National High Court Decision 2006Du2547 ( December 13, 2006)

Whether the transaction constitutes a false tax invoice concerning gold bullion transaction

Since the gold bullion is purchased and the gold bullion is delivered on the date of purchase, and the tax invoice is issued, and the export price is less than the purchase price, it is only four cases, and the transaction involved by a bomb coal company is only a part, and it is illegal to regard it as a false tax invoice as a nominal transaction.

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

Article 14 (Real Taxation under Framework Act on National Taxes)

Article 1 (Taxable Objects)

1. The Defendant’s imposition of value-added tax against the Plaintiff on October 10, 2005, of KRW 35,394,834 for the first term of 2003, of KRW 2,808,409,423 for the second term of 2003, of KRW 5,104,752,146 for the second term of 2004, of KRW 458,050 for the second term of 2004, and the imposition of KRW 439,959,031 for the business year of 203,754,281 for the business year of 204, and each imposition of KRW 936,498,583 for the second term of value-added tax for the second term of 204, and each disposition of refusing to refund KRW 936,583 for the second term of 204.

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

The same shall apply to the order.

1. Details of imposition, etc.;

A. The Plaintiff is a company established on June 5, 2003 for the purpose of manufacturing and wholesale sales, manufacturing and wholesale sales, manufacturing and wholesale sales of precious metals and so on, and trading business.

B. The Plaintiff filed an input tax return for gold bullion purchase tax amounting to KRW 71,063,50 (hereinafter each tax invoice is called the instant tax invoice, and each of the above transactions is called the instant tax invoice) in the output tax amount after deducting the input tax amount from the input tax amount.

C. Meanwhile, the director of the Seoul Regional Tax Office, as a result of conducting a tax investigation on the Plaintiff between October 8, 2004 and July 15, 2005, reported the instant tax invoice to the Defendant to deduct the input tax amount from the fact as a false tax invoice and to impose the penalty tax not paid for evidence.

D. On October 10, 2005, the Defendant imposed value-added tax on the Plaintiff on the first term portion of 2003, KRW 35,394,834, KRW 2808,409, KRW 423, KRW 5,104, KRW 752, and KRW 146 for the second term portion of 2004, KRW 458,050,344 for the second term portion of 2004, KRW 936,498, and KRW 683 for the second term of 2004, KRW 2039,959, KRW 031, KRW 2004, KRW 983,754, and KRW 75281 for the business year of 204, KRW 203, corporate tax entitled to the additional tax of evidence, etc. (hereinafter each of the instant disposition, etc.)

[Reasons for Recognition] Unsatisfy, Gap evidence 1-6, Gap evidence 1-2-1 through 4, Gap evidence 3, Gap evidence 4-1, 2, Gap evidence 5-1 through 3, Eul evidence 1-4, Eul evidence 2-1, 2-2, Eul evidence 63-1 through 4, Eul evidence 64-1, 64-2, each of the statements, the whole purport of the pleadings

2. Whether the instant disposition, etc. was lawful

A. The plaintiff's assertion

(1) The Plaintiff actually purchased gold bullion from the business partner of the instant case and paid the price in full. The instant tax invoice is a normal transaction. The Plaintiff merely purchased gold bullion from the business partner of the instant case and exported it to sununype h long girs limited (hereinafter “foreign corporation”) located in Hong Kong, and did not compete with the taxation conversion company (Sabane), the supplier, or the overseas corporation, etc. for the purpose of unjustly refunding value-added tax. In other words, the Plaintiff did not intend to jointly evade taxes with the gold bullion business entity, and was unaware of the other business entity’s act. Accordingly, the Defendant’s imposition and refusal disposition of value-added tax of the instant case, premised on the premise that the instant tax invoice is a tax invoice different from the fact, was unlawful.

(2) The Plaintiff received all documentary evidence through the instant transaction. Notwithstanding that the instant tax invoice is not a false tax invoice as seen earlier, the Defendant’s disposition of imposition of corporate tax in this case, which reported otherwise, was unlawful.

(b) Related statutes;

Article 14 (Real Taxation under Framework Act on National Taxes)

Article 1 (Taxable Objects)

(c) Fact of recognition;

(1) From June 18, 2003 to October 5, 2004, the Plaintiff purchased gold bullion over 132 occasions from the transaction partner of the instant case, as shown in attached Form 1, and processed and exported it to a foreign corporation as it is in the status of gold bullion or as a product of 24 km and 22 km.

(2) The details of payment made by the Plaintiff to each business partner regarding the instant transaction are recorded in the Plaintiff’s bank account, payment bank account, and foreign currency deposit account in the foreign exchange bank account, and the foreign currency deposit account in the export transaction are recorded in the foreign currency bank account, payment bank account, and foreign exchange bank account.

(3) In the middle stage of a series of entire transactions until gold bullion is imported and exported (hereinafter in this case, the gold bullion exempt from value-added tax is purchased and supplied as gold bullion subject to value-added tax to a person who has not received a recommendation for tax exemption, and a tax invoice is prepared and delivered, and a transaction in which a so-called wide-scale coal company exists that does not pay the amount equivalent to value-added tax (attached Form 2).

