Seoul Administrative Court 2010Guhap38615 ( October 31, 2011)

Seocho 2010west 1553 (2010.08)

applicable to a processing tax invoice issued without supplying the oil as stated in the actual

(1) In the case of a processing tax invoice issued without supplying oil as stated actually between the supplier and the supplier, by means of receiving the processing tax invoice from the company accused of the data and forging the shipment invoice, and engaging in abnormal business such as not supplying oil to the selling agency and issuing a false tax invoice to the supplier.

2011Nu13257 Imposition disposition, etc. of value-added tax

XX Petroleum Corporation

The head of Yangcheon Tax Office

Seoul Administrative Court Decision 2010Guhap38615 decided March 31, 2011

October 5, 2011

November 9, 2011

1. The part against the defendant regarding the imposition of corporate tax in the judgment of the first instance shall be revoked;

2. All of the plaintiff's claims corresponding to the above revocation are dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim, purport of appeal and scope of trial of this court

1. Purport of claim

The Defendant’s imposition of KRW 18,264,060 of corporate tax for the business year 2007 against the Plaintiff on February 1, 2010, KRW 20,992,850 of corporate tax for the business year 2008, KRW 8,583,750 of value-added tax for the business year 271, and KRW 14,429,350 of value-added tax for the second period of 2008 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

3. Scope of the judgment of this court.

The judgment of the first instance court dismissed all of the plaintiff's claims for revocation of the disposition imposing value-added tax, and accepted all the claims for revocation of the disposition imposing value-added tax. Accordingly, the plaintiff did not appeal, and only the defendant appealed against the claim for revocation of the disposition imposing value-added tax.

1. The part citing the judgment of the court of first instance

In the reasoning of the judgment of this court, the pertinent part is cited in accordance with Article 8(2) of the Administrative Litigation Act, the main text of Article 420 of the Civil Procedure Act, on the ground that the pertinent part is identical to the pertinent part of the judgment of the court of first instance until the Plaintiff’s assertion, or the Plaintiff’s assertion, or the relevant Acts and subordinate statutes (from the second sixth judgment of the court of first instance to the third below).

2. Determination as to the legitimacy of the imposition of each of the corporate tax in this case

A. Whether each of the tax invoices of this case is based on the processing transaction

1) The Defendant did not recognize sales amount equivalent to the value of supply stated in the tax invoice as deductible expenses on the premise that each of the tax invoices of this case constitutes a tax invoice which pretends that real transactions were conducted without real transactions, and did not impose corporate tax of this case.

2) First, we examine whether each of the tax invoices of this case constitutes the tax invoice that was prepared without real transaction. The following facts can be acknowledged in full view of Gap evidence Nos. 1, Eul evidence Nos. 2 through 9, Eul evidence No. 15 (including paper numbers, hereinafter the same shall apply) and the purport of the entire pleadings.

1. The first transaction partner of the Daejeon-gu Daejeon-dong 000 XX Housing 000, the second transaction partner of the Incheon Gyeyang-gu 00-00 O building 00, the third transaction partner of the office located in the Cheongju-dong 000, and the third transaction partner of the office located in the Cheongju-si 000, but all of the transaction partners of the instant case did not use oil storage facilities and transportation equipment that were not equipped with or leased with oil storage facilities and transportation equipment.

② The first transaction office, which was accused of the material, received each processed tax invoice from △△ Petroleum Co., Ltd., △△△△ Petroleum Co., Ltd., △△△ Petroleum Co., Ltd., △△△2, from companies including △△△ Energy, etc., which were accused of the material, and the third transaction office received each processed tax invoice from the companies such as △△ Petroleum Co., Ltd., and △△△△△ Petroleum Co., Ltd., △△△△, which were accused of the material, and forged the shipment slips, issued a false tax invoice without actually supplying oil to the sales transaction partners such as the Plaintiff, etc. In the case of the first transaction office, approximately KRW 31.23 billion from February 2, 2007 to February 2008, about KRW 9.74 billion from the value-added tax base, KRW 2.3 billion from the value-added tax base for KRW 2.3 billion from the year 2008 to KRW 2.3 billion from the year 2008 billion.

③ After investigating each customer of the instant case, the director of the Seo Daejeon District Tax Office, the director of the Central District Tax Office, and the director of the Dong Jeju District Tax Office accused that each of the instant transaction parties and their representatives were issued and delivered with false tax invoices.

④ 원고가 이 사건 각 거래처로부터 유류를 공급받으면서 교부받은 출하전표라고 주장하는 갑 제8호증의 1 내지 5의 출하전표 중 갑 제8호증의 1, 2, 4의 출하전표는 정상적인 출하전표가 아니고, 갑 제8호증의 3과 갑 제8호증의 5의 출하전표는 발행자가 제2거래처와 제3거래처가 아닌 ◆◆뱅크 주식회사와 ■■에너지 주식회사로 되어 있다. 국세청 세무조사 결과, 이 사건 각 세금계산서에 기재된 유류 매입일을 전 ・ 후한 매입가격은 원고의 주매입처인 ■■에너지 주식회사 등으로부터 공급 받는 평균단가와 비슷하거나 오히려 더 높은 것으로 조사되었다.

