Cho Jae-2012- Jeon 5239 ( November 06, 2013)

Whether a tax invoice received from a customer is false or not, and whether the plaintiff's duty of good faith is recognized

Although a tax invoice received by the plaintiff from each customer falls under a tax invoice different from the fact, a part of the company is recognized as a bona fide negligence, and the application of an unfair under-reported penalty tax is illegal.

Article 16 of the former Value-Added Tax Act;

Daejeon High Court 2014Nu11395 and disposition of revocation of the imposition of value-added tax and corporate tax.

Ma○ ○

○ Head of tax office

National Rotations

on 18, 2015

on January 13, 2015

1.The judgment of the first instance shall be modified as follows:

A. As to the first period of August 14, 2012, the Defendant: (a) the first period of August 14, 201, as to ○○ Co., Ltd.

Among the imposition of value-added tax by KRW ○○, the imposition of value-added tax for the second half-year value-added tax in 201, the imposition of KRW ○○○ in excess of KRW ○○ in excess of KRW ○○ in excess of KRW ○○ in the imposition of KRW ○○ in December 12, 2012, and the imposition of KRW ○○ in the imposition of KRW ○○ in the second half-year value-added tax as of March 4, 201, respectively, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 20% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. Purport of claim

The Defendant’s imposition of value-added tax for the first term of August 14, 2012, 201, 201, 201, 201, 2011, 201, 200, 2011, 201, 201, 201, 201, and 30,000,000 won of corporate tax for the second term of March 4, 2013, 201, and 30,000 won of corporate tax for the second term of March 4, 2013, and 200 won of corporate tax for the second term of March 4, 201.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. ○○○

○○ is a subsidiary company of ○○ Dongdong Co., Ltd. (hereinafter referred to as '○○'), and engages in the manufacture and sale of non-metallic metal recycling materials with the domicile in ○○○○○-si.

The former had been.

B. Receipt of ○ tax invoice

○○는 2011년 제1기 부가가치세 과세기간부터 2011년 제2기 부가가치세 과세기간까지 아래 표에서 보는 바와 같이 ○○금속, 주식회사 ○○, ○○금속(이하 '이 사건 거래처'라 한다)으로부터 동스크랩 또는 은그래뉼(이하 '동스크랩 등'이라 한다)을 매입하면서 공급가액란 기재 각 공급가액에 해당하는 세금계산서를 교부받고, 그 세금계산서에 따른 매입세액을 공제하여 피고에게 부가가치세 및 법인세를

The report and payment were made.

Table Omission of the Table

C. Defendant’s taxation disposition

Of the above transactions, the part which ○○ purchased from ○ Metal and sold to ○○ Winter (○○○, ○○○, 201)

The remaining transactions except subparagraph (hereinafter referred to as "the transaction of this case") fall under the processing transaction of this case.

Pursuant to the transaction, a tax invoice issued by the transaction party of this case (hereinafter referred to as the "tax invoice of this case").

on the ground that it is a false tax invoice, the input tax amount is not deducted under the tax invoice of this case, and the value-added tax and corporate tax are revised and notified to ○○ as follows (hereinafter the above tax amount is

Value-added tax and the disposition of correction and notification of corporate tax are referred to as "the disposition of imposition in this case".

(d) Procedures of the previous trial; and

○○ is dissatisfied with the instant disposition, and on November 9, 2012 and March 12, 2013; and

On June 3, 2013, the Tax Tribunal requested each inquiry, but all of which was dismissed on November 6, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 7, 8, 21, 27, 32 through 81, Eul evidence No. 1 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

(1) As indicated in the tax invoice of this case, ○○ was actually supplied by the transaction partner of this case after purchasing the same scrap, etc., and thus, the tax invoice of this case does not constitute a false tax invoice.

She even if some or all of the transaction partners of the instant case did not actually provide ○○ with ice rap, etc. as a disguised business (data)

There was no negligence for not knowing the facts and for not knowing such circumstances.

Secondly, even if the tax invoice of this case constitutes a tax invoice different from the fact, and is not recognized as ○○’s good faith and negligence, ○○ is the tax account of this case.

Value-added tax base on the basis of a false tax invoice without knowing that it is a false tax invoice

In case of underreporting the value-added tax base in an unjust manner, this constitutes "in case of underreporting the value-added tax base"

Therefore, it is illegal for the defendant to impose the penalty tax on the illegal underreporting by the instant disposition even though the general underreporting should be imposed on the ○○.