(4) However, according to the transport note, etc. of the instant entire transaction, gold bullion was exported to a foreign corporation on the date of import or within 2-3 days from the date of import through the six-7-stage transaction process after the import of gold bullion, and there were many cases where there were many cases where the moving time between the company located far from a considerable distance in the transaction transfer transaction of the instant case was very short to 5-15 minutes, and there were cases where it was revealed that gold bullion was moved from the Plaintiff to the importer after the settlement of funds from the previous transaction partner.

(5) In the entire transaction of this case, the Plaintiff, who is the exporter, was either issued a “certificate of subdivision” necessary for refund of customs duties, or did not receive refund of customs duties. In most cases, the serial numbers of gold bullion were not stated, and the same gold bullion was exported.

(6) Of the 95 exports, some of the 95 exports had been made at a lower price than the domestic market price at the time of the international market price, and the export price was lower than the purchase price in the four trades.

"(7) Among the 51 items exported by the Plaintiff in 2005, there were many cases where the receiver mistakenly states 37 items in the export contract, and the overseas corporation actually remitted to the Plaintiff the amount of USD 20 to 69 less than the amount stated in the export contract." (8) Meanwhile, according to the "Detailed Statement of Delivery of Processing Sales Tax Invoice (Evidence 118)" prepared by the Director of Seoul Regional Tax Office as a result of the tax investigation conducted with respect to ○○ gold, the Plaintiff was not included in the processed sales account list.

(9) Around December 2005, ○○○ Fund was subject to the Seoul Central District Public Prosecutor’s Office’s disposition of “a suspicion of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (tax evasion) and of aiding and abetting the Act.”

(10) The Seoul Regional Tax Office's investigation of the transaction details between January 1, 2003 and March 2007 on the ○○○○○○○○ was made and then conducted a tax investigation on the transaction details from January 2003 to March 2007. The investigation items are as follows: The investigation items are not corresponding, and the contents of the investigation are not found to be recovered.

(11) At the time of the prosecutorial investigation, the ○○○○ Fund stated to the effect that “○○ Fund was actually operated by the prosecutor’s office that “the ○ Fund was referred to as a bomb business entity, and was aware of the fact that there was a bomban business entity evading value-added tax at

(12) On March 6, 2008, the Plaintiff’s representative director, was suspended from prosecution against the charge of violating the Punishment of Tax Evaders Act by the Seoul Central District Prosecutors’ Office.

[인정근거] 다툼 없는 사실, 갑 10호증의 1 내지 11, 갑 11호증의 1 내지 20, 갑 12호증의 1 내지 16, 갑 12 내지 14호증의 각 1 내지 16, 갑 15호증의 1 내지 14, 갑 16호증의 1 내지 18, 갑 17호증의 1 내지 14, 갑 18호증의 1 내지 16, 갑 19호증의 1 내지 15, 갑 20 내지 25호증의 각 1 내지 16, 갑 26호증의 1 내지 15, 갑 27, 28호증의 각 1 내지 18, 갑 29, 30호증의 각 1 내지 16, 갑 31호증의 1 내지 18, 갑 32호증의 1 내지 20, 갑 33호증의 1 내지 16, 갑 34호증의 1 내지 18, 갑 32호증의 1 내지 20, 갑 33호증의 1 내지 16, 갑 34호증의 1 내지 18, 갑 35호증의 1 내지 16, 갑 36호증의 1 내지 19, 갑 37 내지 39호증의 각 1 내지 16, 갑 40 내지 43호증의 각 1 내지 10, 갑 44호증의 1 내지 13, 갑 45호증의 1 내지 14, 갑 46, 47호증의 각 1 내지 10, 갑 48호증의 1 내지 13, 갑 49호증의 1 내지 16, 갑 50호증의 1 내지 13, 갑 51호증의 1내지 12, 갑 52호증의 1 내지 10, 갑 53호증의 1 내지 18, 갑 54호증의 1 내지 11, 갑 55 내지 58호증의 각 1 내지 13, 갑 59 내지 63호증의 각 1 내지 14, 갑 64 내지 66호증의 각 1 내지 13, 갑 67호증의 1 내지 9, 갑 68호증의 1 내지 14, 갑 69호증의 1 내지 10, 갑 70호증의 1 내지 13, 갑 71호증의 1 내지 10, 갑 72호증의 1 내지 16, 갑 73호증의 1 내지 13, 갑 74호증의 1 내지 16, 갑 75 내지 78호증의 각 1 내지 10, 갑 79호증의 1 내지 11, 갑 80 내지 83호증의 각 1 내지 13, 갑 84, 85호증의 각 1 내지 10, 갑 86호증의 1 내지 13, 갑 87 내지 89호증의 각 1 내지 11, 갑 90호증의 1 내지 15, 갑 91 내지 93호증의 각 1 내지 11, 갑 94호증의 1 내지 12, 갑 95호증의 1 내지 13, 갑 96, 97호증의 각 1 내지 12, 갑 98호증의 1 내지 16, 갑 99 내지 101호증의 각 1 내지 12, 갑 102호증의 1 내지 11, 갑 103호증의 1 내지 12, 갑 104호증의 1 내지 15, 갑 105호증, 갑 106, 107호증의 각 1 내지 3, 갑 108호증, 갑 109호증의 1 내지 6, 갑 116호증의 1, 3, 갑 118, 119호증, 갑 120호증의 1, 2, 갑 121호증, 을 4호증의 1 내지 9, 을 5호증의 1 내지 6, 을 6호증의 1 내지 3, 을 7, 8, 호증의 각 1, 2, 을 9호증, 을 10호증의 1 내지 4, 을 11호증, 을 12호증의 1, 2, 을 21호증, 을 22호증의 1 내지 3, 을 23호증의 1 내지 107, 을 24호증의 1 내지 4, 을 27호증의 1 내지 4, 을 28호증, 을 29호증의 1 내지 9, 을 30, 31호증, 을 32호증의 1 내지 5, 을 33호증의 1 내지 51, 을 34호증의 1 내지 9, 을 35증의 1 내지 5, 을 36호증의 1 내지 4, 을 37호증의 1 내지 6, 을 39호증, 을 40 내지 42호증의 각 1, 2, 을 43호증의 1 내지 3, 을 44호증의 1 내지 18, 을 45호증, 을 46, 47호증의 각 1 내지 4, 을 50, 51호증의 각 1, 2, 을 52호증의 1 내지 6, 을 59호증의 1 내지 4, 을 62호증의 각 기재, 이 법원의 관세청장에 대한 사실조회결과, 변론 전체의 취지

