early 2010 Heavy0718 (201.05.02)

A supplier cannot be readily determined as a processed or disguised tax invoice solely on the basis of the fact that the supplier is data.

The mere fact that the supplier on the tax invoice is data cannot be readily concluded as a disguised tax invoice for processing or purchase of non-real-transaction without any real transaction, and the Plaintiff’s corporation may be deemed to have received oil at the head office of the supplier on the tax invoice.

Article 17 of the Value-Added Tax Act

2011. Revocation of imposition of value-added tax, corporate tax and secondary tax liability

AAADtech et al.

The Director of Incheon Tax Office

April 12, 2012

April 26, 2012

1. The Defendant’s each taxation disposition on June 2, 2009, the Plaintiff AADtech Co., Ltd., and August 4, 2009, the Plaintiff KimB, and July 15, 2009, with respect to the Plaintiff UCC, shall be revoked.

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

The same is as the order (the date of the disposition for the plaintiff corporation AAD et al. as written in the complaint is clear that " June 17, 2009" is a clerical error).

1. Details of the disposition;

A. The plaintiff AADte Co., Ltd. (hereinafter referred to as "the plaintiff corporation") is a company established on March 21, 2001 and engaged in general waste collection and transportation business, and the plaintiff KimB, and the UCC is an oligopolistic stockholder who owns 90% of shares issued by each director and 10% of shares issued by the representative director of the plaintiff corporation and each director, and the couple of the plaintiff corporation.

B. On October 31, 2006, from 31 December 31, 2006 to 31, 2006, the Plaintiff Company received purchase tax invoices (hereinafter “the instant tax invoices”) equivalent to the total value of supply from the DD Energy Co., Ltd. (hereinafter “DD Energy”), and filed a value-added tax return after deducting the input tax amount from the total value of supply from January 31, 2007 to May 31, 2007, and filed a corporate tax return by including the said value of supply in deductible expenses.

C. At around September 2007, the director of the regional tax office of China: (a) judged that DD Energy was the data on which the tax invoice was issued without actual transaction; and (b) the other transaction partners other than some transaction partners who submitted specific and reliable explanatory materials as the transaction partner who is in the position of the final consumer, not the oil wholesale or gas station among DD Energy's transaction partners, other than some transaction partners who have submitted specific and reliable explanatory materials, were notified to the competent tax office due to processing or suspicion; and (c) on June 2, 2009 (the date of disposition on June 17, 2009, the date of disposition on June 2, 2009, will only be the starting point for the appeal period as of the date of notification), on the ground that it was the processed purchase with respect to the Plaintiff corporation, and on July 4, 2009 and July 15, 2009, the disposition of this case was made by the Plaintiff KimB and the Plaintiff corporation as the second taxpayer of the Plaintiff corporation, and each of value-added tax and corporate

D. On August 18, 2009, the Plaintiffs appealed to the Central Regional Tax Office on the ground that it is difficult to view the entire tax invoice of this case as the processing tax invoice, and on November 27, 2009, the director of the Central Regional Tax Office of the Central Tax Office of the Central Tax Office of the Central Tax Office of the Central Tax Office decided to re-examine the Defendant on November 27, 2009 whether there was an actual transaction related to the instant tax invoice and revise the disposition. As a result of re-audit according to the above decision, the Defendant deemed the instant tax invoice as a disguised tax invoice for the processing tax invoice or the purchase of non-real transaction, and the portion of the corporate tax was maintained as it is, and reduced as stated in

E. On March 2, 2010, the Plaintiffs filed an appeal with the Tax Tribunal on March 2, 2010, and were dismissed on May 2, 2011.

[Ground of Recognition] The facts without dispute, Gap evidence 1 through 5, evidence 15, and Eul evidence 1 through 5 (including each number), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

On April 30, 2007, the Plaintiff corporation could not submit the data on the wind where the data is destroyed due to fire at its place of business, and the fact that it actually purchased oil from the D Energy and received the tax invoice in this case, and that the fact that the D Energy Data was accused on the D Energy Data alone was not less than 100% of the D Energy, and that the Plaintiff corporation remitted 00 won to the D Energy 21 times, and that the said money was not returned to the Plaintiff corporation, and that it cannot be deemed as a disguised tax invoice processing or a disguised tax invoice in light of the Plaintiff’s business type or scale. Nevertheless, the instant disposition reported differently by the Defendant is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts may be admitted by adding the whole purport of the arguments to the statements in the above evidence, Gap evidence 6 through 14, and Eul evidence 6, and there is no counter-proof between the parties:

(1) The plaintiff UCC and the non-party 10E are high schools and those who use the name cards of the department of the DD Energy Sales Management Team, and those who use mobile-sale (tank) vehicles in the workplace of the plaintiff corporation supplied them via the excavated machine and dump vehicles of the plaintiff corporation.

