propriety of the disposition of non-deduction of the input tax amount of the tax invoice received from data

In a comprehensive determination of the facts charged to an investigation agency on the suspicion that a false tax invoice was issued, facts of transaction, etc., the person who actually performed the construction of this case is deemed an unregistered individual business operator, and thus a disposition imposing tax on the person who is deemed a false

Article 17 of the Value-Added Tax Act

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax for the second period of February 1, 2005 against the Plaintiff was revoked, respectively, of KRW 67,051,780 for the second period of 200, and value-added tax for the second period of 2002 for the second period of 200.

1. Details of the disposition;

A. The Plaintiff, a business operator operating clothing manufacturing business and real estate leasing business in 200, newly constructed a multi-family house and a commercial building with the first and fifth floor above ground level (hereinafter “first building”) on the land of ○○○○○○-dong, ○○○-dong, ○○ in 2000, and newly built a first and fifth floor above ground level (hereinafter “second building”) on the land of the same 7 years in 2002, and submitted a contract for the construction of the first building and the second building for the new construction of the second building (hereinafter “the construction of this case”) to the Defendant on October 20, 200, and received a tax invoice for each of the above 200, the supply price of the first and fourth floor above 200, 300, 2000, 3000, 200, 2000, 200, 2000, 2000, 200, 2000, 2000.

B. The Defendant received from the head of ○○ Tax Office having jurisdiction over the location of the place of business of the non-party company the notice of taxation data that the actual contractor of the instant construction is Kim○○, and the non-party company issued and issued only the instant tax invoice to the Plaintiff without any real transaction, and conducted a tax investigation with the Plaintiff, and subsequently deducted the input tax amount related to the instant tax invoice, respectively. On February 1, 2005, the Defendant corrected and imposed the amount of value-added tax for the second period of 200, KRW 67,051,780, value-added tax for the second period of 200, KRW 127,089,00 for value-added tax for the second period of 202 (hereinafter “instant disposition”).

C. The plaintiff appealed and filed an appeal with the National Tax Tribunal on February 21, 2005, but it was dismissed on November 28, 2005.

[Ground of recognition] Evidence No. 1, Evidence No. 2, Evidence No. 6, Evidence No. 9-1, 2, Evidence No. 12-1, 2, Evidence No. 12-2, and Evidence No. 1-3, and the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

After confirming the copy, etc. of the business registration certificate of the non-party company, the plaintiff entered into a contract for the construction of this case with the representative director of the non-party company, and paid the construction cost related to the construction of this case to the non-party company and the non-party company and Kim ○, who is its site director. The disposition of this case is unlawful, which

Even if the non-party company is not a normal business operator, the plaintiff confirmed the business registration certificate, etc. of the non-party company, and paid all the construction cost after entering into a contract for the construction of this case with the representative director of the non-party company, and thus the input tax amount of

(b) Related statutes;

○ Tax invoice Article 16 of the Value-Added Tax Act

(1) If an entrepreneur registered as a taxpayer supplies goods or services, he shall deliver an invoice stating the following matters (hereinafter referred to as “tax invoice”) to the person who receives the supply as prescribed by the Presidential Decree at the time prescribed in Article 9: Provided, That in the case prescribed by the Presidential Decree, the delivery time may vary:

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 as prescribed by the Presidential Decree other than those under subparagraphs 1 through 4.

○ Article 17 of the Value-Added Tax Act

(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 “purchase tax amount”) from the tax amount on the goods and services supplied by him (hereinafter referred to as the “sales tax amount”): Provided, That where an input tax amount exceeds the output tax amount, it shall be a refundable tax amount (hereinafter

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

2. The tax amount for the import of goods used or to be used for his own business; and

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

1. An input tax amount in case where the list of the total tax invoice by customer is not submitted under Article 20 (1) and (2), or the input tax amount on the portion not entered or entered differently from the fact, in case where the whole or part of the registration numbers or supply values by transaction parties in the submitted list of the total tax invoice by customer is not entered or entered differently from the fact, excluding the input tax amount in such

1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a “necessary entry item”) is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be excluded;

Article 60 (Scope of Purchasing Tax Amount)

(2) The cases prescribed by the Presidential Decree pursuant to the proviso of Article 17 (2) 1-2 of the Act means any of the following subparagraphs:

1. Where the businessman who has made an application for the business registration under Article 7 (1), has received as to the transaction until the delivery date of the business registration certificate under Article 7 (3), the resident registration number of the businessman or his representative entered;

2. Where part of the necessary entries of the tax invoice delivered under Article 16 (1) of the Act are erroneously entered, but the fact of transactions is confirmed in view of other necessary entries or discretionary entries of the relevant tax invoice; and

3. A tax invoice delivered after the time of supply for goods or services, which is delivered within the taxable period to which the time of supply belongs.

C. Determination

(1) Determination on whether the instant tax invoice is authentic

The evidence No. 3, Gap evidence No. 7, Eul evidence No. 13-9, Eul evidence No. 5-1, No. 2, Eul evidence No. 6-2, and Eul evidence No. 7-2, comprehensively taking into account the overall purport of the arguments No. 3, Eul evidence No. 13-3, Eul evidence No. 13-9, Eul evidence No. 5-2, the non-party company was registered as a construction work, and closed on April 28, 2003, and the tax invoice No. 11,413,90,000 won, including the tax invoice of this case, were issued and delivered to the non-party company No. 13-2, and the non-party company did not actually receive the tax invoice No. 80 and delivered it to the non-party company No. 1, the non-party company's maximum amount of the construction work of this case to the non-party company No. 1, 200, and the non-party company No. 60.

Thus, the person who actually performed the construction of this case is not the non-party company but the non-registered individual business operator, so the plaintiff's assertion on the premise that the plaintiff was provided services related to the construction of this case by the non-party company is without merit.

(2) Determination as to whether the Plaintiff is a bona fide trading party

The actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not knowing the disguised name, the person who asserts the deduction or refund of the input tax amount should prove the fact that the supplier was not negligent (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

As seen above, as to this case, on November 22, 2000, the amount confirmed by the Plaintiff as being directly paid to the non-party company with respect to the new construction of the building No. 1 in this case is 18,50,000 won, which the Plaintiff remitted to the non-party company, and most of the remaining construction costs were paid to the non-party company Kim○, claiming that the non-party company was the site manager of the non-party company. The amount directly paid to the non-party company with respect to the construction of the building No. 2 in this case is 81,00,000 won. This is consistent with the output tax amount under the tax invoice issued and delivered by the non-party company to the Plaintiff. The non-party ○○, which stated that the non-party company entered into the contract for the new construction of the building No. 1 in this case with the Plaintiff and the non-party 1 company, was also hard to accept the Plaintiff's assertion that the contract was directly concluded with the non-party 1 company and the non-party 2 company.

3. Conclusion

Therefore, all of the plaintiff's claims of this case are dismissed, and it is so decided as per Disposition.

[Seoul High Court Decision 2007Nu1608, 2007.10]

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. Each disposition of the Defendant rendered against the Plaintiff on February 1, 2005 of value-added tax of 67,051,780 won for the second term of 200, and value-added tax of 127,089,000 won for the second term of 202 against the Plaintiff shall be revoked.

The reasoning of this court's decision is the same as that of the judgment of the court of first instance, and thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

Therefore, the judgment of the first instance court as to this conclusion is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.