Cho High Court Decision 201Do2465 ( November 23, 2011)

It is not recognized that the Plaintiff’s good faith and negligence that received a false tax invoice is not recognized.

In light of the fact that the Plaintiff operated a gas station for about seven months, and transacted without checking the location of the place of business, business facilities, etc. of the customer, and the Plaintiff did not at all verify whether the actual supplier is a supplier despite the defective statement in the shipment slip, it is difficult to recognize good faith and without fault by the Plaintiff.

Article 17 of the Value-Added Tax Act

2012 disposition of revocation of imposition of value-added tax, etc.

MaA

1 other than the director of the Si Tax Office

May 9, 2013

May 30, 2013

1. The plaintiff's claims against the defendants are all dismissed.

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

On April 1, 201, the director of the tax office for the plaintiff, and the director of the tax office for the plaintiff shall revoke the imposition of 000 won of value-added tax for the second term of 209 on April 1, 2009, the imposition of 000 won of value-added tax for the second term of 2009 on January 10, 201, and the imposition of 000 won of additional tax for the global income tax for the second term of 2009 on February 4, 2013 by the head of the tax office for the defendant Geumcheon-cheon.

1. Details of the disposition;

A. From March 1, 2009, the Plaintiff is a business operator operating a gas station under the trade name called “BB gas station” from the OO 000 in Siri-si and two parcels.

B. The Plaintiff received the purchase tax invoice (hereinafter referred to as “the instant tax invoice”) from CCP Co., Ltd. (hereinafter referred to as “CCP”) as follows, and sentenced it as the input tax return for the second time in 2009 and deducted, and included it as necessary expenses at the time of filing a global income tax return in 2009.

C. On April 1, 2011, the head of the Sigy Tax Office issued the tax invoice without real transaction, and the instant tax invoice issued by the Plaintiff was determined and notified that the Plaintiff would not deduct the input tax amount for the transaction portion with theCCP on the ground that it is a tax invoice different from the fact, and that it is a tax invoice for the instant tax invoice issued by the Plaintiff, and that the Plaintiff would include KRW 000 of the value-added tax for the second period of 2009 (including the additional tax amount of KRW 000). Furthermore, the head of the Sigy Tax Office decided and notified the Plaintiff of the non-taxation tax amounting to KRW 000 of the non-taxation additional tax for the global income tax for the year 209, on the same day.

D. On June 29, 201, the Plaintiff, who was dissatisfied with the Defendants’ imposition of the above value-added tax and global income tax, filed an appeal with the Tax Tribunal on each of the tax appeals, but the Tax Tribunal rendered a decision to dismiss all of the appeals on September 28, 201 and November 23, 201.

E. Meanwhile, the Plaintiff, through a preparatory document dated October 31, 2012, claimed that “in the event that the principal tax and the additional tax are to be imposed together, the respective amount of the principal tax and the additional tax and the basis for calculation shall be stated in the tax payment notice separately, and the imposition of the additional tax lacking such method shall be illegal.” The Plaintiff, as notified in the above paragraph (c) on January 10, 2013, revoked the determination of the amount of the additional tax for the second period portion of the value-added tax as notified in the above paragraph (c) on February 10, 209, stating the type of the additional tax and the basis for calculation, and the Defendant Geumcheon District Tax Office listed the same amount as the additional tax for the global income tax for the 2009 global income tax for the 2009 global income tax as notified in the above paragraph (hereinafter referred to as “the amount of the additional tax for the 2000 won and the basis for calculation for each of the additional tax for the 2000-year tax amount to be reduced.

[Reasons for Recognition] The whole purport of the arguments and arguments, as follows: non-satched facts, Gap evidence 1 through 6, evidence 12-1, 2, 3, and 16-1, 2, 3, and 27 through 30

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

① The Plaintiff may not be deemed to constitute a false tax invoice on the ground that the instant tax invoice was actually purchased oil from theCC P.C. and was issued the instant tax invoice. ② Even if the instant tax invoice constitutes a false tax invoice, the Plaintiff confirmed the name of director at the time of the oil transaction with theCC P.C., and confirmed the business registration certificate and the petroleum selling business registration certificate, etc., and confirmed that the instant tax invoice constitutes a normal business with the CC P.C. to the CC P. P.C. that had been trading with the former P.C., and the transaction with theCC P.C. was a transaction that does not favorable to the other Plaintiff in terms of supply prices, such as the delayed payment period, so that the payment period may be paid 2-3 days after the oil was supplied, and the shipment slips received from theCC P.C. and the normal shipment slips received from the oil industry, and completed necessary verification and evidence expenses, etc., the Plaintiff constitutes a bona fide trading party, and each of the instant dispositions by the Defendants is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Details of data research conducted by the Central Regional Tax Office with respect toCC P.C.

