Early High Court Decision 2012J 0815 (Law No. 112.30)

propriety of the original disposition imposed by deeming it as a false tax invoice;

It is legitimate to deduct the input tax amount of value-added tax due to the receipt of a false tax invoice, and it is necessary to actively prove that the taxpayer has failed to include necessary expenses or has not actively proved that the initial disposition is illegal on the imposition of corporate tax and bonus disposition related thereto.

2012Revocation of disposition of imposing corporate tax, etc.

AAA Construction, Inc.

Chuncheon Director of the Tax Office

May 10, 2013

June 14, 2013

1. All of the plaintiff's claims are dismissed.

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

The Defendant’s disposition of imposing KRW 000 on the Plaintiff on November 1, 201 and KRW 000 on the wage and salary income tax of January 2, 2009 against the Plaintiff on January 2, 2009 is revoked (the application for modifying the purport of the claim and the cause of the claim is written on November 3, 201 and January 5, 201, but it is written on January 1 through 3, 201 by each date of the disposition is written on November 3 and January 5, 2012, which appears to be written on January 1 through 3, 201).

1. Details of the disposition;

A. On April 13, 2007, the Plaintiff was established with the construction business of metal structure as its main business, and mainly provides construction services to the government offices, etc. of Gangwon-gu, Yangwon-gu, Seoul-si, and the Plaintiff issued five copies of purchase tax invoices (hereinafter referred to as “instant tax invoice”) in the name of "BB construction” in the name of "BB construction" in Suwon-gu, Suwon-si, 009 during the second taxable period of 209 (hereinafter referred to as "B construction for convenience"), and based on this, the Plaintiff reported the input tax deduction for 2009, and reported the corporate tax for 2009, including the above 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000.

C. On January 25, 2012, the Plaintiff dissatisfied with each of the above dispositions filed a tax appeal on January 25, 2012, and the Tax Tribunal decided that “The Plaintiff’s tax base and tax amount shall be corrected according to the results, and the remainder of the Plaintiff’s appeal shall be dismissed.”

(d) As a result of a review conducted by the Tax Tribunal, the Defendant deemed that the amount of 2009 transaction with the Plaintiff and the FF panel is 000 won, and that the return was omitted on June 12, 2012, 200 won excluding the existing tax invoice issued by the FF panel in the above transaction amount, was reduced to 000 won in deductible expenses, and the corporate tax in 2009 was reduced to 000 won in deductible expenses, and the above 000 won and 000 won paid by the Plaintiff as value-added tax to BB construction were excluded from bonus, and reduced to 000 won in withholding tax amount for the Plaintiff on January 2009 (hereinafter the above imposition disposition of value-added tax and reduced corporate tax, and the above imposition disposition is 'value-added tax', 'value-added tax', 'value-added tax imposed', 'value-added tax imposed', and 'value-added income tax imposed', 'tax evidence 1 through 5'.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff actually purchased construction materials from the FF panel, and the FF panel received the purchase tax invoice from BB construction, not the processing tax invoice received without actual transaction. Accordingly, the instant tax invoice was not the processing tax invoice received without deducting KRW 000 from the input tax amount, and the disposition of the non-deductible input tax amount as the bonus to the representative director was made on the premise that the instant tax invoice was false.

B. Relevant statutes

Attached Form is as shown in the attached Form.

(c) Fact of recognition;

1) In 2009, the Plaintiff purchased 000 won goods, including building materials, from the FFll, and the FFll issued the purchase tax invoice for 000 won to the Plaintiff.

2) The Plaintiff asked the FJ to issue the purchase tax invoice to the FJ in the second two taxable periods of 2009, but the FFJ was unable to issue the purchase tax invoice, and requested the OO (a trade name, which appears to be an enterprise operated by an individual entrepreneur) to seek the purchase tax invoice. The Plaintiff transferred the instant tax invoice issued by the OO to the OO via registered mail, and KRW 10,000,000, value-added tax for KRW 000,000, value-added tax for KRW 100,000.

3) On September 30, 201, the Plaintiff’s representative director MaE stated that the pre-construction is an enterprise that may entirely know of the pre-building in the questionnaire of investigation conducted by the Chuncheon Tax Office on September 30, 201, and that the Plaintiff’s prefabricated-type panel purchased from the FFll in 2009 constituted an amount of KRW 00,000,000 from the prefabricated-type panel.

4) BB construction, which issued the instant tax invoice, was accused of the violation of the Punishment of Tax Evaders Act by the head of the Suwon Tax Office on the ground that only the lease contract was concluded on the building located in the Suwon District 0000, and that it was not actually carried on the business.

[Reasons for Recognition] The aforementioned evidence, evidence Nos. 2, Eul evidence Nos. 3-2, Eul evidence Nos. 9, Eul evidence Nos. 10-2, and Eul evidence Nos. 10-3, and the purport of the whole testimony and arguments of the witness Kim.

D. Determination

1) Value-added tax portion

The actual supplier and the supplier on the tax invoice are not entitled to deduct or refund the input tax amount unless there is any special circumstance that the supplier was unaware of, and was not negligent in, the fact that the supplier was unaware of, the name of the tax invoice, and that the supplier was not negligent in not knowing the above fact (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). According to the above facts, the Plaintiff did not engage in a transaction equivalent to BB construction and 00 won in the last quarter of February 2009, and the instant tax invoice is deemed to be a tax invoice written differently from the fact, and there is no evidence to deem that the Plaintiff did not know, or did not know, that there was no negligence. Rather, the Plaintiff received the instant tax invoice by requesting the issuance of the tax invoice to the FF Group, and thus, it is reasonable to deem that the instant tax invoice was lawful to receive the instant tax invoice by OO.

2) Corporate tax portion

In an administrative litigation seeking revocation of a taxation disposition on the ground of its illegality, the tax authority bears the burden of proving the legality of the taxation disposition and the existence of the taxation requirement. The burden of proving necessary expenses is also the principle that the tax authority bears the burden on the basis of the determination of taxable income. However, the fact that a tax invoice on some of the expenses reported by the taxpayer has been falsely prepared without real transactions is considerably proved by the tax authority, and it is difficult for the taxpayer to present data, such as books and evidence, only when there are special circumstances such as the use of the expenses claimed by the taxpayer and the cases where the other party to the payment has been proved to the extent that it is reasonable, and the cost has been actually paid (see, e.g., Supreme Court Decision 2005Du16406, Apr. 14, 206). In this case, BB architecture stated as the supplier in the tax invoice in this case, according to the above facts, it is reasonable to deem that it is reasonable to deem that it is reasonable for the Plaintiff to prepare and sell a false tax invoice without real goods supply, and that it is not reasonable for the Plaintiff’s evidence.

3) Wage and salary income tax portion

If it is clear that the amount included in the calculation of earnings under Article 67 of the former Corporate Tax Act (amended by Act No. 8831 of Dec. 31, 2007) and Article 106 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20619 of Feb. 22, 2008), and the amount included in the calculation of earnings is leaked out of the company by appropriating the expense for processing, the tax authorities shall have the person to whom the expense belongs dispose of the earnings from the corporation as bonus, distribution, and other outside of the company. If the cost of processing is appropriated in the long-term division, barring any special circumstance, it should be deemed that the total amount of the processing cost is not leaked out of the company's bonus, and it is not necessary to prove that the amount of the processing cost is not leaked out of the company's total amount of bonus income, and it is not reasonable to acknowledge that the defendant's testimony is not leaked out of the company's total amount of income (see Supreme Court Decision 2000Du3726, etc.).

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.