Title
The party to issue a false tax invoice not to deduct the input tax amount;
Summary
The evidence or assertion submitted by the Plaintiff alone is insufficient to acknowledge that the instant tax invoice was not a false tax invoice, and there is no evidence to acknowledge otherwise, and it is insufficient to recognize that the Plaintiff was not negligent due to the Plaintiff’s failure to know the fact of the false name,
Related statutes
Article 16 of the Value-Added Tax Act [Tax Invoice]
Article 17 of the Value-Added Tax Act
Cases
2014Guhap5156
Plaintiff
500
Defendant
00. Head of tax office
Conclusion of Pleadings
September 26, 2014
Imposition of Judgment
November 14, 2014
Text
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
On December 1, 2011, the Defendant confirmed that the imposition of value-added tax of 00 won for the second period of 2008 against the Plaintiff is null and void.
Reasons
1. Details of the disposition;
A. From August 1, 2008, the Plaintiff operated a gas station with the trade name "00 gas station". On February 1, 2008, the Plaintiff received 00 Energy Co., Ltd. (hereinafter "00 energy") from the supply price of KRW 00 (hereinafter "the instant tax invoice"), and reported and paid value-added tax by deducting the input tax amount from the output tax amount.
B. 1) 00 Director of the Regional Tax Office: from August 26, 2009 to January 15, 2010; and from August 10, 2010
By November 12, 2010, as a result of the investigation of data on 00 energy (the period subject to the investigation: January 1, 2009 to February 12, 2010), determined that the 00 energy constitutes the data that issued a tax invoice without real transaction.
2) Around November 3, 2010, the Defendant conducted a tax investigation on the Plaintiff, and subsequently notified the Plaintiff of KRW 00 (hereinafter “previous disposition”) of the total value of supply supplied from 00 energy during the period of the value-added tax for the first and second years of 2009 (the value of supply for the first period of 2009, the value of supply for the second period of 2009, and the value of supply for the second period of 2009) as a tax invoice different from the fact, and deducted the input tax amount on January 3, 201, the Defendant issued a revised and notified the Plaintiff of KRW 00, value-added tax for the first period of 2009, and value-added tax for the second period of 2009 (hereinafter “previous disposition”).
C. From July 11, 201 to August 21, 2011, the Defendant conducted a tax investigation with respect to the Plaintiff. The instant tax invoice, which the Plaintiff received from 00 energy during the period of the value-added tax for the second period of 2008, also constitutes a false tax invoice, and deducted the input tax amount. On December 1, 201, the Defendant issued a correction and notice of KRW 00 of the value-added tax for the second period of 208 against the Plaintiff (hereinafter “instant disposition”).
D. Meanwhile, on March 31, 000, the Plaintiff appealed against the previous disposition and filed an appeal with the Tax Tribunal, but was dismissed on June 1, 000. The Plaintiff filed a lawsuit seeking revocation of the previous disposition on August 30, 1000, but was sentenced to a judgment against the Plaintiff on January 11, 000, but appealed as Seoul High Court Decision 000Nu0000 on February 7, 000, but was sentenced to a judgment dismissing the appeal on August 30, 300. The Plaintiff appealed on September 17, 100, but the appeal was dismissed on September 17, 100, but was dismissed on January 8, 2000.
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The Plaintiff is a gas station supplied with oil from the 00 Lao Stock Company, and was supplied with oil by another company at a price lower than the supply price of 00 00 o’s from 00 energy to expand profit. Even if not, the Plaintiff is a bona fide trading party with the belief that the 00 energy was an actual supplier and that there was no negligence in reliance on such belief. Accordingly, the instant disposition taken on a different premise is unlawful, and its defect is serious and obvious.
B. Relevant statutes
It is as shown in the attached Form.
(c) Fact of recognition;
1) The Plaintiff received oil related to the instant tax invoice from a transport engineer, and received a shipment slips issued by a similar entity, and issued them to 00 energy, and received a shipment slips, tax invoice, and transaction statement issued by the Plaintiff from 00 energy to the place of destination, stating the Plaintiff’s business place at the place of destination.
