타인의 명의를 빌린 공급 상대방에 발급한 세금계산서와 매입세액 공제 – 대법원 2019. 8. 30. 선고 2016두62726 판결 평석

Issuance of incorrect VAT invoices lead to disallowance of input tax credits (“ITC”) under Korean VAT law, on which issue there have always been many tax controversies in practice. This has something to do with the rigid postion of Korean tax administration that any inaccuracy, however trivial, on a VAT invoice should result in disallowance of ITCs unless it falls under one of the exceptions explicitly provided in the VAT Act. However, there may be diverse causes for the inaccuracies, and the extent to which the parties to the relevant taxable transaction may have contributed to the issuance of the incorrect VAT invoice may also differ on a case-by-case basis. In addition, incorrect invoices may or may not affect the tax administration’s collection of tax revenue. This article thus argues that neither the strict position taken by the tax admistration nor the tendency shown by the Supreme Court or the Constitutional Court of upholding the said admistrative position can be justified, and the current state of affairs should be improved with due regard to the principle of proportionality. It is in this context that this article reviews a certain decision rendered in 2019 by the Supreme Court. It deals with a case where a VAT-taxable person acted under a name borrowed from another person, and received VAT invoices under that borrowed name (hence an “incorrect” invoice in this sense). The Supreme Court, in this case, held that the ITC may still be allowed provided that the borrowed name can be regarded as representing the real taxable person (and not the lender of the name). The author submits that this decision can be understood as one example of aptly alleviating the rigidness of the practice currently in place, based on due consideration of why and how the incorrect invoice has been issued, and thus should be positively evaluated. The author goes on to argue that an interpretation in line with the proportionality principle that takes into account all the relevant facts and circumstances with respect to preparation and issuance of VAT invoices is warranted. It also adds that, in connection with the facts peculiar to this case, this decision lacks in a general and comprehensive framework on how to identify the real parties to the taxable transaction irrespective of their names used, so the Supreme Court needs to further develop such a framework if it intends this decision to serve as a valid guide for future cases.