Seoul Administrative Court 201Guhap10546 ( October 07, 2011)

early 209west2240 ( December 30, 2010)

Even if the input tax deduction for gold bullion exporters is denied under the principle of good faith, the exclusion period of five years shall be applied.

Even if it is impossible to claim the deduction and refund of input tax amount according to the tax invoice of this case for the reason that there is a malicious entrepreneur at the pre-transaction stage of gold bullion, the exclusion period for imposition does not apply, or it constitutes fraud or other wrongful acts, or it cannot be deemed that the exclusion period for imposition does not apply to 10 years or 7 years since it did not report the tax base.

Article 15 of the Framework Act on National Taxes, Article 26-2 of the Framework Act

2011Nu34216. Revocation of imposition of value-added tax, etc.

AASethyl Co.

The director of the tax office.

Seoul Administrative Court Decision 2011Guhap10546 decided September 7, 2011

June 12, 2012

August 10, 2012

1. The part against the plaintiff falling under any of the following cancellations in the judgment of the court of first instance shall be revoked. The defendant shall each revoke the imposition on the plaintiff on March 2, 2009, the imposition of value-added tax of KRW 000 on the first half of 2003, and the imposition of value-added tax of KRW 000 on the second half of 203.

2. The plaintiff's remaining appeal is dismissed.

3. One-third of the total litigation costs shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant.

The judgment of the first instance shall be revoked.

The defendant's imposition of the plaintiff on March 2, 2009, of the first value-added tax in 2003, of the second value-added tax in 2003, and of the first value-added tax in 2003, and of the first value-added tax in 2004, respectively, is revoked.

1. Value-added tax;

In full view of the overall purport of the pleadings, the following offices shall be recognized in each entry of heading 1 and 8 (including paper numbers):

[1]

○ 원고는 2003. 3. 19. 설립되어 철강제품 수출업， 금지금(金地金，이 사건에서는 '금괴 • 골드바 등 원재료 상태로서 순도가 1000분의 995 이상인 금'을 일겉는다) 도매 및 수출업 등을 영위하다가 2010. 6. 30 폐업한 법인이다.

From April 30, 2003 to May 13, 2004, the Plaintiff purchased gold bullion from Co., Ltd. (CCC, Dice, and EEcar (hereinafter referred to as the “Purchase Party”) in total at KRW 000,000, and received purchase tax invoices equivalent to the same amount (hereinafter referred to as “instant tax invoices”) and filed a value-added tax return by deducting them as input tax amounts for each corresponding taxable year.

[2]

O) The Defendant, and the instant tax invoice, determined that the entire purchase tax amount should be deducted on the ground that the instant tax invoice was received from a series of transactions under the pretext and form for the said JJ as an actual transaction with the aim of evading tax without actual delivery or transfer of goods, and that it constitutes a "tax invoice different from the facts provided in Article 17 (2) 1-2 of the Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006)."

O 이에 따라 피고가 2009. 3. 2. 원고에게，▲ . 2003년 제1기 부가가치세 000원 및 이에 대한 세금계산서합계표 미제출 등 가산세 000원， ▲. 2003년 제2기 부가가치세 000원 및 이에 대한 세금계산서합계표 미제출 등 가산세 000원， ▲. 2004년 제1기 부가가치세 000원 및 이에 대한 세금계산서 합계표 미제출 등 가산세 000원을 경정 ・ 고지하였다.

O) On May 4, 2009, the Plaintiff appealed to the Tax Tribunal, but the Tax Tribunal dismissed it on December 30, 201, and the Defendant revoked all of the disposition imposing the above additional tax on June 22, 201 (hereinafter referred to as the "disposition imposing the principal tax of each additional tax").

