early 2007 Heavy294 ( December 27, 2007)

The initial date of the penalty tax paid in bad faith by the disposal of income and the effect of the notice of change in the income amount;

The initial date of penalty taxes in bad faith payment due to the disposition of income shall be calculated from the date following the end of the month following the month in which a notice of change in income amount was received, and the notification of change in income amount to the person to whom the income accrued alone alone does not have an impact on

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

1. Of the instant lawsuit, the part of the claim made by the Plaintiff A shall be dismissed.

2. A value-added tax imposed on Plaintiff FM Co., Ltd. on April 19, 2007 by the Defendant on January 1, 2005; KRW 153,895,480; KRW 271,201,560,660 in 205; KRW 171742,564,090 in 2006; and KRW 2,105,249,249,580 in the year of imposition of value-added tax; KRW 18,218,837 in the year of 2005; KRW 26.894 in 2005; KRW 91,262,208 in 206; and KRW 70,549,414 in the year of 206 in 2006.

3. The remainder of the Plaintiff FM Co., Ltd. is dismissed.

4. Of the costs of lawsuit, 30% of the portion arising between the Plaintiff FM Co., Ltd. and the Defendant shall be borne by Plaintiff FMM Co., Ltd., and the remainder shall be borne by the Defendant. The portion arising between the Plaintiff FM Co., Ltd and the Defendant shall be borne by

1. The Defendant limited to Plaintiff FMM Co., Ltd. on April 19, 2007:

(a) value-added tax of one year 2005 153,895,480 won;

(b) value-added tax for the second period of 205 1,201,560,660 won;

(c) value-added tax for one year 2006 KRW 742,564,090;

(d) corporate tax of 2005 162,246,660 won;

(e) revoke each disposition of taxation of KRW 2,105,249,580 of the corporate tax for the business year 2006 and each disposition of taxation.

2. On May 1, 2007, the Defendant confirmed that a notice of change in the amount of income based on the bonus disposition of KRW 308,761,785, which was issued to the Plaintiff EA on May 1, 2007, is invalid.

1. Details of the disposition;

A. From May 2, 2005 to June 8, 2006, Plaintiff FMM Co., Ltd. (hereinafter “FMM”) reported the input tax amount of KRW 23,982,00,000 ( KRW 14,658,000,000, KRW 1749,000,000, KRW 00, KRW 14,0000, KRW 205, KRW 17,57,575,000, KRW 00, KRW 54-8, KRW 200, KRW 200, KRW 2006, KRW 7,57, KRW 575,000, KRW 200, KRW 256, KRW 196, KRW 2089, KRW 2085, KRW 200, KRW 196, KRW 2005, KRW 2005, KRW 2005, KRW 196,2005.

B. As a result of the tax investigation on Plaintiff FM 2, Plaintiff FM 2, 1 to 205, and Plaintiff FM 2, NN resources (representative H), KK Co., Ltd. (hereinafter “K”), KRW 13,056,00,00 (hereinafter referred to as the “instant tax invoice”)’s purchase tax invoice of KRW 13,06,00,00 for KRW 20,00 for KRW 20 for KRW 465,00 for the total amount of KRW 20,00 for KRW 20 for the above amount of KRW 65,00 for the year 205, KRW 70 for the above amount of KRW 965,00 for the total amount of KRW 20 for the year 205, KRW 96,00 for the year 205, KRW 97,00 for the above amount of KRW 965,00 for the taxation data of KRW 200 for the above amount of KRW 965,701,209

C. Meanwhile, on May 1, 2007, the Defendant calculated proportionally distributed the amount of income calculated as the representative director, and notified the change in the amount of income to the Plaintiff EA, who had worked as the representative director of Plaintiff FM from May 2, 2005 to December 31, 2005, as the representative director of Plaintiff FM, while disposing of KRW 308,761,725 as the bonus as the representative.

D. The plaintiffs appealed and filed an appeal with the National Tax Tribunal on July 12, 2006, but they received a decision of dismissal on December 27, 2007, and filed the instant lawsuit on March 27, 2008.

