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(영문) 대법원 2011. 05. 26. 선고 2009두16282 판결
폭탄업체를 경유한 금지금 거래의 수출업자에게는 신의칙을 적용하여 환급여부를 판단하여야 함[국승]
Case Number of the immediately preceding lawsuit

Seoul High Court 2009Nu6812 (209.03)

Title

It is necessary to determine whether to refund gold bullion to an exporter of gold bullion transaction via a bombing company by applying the good faith principle.

Summary

In a series of gold bullion transactions, if a malicious business operator knew, or was unable to know, the circumstances that there was an illegal transaction for the purpose of evading the output tax amount, and that the deduction and refund of the input tax amount 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 against the good faith principle.

Cases

Revocation of imposition, etc. of value-added tax 2009Du16282

Plaintiff-Appellee

○○ Co., Ltd.

Defendant-Appellant

○ Head of tax office

The Seoul High Court Decision 2009Nu6812 Decided September 3, 2009

Text

Of the judgment below, the part concerning the first term portion in 2003, the second term portion in 2003, the first term portion in 2004, the second term portion in 2004, the imposition of value-added tax for the second term in 2004, and the disposition to refuse to refund value-added tax for the second term in 2004 shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

The remaining appeals are dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the fact that the instant tax invoice is a false tax invoice

원심은 그 채용 증거에 의하여, 원고가 2003. 6. 18.부터 2004. 10. 5.까지 대양귀금속 주식회사를 비롯한 7개 사업자(이하 '이 사건 공급자들'이라 한다)로부터 합계71,063,508,950원 상당의 금지금(이하 '이 사건 금지금'이라 한다)을 매입하고 이 사건 금지금을 인도(이하 '이 사건 거래'라 한다)받은 다음 이 사건 공급자들로부터 이 사건 거래에 따른 세금계산서 132장(이하 '이 사건 세금계산서'라 한다)을 각 교부받은 사실, 원고는 이 사건 금지금을 95회에 걸쳐 금지금 상태 그대로 또는 목걸이 등의 제품으로 가공하여 홍콩 소재 수입상에게 수출한 사실을 인정하였다. 원심은 위 인정사실을 토대로 이 사건 금지금이 수입되어 수출되기까지의 일련의 전체거래(이하 '이 사건 전체거래'라 한다)가 1˜3일에 이루어지고, 그 중간 단계에 부가가치세가 면제되는 금지금을 매입한 다음 면세추천 받지 아니한 자에게 부가가치세 과세대상이 되는 금지금으로 공급하면서 세금계산서를 작성・교부하고 그 부가가치세 상당액을 납부하지 않는 악의적 사업자가 일부 존재하고 있는 점 등의 사정만으로는 이 사건 전체거래 중의 하나인 이 사건 거래가 명목상의 거래로서 부가가치세 과세대상이 되는 재화의 공급이 아니라고 단정하기 어렵다고 판단하고, 원고가 이 사건 금지금을 매입하면서 매입대금만 지급하였을 뿐 부가가치세를 징수당한 적이 없음에도 이 사건 세금계산서에는 그 매입대금의 10/11에 해당하는 금액을 공급가액으로, 1/11에 해당하는 금액을 부가가치세액으로 각 기재하였으므로 이는 사실과 다른 세금계산서에 해당한다는 피고의 주장에 관하여는, 원고가 부가가치세를 징수당한 적이 없다는 점을 인정할 증거가 없다는 이유로 이를 배척하였다.

In light of the records, such fact-finding and judgment of the court below are justified.

The court below did not err in the misapprehension of legal principles as to "tax invoices different from the facts" as alleged in the ground of appeal.

2. On the ground that unfair input tax deduction and refund claim violate the principle of good faith

A. Article 15 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter referred to as the "Framework Act on National Taxes") declares that the principle of trust and good faith should be the basic guiding ideology in the field of tax law by stipulating that "a taxpayer performs his/her duty in good faith and sincerity. The same shall also apply to a tax official performing his/her duty." Accordingly, if a tax law provision is applied to an individual case, the application of the tax law provision would result in an unreasonable result which is significantly difficult to pay in light of the universal justice and ethics, thereby leading to the sound legal order, the application of the provision may be exceptionally restricted or excluded pursuant to the principle of trust and good faith. This principle may also be applied to legal relations concerning value-added tax (Article 1 and Article 3(1) main text of the Framework Act on National Taxes).

