Incheon District Court 2012Guhap4139 (21 December 2013)

early 2012 Heavy1278 (O1, 2012)

It is not enough to recognize the fact that the defendant's proof alone constitutes a different tax invoice from the fact that it is another company that is not a key company.

In order to recognize that a taxpayer constitutes a tax invoice different from the facts provided in Article 17 (2) 1-2 of the Value-Added Tax Act, the Defendant must prove the fact that the other company, other than the purchaser of the instant case, supplied oil to the Plaintiff, but it cannot be concluded that it is a tax invoice different from the fact because it

Article 17 (2) of the Value-Added Tax Act

2013Nu8822 Value-added Tax, etc.

leAA

The Director of Incheon Tax Office

Incheon District Court Decision 2012Guhap4139 Decided February 21, 2013

November 8, 2013

January 10, 2014

1. Of the judgment of the first instance court, the part against the Plaintiff corresponding to the order of revocation is revoked. On December 8, 2011, the part that the Defendant imposed upon the Plaintiff the imposition of each of the main value-added tax for the first period of value-added tax in 2009, OOOOO won for the second period of value-added tax in 2009, 2010, OOOOO won for the principal tax for the second period of value-added tax in 2010, and OOOO won for the first period of value-added tax in 2010 is revoked.

2. The plaintiff's remaining appeal is dismissed.

3. 10% of the total costs of litigation shall be borne by the Plaintiff, and 90% by the Defendant respectively.

The judgment of the first instance court is revoked. On December 8, 2011, the defendant revoked the imposition of each of the first value-added tax imposed on the plaintiff on the plaintiff on December 2009, the second value-added tax in 2009, the second value-added tax in 2009, the first value-added tax principal in 2010, the first value-added tax principal in 200, and the second value-added tax principal in 2010.

1. Quotation of judgment of the first instance;

The reasons for this judgment are as stated in the reasons for the judgment of the first instance, except for the modification of the third, third, and sixth of the judgment in accordance with the following paragraph (2).

2. Parts to be corrected;

C. Whether the instant tax invoice constitutes a false tax invoice

(1) Facts of recognition

The following facts may be admitted if there is no dispute between the parties, or if the purport of the entire pleadings is added to each entry in Gap evidence of 8 to 29, Eul evidence of 4 to 7, 10, and 13 (including additional numbers):

(A) The Plaintiff’s receipt of the shipment slips from the instant purchasing entity include the date of shipment, shipment (in human oil storage stations, Incheon Port Distribution Center, etc.), transport vehicle numbers, etc., and the shipment date indicated in the shipment slips and the Plaintiff’s remittance of the oil price to the account of the instant purchasing entity through their own account. The date indicated in the shipment slips and the date indicated therein are identical.

" (나) 천안세무서와 대전지방국세청의 조사관들이 작성한 보고서(을 제4호증)에는 주식회사 EE에너지(이하EE에너지'라고 한다)의 2009년 제1기 신고 매출내역이 OOOO원이고, EE에너지가 FFF오일 주식회사, GG주유소, HH주유소 등에 합계 OOOO원의 허위 세금계산서를 발행해 준 것으로 기재되어 있다. 그런데 위 보고서에는 나머지 신고 매출내역에 대해서도 허위 세금계산서가 발행되었는지 여부와 원고가 운영하는 II주유소가 EE에너지로부터 허위 세금계산서를 받았다는 내용은 기재되어 있지 않다.", " (다) 중부지방국세청과 대전지방국세청 소속 조사관들이 작성한 보고서(을 제5호증)에는 주식회사 JJ상사(이하JJ상사'라고 한다)의 매입처인 KKK가 2009. 7. 1.부터 2010. 3. 31.까지의 부가가치세 매출 신고액에 대하여 허위 세금계산서를 발행한 자료상인 것으로 기재되어 있으나, JJ상사가 KKK 이외에 다른 업체에서 유류를 매입하였는지에 대해서는 조사가 필요한 것으로 기재되어 있다. 검사는 KKK 및 그 대표이사 이LL를 조세범처벌법위반 혐의로 기소하면서 JJ상사에 대한 2009년 제1기 매출처별 세금계산서 합계 OOOO원 중 KKK가 실거래라고 주장한 OOOO원은 공소사실에서 제외하였다.", " (라) 부산지방국세청 소속 조사관들이 작성한 보고서(을 제6호증)에는 주식회사 MM에너지(이하MM에너지'라고 한다)가 2010년 제1기 부가가치세 매출 신고액 중 일부에 대하여 허위 세금계산서를 발행하였으나, 주식회사 NN에너지로부터 OOOO원, 주식회사 PP에너지로부터 OOOO원의 유류를 실제 매입한 사실이 있는 것으로 기재되어 있다. 또한 위 보고서에는 QQ주유소, RR주유소 등이 MM에너지로부터 허위 세금계산서를 받았다는 내용이 기재되어 있으나 원고가 운영하는 II주유소가 MM에너지로부터 허위 세금계산서를 받았다는 내용은 기재되어 있지 않다.", " (마) 용인세무서 소속 조사관들이 작성한 보고서(을 제7호증)에는 주식회사 SSS(이하SSS'이라고 한다)이 2010년 제1기에 부가가치세 매출 신고액 OOOO원 전액에 대하여 허위 세금계산서를 발행하였고, 원고가 운영하는 II주유소가 SSS로부터 허위 세금계산서를 받은 것으로 기재되어 있다.", (2) 판단

