Supreme Court Decision 2009Du15791 ( October 24, 2011)

Seoul High Court 2009Nu8528 (Law No. 26, 2009)

An exporter of the gold bullion transaction via a bombing company shall determine whether to refund the gold bullion transaction in accordance with the principle of trust and good faith (Reversal and return).

If a malicious business operator’s fraudulent transaction for the purpose of evading the output tax amount in the course of a series of gold bullion transactions exists, and the exporter knew of, or was unaware of, the fact that the deduction and refund of input tax amounts would lead to the reduction of other tax revenues by gross negligence, the exporter’s assertion of input tax deduction and refund cannot be permitted in violation of the good faith principle (def

2011Nu9326, revocation, etc. of revocation of an application for input tax deduction

AAA, Inc.

Head of the District Tax Office

Seoul Administrative Court Decision 2007Guhap27875 Decided April 2, 2008

June 10, 201

July 8, 2011

1. Of the judgment of the court of first instance, the part of the value added tax imposed by the defendant against the plaintiff on June 1, 2005, which was KRW 17,650,50, which was imposed by the defendant on the plaintiff on June 1, 2005 shall be revoked, and the plaintiff's lawsuit corresponding to that part shall

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be ten minutes, which shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

The decision of the first instance shall be revoked. The defendant's second-term addition to the second-term addition to the plaintiff on June 1, 2005 for the plaintiff on June 1, 2005 shall be revoked as well as the imposition of the 34,550,090 won, and the imposition of the 177,255, and 904 won.

1. Details of the disposition;

A. The Plaintiff is a corporation established for the purpose of manufacturing, selling, and exporting and importing precious metals, and 204

In 271, the following tax invoices for purchase of the gold bullion of KRW 1,765,050,000 (in this case, the gold bullion of KRW 995/100 or more in the status of the raw materials, such as gold leader and peld, the gold bullion of KRW 1,765,050,000 (hereinafter referred to as the "B gold") were received as follows, and each tax invoice of this case (hereinafter referred to as the "tax invoice of this case") was received as the "tax invoice of this case" and "the second tax invoice of this case" in order of the transaction date, each tax invoice of this case was exported to the CCRECO MTAL MTD. LD. (hereinafter referred to as the "CCC trading company") in Hong Kong, and was refunded value-added tax on October 23, 204, and 25, and KRW 904.

B. However, on April 1, 2005, the director of the Seoul Regional Tax Office decided that the transaction of gold bullion related to the tax invoice of this case was a modified transaction by organized collusion between transaction parties to receive unfair refund of value-added tax, and notified the defendant. In this regard, the defendant regarded each of the tax invoices of this case as a false tax invoice and included the input tax amount of each of the tax invoices of this case as the supplier, and also the additional tax (2/100) 35,301,000, and notified the plaintiff on June 1, 2005 that value-added tax was 177,255,904, and at the same time, notified the plaintiff on June 1, 2005 that value-added tax was 34,50,090 won for the second period of 204 (hereinafter the above disposition of refusal to refund and value-added tax was hereinafter referred to as the "disposition of this case").

C. On July 28, 2005, the plaintiff appealed against the disposition of this case, and the decision of dismissal was made. The plaintiff again appealed to the National Tax Tribunal on December 2005, and the National Tax Tribunal dismissed the plaintiff's appeal on April 27, 2007.

D. On the other hand, around May 201, the Defendant revised the amount by reducing the above amount by excluding KRW 17,650,50, and KRW 500 due to the failure to submit a list of the total tax invoices among the value-added tax for the second period of 2004.

Facts without dispute over the basis of recognition, Gap evidence 1 through 5, Eul evidence 1 and 22, the purport of the whole pleadings

2. Whether the part concerning the claim for revocation of the imposition of value-added tax for the period of 12 years, 2004, among the instant lawsuit is lawful

According to the background of the above disposition, the part on the claim for revocation of the disposition by the Plaintiff is unlawful as there is no legal interest in the lawsuit, since the part on the tax invoice amounting to KRW 17,650,50 due to the failure to submit a list of total tax invoices among the value-added tax amount 271, 204

3. Whether the disposition is lawful;

A. Both claims

1) Plaintiff

The plaintiff purchased gold bullion from BB and paid the price in full, and received each of the tax invoices of this case. Thus, the defendant's disposition of this case on the premise that each of the tax invoices of this case is a false tax invoice by disguised purchase is unlawful.

