early 2010 Before 1552 ( December 29, 2010)

A gas station operator who was issued a false tax invoice;

A business operator operating a gas station who has received a tax invoice different from the fact, and it is insufficient to recognize the fact that the Plaintiff is bona fide and without fault in believing that the tax invoice received as such was properly prepared. Therefore, the disposition imposing value-added tax by non-deduction of the input tax amount is legitimate.

2011Guhap568 Demanding revocation of Imposition of Value-Added Tax

LAA

○ Head of tax office

6.23

July 14, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 63,945,160 on February 2, 2010 against the Plaintiff, KRW 93,827,890 on the first-year value-added tax in 2007, KRW 93,827,890 on the second-year value-added tax in 2007, KRW 113,873,260 on the second-year value-added tax in 2008, KRW 25,31,680 on the second-year value-added tax in 208, and KRW 18,840,50 on the global income tax in 207, KRW 15,850,340 on the global income tax in 208.

1. Details of the disposition;

A. From October 15, 2001 to June 30, 201, the Plaintiff operated a gas station with the trade name called ○○○○○-dong 90-3 to ○○○○○○.

나. 원고는, ① 2007년 제1기 부가가치세 과세기간 동안 주식회사 ◇◇마트(다음부터 '◇◇마트'라고 한다)로부터 공급가액 합계 219,296,364원의 매입세금계산서 3매, 주식회사 □□에너지(다음부터 '□□에너지'라고 한다)로부터 공급가액 합계 103,545,455원의 매입세금계산서 4매, 주식회사 ▽▽에너지(다음부터 '▽▽에너지'라고 한다)로부터 공급가액 37,090,909원의 매입세금계산서 1매를, ② 2007년 제2기 부가가치세 과세기간 동안 주식회사 △△에너지(다음부터 '△△에너지'라고 한다) △△지점으로부터 공급가액 합계 485,659,092원의 매입세금계산서 11매, □□에너지로부터 공급가액 합계 96,436,364원의 매입세금계산서 2매를, ③ 2008년 제l기 부가가치세 과세기간 동안 주식회사 ☆☆에너지(다음부터 '☆☆에너지'라고 한다)로부터 공급가액 합계 463,427,274원의 매입세금계산서 10매, 주식회사 ■■에너지(다음부터 '■■에너지'라고 한다) □□지점으로부터 공급가액 합계 133,200,000원의 매입세금계산서 4매, 주식회사 ●●에너지(다음부터 '●●에너지'라고 한다)로부터 공급가액 47,890,909원의 매입세금계산서 1매를, ④ 2008년 제2기 부가가치세 과세기간 중 ■■에너지 □□지점(다음부터 위 각 매입처들을 합하여 '△△에너지 등'이라고 한다)으로부터 공급가액 합계 148,000,000원의 매입세금계산서 3매(다음부터 위 각 매입세금계산서를 합하여 '이 사건 세금계산서' 라고 한다)를 각각 교부받아, 피고에게 이 사건 세금계산서 관련 매입세액을 매출세액에서 공제하여 각 과세기간의 부가가치세를 신고 ・ 납부하였다.

다. 부산지방국세청장은 △△에너지에 대하여, 강서세무서장은 ☆☆에너지에 대하여, 마포세무서장은 ■■에너지 □□지점에 대하여, □□지방국세청장은 ◇◇마트에 대하여, 동대문세무서장은 □□에너지에 대하여, 중부지방국세청장은 ●●에너지, ▽▽에너지에 대하여 이 사건 세금계산서와 관련한 세무조사를 실시하였고, 그 결과 이 사건 세금계산서는 실물거래 없이 허위로 발행된 것이라는 결론을 내리고, 이러한 조사결과를 피고에게 통보하였다.