B. Relevant statutes

Attached Form 3 is as specified in the relevant Acts and subordinate statutes.

(c) Fact of recognition;

(1) The actual circumstances of each customer of this case

㈎ ○○금속

On January 4, 2010, ○○ Kim ○ opened non-railroad wholesalers’ ○○ in business. The location of the ○ metal is the location of the ○ metal, multiple non-ferrous wholesalers are isolated and jointly use the open site, and the office was closed ex officio on December 30, 201, while the office was not used for a long time.

○○ Kim has already purchased some non-data, and ○ metal among the purchasing places of ○ metal;

○○ Resources, ③ Resources, and ○○ Non-Irons have been confirmed by the tax office as a material or a processed transaction.

The Kim○-○ received the payment from the sales office, and then remitted it to the data, etc. or withdraws it in cash after remitting it to another deposit account.

㈏ 주식회사 ○○

○○○ (hereinafter referred to as “○○○”) was established on June 17, 201, and closed the business on June 30, 2012. The office location of ○○○○○○○○○○○ building located in the ○○○○○○○○○○○○○○○○○○○○○, but only one of the offices at the time of the investigation by the ○○○○ regional tax office (from April 4, 2012 to July 2, 2012), was in fact public, and the actual place of business, did not have any other equipment, and sublet the said place of business to ○○○○○○○○○○○○, the maximum sales capacity of ○○○○○○○○○, a corporation with the capacity of operating the said place of business. At the time of establishment, ○○○○, only had experience in business related to the closed wholesale business, and did not have any experience in business related to the closed wholesale business.

○ ○ Without providing transaction interest or security, from manufacturers and distributors.

After receiving the advance payment, the fund was remitted to the purchaser within one hour, and the amount was higher in the purchaser.

was immediately withdrawn from the cash (passing cost) of the Fund.

㈐ ○○금속

On April 20, 201, Kim○-○, an actual operator of ○ metal, opened ○○ metal wholesale and retail business from Chungcheongbuk ○○ on April 20, 201, and filed a report on the closure of February 15, 2012.

○○세무서는 2012. 5. 17. 이 사건 거래 중 ○○금속과의 은그래뉼 거래에 관하여

○○ Kim-○ was investigated, and Kim ○-○ was in the process of questioning and answers with an employee of the ○○ Tax Office.

에게 매출세금계산서를 발행하긴 하였지만 자세히 알지 못한다. 그 발행은 주식회사 ○○금속(이하 '○○금속'이라 한다)에서 매출세금계산서를 발행해달라는 요청에 의해서 이루어진 것이다. ○○금속 직원이 수출을 위해 은그래뉼을 주식회사 ○○에 인계하였고,○○금속은 이를 모두 수출한 것으로 알고 있다'는 취지로 진술하였다.

김○○은 조세범처벌법위반 혐의로 ○○지방법원에 기소되었고(), 위 법원은 2012. 10. 18. '김○○이 2011. 8. 9.경 ○○금속에게 은그래뉼을 판매하고도 ○○금속

○ around August 9, 2011, on which no tax invoice has been issued (issuance of tax invoice) and ○

에게 은그래뉼을 공급한 사실이 없음에도 ○○에게 세금계산서를 발행한 사실

(Issuance of False Tax Invoice) Recognizing that "the issuance of tax invoices" was guilty, a two-year suspended sentence was sentenced to imprisonment in August, and the above decision became final and conclusive.

[Ground of recognition] Facts without dispute, Gap's 88, 89, 91 evidence, Eul's 2 to 6, and 8, the purport of the whole pleadings

D. Whether the tax invoice of this case is false

(i) Relevant legal principles

Where entries in a tax invoice are different from the facts under Article 17 (2) 2 of the Value-Added Tax Act.

An input tax amount is stipulated not to be deducted from the output tax amount. The meaning that the entry of a tax invoice is different from the fact is the case where the requisite entry of a tax invoice does not coincide with the actual supplier, price, and time of the goods or services, notwithstanding the formal entry of a transaction contract, etc. made between the parties regarding the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 1996).

applicable to the supply of goods prescribed in the Value-Added Tax Act for a specific transaction among any series of transactions.