[Reasons for Recognition] In the absence of dispute, Gap 1, 2, 6, 7, 10 evidence, Eul 1, 2, 3 and 23 evidence (including each number), the purport of the whole pleadings and arguments

2. The assertion and judgment

A. Plaintiff FMM’s assertion

① As long as Plaintiff FM purchased scrap metal from MM goods, NN resources, and KK and paid the total amount of the purchase price through the financial account, the instant disposition based on the premise that the transaction with the above purchaser is processed is unlawful. Moreover, the supply price stated in the instant tax invoice accounts for 53% compared to the total sales and 18% compared to the total sales. If the Defendant’s logic is followed, the Plaintiff would result in only sales without purchase.

② In light of the fact that Plaintiff FM purchased high water from a secondhand water collection shop, and entered them in the storage slip and filed a report, but considering the fact that part of it was imposed on the secondhand water collection and then borrowed waste resources under the name of another person, the constructive purchase part is also subject to value added tax, apart from the imposition of value added tax, insofar as it is recognized that Plaintiff FM purchased waste resources from a secondhand water collection shop, the disposal of corporate tax and bonus to the representative should be entirely revoked, recognizing the purchase price at its expense.

B. Defendant’s assertion

① Since the disposition of notifying the change in the amount of income to the Plaintiff Lee Dong-A was made by the director of the Central Tax Office other than the Defendant, the portion of the claim against the Plaintiff Lee Dong-A should be dismissed.

② 조사결과 MM고물, NN자원은 매입액을 전혀 확인할 수 없는 자료상으로 판명되었고, KKK는 매입없이 자료상 행위를 한 것으로 확인되었으며, 원고의 입ㆍ출금 금융자료는 이른바 뺑뺑이 거래로 실물거래에 관한 증빙으로 볼 수 없다. 의제매입 부분 역시 원고 FF금속이 신고한 공급업자로부터 재활용폐자원을 공급받지 않은 사실이 확인된 이상 매입세액에서 공제될 수 없고, 비용에 포함시킬 수 없다.

C. Relevant statutes

Attached Form 1 is as shown in attached Table 1.

D. Determination

1) Determination on the legality of the part of the Plaintiff’s claim in the instant lawsuit

The Defendant’s defense before and after the date of payment of global income tax is divided into the representative director on May 1, 2007, and the Defendant notified the Plaintiff of change in the amount of income at the time of disposal of 308,761,725 won from May 2, 2005 to December 31, 2005, as seen above. However, if the tax authorities’ disposal of income and subsequent notice of change in the amount of income, the corporation which is the source of income is deemed to have paid the income to the Plaintiff on the date of receipt of the notice of change in the amount of income, and becomes final and conclusive at the same time as the income tax liability of the Plaintiff was collected, and the corporation, which is the withholding agent, bears the obligation to pay the amount of withholding tax in accordance with the content of disposal of income stated in the notice of change in the amount of income (see, e.g., Supreme Court en banc Decision 200Du81060, Dec. 26, 2008).

Therefore, the plaintiff's claim is unlawful because it is sought confirmation of invalidity of the administrative agency's action not subject to appeal litigation.

2) Judgment as to the Plaintiff’s assertion

A) Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as taxable subject to value-added tax" and Article 6(1) provides that "the supply of goods shall be a delivery or transfer of goods on all contractual or legal grounds." In light of the fact that value-added tax has characteristics as multi-stage transaction tax, "delivery or transfer" under Article 6(1) of the Value-Added Tax Act includes all acts of causing the transfer of authority to use and consume goods, regardless of the existence of profits actually acquired. In this case, the issue of whether a specific transaction constitutes the supply of goods under the Value-Added Tax Act shall be determined individually and specifically by taking into account all the circumstances at each transaction party, including the purpose and manner of the transaction, the ownership of profits, and the payment of consideration, and the burden of proving that a specific transaction constitutes "the burden of proof" under Article 17(2)14-2 of the Value-Added Tax Act (see, e.g., Supreme Court Decision 200Nu2964, Feb. 29, 2096).