Article 15 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) provides that the value-added tax on the value of supply shall be collected from the person who receives the supply of goods or services when an entrepreneur supplies the goods or services. Article 17(1) of the same Act provides that the value-added tax payable by an entrepreneur shall be the amount obtained by deducting the input tax amount from the output tax amount, and that the input tax amount in excess of the output tax amount shall be refundable. This is based on the so-called tax credit system where the entrepreneur collects the output tax from the entrepreneur who receives the goods or services at each transaction stage before reaching the final consumer and pays the tax amount to the State through the process of deducting and refunding the input tax amount from the input tax amount, and ultimately imposes the burden on the final consumer (see, e.g., Supreme Court Decision 9Da3984, Nov. 12, 199).

If a malicious entrepreneur in a series of continuous transactions does not pay the value-added tax collected by him/her by attempting to make an abnormal transaction that only causes losses if he/she does not evade or evade value-added tax (hereinafter referred to as "illegal transaction") from the beginning by attempting to evade value-added tax from the beginning, the country is bound to make a refund of the input tax without the burden of the output tax, such as the exporter at the next transaction stage, if an entrepreneur is entitled to deduct and refund the input tax without the burden of the output tax amount, such as the exporter at the next transaction stage. As such, the outcome exceeds the passive gap of tax revenue and constitutes an outflow to the National Treasury, and thus, the burden exceeds the damage of the value-added tax system itself, thereby causing serious harm to the overall tax system.

Of course, even if there are the above reasons, if an exporter is in a situation where the existence of an illegal transaction is unknown even if there is no other reason, he/she may not, in principle, deny that the exporter is entitled to deduct or refund an input tax amount as prescribed by the Value-Added Tax Act. However, if the exporter was aware that there was an illegal transaction at the pre-stage stage, and he/she was engaged in the transaction in order to promote his/her own interest, and his/her transaction profit is connected to the aforementioned illegal transaction, and his/her participation in the transaction becomes a critical factor that makes it possible to make the illegal transaction ultimately by securing the market for the illegal transaction, it is an act of pursuing unjust benefits by abusing the input tax deduction and refund system, which is a premise. Such deduction and refund of an input tax amount by using another tax revenue as a tax revenue to such exporter, not only can guarantee the profits attributable to the illegal transaction through the National Treasury, but also cannot prevent serious harm to the overall tax system as seen above.

In such a case, seeking input tax deduction and refund cannot be made remarkably in light of the universal sense of justice and ethics. This is not permissible as it goes against the principle of good faith as stipulated in Article 15 of the Framework Act on National Taxes. Such a legal doctrine is reasonable to deem that if an exporter was unaware of such an illegal transaction due to gross negligence in light of the perspective of fairness, the gravity of the outcome, and the universal sense of justice, it is equally applicable in cases where the exporter was unaware of such illegal transaction due to gross negligence, i.e., the relationship with a malicious business entity, and the exporter was aware of the fact that he was aware of the fact that he was aware of the fact that he was aware of the fact, and even if he did not know of the fact that he was able to have been aware of the fact, it is not limited to cases where there was a specific conspiracy or accomplice relationship with a malicious business entity who made an illegal transaction with the exporter (see, e.g., Supreme Court en banc Decision 2009Du