D. Upon receipt of the above notification, the Defendant: (a) purchased the actual oil from the Plaintiff; (b) purchased the real oil; (c) subsequently, on February 2, 2010, on the ground that the Plaintiff’s actual supplier of the oil constitutes a tax invoice different from the fact, and (d) deducted the input tax amount pursuant to the instant tax invoice on February 2, 2010; and (b) notified the Plaintiff of KRW 113,873,260 in the year 2007, the value-added tax of KRW 93,827,890 in the year 2007; (c) KRW 113,873,260 in the year 208, the value-added tax of KRW 25,31,680 in the second year of the Value-Added Tax Act in the year 208; and (d) notified the Plaintiff of each of the disposition of KRW 18,840,50 in the global income tax for 2007, and KRW 30585.

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on May 4, 2010, but the said claim was dismissed on December 29, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 9, Gap evidence 20 to Gap evidence 23, Eul evidence 1, Eul evidence 2, Eul evidence 4, Eul evidence 14 (including various numbers), the purport of whole pleadings and arguments

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the fact that the Plaintiff purchased oil directly from △△△ Energy, not through the brokerage of oil brokers, but through the intermediation of the oil brokers, such as Won, SongBB, and Ansan, and that prior to the transaction of purchasing the oil, the Plaintiff confirmed by facsimile the business registration certificate of △△△ Energy, etc. and the copy of the passbook in the name of the corporation, and that each time he received the oil, the Plaintiff could not be aware that △△△ Energy, etc. was in material form, and that the Plaintiff was in receipt of a transport confirmation document from the transport engineers, and was in possession of the transport confirmation document. As such, the Plaintiff fulfilled its duty of due care in each of the above transactions, and thus, the instant disposition that did not deduct the input tax amount of the instant tax invoice was unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

(1) In the event that the oil is delivered to the gas station through normal distribution channels, one orderer is placed in the shipment slips (the date of shipment, the name of the customer, the place of arrival, the place of destination, the transportation equipment, the volume of the goods and the quantities of the goods, temperature and weight, etc.) issued at the time of shipment at the oil reservoir, etc. at the oil reservoir, etc. of the oil reservoir, and one orderer is placed in the oil reservoir, one copy is placed in the oil reservoir, and two copies are delivered to the driver of the vehicle in question and one copy is delivered to the gas station, and the other one is delivered to the gas station. Such normal distribution slips include increase or decrease in the volume after the temperature of the petroleum products.

(2) Oil transactions, etc. such as △△ Energy

(A) △△ Energy

1) △△에너지는 2007. 6. 19. 석유판매업등록을 마친 후 2007. 7. 1. 업종을 유류도매업으로 하여 사업자등록을 한 뒤 2008. 4. 24. 폐업한 사업자인데, 장DD가 △△에너지를 실제로 운영하였다. △△에너지는 위 사업기간 중 전국 어느 저유소에서도 △△에너지 명의로 유류를 출하 받은 적이 없었고, 또한 석유판매업등록을 위하여 ◆◆널 주식회사의 저장시설인 저유소와 수송 차량 등에 대한 임대차계약을 체결하였으나 위 기간 동안에 그 저유소와 수송 차량 등을 사용한 적이 한 번도 없었다.

2) The △△ Energy did not issue the shipment slips to the delivery driver on the date of shipment, and instead did not issue the shipment slips of △△△ Energy to the relevant gas station. However, after the delivery of oil, △△△ Energy staff prepared a false shipment slips with the shipment points and drivers using computers and twitter, instead of the actual contents, entered the shipment points and drivers at will, instead of the actual contents, and prepared a false shipment slip in accordance with the oil details shipped at the same time, and then sent the said shipment slips and tax invoices to the relevant gas station.

(b) Energy from △△;

1) The energy of the Do-won in Seoul Special Metropolitan City was originally established on July 1, 2006 under the name of the E as the representative of the CC Energy Corporation. However, on January 28, 2008, the representative changed to this FF, and the change was made to the energy of the Do-dong Special Metropolitan City.