하는지 여부는 각 거래별로 거래당사자의 거래의 목적과 경위 및 태양, 이익의 귀속주체,대가의 지급관계 등 여러 사정을 종합하여 개별적��구체적으로 판단하여야 하며, 그 특정 거래가 실질적인 재화의 인도 또는 양도가 없는 명목상의 거래라는 이유로 그 거래과정에서 수취한 세금계산서가 매입세액의 공제가 부인되는 부가가치세법 제17조 제2항 제2호가 규정하고 있는 '사실과 다른 세금계산서'에 해당한다는 점에 관한 증명책임은 과세관청이 부담함이 원칙이다(대법원 2009. 6. 23. 선고 2008두13446 판결 등 참조).

Shed Judgment

The following facts can be acknowledged in light of the overall purport of the pleading in the above facts of recognition:

In full view of the foregoing, the Customer’s actual entry into the tax invoice of this case to ○○.

As stated in the above, it is difficult to recognize that ice crap, etc. were supplied, and ○○ in the instant case

It is reasonable to see that the supplier is merely the delivery of the instant tax invoice as indicated in the instant transaction partner even after being supplied with ice rap, etc. by a third party other than the transaction partner. Thus, the instant tax invoice constitutes “tax invoice entered differently from the fact”.

(1) The representatives of ○○ have no prior experience in the type of business related to the closed Dong, and closed Dongdo.

It is necessary to conduct a business in light of the financial status, etc. even though the amount of funds is required.

In addition, it is doubtful that ○○’s business registration certificate was actually operated at the office and place of business registered on the ○○’s business registration certificate.

It is difficult to see that there was an establishment with sufficient facilities.

② The Kim○-○, an actual business owner of ○ metal, is an actual transaction in connection with the transaction with ○○.

was found guilty on the ground that a false tax invoice was issued even if the tax invoice was not issued.

was finally determined.

(3) The ○ metal shall be used along with the places of business or the open space of the same place as a multiple non-ferrous wholesalers.

It has been neglected for a long time.

(4) The ○ Metal and the ○○○○ shall immediately transfer the sales proceeds to the purchaser after receiving them.

The withdrawal was made in cash after the transfer to another account, which makes it impossible to track the financial system;

The concealment of a seller is consistent with the typical form of transaction in data.

⑤ ○ metal and ○○○ was judged as material and accused by the tax authority.

(6) Meanwhile, the Plaintiff submitted the document, such as a map and delivery certificate, and a transfer certificate, as evidence that ○○ and the transaction partner of the instant case actually traded the same scooby, but it is merely merely a report document indicating the past fact that the supply of daily quantity and the payment of the price was made. In addition, the Defendant’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance, etc. of False Tax Invoices) and the Punishment of Tax Evaders Act against ○○ and its representative were imposed on the Defendant’s charge of violating the Punishment of Tax Evaders Act, and the prosecution’s charge of violating the Punishment of Tax Evaders Act on the grounds that there is insufficient evidence to acknowledge the criminal facts of the relevant accusation case. Thus, it cannot be deemed that the transaction partner of the instant case is the actual supplier of the same scooby, etc. on the basis of the existence of such data or circumstance.

Therefore, it is difficult to view that ○○ has any evidence beyond the fact that ○○ received the indicated quantities, etc., so it is insufficient to reverse the fact that a third party, other than the transaction partner of the instant case, is presumed to have actually supplied ○○○.

E. Whether ○○ is a good faith or negligence

(i) Relevant legal principles

The actual supplier and the supplier on a tax invoice that is different from the supplier on a tax invoice

A special company that did not know that the invoice was nominal and did not know that it was not negligent.

Unless otherwise specified, no input tax amount shall be deducted or refunded, and the person to whom the purchase tax is supplied shall be entitled as above.

The fact that there is no negligence in not knowing the fact that the name was stolen shall be deducted or refunded by the input tax amount.

A person who is the principal must prove (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002): Provided, however, in cases of waste resources, such as waste Dongdong, a person who is supplied with the relevant goods cannot be deemed to have the duty to actively investigate whether the other party is a disguised business entity due to the nature of the distribution structure and transaction. Therefore, in light of the facts revealed in the process of collecting data to determine whether the other party is a qualified business entity, there is sufficient reason to suspect that the other party is a disguised business entity. However, there is negligence on the other party’s failure to know that the other party is a disguised business entity (see, e.g., Supreme Court Decision 97Nu7660, Sept.

Shes ○ metal parts

In full view of the following circumstances, the facts alleged above-mentioned facts and Gap evidence Nos. 3 through 8, and 11 added to the purport of the entire pleadings, ○○ knew that the name of each supplier of the tax invoice for ○ Metal Issuance differs from that of the actual supplier.

It was not known that it did not have been able to exercise the duty of care in the transaction, and that it was not known.