나. 원심이 인용한 제1심 판결 이유 및 기록에 의하면, ① 원고는 2003. 6. 5. 지금(地金), 지은(地銀) 제조 및 도소매업 등을 목적으로 하여 설립된 회사로서 자본금이 1억 원에 불과함에도 설립 첫해부터 수백억 원대의 이 사건 금지금을 매입하여 이를 수출하는 영업을 해온 사실, ② 이 사건 금지금 거래는 수입업체에 의하여 외국으로부터 수입되어 면세금으로 유통되던 중 과세금으로 전환된 것으로서 대부분 수입 당일 또는 2˜3일 후에 수입업체로부터 최종 수출업체인 원고에 이르기까지 6˜7단계의 도매업체들을 거쳐 수출까지 이루어졌으며, 그 중 자신들이 매입한 금지금을 매입가액보다 낮은 공급가액에 매출한 후 임의로 폐업함으로써 부가가치세 납부의무를 이행하지 아니하는 악의적 사업자가 끼어 있었던 것으로 밝혀진 거래도 56건이나 되는 사실, ③ 원고는 매일의 금지금 시세가 인터넷이나 전화 등으로 제공되고 있음에도 대부분 수출 당일의 국제시세보다 낮은 가격으로 수출하였고, 통상의 금지금 거래 관행과는 달리 수입상으로부터 아무런 담보도 확보하지 아니한 채 수출 2˜3일 후에 수출대금을 송금받은 사실, ④ 이 사건 각 거래에 있어서 원고를 비롯한 거래당사자들은 수출업자가 금지금을 수출하면서 3%의 관세를 환급받기 위하여 필요한「수출용원재료에 대한 관세 등 환급에 관한 특례법」이 정한 '분할증명서'를 수수하지 아니한 사실, ⑤ 원고는 2003년 제1기분 및 제2기분, 2004년 제1기분 및 제2기분 부가가치세를 신고하면서 이 사건 세금계산서에 관한 매입세액을 매출세액에서 공제하였으나, 피고는 2005. 10. 10. 이 사건 세금계산서 전부의 매입세액을 불공제하여 부가가치세를 경정고지하고, 2004년 제2기분 부가가치세 환급을 거부하는 처분(이하 '이 사건 처분'이라 한다)을 한 사실 등을 알 수 있다.

If the facts are the same, the Plaintiff could have purchased and exported the gold bullion of this case in a short time with profit margin. The fact that malicious business operators in the middle stage supplied the gold bullion of this case at low prices and evaded the output tax amount. In light of the structure of the transaction, it is almost impossible for the Plaintiff to export a large amount of gold bullion of this case without securing the markets, and thus, the Plaintiff and malicious business operators are in the inevitable mutual dependence relationship. In addition, if the Plaintiff cannot obtain the deduction and refund of input tax amount, the burden of the tax amount would exceed the profit margin, and thus, the mutual dependence relationship is premised on the Plaintiff’s receipt of deduction and refund of input tax amount from the State through the application of zero-rate tax rate. In addition, since such a series of transactions are made within a short period of time, it is difficult for the State to block it in advance.

Examining these circumstances in light of the legal principles as seen earlier, if the Plaintiff, an exporter, has a malicious entrepreneur who makes an illegal transaction for the purpose of evading the output tax amount in the course of a series of transactions previously conducted prior to the transaction, and thus, seeks the deduction and refund of the input tax amount even though he knew of the fact that the Plaintiff’s deduction and refund of the input tax amount would cause a decrease in other tax revenues by gross negligence, this would not only take part of the output tax amount evaded by a malicious entrepreneur by abusing the input tax deduction and refund system, but also bring about part of the input tax amount evaded by a malicious entrepreneur through the malicious entrepreneur’s abuse of the input tax deduction and refund system, and thus, it would not be permissible in violation of the good faith principle as stipulated in Article 15 of the Framework Act on National Taxes.

C. Therefore, the lower court should have sufficiently deliberated on whether the Plaintiff knew or was unaware of the aforementioned circumstances in the transaction of the gold bullion in this case due to gross negligence, and determined whether the Plaintiff’s assertion on the deduction and refund of the Plaintiff’s input tax amount violates the good faith principle. Without such deliberation and determination, the lower court erred by misapprehending the legal doctrine on the good faith principle as stipulated in Article 15 of the Framework Act on National Taxes and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment, by failing to exhaust all necessary deliberations.

The ground of appeal pointing this out is with merit.

3. As to the imposition disposition of corporate tax

The defendant also stated this part of the petition of appeal as subject to appeal, but there is no legitimate ground of appeal in the petition of appeal or appellate brief.

4. Conclusion

Therefore, among the judgment below, the part concerning the first term portion in 2003, the second term portion in 2003, the first term portion in 2004, the second term portion in 2004, and the second term in 2004, and the second term in 2004, respectively, are reversed, and this part of the case is remanded to the court below for a new trial and determination, and the defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

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