2) The director of the district tax office having jurisdiction over the first taxable period in 2008 as the result of the tax investigation that was conducted by the head of the district tax office

Of 96,992,00,000 won, total purchase declaration amount of 96,890,601,297 won, 96,827,99,970 won, among total sales declaration amount of 97,05,02,727 won, 96,827,99,970 won, which was not accompanied by real transactions, was determined as a processed transaction. On September 9, 2008, △△△△ operated Energy was managed ex officio to close down its business and filed a complaint with the prosecution on the materials.

3) The energy of △△ in Seoul Special Metropolitan City was purchased oil from AA Energy Co., Ltd. and BB Energy Co., Ltd., but in fact there was no proper purchase of oil from the said Co., Ltd., but there was no rent of three storage facilities and transportation equipment for the registration of petroleum selling business, but there was no use of the storage facilities and transportation vehicles.

(다) ■■에너지

1) ■■에너지 □□지점은 2008. 5. 6. 대표자를 최GG으로 하고 업종을 유류 도 ・ 소매업으로 하여 사업자등록을 하였다가 2008. 9. 30. 폐업하였다.

2) 마포세무서장은 2008년 제1기, 2008년 제2기 과세기간을 ▽▽으로 한 세무조사 결과, ■■에너지 □□지점의 총 매출신고액 4,822,162,000원 중 4,822,147,000 원, 총 매입신고액 4,821,000,000원 전부를 각 실물거래를 수반하지 아니한 가공거래로 판단한 후 검찰에 자료상으로 고발하였다.

(D) △△ Bar Association

1) On October 25, 2001, ○○ Martic 25, 2001, business operator registered the type of oil as the kind of oil wholesale and retail business and closed the business on June 30, 2007.

2) As a result of the tax investigation conducted with regard to ○○ Mart 2, 2006 and the first taxable period of 2007 on the said period as △△△△ Maga, the head of △△△ District Tax Office decided that KRW 20,705,000 among the total sales reported amount of 22,301,00,000,000, the total sales reported amount of 22,070,000,000, which was total purchase reported amount of KRW 22,629,000,000, which was not accompanied by real transactions, was charged to the prosecutor’s office on the basis of data. △△△ Mtet was supplied with oil only from D Energy during the said period. However, among the above purchase reported amount of △△ Mte, the amount purchased from D Energy is the processed and sales without any number of real purchase.

3) The shipment slips of the oil refining company delivered by △△ Bar to the customer are different in terms of the shipment slips issued by each oil refining company and the customer code, card number, electric ticket number, and adequate temperature of oil, and the other party to whom the oil was shipped did not have been shipped on the relevant vehicle or the other party to whom the oil was shipped was confirmed to be a third party.

4) around June 206, 2006 in order to establish a bank account, prepare financial evidence from customers, and issue and deliver a false tax invoice and a forged shipment slip. An oil broker supplied illegal petroleum, etc. to the customer and issued and issued a false tax invoice in the name of △△○ Mart in the name of the customer.

(e) △ Energy;

1) On September 13, 2002, △ Energy was registered as the oil wholesale business and closed on December 31, 2007.

2) As a result, the head of the Dongdaemun-gu Tax Office conducted a tax investigation on the tax invoice for the tax period of 2006, the tax period of 2007, which was the year 25,460,000,000 in 2006, the second period of 522,10,000,000 in 206, and the first period of 9,820,820,800,000 in 207, and the second period of 5,591,840,000 in 207, which did not involve any real transaction, and filed a complaint with the public prosecutor.

3) △ Energy is the purchase of oil from AA Energy Co., Ltd. and BB Energy Co., Ltd., but in fact there was no adequate purchase of oil from the said Co., Ltd. and there was no use of storage facilities and transportation equipment leased for the registration of petroleum retail business.

(f) Bilateral energy

1) On January 1, 2008, the “Bilateral Energy” was a list of business operators, etc. using the type of business as petroleum Do and retail business.

