Adjudication 2012Noe5169 (Law No. 13, 2013)

No person who is supplied with a false tax invoice may be found to have been negligent in good faith;

Since it seems that there was negligence in confirming the eligibility of transaction partner in the closed-end transaction, it cannot be recognized that good faith negligence is not recognized, and the disposition of value-added tax is a tax invoice that is different from the fact.

Jeonju District Court 2013Guhap200980 Such revocation

AA

BB Director of the Tax Office

2014.17

o October 29, 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 of imposition of value-added tax of KRW 12,713,940 on September 15, 2012 against the Plaintiff on September 15, 2012 is revoked (" October 10, 2012 stated in the written complaint" is not the date of disposition, but it appears that it is a clerical error as the demand date).

1. Details of the disposition;

A. From January 16, 2008 to June 30, 2012, the Plaintiff operated a scrap metal wholesale and retail business with the trade name called OO-dong 000-0 to O-dong 000-0.

B. On October 7, 2010, the Plaintiff issued a purchase tax invoice of KRW 00,000,000 (hereinafter “instant tax invoice”) regarding the purchase of waste from EE (hereinafter “DD metal for convenience”) that operates an enterprise with a trade name “DD metal”, which is the taxable period of the second value-added tax in 2010, which is the second value-added tax period.

C. On January 201, 201, the Plaintiff filed a final tax return on the second term value-added tax for the Defendant in 2010, and filed a return by deducting the input tax amount pursuant to the instant tax invoice.

D. As a result of the investigation on the first and second value-added tax of DD metal in 2010, the Director of the FF Regional Tax Office found DD metal to be a disguised business owner who issued false tax invoices without real transactions (so-called "materials") and notified the Defendant of the results of the investigation.

E. On September 15, 2012, the Defendant: (a) considered the instant tax invoice as a tax invoice different from the fact; and (b) calculated the value-added tax for the second period of 2010 based on the tax base that did not recognize the deduction of the said input tax amount; and accordingly, (c) revised and notified the Plaintiff of KRW 00,000,000 for the second period of 2010 (including the additional tax) (hereinafter “instant disposition”).

F. On November 20, 2012, the Plaintiff filed an appeal seeking the revocation of the instant disposition with the Tax Tribunal, but the said appeal was dismissed on September 13, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Gap evidence No. 7, Eul evidence Nos. 1 and 2 (including each number, hereinafter the same), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

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

The Plaintiff was assisted by introducing various transactions from the father GG, who caused the Plaintiff, to the former business partners, etc. on or around October 2010. GG was contacted by JJJ, the senior managing director of HHH non-Binding Co., Ltd., the former business partner, “HG requested for the purchase of waste metals from the D metal located in Seosan. If the price meets,” the Plaintiff purchased the D metal from the D metal and sold it again to the KR resource, but the D metal was supplied to the Plaintiff without going through the Plaintiff, and then supplied the goods to the KR resource to the Plaintiff, and after the D metal paid the price to the Plaintiff, KG traded was immediately closed by the Plaintiff’s brokerage transaction to deposit the price with the D metal, and thus, it does not constitute a tax invoice different from the facts.

2) Whether the Plaintiff acted in good faith and without negligence

The transaction of this case was made temporarily to the Plaintiff on the part of the HH non-ferrous, because the price for the transaction of this case was not consistent with the unit price for the closure agreement in the transactional relationship with the DD metal for a long time, and there was no reason to suspect that the Plaintiff is merely the data on which the DD metal was issued only, and thus, it is bona fide and without fault as to the fact that the tax invoice of this case was a false tax

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) Relevant legal principles

Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201) 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. The meaning that the entries of a tax invoice are different from the facts. In light of the purport of Article 14(1) of the Framework Act on National Taxes, where the ownership of income, profit, calculation, act or transaction subject to taxation is only nominal and there is a separate person to whom such income, profit, or transaction belongs, the person to whom such income, profit, or transaction belongs is liable to pay taxes, and where the necessary entries of a tax invoice do not coincide with the amount and time of the transaction contract, etc. prepared between the parties to the transaction of goods or service, notwithstanding the formal descriptions of the transaction contract, etc. made between the parties to the transaction (see, e.g., Supreme Court Decision 96Nu617,

