early 2010 Heavy2785 ( October 23, 2011)

When a oil supplier receives a tax invoice different from the fact, the plaintiff's good faith and negligence cannot be recognized.

In full view of the fact that the instant tax invoice constitutes a false tax invoice by the supplier of the oil, and that the Plaintiff has operated the gas station for a long time, the entries on the shipment slip have been defective, and the Plaintiff did not verify the physical facilities of the customer even if the oil was supplied in bad faith, the Plaintiff’s good faith and negligence cannot be recognized.

Article 17 of the Value-Added Tax Act

2011Revocation of revocation of imposition of value-added tax, etc.

KimAA 2 others

Head of Ansan Tax Office

December 28, 2012

January 18, 2013

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On January 4, 2010, the Defendant revoked each imposition of the global income tax of 000 won for the first period of 2007, value-added tax of 000 won for the second period of 2007, value-added tax of 000 won for the second period of 2008, value-added tax of 000 won for the second period of 2008, and the global income tax of 000 won for the second year of 2006, and the global income tax of 000 won for the second year of 2007, while the imposition of global income tax of 000 won for the year 2008 is revoked.

1. Details of the disposition;

A. From around August 1, 1993, the deceased operated a gas station in the name of "EEOOO" in the Dong-gu OOOOdong OOOOOO, Ansan-si. The deceased, from January 2007 to December 2008, after deducting the input tax amount pursuant to the above tax invoice receipt details, filed a purchase tax invoice (hereinafter referred to as "tax invoice") of KRW 000 in total supply value from the company, GG Energy Incheon Branch (hereinafter referred to as "GG energy"), and HH Petroleum Daejeon Branch (hereinafter referred to as "H petroleum"), and filed a return for the pertinent taxable period with the Defendant by deducting the input tax amount pursuant to the tax invoice from January 2007 to December 2008.

(Omission of Details of Receiving)

B. In filing a comprehensive income tax return with the Defendant from 2006 to 2008, the Deceased included 00 won (=00 won for the portion belonging to the year 2006 + 000 won for the portion belonging to the year 2007 + 000 won for the portion belonging to the year 2007) in necessary expenses.

C. However, the Defendant denied the deduction of the pertinent input tax amount on the ground that each of the above companies issuing the instant tax invoices constitutes a disguised business that issued the said tax invoices without actual transactions, and did not include the lease expenses of the instant vehicles in the necessary expenses by deeming the lease expenses of the instant vehicles as unrelated to the gas station duties. Accordingly, on January 4, 2010, the Defendant issued each of the instant tax invoices as follows: (a) the value-added tax for the first period of 2007; (b) the value-added tax for the second period of 2007; (c) the value-added tax for the second period of 2007; (d) the value-added tax for the second period of 2008; (d) the second year of 200 and the global income tax for the second year of 2006; and (e) the global income tax for the second year of 2007; and (e) the global income tax for the second year of 2008 (including additional tax for each of the instant dispositions).

D. On August 23, 2011, the Deceased filed an appeal against the instant disposition with the Tax Tribunal for adjudication, but the said claim was dismissed.

E. On August 30, 2011, the Deceased died and jointly succeeded to the rights and obligations of the Deceased, Plaintiff KimA, his wife, and Plaintiff II, his wife, and this JJ jointly succeeded to the rights and obligations of the Deceased’s property.

[Ground of Recognition] The facts without dispute, Gap evidence 1 to 5, and Eul evidence 1 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

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

① The Deceased was supplied with actual oil from FF energy, GG energy, and H oil, and accordingly received the instant tax invoice, and even if not, the said tax invoice does not correspond to the tax invoice different from the facts, and ② even if not, it was supplied with oil without knowing that each of the above companies was a disguised business entity at the time of the purchase of oil, and thus, it constitutes a transaction party of good faith and negligence, and the Defendant’s additional imposition is unlawful.

(2) As to the imposition of global income tax

In operating a gas station, the deceased used the instant vehicle to commute to and from work, and visit the customer. Therefore, the lease cost of the said vehicle constitutes necessary expenses and should be deducted from the total revenue amount of the deceased. Nevertheless, it is unlawful for the Defendant to exclude the foregoing lease cost from the necessary expenses and to correct the increase in the global income tax amount of the deceased.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

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

(A) Whether the tax invoice of this case is false or not

1) Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 9268 of Dec. 26, 2008) provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the facts. It means that the entries of a tax invoice are different from the facts, and where there is a person to whom the entries of a tax invoice are F, and where there is another person to whom the entries are in fact belong, the person to whom the entries are in fact belong shall be liable for tax payment in light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that the provisions of the tax invoice shall apply to the person to whom the entries are in fact and the person to whom the goods or services are actually supplied or supplied, regardless of the form of a transaction contract, etc. made between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

2) Based on the above legal principles, the tax invoices in this case received by the deceased from F Energy, GG energy, and HH oil are tax invoices entered falsely by the supplier, i.e., false tax invoices, in full view of the following circumstances acknowledged by the entire purport of the argument in each of the statements in Gap, Eul, Eul, Eul, Eul, and Eul (including each number), and Eul, Eul, and Eul (including each number). The plaintiffs' assertion is without merit.

