Daejeon District Court 2012Guhap3417 (Law No. 29, 2013)

A tax invoice generated in a taxable period not determined by data can not be determined as a false tax invoice.

Even if it is a transaction with data, it cannot be determined that a tax invoice for a transaction occurred in a taxable period other than the taxable period fixed by the processing transaction is a false tax invoice, and the burden of proof is the tax authority.

2013Nu985 Disposition of revocation of Disposition of Imposition of Value-Added Tax

KimA

The Director of the National Tax Service

Daejeon District Court Decision 2012Guhap3417 Decided May 29, 2013

April 17, 2014

May 1, 2014

1. The part of the judgment of the court of first instance against the Plaintiff falling under the order of revocation below shall be revoked. The Defendant’s imposition of value-added tax OOOO for the first period of November 1, 201 against the Plaintiff on November 1, 201 shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

The judgment of the first instance court is revoked. The defendant's imposition of the first term value-added tax for the plaintiff on November 1, 201, the second term value-added tax for the year 2009, the second term value-added tax for the plaintiff, the first term value-added tax for the year 2009, the first term value-added tax for the year 2010, the second term value-added tax for the year 2010, the second term value-added tax for the year 2010, and the global income tax for the second term for the year 2010 shall be revoked.

1. Details of the disposition;

A. Oil transaction between the Plaintiff, BB, and CCC

"1) The Plaintiff operates a gas station from May 9, 2004 to OO-gu O, 1201 to DD gas station." The Plaintiff, as shown below, is issued five copies of the purchase tax invoice of the OCO and four copies of the purchase tax invoice of the CCC Co., Ltd. (hereinafter “CCC”) in total of the supply values from BB companies (hereinafter “B companies”) as shown below, and the tax invoice of the above Chapter 9 (hereinafter “instant tax invoice”) was reported as the input tax amount and deducted from the output tax amount at the time of filing a value-added tax return during the second period from 2009 to 2010.”

Taxation Period

Preparation Date

Suppliers

Value of supply (cost)

Amount of tax (source)

1

1, 2009

June 30, 2009

BB Commercial Corporation

OOO

OOO

2

Second Period, 2009

July 31, 2009

BB Commercial Corporation

OOO

OOO

3

August 31, 2009

BB Commercial Corporation

OOO

OOO

4

September 30, 2009

BB Commercial Corporation

OOO

OOO

5

October 31, 2009

BB Commercial Corporation

OOO

OOO

6

1, 2010

April 30, 2010

CCC

OOO

OOO

7

May 31, 2010

CCC

OOO

OOO

8

June 30, 2010

CCC

OOO

OOO

9

2010 Second Period

July 31, 2010

CCC

OOO

OOO

B. Disposition of rectification of value-added tax and global income tax on the Plaintiff

1) The Director of the Daejeon Regional Tax Office, after conducting a tax investigation with respect to BB and CCC, determined that both BB and CCC issued a tax invoice without a real transaction, and notified the Defendant that the instant tax invoice was false.

"2) The Defendant denied the deduction of the input tax amount under the instant tax invoice, and notified the Plaintiff on November 1, 201 of the receipt of the instant tax invoice on the first quarter of 2009, the value-added tax for the second quarter of 2009, the value-added tax for the second quarter of 2009, the OOOO for the first quarter of 2010, the OO for the second quarter of 2010, the OO for the second quarter of 2010, the OO for the second quarter of 2010, and the OO for the global income tax for the second year of 2010 (hereinafter “instant disposition”).

The Plaintiff appealed and filed an objection on December 22, 201, but the objection was dismissed on January 19, 2012. The Plaintiff filed an appeal with the Tax Tribunal on March 2, 2012, but the Tax Tribunal dismissed the Plaintiff’s appeal on May 10, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1, 8, Gap evidence 9-1 through 5, Gap evidence 10-1 through 4, Eul evidence 1 through 3, Eul evidence 5-1 through 5, Eul evidence 7 and 33, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The assertion that the tax invoice is not false

The Plaintiff, as stated in the instant tax invoice, was actually supplied with oil by BB and CCC, and paid the price normally. Therefore, the instant tax invoice is not a false tax invoice.

2) The assertion that the person is a trader with good faith and without negligence

Even if the instant tax invoice is a tax invoice different from the fact, the Plaintiff was unaware of the fact that the oil was supplied by other companies than BB companies or CCC. In light of the fact that the Plaintiff and BB companies and CCC’s permission for petroleum sales business, and whether the petroleum products dealt with are normal by a public certificate, etc., the Plaintiff is a trader with good faith and without fault on the ground that the Plaintiff was not aware of the fact.