B) In the instant case:

In light of the above legal principles, in light of the following circumstances, it is difficult to recognize that DNA metal actually supplied to the Plaintiff as stated in the tax invoice of this case, and the Plaintiff is merely a delivery of the instant tax invoice indicated in DD metal even after it was supplied to a third party other than DD metal, it is reasonable to deem that the instant tax invoice of this case was a false tax invoice written by the supplier, and thus, it is reasonable to deem that the instant tax invoice of this case was a false tax invoice by the supplier as a false tax invoice, and contrary thereto, the Plaintiff’s allegation in this part is not trustable. Accordingly, this part of the Plaintiff’s assertion is without merit.

① DDD금속의 사업장은 주식회사 LLLLL의 사업장 한켠 컨테이너에'DDD금속'이라는 간판을 걸고 있으나, 컨테이너 내부에는 사업과 관련한 어떠한 서류나 장부가 없는 상태로서 주식회사 제이씨메탈 근로자들의 간이 휴식처로 사용되고 있었을 뿐 신국제금속이 위 컨테이너에서 실제로 사업을 운영한 흔적은 없었던 것으로 보이는데, 위와 같은 사정에 비추어 보면 DDD금속은 아래와 같이 발행한 세금계산서상 공급가액 규모의 거래를 할 만한 인적 자원이나 물적 시설을 전혀 갖추고 있지못하였던 것으로 보인다.

② EE, which operates DD metal, opened its business in 2010, issued or received a tax invoice for high-priced purchase and sales (total tax invoice for purchase in 2010, total 000,000, total 00,000, total 0,000,000, and total 0,000,000,000) after the opening of the business, and the companies that purchased DD metal was confirmed and accused as data.

③ As the instant transaction is the actual transaction, the DNA metal: (a) purchased the waste rail from MM metal and placed it at the DD metal business establishment; and (b) again prepared a confirmation document (Evidence No. 8) that it was transported to KR resources at the Plaintiff’s direction using the freight truck; (c) while NN operating MM metal for the second period of 2010, claiming that the DD metal purchased the waste rail as above, it was recognized that all the transactions, including the total amount of KRW 0,000,000,000 in the tax invoice issued between the DM and the total amount of the tax invoice issued in the course of the tax investigation, are the transaction details of the tax invoice by providing the financial account without actually purchasing the waste rail, and only the fees received.

④ The assignment table submitted for the instant transaction is the reason for the issuance by KK resource. The said assignment table alone is insufficient to support that the actual source of the waste consent is DD metal. DD metal purchased from MM metal in connection with the instant transaction, placed it at a DD metal business establishment, and transported it again to K resources according to the Plaintiff’s instructions, while it did not issue a separate assignment slip from DD metal. However, it is difficult to readily understand that the weight does not lead to the weight while purchasing the waste metal proportional to the price.

⑤ In ordinary transaction of purchase and sale related to the collection of waste, it is intended to purchase and sell waste metal and receive sales proceeds from the purchase and sale of waste metal as above, and it is also alleged that DD metal is purchased and sold in such a way as at the time of tax investigation. However, according to the verification of the details of financial transactions, purchase and sale of DD metal, after issuing tax invoices and receiving sales proceeds, D metal was first transferred to the account of the company accused of the above D metal via the D metal account. The transferred money was immediately deposited in cash. The above method of purchase and sale was to sell waste metal and issue tax invoices under the name of data only through the tax invoice in order to avoid taxes imposed on the sales of waste metal, but it was transferred to the financial data on the closed metal, and then immediately transferred the money to the Plaintiff bank by means of cash transfer from the D bank account and then immediately paid the money to the Plaintiff under the D bank account.

