Changwon District Court-2015-Gu 20259 ( October 16, 2015)

A tax invoice received by a false businessman shall not be deducted from an input tax amount.

Since the business entities that the Plaintiff traded and received are considered to be false business entities in health care, the tax invoice that the Plaintiff received after the transaction with such business entities is not allowed to deduct the input tax amount.

Article 39 of the Value-Added Tax Act

The Busan High Court 2016Nu10353 Such disposition as the value-added tax

00 Stex Co., Ltd.

The Director of the Z Tax Office

Changwon District Court Decision 2015Guhap20259 Decided February 16, 2016

November 16, 2016

December 7, 2016

1. The defendant's appeal is dismissed.

2. The plaintiff's appeal is dismissed.

3. Of the appeal costs, 9/10 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of the claim (the plaintiff reduced the purport of the claim in the trial)

The primary purpose of the claim is to: (a) the Defendant imposed the Plaintiff on January 2, 2014; (b) the amount of 1,143,98 won for the second-term 2008 KRW 3,770,450 for the principal tax; (c) the amount of 176,140 won for the general underreporting; (d) the amount of 1,569,612 won for the penalty tax; (e) the amount of 352,280 won for the tax invoice processing, for the second-term 201; (b) the amount of 3,386,970 won for the principal tax; (c) the amount of 1,869,392 won for the second-term 3,970 won for the principal tax; (d) the amount of 250 won for the underreporting penalty tax for the year 205; (e) the amount of 1,395 won for the underreporting penalty tax for the year 201205 won for each;

(1) Preliminary claim: (1) To cancel both the primary claim(s) and (4), and (2) to confirm that each disposition is invalid.

2. Purport of appeal

The decision of the court of first instance is revoked. It is identical to the entries in the primary and conjunctive purport of the claim.

Of the judgment of the court of first instance, the part that the Defendant imposed on January 2, 2014 on the Plaintiff, which exceeds KRW 176,140 among the disposition of imposition of KRW 704,560 for the second term value-added tax in 2008, the part that exceeds KRW 186,940 among the disposition of imposition of KRW 747,760 for the second term value-added tax in 201, the part that exceeds KRW 56,639,267 among the disposition of imposition of KRW 14,159,816 among the imposition of the imposition of the first term value-added tax in 201, the part that exceeds KRW 14,159,816 among the imposition of the imposition of the second term value-added tax in 2012, and the part that constitutes the Plaintiff’s claim is dismissed.

1. Judgment as to the defendant's defense prior to the merits

A. The defendant's assertion

The revocation of the disposition of imposition of KRW 411,278 of the corporate tax in the year 201 claimed by the Plaintiff and the revocation of the disposition of imposition of KRW 55,230,750 of the corporate tax in the year 2012 is unlawful, since it did not go through legitimate procedures.

B. Determination

The purport of Article 56(2) of the Framework Act on National Taxes that requires the administrative appeals procedure, such as a request for review, prior to filing a lawsuit seeking revocation of a tax disposition, is to have the disposition authority have an opportunity for inventory and correction by itself, and to have a superior administrative agency take an opportunity for correction based on the supervisory authority, and reduce the burden of the court by having a superior administrative agency take an opportunity for correction based on the supervisory authority, and settle the dispute in advance. Thus, whether a taxpayer lawfully satisfies the requirements for administrative appeals should be determined by fully considering the purport of establishing the pre-trial system.

Article 18 (3) 2 of the Administrative Litigation Act provides that one of the dispositions related to the contents of the case or dispositions taken by stages for the same purpose may file a lawsuit for revocation without going through an administrative appeal as to other dispositions. Although each of the dispositions is a separate disposition, if it can be seen that the grounds for illegality or dispute are shared and the contents of the dispute are given an opportunity for inventory or correction to the relevant disposition, even if one of the dispositions is a separate disposition, it can be said that the disposition is to avoid repeating the procedures of revocation and achieve the effectiveness of the administrative remedy system by allowing it to file a lawsuit for revocation without going through a separate administrative appeal." In light of the above legal principles, since each of the value-added tax and the corporate tax stated in the purport of the disposition for revocation or invalidity confirmation in this case are different tax invoices from the facts that the plaintiff received from the same customer, the plaintiff, who is a person liable for tax payment, is not obliged to make a new objection to the above disposition for revocation, and therefore, it seems that there is no reason to deem the previous disposition procedure of taxation by the defendant.

