the total transactions. In light of the fact that the representative director of the supplier specified in the instant tax invoice was punished for committing a criminal act that issued the processed purchase and sales tax invoice (not including the instant tax invoice) without actual supply for the same taxable period, it is difficult to conclude that the instant transaction under the tax invoice does not constitute the supply of goods subject to value-added tax as a nominal transaction, and there is no other evidence to acknowledge otherwise.

(3) 따라서 이 사건 세금계산서가 허위의 세금계산서임을 저†뉠�한 피고의 이 사건 부과처분은 위법하고, 원고의 주장은 이유 있다.

4. Conclusion

Thus, the plaintiff's claim of this case seeking revocation on the ground that the disposition of this case is unlawful is justified, and this is accepted.