D. Determination

(1) The instant disposition imposing value-added tax and rejecting refund

Article 1(1)1 of the Value-Added Tax Act (amended by Act No. 8142, Dec. 30, 2006; hereinafter the same) provides that “the supply of goods shall be the delivery or transfer of goods on all contractual or legal grounds.” In light of the characteristics of value-added tax as multi-stage transaction tax, delivery or transfer under Article 6(1) of the Value-Added Tax Act includes all act of causing the transfer of the right to use or consume the goods, regardless of the existence of actual profits (see, e.g., Supreme Court Decisions 85Nu286, Sep. 24, 1985; 9Du9247, Mar. 13, 2001; hereinafter the same). In such a case, whether a specific transaction in a series of transactions constitutes the supply of goods under the Value-Added Tax Act, shall be determined on the grounds of denial of the supply of the goods and the type and type of profit to which the tax invoice is imposed, as well as on the specific transaction basis of Article 2940.

The following facts revealed in the instant case: (i) the Plaintiff purchased gold bullion from the business partner of the instant case from June 18, 2003 to October 5, 2004; (ii) received tax invoices from the business partner of the instant case; and (iii) exported gold bullion to the foreign corporation located in Hong Kong by processing it in the state of gold bullion or 24 km and 22 km; (iv) some of its exports were less than the minimum international market price at the domestic market price or lower price than that at the time of the instant transaction; (iii) there was no value-added tax for part of the value-added tax purchased by the business partner of the instant case from June 18, 2003 to October 2, 2004; and (v) the Plaintiff did not receive any tax invoices from the sales partner of the instant case; and (v) the Plaintiff did not receive any tax exemption amount from the entire sales partner of the instant case.

Therefore, the Defendant’s disposition imposing value-added tax and refusal of refund, which did not deduct the input tax amount by deeming the instant tax invoice as a false tax invoice because the instant transaction was nominal transaction.

(2) The imposition disposition part of the corporate tax in this case

According to Articles 76(5) and 116(2)2 of the Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006), the chief of the district tax office having jurisdiction over the place of tax payment shall collect as corporate tax an amount calculated by adding an amount equivalent to 2/100 of the unpaid amount in cases where a corporation provides goods to an entrepreneur in connection with its business and fails to receive a tax invoice under Article 16 of the Value-Added Tax Act. Article 16 of the Value-Added Tax Act provides that where an entrepreneur registered as a tax obligor supplies goods, he/she shall deliver a tax invoice stating the registration number and name or title of the entrepreneur who supplies the goods, the registration number, supply

As seen earlier, insofar as it cannot be concluded that the instant transaction is not a supply of goods subject to value-added tax, the instant tax invoice received therefrom is also difficult to conclude that the instant transaction is not a legitimate tax invoice under Article 16 of the Value-Added Tax Act, but does not constitute a supply of goods. Therefore, the Defendant’s disposition imposing corporate tax on the instant tax invoice premised on the premise that the instant tax invoice is a disguised tax invoice is illegal

(3) Sub-determination

Therefore, all of the defendant's disposition of this case is unlawful, and the plaintiff's assertion pointing this out is justified.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition with the acceptance of all the claims.