2) Defendant

Each of the instant tax invoices is false tax invoices outside of disguised purchase. Even if not, the Plaintiff’s assertion of input tax deduction and refund cannot be permitted in violation of the principle of good faith.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c)a recognition;

1) From around December 31, 2002 to December 31, 2004, the Special Act on the Control of Special Taxation abused the value-added tax or tax exemption system among the gold business entities located in Seoul, by importing gold bullion and distributing it through various stages of zero-rate or tax exemption, and converting it into taxation gold to a wide-scale carbon business, and then distributing it again through a variety of stages of wholesale wholesalers, and then, a wide-scale coal business operator did not pay value-added tax, and the exporter extended the so-called wide-scale coal business to refund the value-added tax that was not paid by the large coal business operator.

2) After graduating from the department of education in the EE University FF University GG GG of the F University, DaD was working in FF marketing division, company GGG, etc., DaD’s Hah’s Hah’s Hah was a gold bullion import agent, and the representative of the JJJJ, the Hong Kong Company, and the Hong Kong Company, the representative of the JJJJ, a domestic transfer of the Hong Kong Company to the Republic of Korea, establishing the Plaintiff corporation upon the advice of this KK. Meanwhile, the relevant certified tax accountant and customs broker involved in the Plaintiff Company’s transactions are the same as JJ (hereinafter referred to as “stock company” in its name).

3) 이 사건 제1세금계산서와 관련된 2004~ 9. 16.자 거래 흐름 및 대금 결제시간, 거래 단가는 각 다음과 같다. 즉, JJJJ는 2004. 9. 15. 홍콩 DDD 상사에서 금지금 210kg을 수입한 후 자금중개에 매도 의뢰하여 LLLLL엔터프라이즈와 위 금지금 중 100kg에 대하여 11:44:45에, 원골드와는 위 금지금 중 110kg에」 대하여 11:31:50에 매매계약 체결이 이 루어졌고, 이 사건 제1세금계산서에 기재된 금지금 50kg(이하 '이 사건 제1금지금'이라 한다)은 LLLLL엔터프라이즈가 매입한 위 금지금 100kg의 일부로서 !!!코리아, @@@, ######, $$$$, BB금은을 거쳐 원고가 매입하여 같은 날 홍콩의 미 쓰이 상사로 다시 수출하였다. 한편, 이 날 관련업체간 거래대금의 결제는 수출업체인 원고의 대표이사 오DD 이 아래 표와 같이 그 직전에 JJJJ 대표이사 이KK로부터 7억 원을 차용하여 당일 오전 11:58 BB금은에 대금을 결제한 이후부터 위에서 본 바와 같이 역순으로 이루어졌다. 그런데 원고가 BB금은에 대금을 결제할 당시 위 제1금지금은 인천공항 보세창고에서 반출되어 운송업체 보관창고로 운뚱되고 있었던 상태였다. 이 사건 제1금지금은 수입시부터 !!!에 이르기까지는 면세금으로 유통되다가 뷰라인 이후 원고에 이르기까지 과세금으로 유통된 후 영세율로 수출되었는데, 당초 수입가에 마진이 보태어져 유통되다가 !!!을 거쳐 과세금으로 전환되는 단계에서 매입가액(g당 15，551원)보다도 낮은 공급가액엔 g당 14，613원(부가가치세를 더하면 매 입가액보다 높아진다)에 매출이 이루어졌고, 짧고는 공급가액 734，650，000원에 부가가 치세 73，465，000원을 합친 808，115，000원에 이 사건 제1금지금을 매입하여, 부가가치세 를 감안하지 아니하는 경우 도리어 손해를 보는 가격인 648，185달러(1달러= 1，145원, 한화 742，129，517원)에 수출하였다.