① The FF Energy was registered as a business operator on October 9, 2006, but closed on March 31, 2007, and there was no fact that it owned or leased the oil reservoir and oil transport vehicle necessary as an oil agent during the said business period. Moreover, the FF Energy was confirmed to have been 9.5% of the purchase tax invoice received during the second and the first taxable period of the Value-Added Tax in 2006 and the sales tax invoice in 2007, and 9.92% of the sales tax invoice in 2007. In addition, FF Energy was found to have been issued, and it was stated that the oil price deposited in the deposit account in its name to make a real transaction was immediately withdrawn in cash, and that the FF Energy was accused of it as data.

② The GG energy was registered as a business operator on July 1, 2007, but closed on April 24, 2008, and was never shipped oil in the name of the GG energy during the said business period, and was concluded a lease contract for oil reservoir and oil-transport vehicles for the registration of petroleum sales business, and did not have used oil reservoir and oil-transport vehicles during the said business period. Moreover, the results of the investigation conducted by the head of Busan Regional Tax Office in 2007 and 1st year in 2008 were confirmed to have been completely processed. In this regard, the head of the GG energy was indicted as a crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance of False Tax Invoice, etc.) and the Seoul High Court was sentenced to a judgment on March 25, 2010 and the judgment on July 2, 2010 became final and conclusive.

③ On November 16, 2007, HH petroleum was registered as a business operator, but closed on September 30, 2008, but only concluded a lease agreement on oil reservoir and oil-transport vehicles for petroleum sales, and there was no use of oil reservoir and oil-transport vehicles during the said business period. Moreover, HH petroleum was confirmed as a processing transaction by 9.71% of the purchase tax invoice and sales tax invoice received during the value-added tax period from 207 to 2008. In addition, HH petroleum was found to have undergone financial transactions, such as immediately withdrawing in cash the oil amount deposited in the bank account in order to pretend real transactions.

④ As such, FF Energy, GG energy, and H oil are so-called “data” that receives false tax invoices without real transactions, and there is little fact that they actually purchased oil from other customers, and each of the above companies cannot be deemed to have actually supplied a large volume of oil to the Deceased, such as the entries in the instant tax invoice.

(B) Whether to recognize the deceased’s good faith and negligence

1) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice are not aware of the fact that the person who received the tax invoice was not aware of the name of the tax invoice, and that the person who received the tax cannot deduct or refund the input tax amount, and that the person who received the tax did not know the fact that he was not negligent, the person who claimed the deduction or refund of the input tax amount should prove that the person who claimed the deduction or refund of the input tax amount was not negligent (see, e.g., Supreme Court Decision 2002Du

Furthermore, in light of the details of the issuance and delivery of tax invoices, the price of the goods or services supplied, and the specific route and process in which the goods or services in question are supplied, where there were sufficient circumstances to suspect who is a supplier, and whether the nominal supplier is not a disguised supplier, the recipient’s confirmation of the supplier’s business registration certificate, etc. without actually verifying the name supplier’s place of business, business facilities, etc. is difficult.

2) Based on the above legal principles, the deceased was unaware of the title of the tax invoice in this case, and the health stand, Gap 7 through 9, 11 through 15, and 17 through 19, and 21 through 21, each part of the evidence Gap 10-10, and each fact inquiry into the airport oil supplier is insufficient to recognize that the deceased was not aware of the name of the tax invoice in this case, and that there was no other evidence to support these facts. Rather, there is no other evidence to prove that Eul 2 through 4, and 16 through 21, and that there was no other evidence to prove that the oil supply equipment in this case was less than those of the deceased at the time of the sale of the oil in this case, and that it was less than those of the deceased at the time of the sale of the oil in this case, and that it was more difficult for the deceased to find that the oil supply equipment in this case was less than those of the normal distribution of the deceased, and that it was less than those of the gas supply market in this case.

(2) As to the imposition of global income tax

(A) Article 27 (1) of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2008; hereinafter the same) stipulates that "the amount to be included in necessary expenses in the calculation of business income amount shall be included in necessary expenses in the calculation of business income amount

The total amount of expenses corresponding to the total amount of income is generally accepted, and the expenses confirmed as being disbursed by the business operator in connection with domestic affairs under Articles 61 (1) 1 and 78 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21195 of Dec. 31, 2008), and the acquisition, maintenance, repair, and related expenses incurred by the business operator by acquiring and managing assets not related to his/her affairs shall be excluded from the FF under Article 27 (1) of the former Income Tax Act, and the expenses to be included in the necessary expenses under Article 27 (1) of the former Income Tax Act shall be excluded.

(B) In light of the above provisions of each of the above Acts and subordinate statutes, it is difficult to see that the vehicle of this case was used mainly for the deceased's duties, such as the size of the station, operation time, type of the vehicle of this case, and type of the vehicle of this case, and type and characteristics of the vehicle of this case and the period of use of the vehicle of this case (including each number), as follows: ① the deceased already acquired the OOOO car of this case around September 20, 2004, before leasing the vehicle of this case, as fixed assets in the account book of the gas station until 2008, the vehicle of this case was used for the above automobile of this case for each taxable year; ② the vehicle of this case was used for the vehicle of this case for the deceased's duties and the vehicle of this case for which the deceased had been operated, and the vehicle of this case was used for the vehicle of this case from 7 years to 16 years to 20 years to 16 years to 20 years to 20 years to 16 years to 20 years to 1.

3. Conclusion

If so, the plaintiffs' claims in this case are without merit, each of them is dismissed, and it is so decided as per Disposition.