National High Court Decision 2007Du1792 ( November 06, 2007)

The fact that the data has been prepared can not be recognized as a real transaction only with the confirmation of the fact of transactions or the evidence of payment.

In light of the fact that a business operator is equipped with financial transaction evidence even in the case of processing and transactions with data, it cannot be deemed that there was a real transaction only based on a written confirmation of transaction or a document of payment in data, etc.

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

Article 17 (Payable Tax Amount)

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant revoked each disposition of imposition of value-added tax of 14,45,430 won for the first period of 201, which was imposed on the plaintiff on December 1, 2006 (to be deemed to be a clerical error) and 15,429,150 won for the second period of 201, and 15,593,070 won for the first period of 2002, and 14,291,340 won for the second period of 202, and 9,846,870 won for the first period of 203, and 10,435,920 won for the second period of 203, and 7,71,40 won for the first period of 204, respectively.

1. Details of the disposition;

A. The Plaintiff, a business operator operating gold bullion wholesale business, etc. at his domicile under the trade name of “○○ Capital”, was issued tax invoices of KRW 472,218,484 (hereinafter collectively referred to as “the instant tax invoice”) in total from the supply value of ○○ from January 2001 to January 2004, and filed and paid the value-added tax by deducting the input tax amount from the input tax amount.

B. After conducting a tax investigation against the plaintiff, the defendant imposed each value-added tax on the plaintiff on December 1, 2006 on the ground that "the tax invoices of this case are all processed transactions and are different from fact" (hereinafter collectively referred to as "disposition of this case").

C. On May 17, 2007, the Plaintiff filed an appeal against the instant disposition with the National Tax Tribunal. The National Tax Tribunal dismissed the Plaintiff’s appeal on November 6, 2007.

[Ground of recognition] Unsatisfy, Gap evidence 1, Gap evidence 5-1 to 7, Eul evidence 1-1 to 7

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful on a different premise, not on a different premise, since all of the tax invoices of this case are by actual transactions.

(b) Fact of recognition;

1) From January 16, 2001 to July 2, 2002, and from July 2, 2002 to July 2, 2002, ○○○○○○ was actually in office as the actual representative of ○○○○.

2) After the director of the Seoul Regional Tax Office conducted a tax investigation on ○○ gold around 2004, he discovered that KRW 127,081,127,397 based on the tax invoice and KRW 62,732,922,178 based on the credit card sales slip among the sales amount of KRW 257,79,00,000 reported by the head of the Seoul Regional Tax Office until January 2004 and KRW 62,732,922,178 based on the tax invoice were all processed transactions.

3) On November 2, 2004, Kim ○ confirmed that the instant tax invoice was a processed transaction to employees of the Seoul Regional Tax Office.

4) After that, ○○○ and ○○○○ were convicted of violating the Punishment of Tax Evaders Act due to the act of issuing the processed sales tax invoices, including the instant tax invoice, and the judgment became final and conclusive.

[Reasons for Recognition] Evidence Nos. 2, 3, Eul Nos. 4-1 to 5, the purport of the whole pleadings

C. Determination

The burden of proving that the tax invoice is false, in principle, to the defendant who is the tax authority, the defendant must prove that the tax invoice is not accompanied by real transactions, on the basis of direct evidence or all the circumstances. If the defendant has proved to the extent that he reasonably acceptable, it is necessary to prove that the tax invoice is not false and that it is easy for the plaintiff who is the taxpayer to dispute the illegality of the defendant's disposition to present relevant evidence and materials (see, e.g., Supreme Court Decision 96Nu8192, Sept. 26, 1997).

Considering that ○○ Fund, as seen earlier, was convicted of the instant tax invoice by its representative’s so-called material act resulting from the processing of the instant tax invoice, it appears that the instant tax invoice was proved to be false, and thus, the Plaintiff should prove that the instant tax invoice was false. As such, the Plaintiff should prove that the instant tax invoice was not false.

그런데 변론 전체의 취지로부터 알 수 있는 다음의 사정들, 즉 ① 원고가 ○○금은과의 거래에 관한 장부나 금지금의 일련번호 등 이 사건 세금계산서를 통한 거래의 사실성을 직접적ㆍ객관적으로 확인할 만한 자료를 전혀 제출하지 아니하는 점, ② 사업자는 자료상과 가공거래를 하는 경우에도 일반적으로 거래의 사실성을 가장하기 위하여 금융거래로 대금 상당의 돈을 입금하는 경우가 많은 점, ③ 금지금 도매업자들은 세금계산서를 교부받지 않고 매입한 금지금(속칭 '뒷금')을 정상적인 금지금처럼 가장하여 판매하는 경우가 많은 점 등에 비추어 보면, 원고 주장의 다른 사정들{㉠ ○○금은으로부터 금지금을 매입한 업체들이 ○○금은의 요구에 따라 현금거래를 할 수 밖에 없었던 점, ㉡ 김○호가 이 사건 세금계산서가 실거래에 의한 것임을 확인하는 취지의 문서들(갑 제2호증, 갑 제6호증의 1, 2)을 작성한 점, ㉢ 원고가 ○○금은에게 무통장입금ㆍ텔레뱅킹 등을 통하여 총 7,000만여 원을 지급한 점(갑 제3, 4호증), ㉣ 원고의 총매출액이 이 사건 세금계산서의 공급가액을 제외한 나머지 총매입액에 비하여 지나치게 큰 점 등}만 가지고는 이 사건 세금계산서가 허위가 아니라고 보기 어렵고, 달리 이를 인정할 만한 증거가 없다.

Therefore, the plaintiff's assertion is without merit, and the disposition of this case is not erroneous as alleged by the plaintiff.

3. Conclusion

Therefore, all of the plaintiff's claims seeking the revocation of the disposition of this case are dismissed as it is without merit, and it is so decided as per Disposition.