National High Court Decision 2006Du1298 (Law No. 13, 2007)

It is possible to issue a revised tax invoice, even if the original tax invoice was not issued.

Where the fact of actual transaction is verified by relevant documentary evidence, etc. and a tax invoice is issued with the date of issuance as of the date of the relevant transaction, it is reasonable to view that a tax invoice may be issued when it differs from the actual time of transaction, regardless of whether the tax invoice was issued on the original date of supply.

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

Article 9 (Transaction Time of Value-Added Tax Act)

Article 16 (Tax Invoice)

1. The Defendant’s imposition of value-added tax of KRW 10,074,536,680 on June 30, 200 against the Plaintiff and KRW 4,922,982,50 on December 14, 2005 shall be revoked.

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

The same shall apply to the order.

1. Circumstances of the disposition;

가. 원고는 무역업을 영위하는 회사로서 아래와 같이 주식회사 ☆☆쥬얼리 등(이하 '소외 업체들'이라고 한다.)으로부터 외화획득용 원재료 구매승인서(이하 '이 사건 구매 승인서'라고 한다.)를 제시받고 금지금을 판매한 후, 그 공급가액에 대하여 영세율을 적용하여 부가가치세를 신고하였다.

B. The Defendant excluded the application of zero-rate tax rate to the sales of gold bullion pursuant to the Plaintiff’s purchase approval procedure. In addition, the Defendant imposed additional tax on 14 tax invoices (8 items: 1: 8 items; 2000: 2: 6 items) issued by the Plaintiff prior to the 10th day of the month following the actual transaction date of gold bullion, on the ground that under the General Rule 16-59-1 of the Value-Added Tax Act, the Plaintiff could issue the revised tax invoice before the 10th day of the following month after the issuance of the tax invoice at the actual supply date, on the ground that the Plaintiff could not be subject to the issuance of the revised tax invoice because he did not deliver the tax invoice at the actual supply date, and imposed additional tax on 14 items (hereinafter “additional tax of this case”). The Defendant excluded the application of zero-rate tax rate as above, and added the instant additional tax to the Plaintiff on June 30, 200 and December 14, 2005, 2008

C. The Defendant appealed against the instant disposition and requested a judgment with the National Tax Tribunal, but was dismissed on July 13, 2007.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, Gap evidence No. 1, 2, Eul evidence No. 1-1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's principal

(A) The Plaintiff is eligible for zero tax rate since it supplied gold bullion from the non-party companies with the letter of approval for purchase of this case, which occurred by the president of foreign exchange, in accordance with the Value-Added Tax Act and subordinate statutes, and even if the non-party companies distributed gold bullion supplied from the Plaintiff to the domestic countries without using it for export purposes, the Plaintiff could have known the intention of the non-party companies

(B) Article 54 subparagraph 3 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827, Dec. 30, 2002; hereinafter the same) provides a legitimate tax invoice based on a purchase approval issued 10 days before the 14th day of the month following the date of the actual transaction by going through the 14th transaction under Article 54 subparagraph 3 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827, Dec.

(2) Defendant’s principal

The letter of approval for the purchase of this case is not accompanied by an application company's export letter of credit or export contract to a foreign exchange bank, and there is a serious defect in the issuance procedure. The non-party company has falsely reported that it will export all gold bullion to the foreign exchange bank, and actually sold all gold bullion to the country through an illegal transaction that evades value-added tax through the illegal transaction with the Doing company and the large-scale carbon company. The plaintiff conspired with the non-party company in collusion with the non-party company to assist the illegal transaction of gold bullion or impliedly knew it. Therefore, the zero

(b) Related statutes;

It is the same as the entry of the attached statutes.