2) The shipment slips issued by 00 energy indicate the Plaintiff’s place of business as the place of destination, while the Plaintiff’s place of business is indicated as the publishing place, but the shipment slips issued by similar entities, such as 00-Tex, are indicated as the place of destination in other business places than the Plaintiff’s place
3) From January 2009 to February 2009, 00 energy received 9 copies of processed tax invoices of KRW 00,000, total supply value of KRW 00,000 from Co., Ltd. without real transaction during the same period, and filed an accusation on the grounds that 00 copies of processed tax invoices of KRW 00 (processing Ratio 1.91.75%, No. 2009, No. 98.7%) were issued without real transaction to 00 gas stations, such as gas stations.
4) As a result of the Plaintiff’s inquiry into the relevant date on the shipment slip of 00 energy, and the transport vehicle, which the Plaintiff kept, it appears that there was no details of shipment on the Plaintiff’s place of business as the place of destination.
5) The Director of the Regional Tax Office of 00 conducted an investigation on suspicion of 00 energy from August 26, 2009 to January 15, 2010, and from August 10, 2010 to November 12, 2010. At the time 00 energy was issued a shipment slip, tax invoice, statement of transaction, etc. while the representative director worked for A accounting, and the office had a book, computer, printer, telephone, small wave, etc., but did not have any facilities capable of real oil transactions.
6) On the business registration certificate of 00 energy established around October 2007, the location of the place of business is 00 :00 :00 :00 :00 :00 :00 :00 :00 :00 . 00 . 00 . 00 . 00 . 10 . 20 . .
7) Around January 2009, C accepted 00 energy from D, but did not have been engaged in the oil business. Around 200, he did not engage in independent and active activities for the purchase of oil even though annual sales revenue of 00 billion won or more. At the time of the investigation, C promised to supply oil at 10 to 15 won per liter than the changed selling price of oil at the time of the investigation, and the head of E, which was determined on the data at the time of the investigation, supplied oil at the time of the investigation, and was appointed as 00 energy representative from January 26, 2009 to January 15, 2010, C stated that “the entire oil was supplied at the same time,” but he stated that “from August 10, 2010 to November 12, 2010, the entire oil was not at the time of sale at the same time, but at the time of sale at the same time the entire oil was at 00%.”
8) The F purchased oil only from 00 feet and 00 petroleum companies. The 00 petroleum companies were trading companies prior to their inauguration as representative directors, and the 00-hours were supplying oil at a 10 to 15 won per liter than the oil-factory price. Since they were appointed as representative directors, they were supplying oil to the gas station at a 00-hour amounting to 7 to 10 won per liter.
9) The result of the investigation of the financial tracking for 00 energy was 00% of the total transaction day or after 2-3 days from the gas station, and the amount deposited from the oil station to 00 bit account after deducting 2% of the commission and expenses. The amount deposited into the 00 bit account again was transferred in order to the 000 bits account, and most of the money was transferred in cash to the 00 bits account, a company with no purchase.
10) The oil supplied by 00 energy to the seller is not in accord with the shipment pre-delivery sheet issued by 00 energy in relation to the oil purchased and sold at 00 feet from the final place of delivery and 00 feet on the shipment slip issued by 00 energy according to the A's statement that the oil is actually shipped from the four similar oils.
11) As a result of an investigation into a suspicion of 00 feet from August 10, 2010 to November 19, 2010, the Director of the Regional Tax Office: (a) there was no place of business at the time of the investigation after the closure of business on February 18, 2010, with no oil storage facility or oil transport vehicle at all; and (b) there was no place of business at the time of the investigation. The 00 00 0 0 0 0 2 2 2 200 - 2 200 - 1 and 2 2 200 - 20 50 % or more of the sales amount.