II. The argument and Judgment

1. The plaintiff and defendant's assertion

A. The plaintiff's assertion

Since the instant tax invoice was delivered in the course of normal transactions in which the delivery of gold bullion and the receipt of funds were actually conducted, it cannot be deemed that the instant tax invoice constitutes “illegal tax invoice.” In addition, the disposition imposing value-added tax for the first time in 2003 and the second time in 2003 among the instant disposition was conducted after the exclusion period of five years is exceeded.

B. Defendant’s assertion

Since the instant tax invoice was delivered in the course of a processing for the purpose of tax evasion, it should be deemed to fall under “illegal tax invoice.” Moreover, since the Plaintiff knew or was unaware of the fact that there was an illegal transaction for the purpose of tax evasion in the course of a series of transactions for gold bullion transactions, and the Plaintiff was not aware of the significant excess, the JJ would not allow the Plaintiff to deduct and refund the input tax amount pursuant to the instant tax invoice because it violates the principle of good faith. Since the Plaintiff’s deduction and refund of the input tax amount falls under “the case where national taxes have been refunded by fraud or other unlawful act” or the case where the value-added tax has not been reported actually, the exclusion period is ten years or seven years, and the exclusion period may be limited by the principle of good faith, and the starting point of the exclusion period shall be calculated from January 20, 2011 (the date of the previous decision by the Supreme Court).

2. Facts of recognition;

Each entry of Gap evidence 1 through 3, Eul evidence 3 through 7, and 10 through 22 (including household numbers) is recognized as follows in full view of the whole purport of the pleadings:

[1]

O-value tax or zero-value tax exemption system has been abused to import gold bullion and distribute it as tax-free through many stages of wholesalers. The so-called so-called "large carbon business" (the gold bullion purchased through value-added tax exemption is converted into taxation, and the gold bullion is sold at a price lower than the purchase price, and the sales tax calculation form is issued and issued to enable the trader to deduct the input tax amount, and the trader himself/herself has not paid the value-added tax, and he/she has distributed it again through multiple stages of wholesalers, and at the same time, he/she is in the form of "large coal business" from around 202 to receive the unpaid value-added tax from the precious metal business in Jongno-gu Seoul Metropolitan Government.

O) In appearance, gold bullion is distributed through the stages of ‘foreign companies ? importer ? tax-free company ? variableed company ? tax-free company ? tax-free company ? ? export-related company ? ? foreign company ? the transaction price is paid in the reverse direction from the export company to the import company, but the taxation-related company only issues tax invoices according to the branch of a specific person or a specific business entity, but there are many cases where gold bullion companies do not actually trade or transport gold bullion.

C. In the case that gold bullion purchased gold bullion as tax-free gold and sold as tax-free gold, the value-added tax is evaded by fully withdrawing, concealing, and concealing the profit within the short period, and at that time, the bombane is sold with pride less than the purchase price, but the value-added tax plus the value-added tax is higher than the purchase price and the sales price is not paid.

The value-added tax collected by the OP business shall be transferred in order by the method of deducting the input tax amount by using the tax invoice received by each company in the immediately preceding stage of the transaction.

C. Ultimately, after the exporter exported gold bullion, the exporter is to be refunded from the country in accordance with the application of the zero-dimensionalization, and the corresponding part of the value-added tax amount paid by the country is the ultimate source of profit from the heavy coal business, and the profit is distributed to the domestic companies involved in the heavy coal business in the form of Madroin at each transaction stage, and the amount calculated by the specified ratio out of the profits of the heavy coal companies is distributed to the involved companies separately, and is distributed to the foreign companies involved in the heavy coal business in the form of the so-called Madroin which the amount calculated by the specified ratio is paid separately to the involved companies.

In order to maximize profits, most of the same states (referring to those who prepare for the import fund of gold bullion in the outside of the bomb business network) operate both the exporting company and the importing company at the same time, and directly deal with the bombing company with the bombing company in order to operate the bombing company in order to operate the bombing company, and to determine the volume of the transaction, the unit price, and the bombing of the bombing trade from the importing company to the exporting company, and the actual transport of the gold bullion from the importing company is conducted at a very short time within a day or less, and the actual transport of the gold bullion to the exporting company without delay is most.