2) The director of the Central Regional Tax Office of China, upon conducting a tax investigation into Bright Energy in the taxable period of 2008 with regard to the tax period of 2008 as the ▽Ⅳ, found the amount of KRW 148,60,000 out of the amount of KRW 157,100,000 in purchase, KRW 157,100,000 in purchase, KRW 147,600,000 out of the amount of KRW 157,100,000 in the processed transaction, and then filed a complaint with the prosecutor on September 30, 2008.

3) In the process of the tax investigation, Kim H, who was the accounting of BB energy, received a certain fee and made a statement that he/she had issued a tax invoice to Ebrypters of oil without material, and if he/she transfers the transaction price to AA Energy Co., Ltd. which was accused of criminal charge on the data, he/she repeated the financial transaction in the form of cash withdrawal.

4) ●●에너지는 석유류 판매업 등록 당시 ♧♧시 ♧♧동 516-5에서 주식회사 ♧♧에너지가 사용하던 저장탱크를 승계하여 기름저장시설로 사용한다고 신고하였으나 위 기름저장시설의 임대인인 주식회사 KK에너지의 이JJ 등의 확인에 의하면 위 저장탱크에 ●●에너지 관련 기름 등이 입출고된 사실이 없다.

(G) ▽▽▽ evidence.

1) On October 9, 2006, the ▽▽▽▽ energy registered business with the type of business as oil tool and retail business, and closed the business on March 31, 2007.

2) As a result of the tax investigation conducted with respect to the ▽▽△ Energy in 2006 and the first taxable period in 2007 as ▽△△△, the director of the Central Regional Tax Office of China: (a) found the amount of KRW 25,115,000 out of the total amount of sales reported during 2006, the amount of KRW 25,264,264,000,000 out of the total amount of total sales reported during 24,976,00,000 among the total amount of KRW 24,827,00,000,000 as a processed transaction; and (b) accused the prosecutor as data.

3) There was no fact that transportation equipment and oil storage for oil transport had been possessed or leased, and the processing purchase tax invoices were received from the data without real transactions and the processing purchase tax invoices were issued, and the actual transaction was disguised as if there was a real transaction under the method that manipulates the shipment slips and the financial transactions.

(3) Operation of gas stations by the Plaintiff

(A) From October 15, 2001, the Plaintiff operated the instant gas station.

(나) 원고는 장DD로부터 전화로 거래제의를 받아 △△에너지와 거래를 시작하였고, 유류중개업자인 원AA, 김부장, 유부장 등을 통하여 ■■에너지 □□지점, ☆☆에너지, ◇◇마트, □□에너지, ●●에너지, ▽▽에너지와 거래를 시작하였는데, 원고가 △△에너지 등으로부터 공급받은 유류의 가격은 시세보다 저렴하였다. 원고는 유류중개업자들을 통하여 △△에너지 등의 사업자등록증, 법인통장 등을 팩스로 교부받고, △△에너지 등과 전화통화를 한 사실은 있으나, △△에너지 등의 사무소, 유류저장소 등의 존부, 실제 유류공급을 하고 있는지 여부 등에 대하여 확인한 사실은 없었다.

(C) At the time of being supplied with oil from △△ Energy, etc., the Plaintiff did not receive the relevant shipment slips issued in the oil reservoir. The shipment slips issued in the name of △△ Energy, etc. were delivered by mail along with the tax invoice after 2-3 days. In some transactions, there were cases where the Plaintiff was supplied oil and did not receive the shipment slips. The shipment slips issued by the Plaintiff to △△△△△, etc. are issued in the name of △△ Energy, rather than the entry of most oil unique trade names, and most of the transport vehicles and the actual transport vehicles and the actual transport carriers are different.

(D) The shipment slips issued by △△ Energy, etc. do not include most of the locations of shipment, the temperature and share of oil, and all the entries are the same, and they are not written by the shipper.

