National Tax Service Review Division 2010-0083 (2010.06.01)

Oil retailers who have been issued a false tax invoice by the supplier.

The disposition imposing value-added tax without deducting input tax is legitimate because it is insufficient to recognize that the supplier was issued a tax invoice different from the fact, and that the tax invoice received is a good faith and negligence.

2010Guhap1925 Disposition of revocation of Disposition of Imposition of Value-Added Tax

KimA

○ Head of tax office

April 21, 201

May 19, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant revoked the disposition of value-added tax of KRW 31,169,510 on October 1, 2009 against the plaintiff on October 1, 2009 (the " October 31, 2009, in which the plaintiff entered as the date of the disposition" seems to be a clerical error of " October 1, 2009".

1. Details of the disposition;

A. From July 1, 2001, the Plaintiff is a business operator who has engaged in retail business of petroleum under the trade name, i.e., ○○○-dong 189-5 from ○○○-dong 189-5.

B. In the first taxable period of the value-added tax in 2008, the Plaintiff received 180,363,634 won in total from △△△△ Branch Co., Ltd., 500-20 of △△△△△△-dong 500, 2008 (hereinafter referred to as the “Transaction”), and filed a purchase tax invoice six copies from April 19, 2008 to June 30, 2008 (hereinafter referred to as the “instant tax invoice”) with the input tax amount deducted from the output tax amount, and filed and paid the value-added tax.

C. From October 20, 2008 to November 24, 2008, the Defendant conducted a tax investigation with respect to the instant transaction partner, and confirmed the instant transaction partner as data. On October 1, 2009, the Defendant deemed the instant tax invoice for the Plaintiff as a tax invoice issued through a disguised transaction between the actual supplier and the issuer of the tax invoice as a tax invoice issued through a disguised transaction, and issued a notice of correction and notification of KRW 31,169,510 for the first period of 2008 (hereinafter “instant tax disposition”).

D. On April 14, 2010, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service, but the said request was dismissed on June 1, 2010.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 5, 7, Eul evidence Nos. 1 and 2 (including branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff: (a) purchased 120,000 liters via six occasions from the instant transaction partner; (b) requested a quality inspection to the Petroleum Products Testing and Research Institute; and (c) received a tax invoice, a detailed statement of transaction, and a shipment slip at each purchase date; and (c) deposited the sales price in the passbook opened in the name of the instant transaction partner; and (d) did not constitute a false tax invoice.

(2) Even if the tax invoice is a false tax invoice, the Plaintiff confirmed the business registration certificate and the registration certificate for petroleum sales business of the business partner of the instant transaction partner from Na, who is an employee of the instant transaction partner, and received the tax invoice on about 10 occasions through the corporate account of the instant transaction partner, and the Plaintiff did not know that the instant tax invoice was a false tax invoice, and thus, the instant disposition was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the instant tax invoice constitutes a false tax invoice

A) The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts refers to the case where the necessary entries in the tax invoice are inconsistent with those in the actual supply of goods or services or the price, time, etc., notwithstanding the formal entries in the transaction contract, etc. made between the parties to the goods or services.

B) We examine whether the business partner who supplied oil to the Plaintiff is the business partner of the instant case. Considering that the above evidence is 0,00,000 won for each of the above transaction partners 9, 10, 11, and the overall purport of the argument (not to believe that some of the witness A's testimony and evidence No. 12 are contrary to fact-finding or judgment) is insufficient, the livestock products distributor is operating in 60,000, △△-dong 500, △△△△-dong, which is the business address of the instant transaction party, and the fact that the Plaintiff did not have any substance of the instant transaction, and that the Plaintiff did not have any separate oil supply facility or transportation vehicle, and that the Plaintiff was supplied with 0,000 won for 10,000 won for 200,000 won for 200,000 won for 30,000 won for 20,000 won for 20,000 won for the instant transaction.

(2) Whether the Plaintiff is bona fide and without fault or not

The actual supplier and the supplier on a tax invoice may not deduct or refund the 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 nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

The Plaintiff’s failure to know the name of the tax invoice of this case and failure to know the fact that there was no negligence on the part of the Plaintiff, each of the entries in Gap’s Nos. 2, 6, 8, 9, 10 (including a serial number) is insufficient to recognize it, and there is no other evidence to acknowledge it.

Rather, comprehensively taking account of each of the above evidence and the following circumstances acknowledged by the Plaintiff’s 15 Evidence Nos. 1, 2, 4, and 5, the Plaintiff was at fault even if the Plaintiff knew or did not know that the Plaintiff was not the actual supplier of the instant oil. In other words, the Plaintiff was running petroleum retail business from July 1, 2001, the Plaintiff appears to have known of the normal structure and route of the supply of the oil, the general form and method of the industry, and the actual situation of the transaction in the oil industry, and the danger of the transaction. ② The Plaintiff appears to have traded with the Plaintiff’s data merchant (BB Energy Branch), the date of the shipment, and the date of the shipment. ③ The Plaintiff asserted that the Plaintiff confirmed that the Plaintiff was not a legitimate supplier of the instant oil, and that the Plaintiff was not a party to the instant transaction, and that the Plaintiff was not a party to the instant transaction, and that it was difficult to accept the rest of the delivery of the oil at the place of delivery.

(3) Sub-determination

Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and it is insufficient to recognize the fact that the Plaintiff is bona fide and negligent in believing that such tax invoice was properly received. Therefore, the Defendant’s disposition of this case is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.