It is reasonable to deem that there is no negligence.

① On August 16, 2001, ○○ has continuously operated a non-ferrous metal recycling material processing business with the registration of a business operator on August 16, 2001. Therefore, ○○ has expertise in the distribution of waste Dongs.

(2) The ○○ Kim (○○ Metal) has operated the non-legal wholesale business on January 4, 2010 after filing for business registration.

In addition, approximately one year and four months after commencement of business, around May 201, 201, supply scoops to ○○.

③ At the time of the commencement of transaction, ○○○○ had visited ○○○○○○, the representative’s driver’s license certificate, the copy of the passbook in the name of ○ Metal, and the confirmation data on the payment of value-added tax from 1st to 1st, 2011 were confirmed. ○○○, an employee in charge of the business of ○○○○, visited the office of ○ Metal in the name of ○○○○○○, the address indicated in the business registration certificate, the name indicated in the name of the business registration certificate, the deposit price on the copy of the passbook, and the fact that the address indicated in the name of the name of the business owner on the business registration certificate, the deposit price on the copy of the passbook was consistent.

④ Even based on the result of the Defendant’s investigation, KRW 2.22 billion, which was once again sold to ○○○○○, out of the total trading amount of KRW 8.15 billion between ○ Metal and ○○○○○ in 2011 (one hundred times or more) and KRW 8.15 billion (one hundred times or more) was determined as normal trade.

【○○, ○○ Metals

Comprehensively taking into account the following circumstances known in the above-mentioned facts together with the purport of the entire argument:

○ In order to determine whether the other party is an eligible person for a transaction

(1) In the light of the facts revealed in the course of collection, the other party is suspected to be a disguised business;

Since it is reasonable to deem that there was a separate circumstance, the evidence presented by the Plaintiff alone is that the name of the supplier on ○○ and ○ Metal is different from that of the actual supplier.

It is not sufficient to recognize that there was no negligence due to the absence of knowledge of the fact, and otherwise recognize it.

There is no evidence.

① On August 16, 2001, ○○ has continuously operated a non-ferrous metal recycling material processing business with the registration of a business operator on August 16, 2001. Therefore, ○○ has expertise in the distribution of waste Dongs.

② On July 25, 2011, 201, ○○○, who first supplied the same scrap, was registered as a business operator on June 17, 201, the approximately Han-month, and ○○○ had no experience in engaging in the business related to the closed scrap prior to the time. The head of ○○ meeting the representative of ○○○, and verified the business registration certificate, etc., could immediately spread that ○○’s representative was an out-of-the-counter shape without any experience in the distribution of the closed scrap. If ○○ had supplied the same scrap after the lapse of one month of its business registration, there was sufficient circumstances to suspect that the other party was a disguised business operator.

③ ○○와 2011. 7. 1. 은그래뉼을 공급하기로 하는 물품거래계약을 체결한 ○○금속은 약 3개월 전인 2011. 4. 20. 사업자등록을 하였고, 명의상 대표자인 한

현주는 김○○의 부인으로 명목상 대표에 불과하다. ○○금속의 실질적 대표자인 ○○은 ○○금속으로 은그래뉼을 공급하면서 ○○금속 대표의 부탁을 받고 ○○로부터 물품대금을 송금받고 ○○에 그 매출세금계산서를 발급하여 주었다.

· Sub-committee theory

Therefore, even though ○○○’s good faith and negligence on the fact that ○ metal is data, among the dispositions of this case, the part on ○ metal is deemed to be data and thus, it is unlawful to deduct the input tax amount. Since the portion on ○○ and ○ Metal (principal tax and corporate tax) are not recognized as ○○’s good faith and negligence, it is legitimate to deduct the input tax amount.

F. Of the instant disposition, whether the portion of the wrongfully under-reported additional tax on ○○ and ○ Metal was an illegal under-reported additional tax law

(1) The former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201; hereinafter referred to as "former Act")

the text, system, etc. of the relevant provisions, such as Article 47-3(2)1 of the Framework Act on Taxation (hereinafter referred to as the "Framework Act").

In other words, even if the taxpayer received false certification and underreporting the tax base, the taxpayer may also receive it.