3) Therefore, the instant disposition should be revoked in an unlawful manner.

B. Relevant statutes

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

(c) Fact of recognition;

1) Facts pertaining to BB

The Daejeon regional tax office investigated BB companies on their first data in 2009 and 2010, and confirmed the following facts, and accused BB companies and BB companies' nameE and KimF on suspicion of violating the Punishment of Tax Evaders Act.

○ BB opened at OO on January 4, 2008, and moved its place of business to OO-dong 386 GGGl2 on February 2, 2009, and it was closed ex officio on April 30, 2010, and the name E is in the status of a government prison.

○BS reported to be oil storage facilities by the oil transporter, and the OO stated that the oil transporter was above the oil storage facilities was also listed in OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O, there was no record of oil storage prior to the closure of business or no record of actual transactions of oil.

In the event that the oil price is deposited from the ○○ Company’s financial account to the account of HH (hereinafter “HH”), the purchaser was transferred to the account of HH (hereinafter “HH”), and then was immediately withdrawn in cash in order to make it impossible to track the financial transaction. HH was a corporation that issued a tax invoice to the BB without real transaction and was accused of it as a complete data.” The BB was issued a purchase tax invoice equivalent to the total amount of the OE amount through fraudulent transactions during the 2009 and the 1st taxable period of the value-added tax in 2010 and 2010, and issued a sales tax invoice equivalent to the total amount of the OE amount to the total amount of the OE amount through fraudulent transactions conducted by H from H, etc.

2) Facts related to CCC

In 2010, the Director of the Daejeon Regional Tax Office investigated CCC on the first and second data and confirmed the following facts.

On March 30, 2010, ○CC registered its business as wholesale/trade at OO-dong 587-15, and registered its petroleum export-import business on May 7, 2010, but the representative strong II died on August 8, 2010, and the place of business was closed and processed ex officio in a public housing book with a long-term closure.

The type of business of ○CC was registered for petroleum export and import through wholesale/trade, but there was no record of export and import of petroleum in the JJ Corporation, and there was no fact that OO-1 storage was reported as oil storage facilities.

The CCC oil transport stated that CCC oil was fully charged at the storage place located behind the OIC oil station. However, as a result of the on-site verification, the above place is used as a cargo garage for KK freight from several years, and the fact that the oil was loaded in the storage place was not verified.

In 2010, the CCC received purchase tax invoices amounting to the total amount of OOCO won from LL Energy Co., Ltd. through false transactions during the first taxable period of the value-added tax, and issued sales tax invoices amounting to the total amount of 23 OOO won outside of DO stations operated by the Plaintiff through false transactions without real.

○ In addition, CCC issued sales tax invoices equivalent to the total amount of OOO won at 17 places outside D gas stations operated by the Plaintiff through false transactions without real documentation, even though there was no details of the report on purchase of oil during the tax period of 2010 for the low 12 VAT period.

The money deposited from the seller was immediately withdrawn in cash in order to prevent financial tracking as a result of the financial investigation of the CCC’s corporate account.

The CCC issued a fake tax invoice of the amount equivalent to the OOO won within a short period of time (three months) as a PPS corporation that has no place of business or business facility and has no details of oil purchase.

3) Oil transactions between the Plaintiff, BB, and CCC

“A) The Plaintiff introduced BB company around 2009 from KimN, a business employee of M&A (hereinafter referred to as “MM transfer”) and received a copy of BB company’s business registration certificate, petroleum sales business registration certificate (general agency) and passbook from M&N in facsimile. In addition, around 2010, the Plaintiff introduced CCC from the above KimN, and received CCC’s business registration certificate, petroleum export-import business registration certificate, and passbook copy by facsimile. (B) the Plaintiff ordered CCC’s oil to the office of M& transfer, which is not BB company or CCC, by facsimile, by facsimile or telephone, and the oil tank article such as KimPP transferred the oil to the deposit account in the name of BB or CCC if the Plaintiff supplied the oil with oil in the dopco oil reservoir prior to the DB station operated by the Plaintiff.

C) While trading with BB company or CCC, there was no direct visit between BB company or CCC office and the oil storage company, and the representative of the said company was unaware of who was the representative.

D) In order to verify whether the oil supplied by BB or CCC has a normal quality such as pseudo petroleum, the Plaintiff requested the Institute to verify the quality of the oil, entered the volume of the oil loaded into the trade situation register, and reported the amount of the oil loaded to the Korea Gas Association. The first viewed oil transported vehicle was kept with a camera photo.