2. Determination on the legitimacy of Defendant’s appeal

According to the evidence evidence Nos. 17 and 18 ex officio, the defendant, following the filing of the appeal in this case, revoked and corrected the imposition of each unfair under-reported penalty tax stated in the purport of the appeal by the above defendant, which sought the dismissal of the plaintiff's claim in accordance with the purport of the judgment of the first instance court on October 14, 2016. Thus, the defendant's appeal is related to a disposition which has not already been extinguished, and thus, it became illegal as it does not have any interest in the appeal.

3. Judgment on the merits

The reasoning of the judgment of the court concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for the addition or dismissal of the following contents, and thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Private Litigation Act.

○ Parts 4, paragraph 10, from "Corporate Tax of 2010" to paragraph 14, are as follows:

(c)

In 2011, the Defendant imposed additional tax for underreporting KRW 411,278 as additional tax for the unpaid amount of corporate tax for the year 201, and KRW 55,230,750 for the unpaid amount of corporate tax for the year 2012. The Defendant issued each of the above imposition of additional tax for underreporting: (a) the purchaser reported and paid the tax base and tax amount for value-added tax excluding the output tax under each of the tax invoices of this case; or (b) upon filing a request for correction after filing a request for refund, thereby evading the tax payment obligation under each of the tax invoices of this case; and (c) the Plaintiff received the deduction of input tax under each of the tax invoices of this case, resulting in a lack of proof as to whether it would result in a decrease in national tax revenues; and (d) the imposition of underreporting additional tax ex officio revocation of each of the above imposition of underreporting additional tax for each of the above general penalty tax for underreporting; and (e) the imposition of underreporting tax for each of the above imposition of additional tax for underreporting.

From the 5th bottom to the 7th place, "the imposition of penalty tax for unjust underreporting" is "the imposition of penalty tax for general underreporting".

Between 13, 14 and 15, the following shall be added:

3) As to the legality of the disposition imposing the value-added tax of this case (excluding the disposition imposing the additional tax for underreporting in general and the disposition imposing the additional tax for unfaithful payment in this case), each of the tax invoices of this case constitutes a false tax invoice entered differently from the fact, and as long as it is insufficient to recognize that the Plaintiff did not know that the purchaser, as the supplier, was not a actual supplier, and that there was no negligence on the part of the supplier, the disposition imposing the value-added tax of this case on the ground that each of the tax invoices of this case constitutes a false tax invoice, the Plaintiff’s assertion on this part is

○ From the bottom of the 13th to the upper end of the 7th to the 16th end (2-c. 3) are as follows:

4) As seen earlier, the Plaintiff’s imposition of penalty tax for underreporting in the instant case is lawful, inasmuch as each of the supply values stated in each of the instant tax invoices different from the facts was deducted from the input tax amount, and the Plaintiff’s act is subject to the imposition of penalty tax for underreporting in general under Article 47-3(1) of the former Framework Act on National Taxes, and the Defendant did not dispute as to the fact that the remaining tax amount after partially cancelling and correcting the imposition of penalty tax for underreporting in the first time on October 14, 2016 is the legitimate amount of penalty tax for underreporting in general. Therefore, the Plaintiff’s assertion on

The following shall be added between the 17th page 2 and the 3rd page:

5) Whether the disposition of the instant corporate tax was lawful

Each of the tax invoices of this case is tax invoices different from the facts, and it is difficult for the plaintiff to recognize that they are bona fide and without fault, so the disposition of the corporate tax of this case is legitimate. Therefore, the plaintiff's assertion on this part is without merit.

4. Conclusion

If so, the defendant's appeal is unlawful and dismissed, and the plaintiff's primary and conjunctive claim is not accepted.

The decision of the court of first instance is just in its conclusion, so the plaintiff's appeal is dismissed and it is so decided as per Disposition.