(1) If the certification was not known that it was false, the tax base was underreported in an unjust manner;

It cannot be seen as a case where the taxpayer did not know that the taxpayer was false due to gross negligence, and it does not mean that the taxpayer was not aware of the fact that the taxpayer had received a tax invoice different from the fact that the supplier and the actual supplier entered the tax invoice, and the taxpayer received the input tax deduction or refund, such an act constitutes “the case where the taxpayer underreporting the tax base in an unjust manner” under Article 47-3(2)1 of the former Framework Act on National Taxes, in addition to the perception that the taxpayer was entitled to receive the input tax deduction or refund by a false tax invoice, the taxpayer declared and paid the tax base and the amount of the value-added tax other than the amount of the output tax on the tax invoice, or declared and paid the whole amount of

amount of value-added tax on the tax invoice by filing a request for correction and being refunded;

As a result, a taxpayer is entitled to deduct the input tax amount by evading his/her obligations, and thus, a national section.

There should be awareness that the tax revenue will result in a decrease (Supreme Court Decision 2011 January 2015).

15. Supreme Court Decision 2014Du11618 Decided January 1, 15

On the other hand, whether the legality of the disposition in the revocation lawsuit for taxation disposition exceeds the reasonable tax amount

the parties are determined in accordance with the court records, and the objective tax base and

and may lawfully submit arguments and materials in support of the amount of tax, and by such

If a reasonable tax amount to be imposed is calculated, only the portion exceeding the reasonable tax amount shall be revoked.

[Defendant-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant]

The following circumstances, which are considered to have been taken into account the overall purport of the arguments,

In other words, ○○ is the tax amount issued by ○○ and ○ metal out of the tax invoice of the instant case.

The time stated in the invoice (hereinafter referred to as "tax invoice of this case ○, etc.")

It appears that the volume of supply and the price of chips have been traded, and thereafter the purchase has been made.

The full amount of the price and its value-added tax are paid through an account of ○○ and ○ Metal.

In light of the facts, even though ○○○ and ○ Metal, tax is different from the fact

Even if an invoice was received and the input tax amount was deducted, only the evidence submitted by the Defendant

On the other hand, it is difficult to view that ○○○ is aware that: (a) the tax invoice issued by the instant ○○○, etc. is different from the fact; and (b) ○○, ○○, etc., except for the output tax amount on the tax invoice issued by the instant ○○, etc.; or (c) it would result in the reduction of national tax revenues by evading the duty to pay value-added tax on the tax invoice issued by the instant ○○, etc. by evading the obligation to return and pay the tax base and the amount of tax payable on value-added tax, or by evading the tax payment obligation on the tax invoice issued by the instant ○○, etc. upon filing a request for correction after filing the request for correction.

Therefore, in imposing value-added tax on ○○ in relation to the transaction with ○○ and ○ Metal, an additional tax shall be imposed on the general underreporting under Article 47-3(1) of the former Framework Act on National Taxes, not on the illegal underreporting under Article 47-3(2) of the same Act. Accordingly, in

It is not an additional tax for unfair underreporting among the additional tax for value-added tax on ○○ or ○ Metal

If an under-reported penalty tax has been imposed, the portion exceeding the amount is illegal.

(g) Justifiable tax amount;

In light of the above legal principles, a reasonable tax amount calculated on the customer of this case (○○, 000)

Where a general underreporting penalty tax has been imposed with respect to value-added tax related to the transaction with ○○, the legitimate penalty tax for ○○ shall be included) shall be the sum of the tax amounts listed below:

The imposition of value-added tax ○○ for the second term of August 14, 2012, notified by August 14, 201, is subject to the imposition of value-added tax.

○○○, among the disposition of imposition of corporate tax for the year 201, notified by December 12, 2012, 201, ○○○, among the disposition of imposition of corporate tax for the year 201, ○○○, among the value-added tax ○○, notified by March 4, 2013, ○○, among the value-added tax ○○, and the corporate tax for the year 201, ○○ is a legitimate tax amount.

Table Omission of the Table

Therefore, the Defendant imposed value-added tax on ○ on August 14, 201 for the first term portion of the value-added tax on ○○ in 2011, and imposed value-added tax on ○○ in 201 for the second term portion of the value-added tax on 2011.

Of the disposition, the part exceeding ○○○ Won, the part exceeding ○○○ in the disposition imposing corporate tax for the year 201, which was made on December 12, 2012, and the part exceeding ○○○ Won in the disposition imposing corporate tax for the year 201, which was made on March 4, 2013, which was made on March 4, 201, should be revoked illegally.

3. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition and boms

claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be in part of its conclusion.

Since it is improper to accept part of the plaintiff's appeal and revise the judgment of the first instance court as above.

this decision is delivered with the judgment of the court.