[2]

In 1981, the Plaintiff’s representative director Park Jong-soo was employed by FF comprehensive company, and was mainly engaged in steel work. From the end of 2002, the Plaintiff retired from office as the representative director of GGGGGV.com company, a subsidiary of FF comprehensive company, and was established for the purpose of steel product export business on March 19, 2003.

O FF comprehensive commercial company was placed in a situation where it is inevitable to temporarily suspend the export of aluminium and gold bullion, the main item of the non-ferrous metal team, due to temporary financing difficulties around March 2003, and the FF comprehensive commercial company's Kim H, who was in charge of the gold bullion export business, proposed that it carry out gold bullion export business on behalf of the FF comprehensive commercial company for a limited period of time until the fund operation is normalized, including the plaintiff's representative director II, and this KK, etc.

O Plaintiff received export-related documents from the FF comprehensive commercial company to send them to the purchaser of this case when the export price of gold bullion is deposited in the course of export transaction by proxy with raising funds equivalent to value-added tax, and sent the purchase price to the purchaser of this case by facsimile. When the export price of gold bullion is deposited, the Plaintiff was in charge of paying the purchase price by adding value-added tax separately prepared by the Plaintiff to the purchaser of this case, and the actual purchase and export business of gold bullion were handled by the FF comprehensive commercial company.

O After its establishment, the Plaintiff purchased gold from the instant purchasing entity from April 30, 2003 to May 13, 2004, and received the instant tax invoice. The Plaintiff exported gold bullion purchased as above to Hong Kong located (hereinafter referred to as "," and "LLL") and (hereinafter referred to as "MMM") within the same day or several days, and the supply price at the time of the instant purchase was set at below the domestic market price at a lower level than the domestic market price at all times, and the supply price at the time of the instant sales was set at a lower level or below the minimum price at the time of history at the time of the instant sales transaction.

[3]

O Kim H confirmed that after being appointed as the head of the FF comprehensive firm's non-ferrous metal team around March 2002, the reason why the results were lower than those of the previous year was suspended from the export of gold bullion, and that the previous non-ferrous metal team was from the previous date.

에서 금지금 거래 업무를 담당해오던 신NN에게 금지금 수출 업무를 재개할 것을 지시하였고， 김HH는 신NN과 함께 CCC이십일의 사무실을 방문하여 신PP을 직접 만나 CCC이십일과 거래를 시작하게 되었으며， 이후 DD쥬얼리， QQQQ골드 등도 신PP의 소개로 거래하게 되었다.

O. The CCC (CCC) 2, the business partner that the Plaintiff purchased gold bullion through FF comprehensive commercial company, DDice, and EEcar are both enterprises directly operated by newP or under the influence of new PP. The purchaser purchased gold bullion sold by e.g., e., e., e., e., e., e., e.s., e.s., e.s., e.s., e.s.s., e.s., e.s., e.s., e.s., e.s., e.s., e.s.

O RoR king operating LLL and MFM, the export source of the FF comprehensive company, has a close relationship between the FF comprehensive company's purchasing source and the export source of the FF comprehensive company to make investment in the new PP operated by the CCC, which is the purchasing source of the FF comprehensive company.

OF comprehensive commercial company has repeatedly purchased and exported large amount of gold bullion from 410 km to 410 km every transaction day, and the FF comprehensive commercial company has acquired, without any difficulty, a large amount of gold bullion from 0.5% to 0.5% of the transaction amount.

PN, who had been in charge of gold bullion trading in the FF comprehensive commercial company as subordinate staff of the PFH on July 2003, when residing in Hong Kong, which is the seat of LLL and MMM, from the FF comprehensive commercial company around July 2003, purchased gold bullion from TTM, UUBBs, and VUBs, and arranged trade of exporting gold bullion from LLLL and MM, and received compensation from the new PP.