E) Although the statement of transaction (port prior to shipment) received by the Plaintiff from BB company stated the date of shipment, the shipment, the transport equipment number, the name of the transporter, the quantity, the consignee, and the name of the consignee, the entry is not limited to the name of BB company, which is not the oil reservoir, and there is no column for temperature/group, TNK NO, the claimed amount, the settlement amount and the amount, and it is not known at all. The statement of transaction (port prior to shipment) received from CCC also includes the date of shipment, the transport equipment number, the arrival date, the arrival date, the approved quantity, the supplier, the shipper, the shipper, the consignee 1, TNNNO, the claim amount, the settlement quantity and the amount, the evidence No. 2, evidence No. 1 to No. 2, evidence No. 3, evidence No. 2, evidence No. 1 to No. 5-1, evidence No. 3, evidence No. 5-2, evidence No. 1 to No. 4-2, evidence No. 2, evidence No. 5-1 to 7-2, evidence No.

D. Determination

1) Relevant legal principles

Article 17(2)2 of the Value-Added Tax Act (amended by Act No. 10409, Dec. 27, 2010) provides that “The burden of proving that a tax invoice received in the course of a certain transaction constitutes a different tax invoice from the fact under Article 17(2)2 of the Value-Added Tax Act (amended by Act No. 10409, Dec. 27, 2010)” (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008).” Furthermore, a tax invoice is issued by a business operator who supplies goods under the Value-Added Tax Act, and a person liable to pay value-added tax is not a person establishing a nominal legal relationship with a business operator who actually receives goods or services or a person who actually supplies goods or services from a business operator who actually supplies goods or services (see, e.g., Supreme Court Decision 2002Do4520, Oct. 10, 2003).

2) Determination on the imposition of value-added tax for the first period of 2009

In light of the fact that the Plaintiff received the shipment slips from the BB company, and the number and transporter of the vehicle transporting oil in the shipment slip, and the amount corresponding to the oil price was remitted to the account in the BB company’s name, as revealed in the above facts of recognition, the Plaintiff may be recognized as being supplied with the oil listed in the shipment slip.

Therefore, in order to recognize that the tax invoice received by the Plaintiff from the BB on June 30, 2009 constituted a tax invoice different from the facts under Article 17(2)2 of the Value-Added Tax Act, the Defendant must prove that the other company that is not the BB company is the oil supplier to the Plaintiff.

However, as revealed in the above facts, the Plaintiff appears to have engaged in a transaction with BB company using the same transaction statement (port prior to shipment) as in the second taxable period of 2009 even in the first taxable period of 2009. However, the Defendant appears to have completely failed to conduct an investigation with BB company on the material of the first taxable period of 2009. The Daejeon regional tax office conducted an investigation with BB company on the material of the second and first taxable period of 2009. The Daejeon regional tax office decided that BB company issued a false tax invoice after conducting an investigation with respect to the material of 209 and 2010 with respect to the second taxable period of 209 and 2010. However, in light of the results of the first taxable period of 209 and 2010, it is difficult to find BB company as data even in the first taxable period of 209.

Therefore, it cannot be readily concluded that the Plaintiff’s tax invoice received from BB on June 30, 2009 is a false tax invoice. Therefore, the imposition of value-added tax for the first period of 2009 out of the instant disposition is unlawful.

3) Determination on the imposition of global income tax for the second term of 209, for the second term of 2010, for the second term of 2010, and for the second term of 2010, and for the global income tax for

A) Whether the instant tax invoice (excluding the tax invoice dated June 30, 2009; hereinafter the same shall apply) is a false tax invoice

(1) If a taxpayer of value-added tax proves that a tax invoice submitted as a basis for input tax deduction was prepared in a false manner without real transactions or that the entries in a tax invoice are different from the fact, and thus, the tax office’s substantial proof of whether it is an actual purchase or the authenticity of the entries in the tax invoice is disputed. In a case where it is proved that a transaction with a supplier stated in a tax invoice claimed by the taxpayer is considerably false, it is necessary for a taxpayer who is easy to present data, such as account books and evidence, as to the fact that the transaction with the supplier listed in the tax invoice was deemed as an agent (see, e.g., Supreme Court Decision 2007Du1439, Aug.