⑤ As a result of the National Tax Service’s tax investigation, funds deposited into the deposit account in the name of each of the instant transaction parties were most deposited in cash and deposited into the borrowed account. At the time of the tax investigation, the representative of the first and second transaction parties (1979) stated that the amount deposited at the selling place where no actual oil was supplied was issued without any actual transaction due to cash withdrawal and transfer of the amount excluding data fees, etc. to the borrowed-name account designated at the selling place. At the time of the tax investigation, the Plaintiff was excluded. In addition, at the time of the tax investigation into the third transaction place, the Plaintiff stated that the tax invoice of KRW 20.8 billion, including the tax invoice received from the third transaction place, was not a real transaction.

3) According to the facts established above, each of the instant tax invoices constitutes a processed tax invoice issued without oil being supplied as stated in the tax invoice between the “supplier” and the “supplier”.

B. Whether the value of supply of each tax invoice of this case can be recognized as deductible expenses

1) If a tax invoice on a part of any of the costs reported by a taxpayer is proved to have been prepared falsely by the tax authority without a real transaction, and it is disputed as to whether it is an actual cost, and the taxpayer's use of the cost claimed by the taxpayer and the other party to the payment have been proved to the extent that it is reasonable for the other party to the tax payment, the taxpayer shall prove the tax invoice easily to present all the data, such as the account book keeping and documentary evidence (see Supreme Court Decision 96Nu8192, Sept. 26, 1997).

2) 앞서 본 대로 원고가 받은 이 사건 각 세금계산서는 가공 거래를 바탕으로 작성된 세금계산서에 해당한다. 이에 대하여, 원고는 이 사건 각 세금계산서가 가공 거래를 바탕으로 한 세금계산서에 해당하더라도, 실제 ▲▲에너지 주식회사 조DD의 권유에 따라 유류를 공급받은 사실은 인정되므로, 공급가액 상당을 손금으로 인정해 주어야 한다고 주장한다. 그러나 갑 제3. 7. 9. 10. 13. 15 내지 23호증의 각 기재만으로는 실제 유류 공급이 있었다는 사실을 인정하기 부족하고, 제1심 증인 이EE, 배FF의 증언은 믿기 어려우며, 달리 원고가 주장하는 사실을 인정할 증거가 없다. 그 이유는 다음과 같다.

① 원고는 ▲▲에너지 주식회사 조DD으로부터 싼 가격에 유류를 공급하겠다는 제의를 받고 유류를 공급받았는데, 이 사건 각 세금계산서가 문제된 후 ▲▲에너지 주식회사 대표자 김GG 및 조DD과 연락이 되지 않아 그들로부터 사실확인서를 받지 못하였고, 다만 실제 유류를 공급한 운전기사 5인 중 1인인 이EE으로부터 유류운반 확인서(갑 제7호증의 1)를 받았으므로, 이 사건 각 세금계산서상 공급가액에 상당하는 유류를 지급받은 것은 사실이라고 주장한다.

그러나 원고가 운영한 주유소에서 주유원으로 아르바이트하였던 경험이 있었던 것에 불과한 조DD의 말만 믿고 유류 거래를 하였다고 보기도 어렵고, 조DD이 거래 제의를 하면서 주었다고 하는 명함(갑 제6호증)에 나와 있는 주소지를 소재지로 하여 ▲▲에너지 주식회사가 사업자등록을 한 사실도 없다(다툼 없는 사실, 변론 전체의 취지).

On December 20, 2007, EE testified to supply oil to a vehicle with 93 AA000 on the match on December 20, 2007. However, on the shipment slip (Evidence A No. 8-1) submitted by the Plaintiff, it is difficult to believe that EE testified is difficult to believe that the transport vehicle number is 93ia000 on the shipment slip submitted by the Plaintiff (EE appears to have changed the shipment slip No. 8, but it is also difficult to believe).

② 제1심에서 조DD으로부터 유류를 공급받았다고 증언한 원고 관리주임 배FF는 이 사건 각 세금계산서가 수취된 기간(2007. 12. 14.부터 2008. 11. 7 까지)에는 원고 대표이사 한HH이 대표자로 있는 ★★주식회사에서 근무하였을 뿐 원고가 운영하는 주유소에서 근무하지 않았다(을 제10호증의 1 내지 3).

③ On December 14, 2007, the Plaintiff transferred KRW 26,020,00 from his own account to the account of the first trading agency; KRW 25,820,000 on December 207 to the account of the first trading agency; KRW 33,050,000 on September 9, 2008 to the account of the second trading agency; KRW 30,860,000 on September 9, 2008; and KRW 27,820,00 on November 7, 2008 to the third trading agency account; and most of the said money was withdrawn in cash from each of the transaction parties of the instant case or on the following day (Evidence 16 through 18). The representative of the trading agency; and KRW 2B on September 1, 2008 to the third trading agency account.

④ Of each of the instant tax invoices, the tax invoices received from the second transaction partner on September 8, 2008 and the shipment slips corresponding to each of the tax invoices received from the third transaction partner on September 8, 2008 were issued on September 8, 2008. The date when the Plaintiff deposited money to the second transaction partner and the third transaction partner on September 9, 2008.

3) The imposition disposition of each of the instant corporate tax on the premise that the oil supply stated in each of the instant tax invoices is a processed transaction is lawful.

3. Conclusion

Of the judgment of the first instance court, the part against the defendant regarding the imposition of each corporate tax of this case shall be revoked. The plaintiff's claim for revocation of each corporate tax of this case shall be dismissed.