4) 이 사건 제2세금계산서와 관련된 2004. 9. 20.자 거래의 흐름은 다음과 같다. 즉, AAAAA는 2004. 9. 20. MMM과 EEE 상사로 부터 금지금 400kg을 수입한 후, AAAAA는 한국자금중개에 매도의뢰하여 NNNNN와 10:27:41 및 10:39:43 2차례에 걸쳐 위 급지금 중 각 100kg씩에 대한 매매계약을 체결하였고, LLLLL엔터프라이즈，@@@@@@，###，$$$$$，BB금은을 거쳐 그 중 이 사건 제2세금계산서에 기재된 급지금 70kg(이하 '이 사건 제2금지금'이 라 한다)을 원고가 매입하여 같은 날 홍콩의 마쓰이 상사로 다시 수출하였다. 한편 이 날 관련업체간 거래대금의 결제 역시 수출업체인 원고의 대표이사 오한 창이 아래 표와 같이 JJJJ 대표이사 이KK로부터 9억 원을 차용하여 당일 오전 11:32 BB금은에 대금을 결제한 이후부터 위에서 본 바와 같이 역순으로 이루어졌다. 그런데 원고가 BB금은에 대금을 결제할 당시 위 제2금지금도 아직 인천공항 보세창 고에서 반출되지도 아니한 상태였다. 이 사건 제2금지금 역시 수입시부터 &&&에 이르기까지는 면세금으로 유통되다가 &&& 이후 원고에 이르기까지는 과세금으로 유통된 후 영세율로 수출되었는바, 당초 수입가에 마진이 보태어져 유통되다가 !!!을 거쳐 과세금으로 전환되는 단계 에서 매입가액(g당 15，573원)보다도 낮은 공급가액인 g당 14，666원에 매출이 이루어졌고, 원고는 공급가액 1，030，400，000원에 부가가치세 103，040，000원을 합친 1，133，440，000원에 이 사건 제2금지금을 매입하여 910，383.14달러(1달러 = 1，147원, 한 화 1，044，209，461원)에 수출하였다.

5) 한펀 위 각 거래에서 폭탄업체의 역할을 한 !!!은 국가에 부가가치세를 납부하지 않은 채 사실상 폐업하였고, 관련자들은 모두 잠적하였으며, @@@@@@ 대표 이사 송OO, LLLLL엔터프라이즈 대표이사 문@@는 과세도관업체의 운영자 역할 을 하는 방법으로 부가가치세 포탈 범죄에 가담하였다는 이유로 특정범죄가중처벌등에 관한법률위반(조세) 및 조세범처벌법위반죄로 기소되어 각 유죄판결을 선고받았는바, 그 범죄사실 중에는 이 사건 2004. 9. 16. 및 2004. 9. 20.자 거래 역시 포함되어 있다.

6) In each of the instant gold bullion transactions, the parties to the transaction, including the Plaintiff rate, did not receive at all a divisional certificate under the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export, which is necessary for the exporter to get refund of 3% of customs duties while exporting gold bullion. In general, in light of the fact that the rate of return from the current transaction is 0.3% higher than 1%, no divisional certificate is issued (the waiver of 3% customs duties).

7) According to the Plaintiff’s representative director’s failure to hold IDs to use a log program that can take account of international time of gold bullion and domestic market price, exchange rate trend, etc. The Plaintiff’s domestic gold bullion market price on September 16, 2004 is USD 14.17 per g, and is higher than USD 12.96 per g, the Plaintiff’s export price. The domestic wholesale market price on September 20, 2004 is also USD 14.20 per g, the Plaintiff’s export price of KRW 14.20 per g, the Plaintiff’s export price of KRW 13.0 per g, the Plaintiff’s export price. Moreover, since the Plaintiff was established on July 8, 2004, the Plaintiff did not actually conduct the instant two transactions, and it is impossible to refund the gold bullion itself because it could not receive any refund from the sales price more than the value-added tax.

[Ground of recognition] Evidence Nos. 6 through 31, Evidence Nos. 58, Evidence Nos. 33 and Evidence Nos. 2 through 21 (including each number), the court below's inquiry and reply to PP Korea, and the purport of the whole pleadings

D. Determination

1) Whether each of the instant tax invoices constitutes false tax invoices

As acknowledged earlier in the instant case, the gold bullion was actually distributed from the importer to the exporter. The Plaintiff purchased each of the instant gold bullion Nos. 1 and 2 from the supplier on the date of purchase, and paid all the price on the date of purchase, and then received two copies of the tax invoices under the instant transaction from the supplier, and then notified that each of the said gold bullion was exported to the importer located in Hong Kong on the date of purchase. Accordingly, the Plaintiff concluded that each of the instant gold bullion was exported to the importer on the date of purchase. Accordingly, the Plaintiff’s total transaction was conducted within a short period of time until the import and export of the instant gold bullion No. 1 and 2 gold bullion. The Plaintiff’s representative director purchased the gold bullion exempted from value-added tax at the interim stage and supplied the gold bullion to the person who did not receive the recommendation and did not pay the amount equivalent to the value-added tax. The Plaintiff’s purchase price of the said gold bullion was merely a transaction based on the fact that only the instant tax invoice was issued in order to make the trade or the actual transaction, and the Plaintiff did not have any value-added value-added tax imposed any goods or value-added tax.