C. Determination

(1) Judgment on the first proposal

The above written approval for purchase issued by the head of foreign exchange bank cannot be deemed null and void a year solely on the ground that there was a defect such as not attaching required documents, such as an export contract, etc. under the procedure for issuing the written approval for purchase of this case. Even if there was a defect in the procedure for issuing the said written approval, the supply of gold bullion pursuant to the said written approval cannot be excluded from zero-rate tax base unless there are special circumstances such as the Plaintiff being aware of such defect, and such special circumstances must be proved by the Defendant who bears the burden of proving the legality of the tax imposition disposition and the existence of the taxation requirement (see Supreme Court Decision 2002Du9100, Aug. 30, 2004).

The entries in the evidence Nos. 2 through 4, Eul evidence Nos. 5-1 through 3, Eul evidence Nos. 6 through 9 are insufficient to acknowledge that the plaintiff was aware of the defect in the procedure for issuing the purchase approval of this case from the non-party company, and there is no other evidence to acknowledge it. The defendant asserts that even if the plaintiff fulfilled his duty of care, the plaintiff could have known that the plaintiff issued the purchase approval of this case or the non-party company would distribute gold bullion supplied by the non-party company under the purchase approval of this case. However, even if the plaintiff did not know of the defect in the purchase approval of this case due to negligence or gross negligence, it is not reasonable to exclude the supplier who did not know of the defect from the zero-rate tax base. Accordingly, it is unlawful to exclude the plaintiff's sales of gold bullion under the purchase approval of this case from the zero-rate tax base. The plaintiff's assertion

(2) Judgment on the second ground

(A) The legality of taxation, such as the imposition of additional tax, has the burden of proof on the tax authority (see, e.g., Supreme Court Decision 2002Du1588). The Plaintiff asserted the illegality of the portion of the additional tax of this case and sought revocation thereof. The Defendant must actively prove that the part of the additional tax of this case was legally imposed. However, the Defendant did not have any explicit assertion as to the legitimacy of the additional tax of this case during the pleadings of this case, and did not perform any procedural acts that may be detrimental to implied assertion, such as submission of relevant evidence. Ultimately, the imposition of the additional tax of this case is unlawful since there is no evidence to acknowledge that the additional tax of this case was legally imposed. Accordingly, the Plaintiff’s assertion on this part is well-grounded.

(B) On a family basis, we examine whether the Defendant’s assertion that the imposition of the instant penalty tax was lawful is lawful.

According to Article 16(1) of the Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006) and Article 54 subparag. 3 of the Enforcement Decree of the same Act, when an entrepreneur supplies goods, he shall, in principle, deliver a tax invoice to the person receiving the goods when the goods are delivered. In exceptional cases where the fact of actual transaction is confirmed and where a tax invoice is issued as of the issue date of the goods or service, the tax invoice may be issued by the 10th of the month following the month in which the date

Meanwhile, General Rule 16-59-1 of the Value-Added Tax Act provides for the procedures and methods for the issuance of revised tax invoices in the case of a cause for correction concerning the matters to be entered in the tax invoice. However, the General Rule of the Value-Added Tax Act is merely an administrative rule that issued the standards for interpretation and enforcement of the tax law within the tax authority, and is not an effective law that binds the court or the people, and the mere fact that it has been implemented for a long time cannot be recognized as a legal effect (see, e.g., Supreme Court Decision 2005Du12718, Jun. 14, 2007); and the General Rule 16-59-1 of the Value-Added Tax Act cannot be deemed as a provision concerning Article 54 subparagraph 3 of the Enforcement Decree of the Value-Added Tax Act.

Therefore, in a case where Article 54 subparagraph 3 of the Enforcement Decree of the Value-Added Tax Act provides that a tax invoice may be supplied when the transaction date is different from the transaction date of goods or services, and where a tax invoice is confirmed by relevant documentary evidence, etc. and a tax invoice is issued at the issue date of the relevant transaction date, it is reasonable to view that a tax invoice may be issued when it differs from the actual transaction date regardless of whether a tax invoice was issued at the initial supply date, and the text of the above provision does not necessarily limit the issuance of a tax invoice at the initial supply date to the effect that a revised tax invoice may be issued again after the issuance of

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.