Cho High Court Decision 201Do3125 ( November 30, 2011)

The plaintiff's good faith and negligence that the oil supplier received a tax invoice different from the fact should not be recognized.

The Plaintiffs returned the oil supplied to the Plaintiff, and the Plaintiffs did not take any verification measures as to the authenticity of the business parties and the normal course of the distribution of the oil, despite the omission of the entry of the temperature, weight, etc. of the oil in the oil on the shipment slip received. Therefore, in receiving a tax invoice different from the facts, the Plaintiff’s good faith and without fault should not be recognized.

Article 17 of the Value-Added Tax Act

2012Guhap6711 Revocation of Disposition of Imposition of Value-Added Tax

LAA et al.

Head of Seodaemun Tax Office

October 12, 2012

October 26, 2012

1. The plaintiff's claims are all dismissed.

2. The plaintiffs shall bear the litigation costs.

Value-added tax imposed on Plaintiff LA on January 3, 201, 2008, 000 won for the second term of 2008, 2009, 2000 won for the first term of 2009, 2000 won for the second term of 2008, 2009, and 000 won for the second term of 2009, 2009, and 000 won for the first term of 2009, and 000 won for the first term of 2010 for the first term of 2010, imposed on Plaintiff BB Energy on January 10, 201.

1. Details of the disposition;

A. On March 2008, from March 2008 to March 2009, Plaintiff LA operated DB Energy Co., Ltd. (hereinafter “Plaintiff BB Energy”) with her husband’s LA while operating DB stations (former trade name: EE stations) located in 000 OOdong, Eunpyeong-gu Seoul, and operated DB Energy as a corporation on March 23, 2009.

B. In addition, the Plaintiff LA from June 2007 with the ParkCC, operated the FFF stations located in 000 O-dong O-dong 000 in Gyeyang-gu, Ansan-si, and transferred the workplace to 000 O-dong 000 in Eunpyeong-gu Seoul around June 2009 and changed its trade name to GG stations.

C. In operating each gas station, the Plaintiffs received purchase tax invoices from the purchasing parties in the pertinent taxable period (hereinafter referred to as “purchase parties in this case”) and submitted them as a total tax invoice by seller (hereinafter referred to as “total tax invoice table by seller”) as shown in attached Table 1, and reported and paid value-added tax after deducting the value of supply from the input tax amount.

D. The Defendant: (a) viewed the list of the instant tax invoices as the list of the total tax invoices by seller different from the fact on the ground that the instant purchaser is the so-called data market (not for the purpose of operating oil wholesale or gas stations, but for the purpose of selling only short-term data); (b) added the input tax amount, added the additional tax; and (c) corrected and dismissed the value-added tax to the Plaintiffs as shown in the attached Table 1 (hereinafter “instant disposition”).

E. The Plaintiffs dissatisfied with the instant disposition and filed a request for each trial with the Tax Tribunal on August 18, 201, but the Tax Tribunal dismissed all the Plaintiffs’ requests on November 30, 201.

[Ground of Recognition] The non-satched facts, Gap evidence 1 to 6, Eul evidence 1 to 2, and 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The Plaintiffs are supplied with real oil directly from the instant purchaser and paid the price, and then submitted a list of total tax invoices by seller after receiving a tax invoice, and the list of total tax invoices by seller is not the list of total tax invoices by seller different from the fact.

2) Even if the purchaser of this case supplied oil ordered at other places as data, it was found that the Plaintiffs confirmed the business registration certificate, and the deposit account copy of the oil price in the name of the purchaser, and did not know the above fact.

B. Relevant statutes

Article 17 of the Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201; hereinafter the same shall apply)

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as "paid tax amount") shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as "purchase tax amount") from the tax amount on the goods or services supplied by the entrepreneur himself/herself (hereinafter referred to as "amount of tax to be supplied"):

(2) The following input taxes shall not be deducted from the amount of tax payable:

1. An input tax amount in cases where a list of total tax invoices for purchase punishment is not submitted under Article 20 (1) and (2), or an input tax amount in cases where the whole or part of the registration numbers or supply values by transaction parties is not entered or differently entered from the fact, from among the items to be entered on the list of the total tax invoices for purchase punishment submitted, the input tax amount in the portion where such entry is not entered or differently entered from the fact: Provided

