세금계산서상 하자에 대한 세금계산서를 발급하는 자와 발급받는 자의 책임의 비교법적 고찰

Abstract

In this paper, the author made a research on who between the two of the issuer of tax invoice and its receiver and has to take responsibility for its defects under the Value Added Tax Act("the VATA") of Korea and how the person has to take such responsibility. The illegitimate activities of taxpayers often tend to be motivated and instigated by the issuer of tax invoice. It is not unusual that the receiver of tax invoice finds himself deprived of the right of input tax credit, even though he has already paid value added tax to the issuer of tax invoice and received the invoice believing it as legitimate evidence for the credit. The courts established that the receiver of the invoice may keep the right of input tax credit as far as he may prove that he exercised the duty of care and was not negligent at the time of the transaction. But we may hardly find actual cases where the courts found that the receiver has proved his successful exercise of the duty of care. In Japan, the National Tax Agency has published a guideline for the receiver which prescribes the method on how to check the identity of the issuer. The German courts seem to throw the burden of proof on the tax authorities in recent court cases. The tax authorities have to prove that the receiver was negligent during the transaction process. The VATA in Korea may well introduce a provision to mitigate the burden of proof of the receiver. Basically, the courts have to determine on to whom the burden of proof is given for the finding of facts. Keeping such basic principles of court proceedings intact, the VATA may introduce a safe harbor provision that the receiver is presumed to have exercised due care if he follows the prescribed procedures under the VATA. On the other hand, a system for the government side also has to be introduced in the VATA to have the receiver of invoice who knows or should have known with due care the intent of the issuer of invoice not to pay the tax collected to the tax office to share the responsibility to pay the tax collected by the issuer (the so called "missing trader").