12) The Petroleum and Petroleum Substitute Fuel Business Act (hereinafter referred to as the “petroleum Business Act”) was amended by Act No. 9370 on January 30, 2009 to allow the vertical distribution structure of oil stations from oil refineries to general agencies, and was amended by Act No. 9370 on January 30, 2009 (from May 1, 2009) between general agencies or gas stations.
Article 2 subparag. 1, 3, and 4 of the Enforcement Decree of the Petroleum Business Act (amended by Presidential Decree No. 21462 of Apr. 30, 2009) began to allow so-called horizontal transactions (see Article 2 subparag. 1, 3, and 4 of the Enforcement Decree
13) On June 19, 2008, the Fair Trade Commission distributed news reports on the following matters.
'Public Notice on Advertisement and Advertising of Petroleum Products'
-where indicating the fact of mixture sale, the possibility of selling other similar products;
In 192, the Fair Trade Commission decided to abolish the ‘Public Notice on Labeling and Advertising for Petroleum Products' (FE) which was introduced in 1992.
o Public Notice regulates the act of displaying only a specific similar trademark while replacing or selling different similar products to one another, as a violation of the law, although the act of advertising was regulated;
o Even if a specific similar trademark has been posted after the closure of the public notice, if the mixed sale is indicated in the gas station, it is possible to sell other similar products.
D. Determination
1) As to the first argument
A) For an administrative disposition to become null and void as a matter of course, it must be objectively obvious that the defect violates an essential part of the law and its essential part and is objectively apparent (see, e.g., Supreme Court Decision 2003Du2403, Nov. 26, 2004). In addition, in a case where there are objective circumstances that make it possible to mislead the Plaintiff to be subject to taxation with respect to a certain legal relation or factual relation which is not subject to taxation, if it can only be identified as a matter of course by accurately investigating the factual relation, the determination of whether it is subject to taxation cannot be deemed apparent even if the defect is serious, and thus, it cannot be deemed that the illegal taxation that misleads the Plaintiff of the fact of taxation is null and void as a matter of course (see, e.g., Supreme Court Decisions 88Nu1210, Jul. 11, 1989; 2001Du7268, Sept. 4, 2002).
B) The Plaintiff asserts that the Plaintiff was supplied oil normally from 208 to 2009 on the basis that most of the tax invoices issued to the Plaintiff in 2009 (the processing ratio 91.75%, 2009) were the processed tax invoices issued without real transactions; 2000 m20 m200 m2, the Plaintiff’s purchase and sale were all processed materials, and 30 m20 m200 m200 m20 m209 m200 m200 m200 m200 m200 m200 m200 m20 m200 m20 m200 m20 m20 m20 m20 m20 m20 m20 m2 m2.
2) As to the second argument
A) Unless there are special 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 tax invoice in the name of the actual supplier and that there is no negligence on the part of the person who received the tax invoice, and the person who asserts the deduction or refund of the input tax amount should prove that there is no negligence on the part of the person who received the tax invoice in the said name. (See, e.g., Supreme Court Decision 2002Du2277, Jun.
B) The following circumstances are revealed by comprehensively taking account of the facts as seen earlier and the overall purport of the arguments. ① The Plaintiff’s assertion also appears to have sufficiently known the normal structure and distribution route of the oil supply, the general form or method of the oil industry, the data transaction, and the situation and risk of the transaction. ② If the Plaintiff paid little attention, he could have known that the shipment slips issued by the 00 energy were not issued normally. ③ Since the Plaintiff operated a small-scale petroleum sales business from May 14, 2003 to April 30, 2009 pursuant to relevant Acts and subordinate statutes, such as the Petroleum and Petroleum Substitute Fuel Business Act, etc., it appears that the Plaintiff was well aware that it was prohibited as an agent’s act of undermining the horizontal trading distribution order among agencies, but purchased oil from a general agent, the Plaintiff’s assertion that it was insufficient to acknowledge that there was no other evidence to prove that there was no negligence on the part of the Plaintiff’s assertion.
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.
shall be ruled.