Therefore, it is difficult to view that each of the instant tax invoices received through the instant transaction constituted “illegal tax invoices.”

2) Whether the Plaintiff’s assertion on deduction and refund of input tax amount violates the principle of good faith

A) Relevant legal principles

The former Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 201; hereinafter referred to as “the former Framework Act on National Taxes”) declares that a taxpayer’s tax evasion should be based on the principle of good faith by stipulating that an exporter’s tax evasion should be carried out, even if he/she had no knowledge of such an illegal transaction, and that such an exporter would not be subject to the principle of good faith. As such, the former Framework Act on National Taxes’s tax evasion should not be applied to the case of an exporter’s trade based on the following circumstances: (a) if an exporter’s duty of care to deduct and deduct profits from such an exporter’s trade; and (b) if such an exporter’s duty of care would not be denied, then such an exporter’s tax evasion should not be subject to the principle of good faith; and (c) thus, (d) if an exporter’s duty of care to deduct profits from such an exporter’s final transaction, then the latter’s duty of tax evasion should not be applied to the Plaintiff’s tax evasion and exemption.

B) In full view of the following circumstances acknowledged by the facts and evidence as seen earlier in light of the aforementioned legal principles, even though it cannot be readily concluded that the Plaintiff conspireds with the so-called beauty business operator, a malicious business operator, etc. for the purpose of evading tax, the Plaintiff, at least as the exporter, should be deemed to have known of the fact that there was a malicious business operator engaged in illegal transactions for the purpose of evading the output tax in each of the gold bullion transactions in the instant case, and thereby, the Plaintiff did not know of the fact that the deduction and refund of the input tax amount against the Plaintiff would cause a decrease in other tax revenues. Furthermore, the Plaintiff’s assertion of deduction and refund of the input tax amount is not only a malicious business operator’s gains a portion of the output tax amount collected by the malicious business operator by abusing the taxation and refund system of the input tax amount, but also it is not permissible in violation of the principle of good faith as stipulated in Article 15 of the Framework Act on National Taxes.

① On July 8, 2004, the Plaintiff is a corporation established for the purpose of the production, sale, and export and import business of precious metals, and the Plaintiff’s representative director OD established the Plaintiff corporation without any special knowledge about the gold bullion import and export business (in that process, the paid-in capital of KRW 100 million was also paid in the process, referring to evidence 100 million), and on September 16, 2004 and September 20, 2004, all of the instant transactions in this case were exported without any processing the gold bullion of KRW 1,765,00,00,00 in total, that the Plaintiff purchased from BB.

② Establishment of the Plaintiff is based on the advice of KR, which was given by the representative director of YJ, the Plaintiff’s former phase of the JJ, as the Plaintiff’s former phase of the transaction. Furthermore, this KR continued to lend KRW 700 million and KRW 900 million to the Plaintiff Company immediately before the payment was made (the Plaintiff repaid the Plaintiff’s export payment to the CCC Company). Meanwhile, tax accountants and licensed customs brokers related to the Plaintiff Company’s transaction are the same as JJJ.

③ The Plaintiff concluded a sales contract and paid the sales price up to the purchase price, even if each of the instant gold bullion was shipped out of Incheon Airport bonded warehouse (in the case of the instant gold bullion No. 1) or was carried out from the said bonded warehouse (in the case of the instant gold bullion No. 2), with the transfer of gold bullion proceeds to the Plaintiff, but did not confirm the spot gold bullion proceeds for two occasions.

④ The Plaintiff asserts that the real-time verification of the domestic and foreign gold bullion price was made prior to the instant gold bullion transaction. If the normal gold bullion transaction was made, it would be difficult for the Plaintiff to escape from the domestic market price compared with the domestic market price due to the value-added tax or the gold bullion transaction. However, in the purchase of each gold bullion from BB, the import price was the lower price compared to the domestic market price.