(2) The Plaintiff was supplied through the E, its father, and 300 - 700 - 700 - in total by delivering the Plaintiff’s workplace of the Plaintiff, and the Plaintiff was supplied via the G (D Energy point operation), or the GlaF, the employees of the Plaintiff. At the investigation agency around May 29, 2007, and around May 31, 2007, the KimF was investigated by suspicions, etc. of selling similar transit to the Plaintiff corporation, and at the investigation agency around March 31, 2007, the Plaintiff supplied the Plaintiff’s workplace of the storage tank of the DD Energy point at the storage tank located in 3 and once every four days.

(3) The Central Regional Tax Office determined that the sales transaction on behalf of some of the companies which submitted explanatory materials as a normal transaction, including the transaction with the Plaintiff, was 9.5% of the purchase tax invoice issued by the above company, and 9.4% of the sales tax invoice, including the transaction with the Plaintiff, and accused the above company as a suspicion of violation of the Tax Evaders Act. The amount of the tax invoice issued by the above company from February 2, 2006 to January 2007 is equivalent to the total of 71 billion won and 2 million won.

(4) The supply value of the instant tax invoice is total of KRW 255,154,868 (including value added tax), and the amount transferred by the Plaintiff Company to the agricultural bank account in the name of DD Energy is total of KRW 000, and most of the transferred money was transferred to the accounts of East Asia Energy Co., Ltd. or HHEEE, and was finally withdrawn in cash or withdrawn in cash.

(5) The Defendant calculated the average amount of oil consumption in the transportation and transport sale using this ratio, and calculated the estimated amount of oil consumption in comparison with each sales in January 2007, 200, by referring to the annual purchase status of the Plaintiff corporation. The amount is equivalent to 92% of the total amount of 00 won reported by the Plaintiff corporation (the total amount of 00 won shall be D Energy, and the remaining amount of 00 won shall be the other purchasing places) and 83% of the total amount of 00 won (the other purchasing places shall be D Energy, and the other 00 won shall be d energy).

(6) On April 30, 2007, the Plaintiff foundation suffered an accident where the warehouse building was destroyed due to fire at the workplace.

D. Determination

(1) First of all, we examine whether the instant tax invoice constitutes a disguised tax invoice for purchase of non-material from a customer other than a real transaction or DD energy. According to the above facts, while DD energy data was used, 100%, KimF continued to provide the Plaintiff corporation with similar transit, etc. at an investigative agency, and the Defendant’s estimated fuel purchase amount (2006, 2000, 2007, and 1000, 2007) calculated by the Plaintiff was not so different from the purchase amount reported by the Plaintiff corporation, the Plaintiff corporation should have been actually supplied oil equivalent to the above estimated amount, and the amount reported by the Plaintiff at another place (1.00, 2006, 2007, 2007, 2000, 2000, 2000, 2000, 2000, 300, 300, 200, 200, 200, 4.

(2) 이에 대하여 피고는， 설령 원고 법인이 실제로 유류를 공급받았다고 하더라도 DD에너지 본점이 아닌 DD에너지 석남지점에서 공급받았고， 이 사건 세금계산서는 DD에너지 본점에서 발행하여 그 기재내용이 사실과 다르므로， 그 매입세액을 매출세 액에서 공제할 수 없다고 주장한다. 위 인정사실에 의하면， 김FF이 원고 법인의 사업장에 배달한 경유 또는 유사 경유가 DD에너지 석남지점의 저장탱크에 보관 중이던 것이기는 하다. 그러나 다른 한편， 위 인정사실 및 앞서 본 증거에 의하면， 원고 법인은 DD에너지 판매관리팀 부장인 천EE과 유류 공급계약을 체결하였고， 경유가 필요할 때마다 DD에너지에 전화를 걸어 주문하였으며， 주문에 따라 원고 법인의 사업장에 유류가 배달되면 그 대금을 DD에너지 명의의 은행계좌로 송금하거나 천EE에게 현금으로 지급하였다. 달리 원고 법인이 DD에너지 석남지점과도 유류 공급계약을 체결하였다거나 유류 대금을 QQ에너지 석남지점에 지급한 흔적은 찾을 수 없는바， 위와 같은 사정을 종합해 보면 원고 법인은 DD에너지 본점에서 유류를 공급받았다고 할 것이고， 원고 법인에 배달 된 경유 또는 유사 경유가 DD에너지 석남지점의 저장탱크에 보관되어 있던 것이라는 사실만으로는 위 인정을 뒤집기에 부족하며(이는 DD에너지가 선택한 계약이행의 방법에 불과한 것으로 보인다)， 달리 이를 뒤집을 증거가 없다(한편 원고는，피고의 위 주장이 기본적 사실관계가 동일하지 아니한 처분사유를 추가한 것이므로 허용될 수 없다는 취지로도 주장하나， 이 사건 처분사유는 원고가 공급받은 경유 또는 유사 경유가 이 사건 세금계산서에 공급자로 기재된 DD에너지 본점으로부터 공급받은 것이 아니라는 취지이고， 피고의 위 주장 역시 이와 같은 취지이므로， 원고의 위 주장은 이유 없다).

3. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable, and it is decided as per Disposition.