나) 이 사건에 관하여 보건대, 갑 9호증, 을 3호증의 각 기재에 변론 전체의 취지를 종합하면, 과세관청은 원고 FF금속이 자료상인 MM고물, NN자원, KKK로부터 실제 고물을 매입한 사실이 없음에도 허위의 매입세금계산서를 발행하였다는 혐의로 원고 FF금속을 수사기관에 고발한 사실, KKK의 대표 최인귀가 허위의 매입세금계산서를 발행하였다는 혐의로 유죄판결을 선고받은 사실, 과세관청이 KKK에게 고철을 공급한 것으로 신고한 QQ고철, PP인더스트리에 대해 자료상 혐의로 수사기관에 고발하여 현재 기소중지 상태인 사실은 인정되나, 한편 갑 4, 5, 8호증(각 가지번호 포함)의 각 기재에 변론 전체의 취지를 종합하면, 검찰은 NN자원, MM고물 대표자의 이 사건 세금계산서가 허위로 발행되었다는 내용의 조세범처벌법위반 피의사건에 관하여 모두 혐의없음 결정을 내린 사실, 원고 FF금속은 이 사건 세금계산서의 기재 내용대로 그 거래일자에 고철의 매입대금 상당액을 원고 명의의 예금계좌에서 MM고물, NN자원, KKK 명의의 예금계화로 송금한 사실, 원고가 MM고물, NN자원, KKK로부터 이 사건 세금계산서 기재일자에 고물을 공급받았다는 내용의 입고전표, 계량표, 거래처 원장이 작성되어 있는 사실, 이에 대하여 피고는 MM고물, NN자원, KKK가 위 금원을 곧바로 자신의 매입처에 송금하였음을 이유로 허위의 세금계산서 수수를 은폐하기 '위한 금융거래조작에 불과하다고 판단하면서도 위와 같이 송금된 금원 이 다시 원고 FF금속에게 반환되었는지 여부를 조사하지 않았거나 밝히지 못한 사실 을 인정할 수 있는바, 그렇다면 이 사건 세금계산서를 발행한 MM고물, NN자원이 자료상 혐의로 고발되었다는 사정만으로는 이 사건 세금계산서가 실물거래 없이 수수된, 사실과 다른 세금계산서임을 인정하기에 부족하고 달리 이를 인정할 증거가 없다. 따라서 이 사건 처분 중 이 사건 세금계산서가 실물거래 없이 수수된 것임을 전제로 한 부분은 위법하다.

3) Judgment on the Plaintiff’s assertion

According to Gap evidence Nos. 5-4, 15, 20, and 21 (including each number), the defendant's confirmation that there was the fact that the facts of the transaction of 392 persons reported by the plaintiff as the waste resources supplier are denied the fact that the plaintiff FM does not submit all evidence regarding the fact of the transaction. Thus, it is reasonable to view that the plaintiff FM did not purchase the waste resources of 4,468,00,000 won reported as the above constructive purchase of the plaintiff FM metal. Since it was made after the lawsuit of this case and it was insufficient to establish that the above recognition was supplied with the waste resources actually to the plaintiff FM, and therefore, it is not sufficient to deduct the above input tax amount for the waste resources of 392 persons reported by the plaintiff as the waste resources supplier, and the part that the plaintiff's purchase tax amount for the waste resources was not included in the deductible expenses (Article 110-5 (1) 1 of the Enforcement Decree of the Restriction of Special Taxation Act as the plaintiff's name or the supplier's purchase tax amount cannot be deducted.

(iv)the calculation of a legitimate tax amount;

Therefore, the reasonable value-added tax and corporate tax calculated by deducting the input tax amount of the tax invoice of this case from the output tax amount additionally, and including the value of supply of the said tax invoice in deductible expenses are as indicated in the tax calculation table of the legitimate tax amount by attached Table 2. Therefore, the portion exceeding the legitimate tax

3. Conclusion

Therefore, among the lawsuits in this case, the part of the claim by Plaintiff A among the lawsuits in this case shall be dismissed, and the claim by Plaintiff FM shall be partially accepted, and the remaining claims shall be dismissed. It is so decided as per Disposition.