3. A false tax invoice.

A. Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as taxable subject to value-added tax" and Article 6(1) provides that "the supply of goods shall be the delivery or transfer of goods on all contractual or legal grounds." In light of the fact that the value-added tax has characteristics as multi-level transaction tax, "delivery or transfer" under Article 6(1) of the Value-Added Tax Act includes all acts causing the transfer of the right to use and consume goods, regardless of the actual profits gained (Supreme Court Decision 99Du9247 delivered on March 13, 2001) and in this case, whether a specific transaction constitutes the supply of goods under the Value-Added Tax Act is determined by comprehensively taking into account the purpose and circumstances of each transaction, and various circumstances such as the payment relationship between the parties, and the parties to whom the profits accrue.

B. According to the above facts, the gold bullion exported by the plaintiff was distributed as tax-free gold through a series of transactions conducted through various stages of companies from which the gold bullion exported by the plaintiff was imported and exported, and it was converted into tax-free gold, and there was a bombane closed without paying the value-added tax in the transaction process, and as long as the price exported by the plaintiff was found to have been lower than the domestic market price, it is hard to conclude that the plaintiff's gold bullion trade is not the supply of goods subject to value-added tax because the plaintiff actually exported the gold bullion, and there is no other evidence to support it otherwise. Accordingly, the tax invoice in this case cannot be viewed as a false tax invoice, and the plaintiff's allegation in this part is with merit.

4. Principle of good faith

A. Article 15 of the Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same shall apply) provides that "where a taxpayer performs his/her duty, he/she shall faithfully and faithfully perform his/her duty." This principle also applies to the legal relationship concerning value-added tax (Article 1 and Article 3(1) main text of the Framework Act on National Taxes). Among a series of continuous transactions, where a malicious entrepreneur creates profits only by the method of evading the value-added tax from the beginning to the beginning, and, if he/she fails to evade the value-added tax, he/she did not pay the value-added tax (hereinafter referred to as "illegal transaction"), if the exporter knew that there was an illegal transaction, then such exporter’s deduction of the input tax amount and seeking refund of the input tax amount are contrary to the good faith principle provided for in Article 15 of the Framework Act on National Taxes, and such principle is also applicable to the legal relationship concerning value-added tax.

B. Comprehensively taking account of the aforementioned facts and arguments, i.e., the following circumstances recognized, i.e., Kim H 2: (a) purchased new TPP at the 0th anniversary office; (b) obtained Dice from RP; (c) WW and Doice established by CR RoM; (d) all companies leading in illegal transactions for the evasion of value-added tax operated by PEP; and WW and MPM, the export source of the FF comprehensive company, were established by CRR 50,000,000,0000,0000,0000,0000,0000,0000,0000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00.

The unit price of the gold bullion other than value-added tax was formed at a lower level than the unit price and international market price of the zero or tax-free gold bullion with no value-added tax attached, and the plaintiff purchased a large quantity of gold bullion exceeding 18.3 billion won through Kim H, and then sent export-related documents by facsimile to the purchaser, such as CCC, and deposited the export price again into the purchaser at the time of payment of transportation charges, and the plaintiff was involved in the FF comprehensive commercial company's export of gold bullion, such as receiving transportation charges from the gold bullion transporter. The plaintiff had no knowledge of the business type and gold bullion trade in this case at the time of the purchase of the gold bullion, and it is difficult to view that the plaintiff had no knowledge of the business type and gold bullion trade in this case, and that there was no knowledge of the fact that there was no knowledge of the fact that the plaintiff had no knowledge of the business type and gold bullion trade in this case, and that there was no knowledge of the business contents of the trade in this case.

