early 2013 Heavy051 (03.27 March 2013)

The disposition that did not deduct the input tax amount by deeming the issue tax invoice as a false tax invoice is legitimate.

The key trading office has been engaged in financial transactions to disguised transactions, such as making a cash withdrawal immediately after the payment of the transaction price or making a deposit in the account of a company with a bomb, and it has been investigated that the facilities for the main trading office are not transferred to the main trading office. Therefore, it is difficult to see that the applicant corporation has made an actual transaction with the main trading office.

Article 17 of the Value-Added Tax Act

2013Guhap10384 Disposition to revoke the imposition of value-added tax

AA metal Co., Ltd.

The director of the Southern Incheon District Office

2014,1.24

February 14, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's disposition imposing value-added tax on the plaintiff on November 6, 2012 is revoked, respectively, for the second term portion of 2010 and for the second term portion of 2011.

1. Details of the disposition;

A. From March 2, 1996, the Plaintiff is a corporation that runs the business of manufacturing non-ferrous metals and the wholesale business of non-ferrous metals from OO-dong 625-7 of O-si O-si.

B. From August 3, 2010 to November 10, 2010, the Plaintiff received a tax invoice for purchase of OOO members, which is the representative of BB resources, fromCC, and received them as input tax at the time of filing a value-added tax return for the second period of two years, 2010. ② On December 16, 2011, the Plaintiff received one copy of the tax invoice for OO members from DD resource representative (hereinafter “each of the instant tax invoices in total received from BB resources and D resources”), and received them as input tax deduction by reporting it as input tax deduction for the second period of two years from 2010 to 30 years from 2011; and C. The Defendant rejected the Plaintiff’s request for a judgment on the appeal of 2010O and 2010 from each of the instant tax invoices on grounds that the supplier of each of the instant tax invoices was different from the facts.

[Reasons for Recognition] Each entry of Gap, Gap's 1, 2, 3, 8, 11, 12, 17, 18, and Eul's 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff actually purchased waste Dongs from BB resources and D resources, and received each of the instant tax invoices, and thus, each of the instant tax invoices is not a false tax invoice for the supplier.

(2) Even if the supplier of each of the instant tax invoices is different from the facts, the Plaintiff, without the representative of BB resource, was issued a business registration certificate, a copy of the DB resource representative’s business registration certificate, and a copy of the resident registration certificate issued by DDE, was traded after confirming the actual weight of the waste consent, and the goods were also transferred to the account in the name ofCC and YE. The Plaintiff is a bona fide trading party who is not negligent in trading BB resources and D resources with the belief of the actual supplier.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether the instant tax invoice constitutes a false tax invoice

(A) Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013) provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the facts. In such a case, the meaning of different facts is that the ownership of income, profit, calculation, act or transaction subject to taxation is nominal, and where there is a separate person to whom such income, profit, or transaction belongs, the person to whom such income, profit, or transaction belongs shall be liable for tax payment in light of the purport of Article 14(1) of the Framework Act on National Taxes stipulating that the necessary entry of a tax invoice does not coincide with the other party to a transaction contract, etc. prepared between the parties to the goods or service, notwithstanding the following:

(B) In light of the following circumstances acknowledged by the health team, Gap evidence No. 13, Eul evidence No. 2, and Eul evidence No. 10 and the purport of the entire arguments as to the instant case, it is difficult to recognize that BB resources and D resources were actually supplied to the plaintiff as stated in each of the instant tax invoices. The plaintiff is considered to have received each of the instant tax invoices listed in BB resources and D resources even though they were actually supplied with BB resources and D resources by others, not DD resources. Accordingly, each of the instant tax invoices constitutes a false tax invoice stated by the supplier, and thus, this part of the plaintiff's assertion is without merit.

(1) As a result of the investigation of the Gwangju Regional Tax Office, the BB resources were confirmed to be the data merchants who received the purchase tax invoice from data, such as FF resources and GG resources without real transactions, and issued the processed sales tax invoice to the customer, and as a result of the investigation of the Gangwon District Tax Office, D resources were confirmed to be data that issued the processed sales tax invoice without real sales.

② The representative of the BB resource was convicted of facts constituting a crime of evading value-added tax by establishing BB resource in collusion with Section II operating H resource, and issuing a tax invoice to the transaction partner in the name of the BB resource, as if H resource was supplied to the transaction partner, as the BB resource purchased from the H resource was supplied to the transaction partner, and then closing the BB resource without paying value-added tax (U.S. District Court Decision 2012Gohap382, Seoul High Court Decision 2013No351).

③ There is no record of the Plaintiff’s sales of the “one-day business set and one-day sales contract submitted by BB as the actual basis of sales.” ④ The Plaintiff deposited the money in the name ofCC as the representative of BB resource, deposited the money in cash immediately after deposit, deposited the money in the name of Park JJ account in the name of the representative of GG resources, and the FF resource account in the name of EK account in the name of the representative of D resource, and deposited the money in cash in the name of the representative of D resource and immediately withdrawn.

5. OO-type O-type 625, which is the location of the place of business of D resources, is a site adjacent to a house, and there is no facility necessary for the waste collecting business at the same place.

6.D resources do not have any content of purchase at all during the second period in 2011, and the representative of DD resources had no or all been engaged in the operation or work of a non-ferrous metal-related business before DD resources, and there was no property that can purchase waste-related business for a short period.

(2) Whether the Plaintiff is a bona fide trading party

(A) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice are unaware of the fact that the supplier was unaware of the fact that the supplier was unaware of the name of the tax invoice, the input tax amount cannot be deducted or refunded, and the person claiming the deduction or refund of the input tax amount must prove that the supplier was not negligent in making the fact that the supplier was unaware of the name of the tax invoice (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

(B) In light of the legal principles as seen earlier, the Plaintiff was unaware of each of the instant tax invoices, and whether there was no negligence on the part of the Plaintiff due to the Plaintiff’s failure to know of such fact, there is insufficient evidence to acknowledge such fact solely on the basis of each of the statements or images as stated in the Health Team, Gap’s 5 through 11, and 13 through 16.

Rather, in full view of the following circumstances as seen earlier, it is recognized that the Plaintiff was negligent on the part of the Plaintiff regarding the Plaintiff’s failure to know that each of the instant tax invoices constituted a false tax invoice. Therefore, the Plaintiff’s requisition on this part cannot be accepted.

① From around 1996 to about 20 years, the Plaintiff seems to have been well aware of the structure and distribution route of the waste consent, the general form and method of transaction in the relevant industry, the actual condition of transaction in data, and the risk of the transaction.

② Although the Plaintiff had been engaged in the first transaction with BB resources and DD resources, the Plaintiff only received formal documents, such as the BB resources and DD resources’ registration certificate, the representative’s resident registration certificate, on the ground that the HH resources and DD resources, which had been engaged in ordinary transactions, or LL non-metallic metal, and did not sufficiently exercise due care to confirm whether BB resources and D resources are actually supplying the Plaintiff’s waste, through visit to the place of business or search, etc. (the Plaintiff asserted that the Plaintiff had confirmed the current status of the place of business of BB resources through the guidance information, but in such a way, it could not be accurately confirmed whether BB resources and facilities were installed before trading with BB resources. (3) While the Plaintiff had collected only the confirmation on the documents as above, the Plaintiff purchased the waste resources from BB resources and the Plaintiff purchased the waste resources from PBO within 3 months after commencing the transaction with BB resources, the Plaintiff purchased the waste resources and the Plaintiff purchased them from POO equivalent to the waste resources.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.