Cho High 2013 Before 0798 (2013.05.09)

No good faith or negligence of the plaintiff who received a false tax invoice shall be recognized.

In light of the fact that the Plaintiff received oil and deposited the price in the passbook in the name of the customer, but according to the shipment slips delivered after receiving the oil, the other company is indicated as the shipping company, the place of destination is also indicated in another place of destination, and there is an omission of the carrier’s signature on the shipment slips, etc., the Plaintiff’s good faith and negligence cannot be recognized.

Article 17 of the Value-Added Tax Act

2013Guhap10964 Revocation of Disposition of Imposition of Value-Added Tax

LAA

The Director of the National Tax Service

November 20, 2013

December 4, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of value-added tax for the first period of November 5, 2012 against the Plaintiff on November 5, 2012 is revoked.

1. Details of the disposition;

A. The Plaintiff is a business entity that, from February 15, 2012, from OO-EupO to OO, leases a mutual oil station from 1829 to BB oil station, thereby engaging in oil retail business.

B. In 2012, the Plaintiff received two copies of the tax invoice (hereinafter “the instant tax invoice”) which is the total supply value fromCC Energy Co., Ltd. (hereinafter “CC Energy”) during the first VAT taxable period, and reported and paid the first value-added tax for the year 2012 by deducting the input tax amount from the output tax amount.

C. The Director of the Busan Regional Tax Office confirmed that it is so-called data that a tax invoice was issued without real transaction and notified the Defendant of it.

D. After conducting a tax investigation with the Plaintiff between September 13, 2012 and November 5, 2012, the Defendant issued tax invoices to the Plaintiff on November 5, 2012: (a) deducted the input tax amount on the ground that the tax invoice received fromCC energy is a false tax invoice; and (b) even if two copies of the tax invoice issued from DDR stations (hereinafter “second tax invoice”) were issued from DDR stations, the omission of the tax invoice constitutes a case where the tax invoice was issued without any real transaction in the pertinent taxable period; and (c) deemed that the value-added tax return was issued without any real transaction for the omission of the tax invoice in the pertinent taxable period, the Defendant corrected and notified each of the KRW 1, 2012 OOOO (the value-added tax related to the first tax invoice and the additional tax OOOCO + the additional tax 2 tax invoice related to the instant tax invoice (hereinafter “instant disposition”).

E. On February 12, 2013, the Plaintiff appealed to the Tax Tribunal, but was dismissed on May 9, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 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) As to the first tax invoice of this case

A) The Plaintiff was actually supplied with oil fromCC energy, and was normally traded by remitting the oil purchase price to its account in its name, and thus, the instant first tax invoice is not a false tax invoice.

B) Even if the first tax invoice of this case is a tax invoice different from the fact, the Plaintiff did not know the fact that the oil was supplied by other companies, notCC energy, and confirmed whether the Plaintiff was registered as a business operator and whether the petroleum products handled, such as the deposit passbook in the name of the corporation, were stored in the transaction withCC energy. Thus, there was no negligence in not knowing the fact.

2) As to the second tax invoice of this case

The Plaintiff issued the instant secondary tax invoice, which was erroneously entered in the name of the Plaintiff in the name of the Dagas station, among the transactions withCC energy, and subsequently issued a tax invoice in the name of the CC energy. Accordingly, it is unreasonable to impose penalty tax without filing a return as the input tax amount of value-added tax.

B. Relevant statutes

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

C. Determination

1) As to the first tax invoice of this case

A) Whether a tax invoice is false

The meaning that entries in a tax invoice are different from the facts under the Value-Added Tax Act (amended by Act No. 11608, Jan. 1, 2013) refers to cases where the necessary entries in a tax invoice do not coincide with the actual subjects, values, and timing of the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 1996).

In full view of the overall purport of the statement and arguments as to this case’s health stand, Eul’s evidence Nos. 1, 3, and 5, it is difficult to view thatCC energy actually supplied oil to the Plaintiff during the first taxable period of the year of 2012. The Plaintiff’s tax invoice No. 1 of this case, which the Plaintiff received fromCC energy, is different from the fact that the supplier provided under Article 16(1)1 of the Value-Added Tax Act, and the Plaintiff’s entry in Article 17(2)2 of the Value-Added Tax Act, is not sufficient to deem that the Plaintiff’s entry in the first tax invoice of this case constitutes a case where: (a) the Plaintiff’s import or purchase of oil was made on or around September 2011; and (b) the date it was confirmed that it was closed at the place of business located in the Busan Odong-gu, Busan; and (c) the Plaintiff’s ex officio closure by the Busan regional tax office.

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

An actual supplier and a supplier on a tax invoice may not 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 fact of misrepresentation of the tax invoice, and that the supplier was not negligent in not knowing the fact of misrepresentation of the name, the person who asserts the deduction or refund of the input tax amount must prove that the supplier was not negligent (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009).

In light of the fact that the Plaintiff actually supplied oil and paid the price to the account in the name ofCC, it is difficult to find that the Plaintiff was not negligent in not knowing that the first tax invoice in this case was false, and there is no other evidence to acknowledge it otherwise. Rather, according to the following circumstances acknowledged by the overall purport of the entries and pleadings in the evidence Nos. 5 and 6 (including the virtual number) and the following circumstances, i.e., according to the shipping slips that the Plaintiff received oil, other companies thanCC energy entered as shipping companies, and the arrival of which the place of arrival is indicated as the shipping companies, and the address of other locations than BBB oil stations, and in particular, the arrival of the above shipping slips is indicated. In light of the fact that the Plaintiff received the first tax invoice in this case and received the related oil, it is difficult to deem that there was no negligence in failing to know the fact of the supplier’s name in the process of supplying the oil. This part of the Plaintiff’s assertion is without merit.

2) As to the second tax invoice of this case

Article 22 (3) 3 of the Value-Added Tax Act provides that when an entrepreneur is issued a tax invoice under Article 16 without being supplied with goods or services, the amount equivalent to 2/100 of the value of supply shall be added to the payable tax amount or deducted from the refundable tax amount.

Meanwhile, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed in accordance with the provisions of the tax law in cases where a taxpayer violates a return and tax liability, etc. under the tax law without justifiable grounds, and the taxpayer’s intention and negligence is not considered. However, in cases where there is a circumstance where a taxpayer is deemed unreasonable to be unaware of his/her duty, or where there is a reason that it is unreasonable for the taxpayer to expect the fulfillment of his/her duty to do so, and where there is a justifiable reason that it is difficult for him/her to do so (see, e.g., Supreme Court Decision 2004Du930, Nov. 25, 2005).

According to the evidence Nos. 1 and 1 of this case, the plaintiff received the second tax invoice of this case without being supplied with oil from the D gas station. This constitutes an additional tax amount equivalent to 2/100 of the value of supply as "in the case of being issued with no supply of goods or services" under Article 22 (3) 3 of the Value-Added Tax Act, and the plaintiff should have immediately discarded the tax invoice without any real transaction or demanded the issuance of the revised tax invoice to the D gas station. However, it is difficult to view that there is any justifiable reason. This part of the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and it is so decided as per Disposition.