⑤ In addition, the export price of the instant gold bullion No. 1 and No. 2 is lower than the import price, but is lower than the domestic market price. If the Plaintiff sold the instant gold bullion to the domestic wholesale company without exporting it to the CCC company, the Plaintiff, even though it was able to obtain more profits than the export price in light of the domestic market price at the time, exported gold bullion to the CCC company at a lower price than the exchange loss, etc.

6) The parties to a transaction, including the Plaintiff, did not receive at all a certificate of subdivision necessary for the refund of customs duties while exporting gold bullion (the Plaintiff did not state the serial number exported dubs). Considering that most gold bullion are a co-owned product, in particular, the Plaintiff, an exporter, did not receive a certificate of subdivision for the refund of customs duties from the immediately preceding transaction entity, should be presumed to have known, or could have known, the fact that each of the instant fake gold bullion, which was originally non-taxable, was converted into the tax assessment in the dubs.

⑦ 이 사건 제1금지금 및 제2금지금은 수입에서 수출까지 단 하루 만에 신속하게 여러 단계의 업체들을 거쳐 유통되었고, 이 사건 각 거래에서 이른바 폭탄업체의 역할을 한 뷰라인은 국가에 부가가치세를 납부하지 않은 채 사실상 폐업하였으며, 관련자들은 모두 잠적한데다가, 원고의 전단계 거래자인 !!!!!! 및 LLLLL엔 터프라이즈의 대표이사들이 이미 이 사건 거래와 관련하여 조세범처벌법위반죄 등으로 유죄판결을 선고받았다. 한편 원고와 이 사건 각 금지금을 거래한 BB금은의 경우에 도 2004년도 제2기분 부가가치세를 전혀 납부하지 아니하였다.

⑧ 원고의 대표이사 오DD은 DDD 상사의 관계자를 전부터 알고 있었다고 진술한 바 있고, 앞서 본 바와 같이 JJJJ외 대표이사 이KK로부터 앞서 본 바와 같이 거액의 금지금 거래대금을 빌린 적이 있으며, BB금은의 대표이사 안QQ는 제3자를 통해 JJJJ의 이KK를 알게 된 것으보 보이는데다가(을 제1호증 참조), 당심 증인 안QQ의 증언에 의하면 당시 종로에서의 금지금 거래는 선 결제 후 인도 방식을 취하였다는 것인데도 원고 회사는 선 결제 이후에 금지금 인도에 관한 아무런 담보제공도 받지 않는 것으로 보아 이 사건 거래는 서로 잘 아는 업체끼리나 최소한 동종업 계의 추천을 받아 이루어진 것으로 볼 수밖에 없는 사정까지 더해 보면, 결국 원고와 CCC 상사, JJJJ, BB금은 등의 거래당사자들은 서로 전부터 잘 아는 사이로 추정된다

① The Plaintiff had purchased and exported the instant gold bullion within a short time with profit margin is due to the malicious business operator in bad faith in the middle stage to supply the instant gold bullion at a low price. In light of the structure of the transaction, it is almost impossible for the Plaintiff to engage in an illegal transaction in bad faith without securing the market by exporting a large amount of gold bullion. Accordingly, the Plaintiff and malicious business operator are in an inevitable mutual dependence relationship.

(10) Ultimately, if the Plaintiff is unable to deduct or refund the input tax amount, the Plaintiff’s burden of the tax amount would exceed the profit margin, and thus, it is impossible to trade the Plaintiff is premised on the Plaintiff’s deduction and refund of the input tax amount through the application of the zero-rate tax rate for exports. Such a series of transactions are conducted within a short period of time, and thus, it is difficult for the State to block it in advance.

(e)Indivate;

Therefore, the instant disposition, which was made without deducting the input tax amount for the instant tax invoice, (excluding the foregoing part of the dismissal of the lawsuit), would eventually be lawful.

4. Conclusion

Therefore, the plaintiff's claim for revocation of the disposition of imposing additional tax of KRW 17,659,50 due to the failure to submit a list of the total tax invoices among the amount of KRW 2,204, which was revised in the judgment of the court of first instance, is unlawful, and the lawsuit is dismissed. The plaintiff's claim for the disposition of this case except the above dismissal part of the plaintiff shall be dismissed as it is without merit. The judgment of the court of first instance on this part is just and correct as the conclusion of the court of first instance is dismissed. It is so decided as per Disposition by the assent of all participating Justices.