5. Period for exclusion;

(a) The exclusion period;

(1) With respect to the exclusion period of national taxes, Article 26-2(1)1 of the Framework Act on National Taxes (amended by Act No. 10405, Dec. 27, 2010) provides that where a taxpayer evades national taxes, obtains a refund or deduction by deceit or other unlawful means, the taxpayer may impose a national tax, for ten years from the date on which the national tax is assessable, where the taxpayer fails to submit a written declaration of tax base by the statutory deadline for filing a return, the taxpayer is unable to impose a national tax if the taxpayer falls under subparagraphs 1 and 2 of the same paragraph for seven years from the date on which the national tax is assessable, "five years from the date on which the national tax is assessable," and Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes (amended by Act No. 10405, Dec. 27, 2010): Article 12-2(1)2 of the Value-Added Tax Act provides that "within 13 months from the date on which the tax base and filing period can be imposed for two months."

(2) Comprehensively taking into account the above provisions of the relevant Acts and subordinate statutes, the initial date of the exclusion period of value-added tax is the day following the reporting period by each taxable period. The first period is from July 26 of each business year, from January 26 of each business year following each business year, and from January 26 of each business year, and from the five years thereafter, no value-added tax is imposed after the lapse of the exclusion period from imposition. However, the defendant issued the disposition in this case imposing value-added tax on the plaintiff on March 2, 2009, from March 2, 2003, from January 112, 2003, and from January 1, 2004. Accordingly, the first period of the disposition in this case was made after five years from the exclusion period of value-added tax, from July 26, 2003, and the second period of the disposition in this case also falls under the exclusion period of value-added tax or 20 years after the exclusion period of imposition.

(b) Fraudulent or other unlawful acts;

Article 26-2 (1) 1 of the Framework Act on National Taxes (amended by Act No. 10405, Dec. 27, 2010) provides that "Where a taxpayer evades a national tax or receives a refund or deduction by fraudulent or other unlawful means, he/she may impose a national tax for ten years from the date on which the national tax can be imposed, and "where the taxpayer fails to file a tax base return by the statutory deadline for filing a tax return," subparagraph 2 of the same Article provides that national tax may be imposed for seven years from the date on which the relevant national tax may be imposed.

Article 12-3 (2) 3 of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010) provides that "where the deducted tax amount is purified due to non-performance of obligation, etc., the date on which a reason for the fixed number of national taxes arises" shall be the starting date of the exclusion period for taxation. Meanwhile, Article 9 (1) of the Punishment of Tax Evaders Act provides that "the person who evades the tax or obtains the refund or deduction of the tax by fraudulent or other unlawful means is subject to criminal punishment."

(5) The term "Fraud or other unlawful acts" provided for in Article 9 (1) of the Punishment of Tax Evaders Act (wholly amended by Act No. 919, Jan. 1, 2010) means acts which enable tax evasion, i.e., a deceptive scheme or other active acts which make it difficult to impose or collect taxes difficult under social norms, and those which do not constitute mere tax return or those which are false under Article 201Do527 of the Framework Act on National Taxes (see, e.g., Supreme Court Decision 2011Do527, Apr. 28, 201). The term "tax invoices" means those which are not subject to the principle of no taxation without law, and those which are not subject to the principle of no taxation without law, are not subject to the principle of no taxation without law, nor those which are subject to the principle of no taxation without law, nor those which are subject to the principle of no taxation without law, nor those which are subject to the principle of no taxation without law.

6. Conclusion

Therefore, among the dispositions in this case, the value-added tax portion for the first period of 2003 and the second period of 2003 has expired after the exclusion period for imposition. The first period of value-added tax in 2004 is lawful as the plaintiff is not entitled to claim the deduction and refund of the input tax in accordance with the good faith principle.

iii. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is justified within the above scope of recognition, and the remaining claims are dismissed for lack of reason, and the judgment of the court of first instance is partially unfair, and the part against the plaintiff as to the value-added tax of 1, 2003 and 2, 2003 among the judgment of the court of first instance is revoked, and the part against the plaintiff as to the above loss among the disposition of this case is revoked, and the plaintiff's remaining appeal is dismissed for lack of reason. It is so decided as per Disposition.