Cho High Court Decision 2010Du3551 ( October 02, 2011)

Inasmuch as both temperature and rain are received the shipment slips with the same entry, it cannot be viewed as good faith or negligence.

Since oil supplied was at a lower level than the market price, and in the case of oil, there was an increase or decrease in volume according to temperature, and thus, at each time of shipment, the shipment tickets that are the same as the temperature and load load are also put on the same level as the other party’s actual place of business, even though there are sufficient grounds to suspect that the other party may not be the actual supplier, it shall not be deemed good faith and negligence.

Article 17 (Payable Tax Amount)

2011Guhap6432 Revocation of Disposition of Imposing Value-Added Tax

Park XX

Head of Suwon Tax Office

October 5, 2011

November 30, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax of KRW 7,786,012 against the Plaintiff on August 12, 2010 shall be revoked.

1. Details of the disposition;

가. 원고는 화성시 안녕리 000-592에서 XX릉주유소라는 상호로 주유소를 운영하고 있다.

B. On November 21, 2008, the Plaintiff received a tax invoice of KRW 22,636,364 from the ○ Energy Co., Ltd. (hereinafter referred to as “○○ Energy”), totaling KRW 24,90,636, and totaling KRW 24,90,000, and the tax invoice of KRW 21,454,545, and total tax amount of KRW 2,145,455, and KRW 23,60,000 (hereinafter referred to as “instant tax invoice”) from the ○ Energy Co., Ltd. (hereinafter referred to as “○○ Energy”), and filed a value-added tax return by deducting the input tax amount therefrom.

C. On August 12, 2010, the Defendant deemed that the instant tax invoice constituted a false tax invoice, and subsequently notified the Plaintiff of KRW 7,768,010 of value-added tax for the second period of August 12, 2008 (hereinafter “instant disposition”).

D. On October 29, 2010, the Plaintiff appealed to the National Tax Tribunal, but the National Tax Tribunal dismissed the request on March 2, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 5-1, 2, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was not negligent in not knowing that ○ Energy was a disguised business operator, since the Plaintiff received a corporate account number, sales and receipt certificate from ○○ Energy employee, and fulfilled its duty of due care, such as receiving the instant tax invoice. Therefore, the instant disposition is unlawful.

B. Relevant statutes

Article 16 (Tax Invoice)

Article 17 (Payable Tax Amount)

C. Determination

갑 제1, 2호증의 1, 2, 갑 제3호증의 1, 2, 3, 갑 제4호증, 갑 제5호증의 1 내지 8의 각 기재 및 변론 전체의 취지에 의하면, 원고는 최CC로부터 ○○에너지의 사업자등록증, 석유판매업등록증을 교부받은 사실, 원고는 ○○에너지 명의의 은행 계좌로 유류 대금을 송금한 사실, 유류 운반차량의 운전기사 박JJ는 서울물류센터에서 원고 운영의 주유소까지 경유를 운반한 사실을 인정할 수 있으나 위 인정사실만으로는 원고가 누군가로부터 실제 유류를 공급받았다고만 보일 뿐 ○○에너지가 원고에게 직접 유류를 공급하였다고 할 수 없고 오히려 을 제1, 2호증, 을 제3호증의 1, 2의 각 기재 및 변론 전체의 취지에 의하면, 유SN은 유류관련 자료상 업체인 주식회사 △△에너지와 주식회사 ◇◇에너지를 운영하다가 직권 폐업 당하자 오UH를 대표자로 하여 2008. 10. 1. ○○에너지로 사업자등록을 하였다가 2009. 1. 29. 폐업한 사실, ○○에너지가 2008년 제2기분 과세기간 동안 주식회사 ☆에너지로부터 교부받은 매입계산서상 매입금액의 99.9%인 23,735,000,000원이 가공의 매입이고 같은 기간 동안 ○○에너지가 교부한 매출계산서상 매출금액 합계 27,483,000,000원이 가공의 매출인 사실, ○○에너지와 유SN은 위와 같이 가공의 매입세금계산서를 수취하고 이에 대응하는 가공의 매출세금계산서를 교부한 행위로 조세범처벌법위반죄로 형사처벌을 받았는데 원고에게 교부한 매출세금계산서도 범죄사실에 포함되어 있는 사실, ○○에너지는 주식회사 CW에너텍으로부터 평택시 포승읍 만호리리 000에 있는 유류 저장시설을 임차하였으나 위 저장시설을 사용하지 않은 사실, 원고는 정유사에서 발행한 출하전표를 교부받지 않은 사실 등을 인정할 수 있고, 이에 비추어 보면, ○○에너지는 원고에게 직접 유류를 공급하지 않고, 허위의 매출전표를 교부한 채 다른 공급자로 하여금 원고에게 유류를 공급하도록 한 것으로 보인다.

On the other hand, the actual supplier and the supplier on a tax invoice cannot deduct or refund the input tax amount unless there is any special circumstance that the person who received the other tax invoice is unaware of the fact that the supplier was unaware of the name of the supplier, and that the person who received the tax invoice was not negligent in not knowing the above fact of the name of the supplier (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). In addition, in light of the fact that the tax invoice was issued and issued, the situation leading up to the issuance of the tax invoice, the price of the goods or services supplied, the specific route and process of the goods or services supplied, the recipient’s experience in the trade of the goods or services, etc., where there was sufficient circumstance that the beneficiary might have doubt as to whether the actual supplier was not the material, the beneficiary’s business or business facilities are not the location of the nominal supplier, and the fact that the supplier’s business registration certificate, the permit for sales of the goods or services, the sales specifications of the supplier, etc.

In this case, as seen earlier, the plaintiff is recognized as having received the certificate of ○○ Energy's business registration and the certificate of registration for petroleum selling business from the largestCC, which is the employee of ○○ Energy, and the following circumstances acknowledged by the overall purport of the evidence and arguments as seen earlier, the oil supplied by ○○ Energy, which is below the market price at the time of the shipment, and due to the increase and decrease in the volume of the oil at the time of the shipment, even though the temperature and weight at the time of the shipment are considered to vary at the time of the shipment, the second chapter on the shipment slip delivered by the driver of the oil transport vehicle, which was entered as 10.50 and 828.5 of the temperature at the time of the shipment. Since the plaintiff operated the oil wholesale and retail business since 2006, it is hard to view that ○○ Energy was not a person who did not know of the fact that the actual supply of the oil was not a person who actually supplied the oil at the time of the shipment.

Therefore, the defendant's disposition of this case is legitimate, and the plaintiff's assertion is without merit.

3. Conclusion

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