[Ground of Recognition] Facts without dispute, each of the evidence mentioned above, Gap evidence 3 through Gap evidence 8, Gap evidence 10 through Gap 12, Gap evidence 24, Gap evidence 26, Eul evidence 27, Eul evidence 3, Eul evidence 5 through Eul evidence 13, Eul evidence 15, Eul evidence 16, Eul evidence 18 through Eul evidence 23 (including various numbers), Eul evidence 18 through Eul evidence 23, the testimony of the witnessCC and the purport of the whole pleadings.

D. Determination

(1) As to the imposition of value-added tax

(A) According to Article 17(2)1-2 of the Value-Added Tax Act, an input tax amount in a case where the entries of a tax invoice are different from the facts, shall not be deducted from the output tax amount. In such a case, the meaning that it is different from the facts is merely the nominal title of income, profit, calculation, act or transaction, and if there is a separate person to whom it actually belongs, the person to whom it actually belongs shall be liable for tax payment. In light of the purport of Article 14(1) of the Framework Act on National Taxes, which provides that if the necessary entries of a tax invoice are different from those of the parties to the transaction contract, etc. prepared between the parties to the goods or service, it refers to a case where the necessary entries of the tax invoice are different from those of the actual supplier, and a tax invoice is different from those of the supplier under the main sentence of Article 17(2)1-2 of the Value-Added Tax Act, and thus, it shall be deemed that the person who actually supplied the goods or service cannot be entitled to tax deduction or refund 20.

(B) Since there is no dispute between the parties as to the fact that the supplier received tax invoices from △△ Energy, etc. in this case was a false tax invoice, whether or not the Plaintiff was negligent in not knowing the fact that the Plaintiff was not negligent shall be the issues of this case.

Therefore, in full view of the above recognized facts and the purport of oral argument, the Plaintiff was operating a gas station from October 15, 201. The Plaintiff seems to have been sufficiently aware of the normal structure and distribution route of the oil supply, the general forms and methods of transactions in the oil industry, and the risks of transactions in the oil industry through diverse experiences. ② The Plaintiff did not confirm by facsimile the business registration certificate of customers including △△△ Energy, the corporate account, etc., and whether the Plaintiff actually supplies oil to the △△△△△△△△ branch office, the existence of oil storage, etc., and the actual supply of oil from the first stage of the first transaction. Since the Plaintiff did not know of the fact that there was no doubt about the distribution route of the petroleum products from the first stage of the sale, the Plaintiff did not appear to have been able to have been aware of the change in the market price of △△△△△△△△△ branch’s own market price at the time of the sale of the petroleum products, the Plaintiff did not appear to have been aware of the fact that most of the market price of △△△△, etc.

(C) Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and it is insufficient to recognize the circumstance that the Plaintiff is bona fide and negligent in believing that the said tax invoice was received as such, so the Defendant’s disposition imposing value-added tax on the Plaintiff is lawful.

(2) As to the details and disposition of global income

(A) Article 81(4) of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2008; hereinafter the same) provides that where an entrepreneur is supplied goods or services from another entrepreneur in connection with his/her business and fails to receive evidential documents falling under any of the subparagraphs of Article 160-2(2) of the same Act, an amount equivalent to 2/100 of the unpaid amount shall be added to the final tax amount. The purpose of the provision is to enhance transparency of the expenditure content of the entrepreneur and encourage the other entrepreneur to foster the tax base of the other entrepreneur, and thereby, it is difficult to achieve such legislative purpose. Thus, it is sufficient to collect evidentiary documents, such as expenses, etc., and impose sanctions to additionally pay an amount equivalent to a certain percentage of the unpaid amount for the breach of such duty.

(B) In the instant case, as recognized earlier, the Plaintiff received a false tax invoice as if he were supplied with oil under the instant tax invoice by a third party, not △△ Energy, etc., and did not receive any documentary evidence including each tax invoice from the actual supplier. Therefore, it is lawful for the Defendant to correct and notify global income tax by applying Article 81(4) of the former Income Tax Act on the ground that it was lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.