2) Whether the Plaintiff’s good faith and negligence are recognized

A) Relevant legal principles

The actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not knowing the nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

B) In the instant case:

In light of the above legal principles, as to whether the Plaintiff was unaware of the fact that the tax invoice of this case was false, and was not negligent in not knowing the fact, the Plaintiff entered in the evidence Nos. 4, 5, 6, 9, 11, 12, and 5 as to whether the Plaintiff did not know of the tax invoice of this case. In full view of the overall purport of the arguments as to whether the tax invoice of this case was false, the Plaintiff entered in the transaction of this case through the introduction of HHH non-ferrous Metal Co., Ltd. by the JJJJ, the Plaintiff was transferred to KR resources and gave guidance to the Plaintiff. The Plaintiff: (a) the Plaintiff entered the tax invoice of the closed metal and HH non-stock Co., Ltd. on the closed metal; (b) the Plaintiff entered the tax invoice of this case several times between KRD and HH non-stock Co., Ltd.; (c) the Plaintiff did not receive any value-added tax notice on the grounds that there was no suspicion; (d) the Plaintiff did not accept evidence No. 2131, 415, and 141.

① As high-priced waste resources, it appears that there are considerable cases of transactions without receipt of tax invoices in the course of transactions on a large-scale basis. While the Plaintiff’s operation of the Japanese non-stock farm, and the Plaintiff’s transaction of this case was introduced by JJ during the process of collecting, selling, and operating the scrap metal from 1984 to 2002, it appears that the Plaintiff’s supply structure and distribution channel of the waste consent, the general form or method of transaction in the relevant industry, and the actual state and risk of material transactions were well known. The Plaintiff appears to have been able to assist in the operation of theCC non-stock farm by GG, and have been able to know the actual situation of such waste trading in the course of operating theCC itself.

② Generally, a person who is supplied with goods or services is not obligated to actively investigate whether the other party is a disguised business entity, and there is sufficient reason to suspect that the other party is a disguised business entity based on the facts revealed in the process of collecting data to determine whether the other party is a qualified business entity. However, in light of the circumstances of a large number of closed-end transactions on the data as seen earlier, it is difficult to confirm whether the other party is a qualified business entity that actually provides closed-end transactions when confirming whether the other party is a qualified business entity. As seen above, DNA metal is not equipped with human resources or physical facilities that actually provide closed-end transactions on the tax invoice issued by him/her, and it appears that the Plaintiff was not in possession or purchase of the closed-dong, which is the subject of the transaction in this case. If it was paid considerable attention to ascertain whether the pertinent DNA metal is a qualified business entity.

③ While engaging in the first transaction between DD metal and its supply value of KRW 00,000 for the first time, the Plaintiff does not completely verify whether DD metal, the trading partner, is an eligible person for the purchase and sales of the closed operation, and confirmed only whether the closed operation of DD metal actually enters into the KN resources company by telephone, and then paid the price and received the instant tax invoice. However, even if the instant transaction was introduced from HHH base, it is difficult to confirm whether the Plaintiff was an eligible person for the Plaintiff’s direct transaction in light of the following: (a) even if the instant transaction was introduced from HH base, the Plaintiff issued the tax invoice without the supply of the closed operation; and (b) there are considerable materials suggesting the financial transaction; and (c) the Plaintiff’s confirmation of the fact that the closed operation was made to the purchaser and payment of the price cannot guarantee the authenticity of the transaction; and (d) the instant transaction was not directly supplied with the closed operation; and (c) it is difficult to deem the Plaintiff as an eligible person for the Plaintiff’s direct transaction through telephone call.

④ Although DD metal traded with HH non-performance metal on several occasions, HH non-performance metal companies were not notified of the rectification of value-added tax on the ground that there was no suspicion as a result of the investigation into value-added tax in 2010, unlike the Plaintiff, on the ground that the Plaintiff was not the Plaintiff, but the Plaintiff was not the Plaintiff and the HH non-performance metal companies with respect to the authenticity of the transactions between HH non-performance metal and the HH non-performance metal, and there was no negligence. However, in light of each circumstance as to the authenticity of the aforementioned DD metal transactions, it is difficult to view the aforementioned transaction and the fact that the H non-performance metal companies were not notified of the rectification of value-added tax on the ground that there was no suspicion as a result of the tax investigation.

3) Sub-determination

As seen earlier, the instant tax invoice is a false tax invoice different from the facts;

As long as the Plaintiff cannot be said to have been negligent due to the Plaintiff’s failure to know it, the Plaintiff’s ground for appeal

The instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

corporation.