Daegu District Court 201Guhap2608 ( October 15, 2012)

Cho High Court Decision 2010Du3539 ( October 26, 2011)

The tax invoice of this case is a tax invoice different from the fact that the supplier's entry is not true, and the plaintiff's good faith and negligence cannot be recognized.

The tax invoice of this case is a tax invoice different from the actual entry of the supplier, and the plaintiff has operated the gas station for a long time, purchased oil at the container, and omitted entry of the location of the oil station, the time of shipment, the shipment number, the shipper, temperature, etc.

Article 17 of the Value-Added Tax Act

2012Nu738 Disposition, etc. to revoke the imposition of value-added tax

Park AA

Head of the Chang District Tax Office and one other

Daegu District Court Decision 201Guhap2608 Decided February 15, 2012

August 17, 2012

September 7, 2012

1. The plaintiff's appeal is all dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The imposition of the first instance value-added tax for the first period of October 1, 2010 against the plaintiff on the first period of 2009 and the second half-yearly value-added tax for the plaintiff on October 1, 2010, and the imposition of the second half-yearly value-added tax by the head of Seogu Tax Office on October 1, 2010 against the plaintiff shall be revoked in all of the imposition of the global income tax for the year of 2009.

1. Details of the disposition;

(a) From March 31, 2009, the Plaintiff operates “BB gas station” from 102-1 to 202-1 on the ground that it was supplied with oil during the period of January 2009 and value-added tax, and that it was issued by D Energy Co., Ltd. (hereinafter referred to as “D Energy”) on June 24, 2009, the purchase tax invoice (the supply price of KRW 000, the tax amount of KRW 000, the tax amount of KRW 000, the tax amount of KRW 200, the tax amount of KRW 300, the purchase tax invoice (the supply price of KRW 00, the tax amount of KRW 00, the tax amount of KRW 200, the tax amount of KRW 30, the tax amount of KRW 200, the tax amount of KRW 200, and the tax amount of KRW 30,000, the tax amount of KRW 20,84, 2009.

B. On October 1, 2010, the head of the tax office issued a corrective disposition to exempt the input tax amount for the first period portion of the tax year 2009, the second period of value-added tax in 2009, and the second period of value-added tax in 2009 on October 1, 2010, and the head of the tax office issued a corrective disposition to impose tax amount of KRW 000,000 on each of the above dispositions on October 1, 2010 (amended by Act No. 9897, Dec. 31, 2009) by adding additional tax equivalent to 2/100 of the total sum of the supply values under the tax invoice in this case to global income tax amount of 209,59080, and the above dispositions by the Defendants (hereinafter referred to as the "each of the above dispositions by the Defendants") under Article 81 (4) of the former Income Tax Act.

[Ground of Recognition] The non-satched facts, Gap evidence 1, 2, and 4 (including household numbers, hereinafter the same shall apply), and Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Even if DD Energy and EE Energy do not actually supply oil, the Plaintiff was supplied with oil, deposited the price in the account of the said company for normal transactions, and the said company did not know that it was material. Furthermore, the instant disposition was unlawful on the ground that it was not negligent in failing to know the fact of the above company’s name by fulfilling its duty of care as a transaction party, such as receiving the business registration certificate of D Energy, the certificate of corporate seal impression, and the certificate of corporate petroleum sales registration, and deposit the price in the above company’s account with the oil being supplied, and deposit the price into the above company’s account at the time of being supplied with the oil, including the instant tax invoice at the time of being supplied with the oil, and the transaction specifications, the vehicle number, the transporter, and the consignee.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

(1) Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 915, Jan. 1, 2010) provides that input tax shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the facts, and that "the entries of a tax invoice are different from the facts" refers to cases where the requisite entries of a tax invoice do not coincide with the subject, value, and time of the goods or services supplied or being supplied, notwithstanding the formal entries of a transaction contract, etc. made between the parties with respect to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). In this case, comprehensively taking into account each of the arguments stated in Article 18 through 25, and since DD Energy and EE Energy are the so-called processing data without a transaction, and it can be acknowledged that they are not actually supplied with oil, it is different from the facts of the instant tax invoice.

(2) If the supplier and the actual supplier under the tax invoice are different, the input tax amount under the tax invoice may not be deducted or refundable unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the name of the tax invoice, and that the supplier was not negligent in not knowing the above fact (see, e.g., Supreme Court Decisions 2009Du1808, Jun. 11, 2009; 2002Du2277, Jun. 28, 2002). In this case, the Plaintiff’s assertion that the Plaintiff was not aware of the fact that the Plaintiff was supplied with oil and deposited the price into the accounts of DD energy and EE energy, and that the Plaintiff was not aware of the fact that the Plaintiff was not aware of the fact that the Plaintiff did not know of the fact that the Plaintiff was not aware of the fact that the Plaintiff did not know of the fact in light of the circumstances that the Plaintiff was unable to know, or that there was no other evidence that the Plaintiff did not know of the entire testimony.

① From March 7, 2005, the Plaintiff had been operating 'F station' from 000 to 'F station' on the monthly port of Seongbuk-gun, Seongbuk-gun, Seongbuk-gun, Seongbuk-do. Therefore, in light of the experience during the operation of 'BB station', the Plaintiff was able to know the normal structure and distribution route of oil supply, and the general type and method of the oil industry, and the actual status and risk of data trading.

② The Plaintiff purchased the instant oil through the introduction of an abnormal friendly flag, and did not prepare a supply contract between DD Energy and EE Energy, and purchased the instant oil at a level of 000 to 000 won per L, compared to the normal supply price of oil companies.

③ When supplying oil to gas stations, the shipment slips issued are important data to confirm that the oil is transacted through normal distribution channels, and the Plaintiff is suspected to have been issued the shipment slips with the location of oil stations and the shipment time, which are necessary matters to confirm whether the oil is refined or not, compared with the expected transport time and the actual transport time, so it is suspected that DD energy or EE energy is not the actual supplier.

④ The majority of the shipping slips received by the Plaintiff do not indicate the pre-issuance number or shipment number (in Chapter 31, only Chapter 7 is included in Chapter 6, and Gap evidence 6-8 through 31 is included in Chapter 6, and the shipping slips in the name of DD Energy are in blank space (No. 6-1 through 15). In addition, oil, depending on temperature and density, includes the time of issuance in the first place, and the temperature and density are accurately stated, and both the shipping slips received by the Plaintiff are written on a daily basis, and the time of issuance and temperature are written in the blank space.

⑤ Although there were circumstances to suspect that DD energy or EE energy can differ from the actual supplier, such as the above issues on the shipment slip received, the Plaintiff did not completely confirm whether the instant purchasing entity is a actual supplier, such as visiting the place of business or business facilities of the instant purchasing entity.

6) Even if the Plaintiff received a copy of the DD Energy Business Registration Certificate, a corporate seal impression, and a petroleum retail business registration certificate, and paid the price into the accounts of DD Energy and EE Energy, it is merely a tool to disguised normal transactions in so-called so-called “data transactions,” and it is difficult to find that the Plaintiff was negligent in not knowing the disguised fact of the tax invoice of this case.

3. Conclusion

Thus, the judgment of the first instance which rejected the plaintiff's claim of this case is just, and the plaintiff's appeal is justified.

Therefore, all of them are dismissed. It is so decided as per Disposition.