Suwon District Court 2008Guhap3109 ( April 28, 2009)

National High Court Decision 2007Du4034 (208.09)

Whether it is a nominal transaction without any supply of goods in connection with gold bullion transactions.

Until the gold bullion is imported and exported, a series of transactions can not be deemed a nominal transaction solely on the basis of the fact that there is a company with a bombomb in the middle.

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

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1. Purport of claim

The Defendant’s imposition of value-added tax of KRW 9,160,462,020 for the first term portion of 2003 against the Plaintiff on August 6, 2007, value-added tax of KRW 10,198,81,840 for the second term portion of 2003, value-added tax of KRW 10,878,890,530 for the first term portion of 204, value-added tax of KRW 406,407,150 for the second term portion of 204 is revoked.

2. Purport of appeal

The judgment of the first instance shall be revoked. The plaintiff's request shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows, except for the court's determination as to the defendant's conjunctive assertion added in the trial, and therefore, it is identical to the judgment of the court of first instance. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil

2. Additional matters to be determined;

In the instant gold bullion transaction, the Defendant asserts that: (a) the Plaintiff is not the Plaintiff but the Plaintiff, and the Plaintiff merely lent the name to theCC General Corporation; (b) the Plaintiff is merely a nominal lender; or (c) the Plaintiff is not a person who supplies goods or services independently from the business under the Value-Added Tax Act, and thus, the instant tax invoice issued by the Plaintiff as the recipient of the goods or services constitutes a tax invoice different from the company room.

Therefore, in light of the following: (a) the Plaintiff sent the instant gold bullion export business by means of e-mail 1 to 110, Gap evidence 3-1 to 82, Gap evidence 7 and 8-2, Eul evidence 2-10, and Eul evidence 6 to the above e-mail export business; (b) the Plaintiff Company had mainly engaged in the import and export business of alkinum before conducting the instant gold bullion trade; (c) around March 2003, KimB, the e-mail supply business of e-mail 1 to the above e-mail export business; (d) the Plaintiff Company sent the instant gold bullion export business to the above e-mail export business to the above e-mail import business entity; and (e) the e-mail supply business of e-mail 1 to the above e-mail import business entity; and (e) the Plaintiff Company did not temporarily engage in the instant gold bullion import business to the above e-mail import business entity; and (e) the Plaintiff’s 1 to the above e-mail import business entity.

As shown in the above facts, inasmuch as the Plaintiff borne value-added tax, etc. with the funds in the instant gold bullion transaction and the Plaintiff acquired the profits therefrom, even though it did not know the details of the unit price, quantity, etc. notified in the process of performing the transaction temporarily by the needs of theCC General Commercial Act, such circumstance alone does not lead to the Plaintiff’s failure to be deemed a business entity or a nominal lender under the Value-Added Tax Act, and thus, the above assertion cannot be accepted.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the defendant's appeal is dismissed. It is so decided as per Disposition.