2. An input tax amount in cases where a tax invoice under Article 16 (1), (2), (4) and (5) is not issued, and all or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as "necessary entry items") are not entered or differently entered from the fact on the tax invoice issued: Provided, That the input tax amount in cases prescribed by the between the President and the President shall be excluded;

(c) Fact of recognition;

1) In normal distribution channels, when oil is delivered to the gas station, one of the invoices issued at the time of shipment (including the date and time of shipment, the name of the transaction partner, the arrival, the place of arrival, the transportation equipment, the volume of the goods and the shipping, the potteries, and the weight) issued at the time of shipment in oil reservoir, etc. at oil reservoir, shall be placed in the orderer, and one of the invoices shall be placed in the oil reservoir, and two of the pages shall be delivered to the supplier of the relevant oil and delivered the oil to the supplier of the relevant oil, one of them shall be recovered by the driver, and the other one is delivered to the gas station, and the normal pre-delivery chart shall include the date and time of shipment, temperature at the time of shipment, etc., because there is an increase or decrease in the volume after the temperature of petroleum products.

2) The tax authorities, such as the Seoul Regional Tax Office, conducted a tax investigation on the instant purchasing agencies and confirmed the following facts.

3) The Director of the Seoul Regional Tax Office filed a complaint against all of the purchase headquarters of the instant case in violation of the Punishment of Tax Evaders Act, and the progress of the relevant criminal case is listed in the table 2 attached hereto.

4) The Plaintiffs, while deciding to purchase oil from the instant purchasing entity at least 20 won to the extent of 50 won from the oil market price, confirmed the above purchasing entity’s business registration certificate and received oil after being supplied with the oil.

The oil amount was remitted to the account in the name of the purchaser, and the details of the transaction in the name of the purchaser and the tax invoice were issued.

5) After 2-3 days of oil delivery through oil delivery service, the instant purchasing agencies issued the shipment slips issued by the purchasing agencies to the Plaintiffs in the way that oil was transported through oil delivery service, the Plaintiffs recovered the oil pre-issuance slips issued by the Plaintiffs, and then sent them together with the tax invoices.

[Ground of Recognition] The non-contentious facts, Gap evidence 6 to 14, evidence 20 to 32, and evidence 4 to 30, witness apK, and L testimony, as a whole, and the purport of the whole pleadings.

D. Determination

1) Whether the aggregate tax invoices of this case are the aggregate tax invoices for individual suppliers different from the fact

Article 17 (2) 1-2 of the Value-Added Tax Act provides that input tax shall not be deducted from the output tax amount, and that the entries of the tax invoice are different from the facts, and that if the ownership of the income, profit, calculation, act or transaction subject to taxation is nominal and there is a person to whom it actually belongs, the person to whom it actually belongs is liable for tax payment. In light of the purport of Article 14 (1) of the Framework Act on National Taxes, where the necessary entries of the tax invoice are different from those of the parties to the goods or service, regardless of the formal entries of the transaction contract, etc. made between the parties to the goods or service, it is reasonable to view that the necessary entries of the tax invoice are different from those of the parties to whom the goods or service is supplied, or that the purchaser of the tax invoice are different from those of the parties to the transaction, and that the purchaser of the tax invoice was not issued with the Plaintiffs’ usual list or those of the purchasing parties, and that the purchaser of the tax invoice was not issued with the Plaintiffs’ purchase agencies.

2) Whether the plaintiffs are bona fide and without fault or not

As the actual supplier and other supplier on the tax invoice are not aware of the names of the supplier, and that there was no negligence on the part of the supplier that the supplier did not know of the names of the supplier, and that there was no negligence on the supplier’s failure to know of the above facts (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009). The Plaintiffs were not aware of the fact that there was no other circumstances that the supplier was not aware of the actual supplier’s trade in the supply of the oil, and that there was no need to verify the actual supplier’s trade in the supply of the oil in light of the specific route of the supply of the goods or services and the trade practice of the industry, and that there was no other evidence that the Plaintiffs did not know of the actual supplier’s trade in the supply of the oil, and that there was no further need to verify the actual supplier’s purchase of the oil at the time of the supply of the goods or services.

3) Sub-decisions

Therefore, the instant disposition that revised and notified value-added tax to the Plaintiffs is lawful, without deducting the input tax amount on the aggregate tax invoice of this case from the output tax amount.

3. Conclusion

Then, the plaintiffs' claims in this case are all dismissed as it is without merit, and they are decided as per Disposition.