(A) On January 8, 2009, Canada was a petroleum wholesaler operating in the place of business with the Bupyeong-si, Seoul Special Metropolitan City No. 0000, and the public official of the Central Regional Tax Office responsible for the secondary regional tax office conducted a tax investigation on the CCTV from August 26, 2009 to January 15, 2010 and confirmed the following facts.

1.CC did not have any oil storage and oil transport vehicle at all, and the place of business did not keep any books of account, driver, etc. concerning oil transactions at all.

②CC PP has no oil storage facility and immediately moved oil from the oil reservoir of the purchasing place to the gas station of the Plaintiff and other sales places. As such, at the place of destination including the Plaintiff, the shipping slips issued by four similar oil refining stations should be received by the Plaintiff, etc., andCC PP has not been delivered to the gas station of its sales place, and if delivered, it recovered as soon as possible.CC PP has issued the shipment slips under its name to the gas station of its sales place instead of the four similar oil storage facilities, and the shipment slips and details issued by the four similar oil refining stations were not inconsistent with each other.

③ It was confirmed that all of the data, which is the purchasing entity ofCCP, Grand City Co., Ltd., stock companies, EED, and stock companies, were the so-called data that falsely issued tax invoices without real transactions.

(4) The oil price that has been transferred by account transfer from the gas stations toCC has been immediately transferred to data buyers, and the total amount of the oil price has been fully withdrawn in cash.

(B) On the basis of the above facts, the director of the Central Regional Tax Office: (a) considered the data thatCC PP has issued and received a false tax invoice without real transaction; (b) determined all sales and purchase transactions from January 1, 2009 to March 31, 2010 as a processing transaction; and (b) accused the CC PF, an operator ofCC PP, andCC PP, to the prosecution on suspicion of violating the Punishment of Tax Evaders Act; and (b) closed the CC PP ex officio.

(2) Details of transactions between the Plaintiff andCC, etc.

(A) In 2009, the Plaintiff received fuel fromCC Paint during the second taxable period of the value-added tax, and received the tax invoice issued byCC Paint, the shipment slips and transaction specifications, and transferred the oil toCC Paint account between six (6) days after receipt of the oil, and six (6) days after receipt of the oil. On the other hand, the Plaintiff transferred 000 won to the Plaintiff’s account in the name of the Plaintiff on January 4, 2010.

(B) In the shipment slips issued byCC Paint to the Plaintiff, the weight and density, weight, card number, tank number, column, etc., unlike the general shipment slips issued by four similar vessels, are recorded in the air space, and the temperature is entered in 10 equally.

"(C) The plaintiff confirmed the business registration certificate and the petroleum sales registration certificate fromCC PP, and the number of storage facilities is indicated as "971" in the petroleum sales registration certificate. (3) The plaintiff, when supplying oil from CC PP, has been placed in a situation where it is difficult to secure funds by paying oil in advance, and that it would make it possible to receive "oil from straw images, which are directors ofCC PPP, and pay two and three days after it." The plaintiff first confirmed that CC PP is a normal business entity, and began oil transactions with CC PP, after confirming that CCP is a normal business entity.

(4) Meanwhile, the fuel price paid by the Plaintiff toCC was KRW 000 per L in the case of diesel, and KRW 000 per L in the case of gasoline, and KRW 000 per L in the case of gasoline, and KRW 000 per L in the case of diesel, and KRW 000 per gasoline in the case of gasoline, and KRW 000 per L in the case of diesel, and KRW 000 in the case of gasoline.

[Grounds for Recognition] The whole purport of the arguments and arguments, Gap evidence 7, Eul evidence 8, evidence 10 to 20, Eul evidence 1, and evidence 3, evidence 2-1, and evidence 2, and evidence 2

D. Determination

(1) Whether the instant tax invoice is false tax invoices, and false supporting documents

(A) The phrase that the entries in the tax invoice under the Value-Added Tax Act are different from the facts refers to cases where the ownership of income, profit, calculation, act or transaction subject to taxation is nominal, and there is another person to whom it actually belongs, in light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that the person to whom it actually belongs shall be liable for tax payment, and the requisite entries in the tax invoice refer to cases where the necessary entries do not coincide with those in the transaction contract, etc. prepared between the parties to the goods or service, notwithstanding the formal entries in the transaction contract, etc. made between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 19

(B) In light of the above legal principles, it is reasonable to view that the Plaintiff was in charge of pre-sale or issuance of tax invoices and financial business without substance at the time of receipt of the tax invoice of this case, and (i) at the time of October 31, 2009, when the first tax invoice was issued by the CC PP, and (ii) at the time of the petroleum sales registration certificate of CC PPP, the oil sales registration certificate of the CC PP has been held nine oil stations. However, at the time of the above tax investigation, the CC PP does not have all oil storage facilities, such as oil oil oil oil oil storage facilities and fuel transport vehicles, and (iii) at the time of the investigation, there was no oil transport engineer or no oil transport vehicle, and it is reasonable to regard the CC PP as having been in charge of all pre-issuance or financial business without substance at the time of receipt of the tax invoice of this case, and therefore, it is reasonable to deem the Plaintiff’s tax invoice of this case as the actual purchaser of the CC PPP under Article 17(101).1 of the former Income Tax Act.