In principle, the burden of proving that a tax invoice received in the course of a specific transaction constitutes a different tax invoice from the fact provided for in Article 17 (2) 1-2 of the Value-Added Tax Act, for which the deduction of an input tax amount is denied on the ground that such transaction is a nominal transaction without the delivery or transfer of goods (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008). The person liable to deliver a tax invoice to a business operator who is supplied with the goods or services by a business operator who is provided with the goods or services pursuant to the Value-Added Tax Act shall be deemed to be a person who actually trades the goods or services with a business operator who is not a person establishing a nominal legal relationship with the business operator who actually supplies or receives the goods or services from the business operator who is not a person who actually supplying the goods or services (see, e.g., Supreme Court Decision 2002Do4520, Jan. 1

In light of the above legal principles, the plaintiff is in possession of the forwarding slips received from the purchaser of this case as seen above, and the change and the driver of the vehicle transporting oil in the forwarding slips are stated, and the amount corresponding to the oil price is remitted to the account in the name of the purchaser of this case on the shipment date indicated in the forwarding slips, the plaintiff can be recognized that the plaintiff actually paid the price and received the oil listed in the forwarding slips. Therefore, in order to recognize that the tax invoice of this case constitutes a tax invoice different from the fact provided in Article 17 (2) 1-2 of the Value-Added Tax Act, the defendant must prove that the other company, other than the purchaser of this case, is the oil supplier of the plaintiff.

However, according to the above facts, some of the sales revenue of EE Energy, JJ and MM energy can be known to the fact that the actual transaction occurred, and the evidence submitted by the Defendant alone alone is insufficient to find that the oil supplier supplied the Plaintiff as a different company. Therefore, it cannot be readily concluded that the Plaintiff’s tax invoice received from EE Energy, JJ and MM energy in the instant invoice is a tax invoice different from the fact. Thus, the part denying the input tax deduction related to the above company in the instant disposition is unlawful.

On the other hand, according to the above facts, the company that supplied oil to the Plaintiff can recognize the fact that it is a third party company, not SS, since SS issued a false tax invoice for all transactions without real transactions. Therefore, since the tax invoice received from SS constitutes a false tax invoice, it is legitimate to deny the deduction of the input tax amount related to SS among the disposition of this case.

D. Whether the Plaintiff is bona fide and without fault for the transaction with SS

An actual supplier and a supplier on a tax invoice shall not be allowed to deduct or refund an input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not knowing the fact that the purchaser was unaware of the nominal name (see Supreme Court Decision 2002Du2277, Jun. 28, 2002).

In light of the above legal principles, the evidence submitted by the Plaintiff alone is insufficient to recognize the Plaintiff’s good faith and without fault in receiving the tax invoice from SS. Rather, the Plaintiff’s entry in the evidence Nos. 5, 6, 7, 12, 17, 22, and 27, and the evidence Nos. 1 and 3 (including the serial number) as a whole in the testimony of part of the witness Kim TT in the first instance trial, and the following circumstances, i.e.,: ① the shipment slip issued and delivered at the time of supply of oil is transacted through normal distribution channels; ② the Plaintiff did not indicate SS as a supplier on the shipment slip held by the Plaintiff; ② the Plaintiff sent the cargo to Kim TT, an intermediary, and settled the price of the oil, and the Plaintiff received the tax invoice at the price of the oil without fault, and the Plaintiff did not know whether the Plaintiff was an employee of S1 and the Plaintiff did not know of the need to be supplied with the oil at the time of the investigation.

(e) the scope of the cancelled tax amount;

As seen above, the input tax amount related to SS cannot be deducted, and the input tax amount related to EE Energy, JJ and MM Energy shall be deducted, and the legitimate tax amount to be borne by the plaintiff among the principal tax of the first half of the value-added tax in 2010, which includes SS-related input tax deduction, shall be OO members as shown in the attached Table [the details of the first half of the year 2010]. Therefore, among the disposition in this case, the portion concerning the principal tax of the second half of the year 2009 and the portion exceeding the above amount of the first half of the value-added tax in 2010 should be revoked as it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, it is revoked, and the remaining part of the disposition of this case except OO in the first place value added tax for the year 2010 is revoked, and the remaining appeal of the plaintiff is dismissed. It is so decided as per Disposition.