Seocho 208west 3569 ( December 29, 2008)

Whether the transaction constitutes a processed tax invoice which does not trade in actual trade in gold bullion

The mere fact that the transaction partner was investigated as a whole data or traded as an intermediary for the gold bullion trade, it cannot be readily concluded that the processing tax invoice was issued without the actual transaction of gold bullion.

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

1. The Defendant’s disposition of imposition of KRW 4,95,010 on June 1, 2008 against the Plaintiff and KRW 5,615,070 on January 1, 2007 shall be revoked.

2 Costs of lawsuit shall be borne by the defendant,

The same shall apply to the order.

1. Circumstances of imposition;

가. 원고는 2004. 8. 1.경부터 서울 종로구 ★★동 97-1에 있는 @@빌딩 1층에서 '주식회사 에스케이☆☆금은'이라는 상호로 귀금속 및 금지금(金地金)도ㆍ소매업 등을 영위하고 있는 법인이다.

나. 원고는 2007년 1기분 부가가치세 및 2007년도 법인세 과세표준을 신고하면서, 서울 관악구 ●●동 869-10 @@센추리타워 10층 5호에 위치한 주식회사 @@@(이하 '소외 회사'라 한다)로부터 수취한 공급가액 38,613,320원의 금지금 세금계산서(이하 '이 사건 세금계산서1라 한다)의 매입세액을 매출세액에서 공제하고, 손금에 산입하였다.

C. On June 1, 2008, on the ground that the instant tax invoice was a false tax invoice for which no real transaction was conducted, the Defendant notified the Plaintiff of the correction and notification of KRW 4,995,010 for the first term of 207 and KRW 5,615,070 for the corporate tax year 2007 (hereinafter collectively referred to as the “instant disposition of imposition of value-added tax and corporate tax that were corrected and notified as above).

[Ground of recognition] The facts without dispute, Gap evidence 1-2, Eul evidence 6-2, Eul evidence 1-2, Eul evidence 3-1-12, Eul evidence 5-5, the purport of the whole pleadings

2. Whether the imposition is proper.

(a) Chairperson of the Plaintiff

The plaintiff actually purchased gold bullion from the non-party company and paid the price in full, and since the tax invoice of this case is a normal transaction, the defendant's disposition of this case on a different premise is unlawful.

(b)a recognition;

(1) The tax invoice of this case (A evidence 1-1) is written on February 23, 2007 by the date of preparation; the product is currently written on February 23, 2007; the quantity is 2; the unit price is 19,306.6 won; the supply price is 38,613,320 won; and the tax amount is 3,861,332 won.

(2) On February 23, 2007, the Plaintiff transferred KRW 42,474,652 from the national bank account in the name of the Plaintiff to the non-party company by means of Internet banking.

(3) On February 23, 2007, the account books of the current status of purchase and sale of the paper prepared by the Plaintiff (Evidence A2) and the account books of purchase and sale (Evidence A3), each of which was written by the non-party company in the amount of KRW 38,613,320.

(4) After the Plaintiff purchased gold 2 and OOg from the non-party company on February 23, 2007, March 2007.

5. The details of issuance of each tax invoice (No. 5-1 through No. 17) entered as one of the sales of the prohibited gold to the Haddi, etc. from Samsung Pre-Purchase Co., Ltd. to the pre-purchase of 1.00g of prohibited gold shall be as follows:

(5) &&세무서장은 2007. 4. 24.부터 2007. 8. 21.까지 소외 회사에 대하여 부가가치 세 추적조사를 설시하였는바, 위 조사결과, 소외 회사는 2006. 11. 30. 개업하였고, 2007. 1. 2.부터 2007. 2. 28.까지 사이에, 주식회사 ◎◎골드, 주식회사 ◇◇정보 퉁 부가가치세 횡령업체(일명 '폭탄업체')를 거쳐 중간 도매업체인 주식회사 □□□□□, 주식회사 ◆◆◆◆ 등으로부터 가공매입세금계산서를 교부받아, 다시 원고와 같은 대형 귀금속도매상에게 정상거래인 것처럼 위장하여 가공매출세금계산서를 교부하여 관련 매입세액을 환급받을 수 있도록 거래중개역할을 하는 소위 '도관업체'역할을 한 것으로 조사되었다.

(6) 이에 따라 &&세무서장은 2007. 8. 30.경 서울중앙지방검찰청에 조세범처벌법에 따라 소회 회사 및 그 대표이사 한■■을 금지금 등 재화의 실제 공급 없이 가공의 매 업ㆍ매출세금계산서를 수취한 혐의로 형사고발하였고, 위 조사결과 소외 회사의 2007년 1기분 매출 및 매입 전부가 가공이라고 보아, 원고를 포함하여 소외 회사와 세금계산서를 수수한 거래처에 대하여 해당 과세관청에 과세자료를 통보하였다.

(7) 서울중앙지방검찰청은 2009. 2. 18. 소회 회사 및 그 대표이사 한■■에 대하여, 폭탄업체에 비하여 가담정도가 비교적 경미하고, 실 이득액이 1억 원 미만으로 범행규모가 비교적 적다는 이유로 각 기소유예의 불기소처분을 하였다.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2, 3, Gap evidence 5-1 to 17, Eul evidence 5-1 to 6, the purport of the whole pleadings

C. Determination

(1) In a lawsuit seeking revocation of taxation, the burden of proving the facts of taxation is, in principle, at the tax authority. A tax invoice on some of the expenses reported by the taxpayer is proved to be prepared without real transaction by the defendant, who is the tax authority, and it should be proved to the extent that the purpose of the cost claimed by the taxpayer and the other party to the payment are false. However, the burden of proving that the cost has been actually paid should be converted to the burden of proving that the cost has been actually paid, and it is easy for the taxpayer to present all the data such as the books and evidence (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

(2) As a result of the investigation of facts charged against the non-party company, the sales tax invoice of the non-party company was issued without actual gold bullion transaction. However, in this case where the defendant does not individually indicate that the transaction between the non-party company and the plaintiff was processed, the non-party company's total data was investigated, or it is difficult to readily conclude that the sales of the non-party company to the non-party company was issued with the sales tax invoice without actual gold bullion transaction. The mere fact that the non-party company's sales of the non-party company was conducted as an intermediary company for the so-called gold bullion trade, it cannot be determined that the non-party company's sales of the non-party company were issued with the non-party company's sales tax invoice without actual gold bullion transaction. ② The plaintiff cannot be viewed as a member of the so-called "explosion business operator" of the non-party company's typical and continuous transaction type, and it is difficult to conclude that the non-party company's sales invoice was not traded with the non-party company.

(3) Therefore, the Defendant’s disposition of this case, based on the premise that the instant tax invoice is a false tax invoice, is unlawful, and the Plaintiff’s assertion is with merit.

3. Conclusion

The plaintiff's claim is justified.