(2) Even if the Plaintiff was actually supplied oil as specified in the instant tax invoice, if the transaction partner who supplied oil to the Plaintiff is not a BB or CCC but a different supplier, the instant tax invoice is different from the fact. Therefore, whether the transaction partner who supplied oil to the Plaintiff is consistent with the supplier under the tax invoice shall be examined.

위 인정사실과 을 제11, 20호증의 각 기재 및 당심 증인 임QQ의 증언에 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정, 즉 ① BB상사의 대표이사인 명EE는 BB상사가 주유소에 유류를 운송할 때 HHH와 MM에이전트가 알아서 운송하는 경우는 자신이 관여하지 않아서 HHH와 MM에이전트가 어디에서 유류를 가지고 오는 것인지 모르고, BB상사가 직접 운송해야 하는 경우에도 김PP 등에게 운송지사를 하였으나 BB상사의 실행위자인 김FF이 지시하는 대로 전달한 것에 불과하여 어디에서 유류를 가지고 오는 것인지 모른다고 진술하고 있는 점, ② MM에이전트의 유류운반 직원인 김PP 등은 OOIC주유소 뒤편에 있는 저장소에서 유류를 상차하였다고 진술하나 위 저장소에는 유류를 입출고한 사실이 없는 것으로 보이는 등 BB상사와 CCC의 사업장이나 유류저장시설로 신고된 곳에 서는 실제로 유류를 저장 ・ 운반 ・ 공급한 사실이 없는 것으로 보이는 점, ③ CCC은 석유수출입업체로 한국석유공사에 등록된 법인이지만 한국석유공사에 조회한 결과 석유류 수출입실적이 전혀 없는 점, ④ BB상사나 CCC이 원고에게 유류를 공급하기 위해서는 국내외 정유사로부터 유류를 매입해 와야 할 것인데 BB상사나 CCC이 원고에게 발행한 출하전표에 기재된 차량번호로 정유사에 출하내역을 조회한 결과 원고 운영의 DD주유소나 BB상사 및 CCC으로 유류가 출하된 내역은 없고, 달리 BB상사나 CCC이 원고에게 공급할 유류를 어디선가 매입하였음을 인정할 다른 증거도 없는 점 등을 종합하여 보면, BB상사나 CCC이 실제로 매입한 유류 가 없는 상황에서 원고에게 유류를 공급하였다고 보기 어려우므로 이 사건 세금계산서에 기재된 유류의 실제 공급자는 BB상사나 CCC이 아닌 제3자로 봄이 상당하다.

Therefore, since the tax invoice received by the plaintiff constitutes a tax invoice that is written differently from the fact by the supplier, this part of the plaintiff's assertion is without merit.

B) Whether the Plaintiff acted in good faith and without fault

(1) Unless there are extenuating circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence on the part of the person who received the other tax invoice in the name of the tax invoice, and the person who asserts the deduction or refund of the input tax amount shall prove that the person who received the tax amount was not negligent in not knowing the above fact of deception (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009).

(2) As to whether the Plaintiff was negligent in not knowing the difference between the supplier and the actual supplier as indicated in the instant tax invoice, the Plaintiff’s evidence alone presented by the Plaintiff is insufficient to acknowledge that the Plaintiff was not negligent due to the failure of such knowledge, and there is no evidence to acknowledge that there was no negligence due to the failure of such knowledge.

Rather, the following circumstances revealed by the facts and purport of the entire pleading, i.e., (i) the supply of B/CC-related oil is complicated and frequent; thus, if the oil supplier is an ordinary supplier, it is necessary to pay attention to whether the oil supplier is actually a supplier. Furthermore, since the Plaintiff had been engaged in petroleum retail business since around 2004, it seems that the Plaintiff had been aware of the general structure and route of the supply of the oil, the general form and method of the industry, and the fact that the oil industry had widely spreaded to the oil industry and its danger, and (ii) the oil distribution slips issued and delivered by the Plaintiff were an important material material material to verify whether the oil supplier was transacted through the normal distribution channel, and the supply of the oil is deemed to have been carried out by the Plaintiff at the time of the supply of the oil, and thus, it is difficult for the Plaintiff to find that the Plaintiff was not aware of the normal supply of the goods in question and the supply of the goods in question within a certain period of time.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed for lack of reason. Since the judgment of the court of first instance is unfair with a different conclusion, part of the plaintiff's appeal is accepted, and the part concerning the value-added tax for the first time in the judgment of the court of first instance in the judgment of the court of first instance in the judgment of the court of first instance in the 2009 is revoked, and the disposition of imposition of the value-added tax for the first time in the 2009 among the disposition of this case is revoked