끼워넣기 거래와 사실과 다른 세금계산서의 판단 ―대법원 2023.5.18. 선고 2022도13690 판결을 중심으로―

In this paper, the method of determining the “factually untrue tax invoice” in so-called “sandwiched transactions” is discussed, focusing on the Supreme Court Decision 2022DO13690 rendered on May 18, 2023 (here, a “sandwiched transaction“ refers to a situation when B is sandwiched between transactions A and C without any rational purpose). It seems that the tax office is treating tax invoices issued in “sandwiched transactions” as a factually untrue tax inovices based on the substance -over-form principle. However, the substance-over-form principle cannot be used as a basis for determining whether a tax invoice is factually true or not. First of all, the substance-over-form principle is a principle for taxation when the form and substance of a transaction are different, not a principle for denying the validity of a legal relationship under civil law. It is also not appropriate as a basis for imposing administrative penalties. Another problem is that applying the substance-over-form principle is likely to violate taxpayer predictability. Even if a taxpayer and its counterparty are suspected of using a special relationship to divide profits or improper support, this is a matter to be determined under individual legal provisions, such as the anti-avoidance rules on denial of unfair actions and calculations under the Corporate Income Tax Act and the provisions on improper supporting behavior under the Fair Trade Act. It is not a matter that can be resolved by treating the tax invoice issued between them as a factually untrue tax invoice. Whether or not a tax invoice is a factually untrue tax invoice should be determined according to the content of the contract. If the content of the contract is unclear, it is necessary to clarify the content through the interpretation of legal acts and then determine whether the invoice is factually untrue accordingly. The above discussion should equally apply to sandwiched transactions. As long as the judicial validity of the interposed transaction itself is not denied, the tax invoice issued in the name of the contracting party should be considered unchallenged. The substance-over-form principle should not be relied upon to deny the form of an interposition transaction and the tax invoice issued thereunder should not be viewed by the supplier or the recipient as a untrue invoice. Supreme Court Decision 2022DO13690 rendered on May 18, 2023. held that unless there are circumstances to deny the existence of a “sandwiched company (B)” in the “sandwiched transaction (A-B-C)”, the intentions of the contracting parties should be considered to determine whether the tax invoice issued in the transaction is a tax invoice that is different from the facts. In addition, it was clarified that issues such as profit sharing or unfair support using a special relationship between the parties should be resolved by the anti-avoidance rules on denial of unfair actions and calculations under the Corporate Income Tax Act and the provisions on improper supporting behavior under the Fair Trade Act, as opposed to treatment as factually untrue tax invoices. This decision is expected to provide a uniform standard for determining whether a tax invoice is factually untrue in other sandwiched transaction cases.