(2) Whether the Plaintiff constitutes good faith and negligence

(A) In the absence of special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless the person who received the other tax invoice was unaware of the name of the supplier, and the person who received the tax invoice was not negligent in not knowing the above fact in the name of the supplier (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). The fact that there was no negligence on the part of the supplier that the supplier did not know of the fact in the name of the purchase tax invoice. In this case, the process of issuing and delivering the tax invoice, the size and market price of the goods or services supplied, and the specific route in which the goods or services were supplied, and the trade practice in the relevant industry, etc., where there were sufficient circumstances for the recipient to doubt whether the goods or services are not the material, and that the beneficiary did not actually confirm the business location of the supplier, business facilities, or the goods or services supplied, or the supplier’s business registration certificate, etc., and alone, it is difficult to deem the actual name of the supplier.

(B) As to whether the Plaintiff was unaware of, and was unaware of, the title of the instant tax invoice, and whether there was no negligence, it is insufficient to find that the Plaintiff was unaware of, the fact that the Plaintiff was supplied oil fromCC PP, and that the Plaintiff was provided with the oil, and that the Plaintiff was fully transferred the oil price to the corporate account ofCC PPP, and that the Plaintiff confirmed the Plaintiff’s registration certificate and the petroleum sales registration certificate, and that the price of the oil supplied by the Plaintiff fromCC PP is almost different from the oil selling price of the similar or agency, but the fact that the above fact of recognition was insufficient to find that the Plaintiff was unaware of, and was not negligent in, knowing that the tax invoice issued byCC PP was a false tax invoice, and that there was no other evidence to find it otherwise. Rather, considering the evidence and the purport of the entire arguments as seen earlier, the Plaintiff did not know the other party to the instant tax invoice or the Plaintiff did not have any doubt as to the actual transaction.

① On March 1, 2009, the Plaintiff, who opened a BB gas station and operated a gas station for about seven months prior to trading with theCC, was fully aware of the normal structure and distribution route of the supply of oil, the general trade type or method of the industry, and the oil industry, and the actual conditions and risks of transactions in the material industry widely spreaded to the gas industry.

② At around October 19, 2009, the Plaintiff purchased oil amounting to KRW 317,910,000 for supply price for three months until December 24, 2009 without checking the location of the business place, business facilities, etc. of theCC.

③ The Plaintiff alleged that the payment deadline was a transaction that was not favorable to the Plaintiff in terms of other aspects, such as the supply price, except for the delay of the payment deadline so that the Plaintiff may pay the oil more than 2-3 days after receiving the oil, but in fact there was a case where the Plaintiff paid the oil more than 6 days after receiving the oil, and as recognized by the Plaintiff, the Plaintiff must pay the oil beforehand if the oil is supplied from the oil refinery. In light of the fact that the payment deadline was postponed for a considerable period of time, it cannot be said that the Plaintiff is less than a profit-sharing profit-making profit-making profit-making profit-making profit-making profit-making profit.

④ In the shipment slips received by the Plaintiff fromCCP, the forms and descriptions of the shipment slips issued at oil reservoir normally are different, such as pre-issuance marks, shipment time, weight, oil sources, shippers’ signatures, and tank numbers, etc., and the petroleum products are increased or decreased after temperature, so the date and time of shipment and temperature at the time of shipment should be clearly stated, and even though the above shipment slips are equally described at 10 degrees, the Plaintiff did not confirm whetherCC PP is actually a supplier.

⑤ During the period from December 1, 2009 to December 24, 2009, the Plaintiff was supplied with 100,000 L which is equivalent to the total amount of 00 won, and paid 000 won in sum to the date from December 1, 2009 to December 31, 201, and received 00 won on January 4, 2010, and it is difficult to view that the above funds were normal (i.e., the Plaintiff, and 000 won returned to the Plaintiff on January 4, 2010). In light of the Plaintiff’s assertion that it was difficult to supply the oil to the Plaintiff on the next business day, and that there was no evidence to acknowledge that it was difficult to return the oil, as otherwise alleged by the Plaintiff, and that there was no other reason to return the oil after being supplied with the oil.

3. Conclusion

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