Cho High Court Decision 2010Du3857 (Law No. 13, 2011)

No good faith or negligence of the plaintiff may be recognized in receiving a tax invoice from data.

Unless there is any special circumstance that the actual supplier and the supplier on the tax invoice are not aware of the fact that the supplier was not aware of the fact that the other tax invoice was entered in the name of the supplier, and that the supplier was not negligent in not knowing the fact that the supplier was not aware of the fact that the supplier was not negligent, the person who asserts the deduction or refund of the input tax amount must prove

Article 17 of the Value-Added Tax Act

2011Guhap30724 Value-Added Tax and revocation of Disposition of Imposing Income Tax

KimA

The Director of the Pacific District Office

March 30, 2012

April 20, 2012

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 000 won for the first term of 2009 on September 1, 2010, value-added tax of 000 won for the second term of 2009, and imposition of KRW 000 for the total income tax of 2009 on January 13, 201 shall be revoked.

1. Details of the disposition;

A. From January 1, 2006, the Plaintiff operated a gas station business under the trade name, “CC gas station” from 00-00, Songpa-gu Seoul OOdong 00, and closed the business on October 31, 2010.

B. The Plaintiff received the purchase tax invoice from DDR Co., Ltd. (hereinafter “DDR”) as follows, and reported it as the input tax amount at the time of filing a value-added tax return in 2009, and deducted it as the input tax amount. In 2009, the Plaintiff reported it as the necessary expenses at the time of filing a global income tax return in 2009.

C. Since then, the defendant issued a tax invoice without real transaction to the plaintiff, and the tax invoice of this case that the plaintiff received from the D D D D D D D D D D DD is a tax invoice different from the fact. ① On September 1, 2010, the defendant issued a revised and notified each of the value-added tax 00 won and value-added tax 000 won (including additional tax) for the first period of September 2009 and 2009 for the second period of 2009, and ② did not recognize the tax invoice different from the above fact as legitimate necessary expenses, and decided and notified each of the following dispositions (hereinafter collectively referred to as "each disposition of this case").

D. On November 15, 2010 and February 14, 2011, the Plaintiff dissatisfied with each of the instant dispositions, filed an appeal with the Tax Tribunal. However, the Tax Tribunal rendered a decision to dismiss each of the instant dispositions on July 13, 201 and July 14, 201.

[Reasons for Recognition] Unsatisfy, Evidence Nos. 3 and 1 (including each number), each entry of Evidence No. 1, and the purport of the whole pleadings

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

A. The plaintiff's assertion

The Plaintiff actually purchased oil from DP and received the instant tax invoice, and thus, it cannot be deemed that the instant tax invoice constitutes a false tax invoice. Even if the instant tax invoice constitutes a false tax invoice, the Plaintiff confirmed the Plaintiff’s business registration certificate, petroleum retail business registration certificate, etc., and remitted the transaction price to the account in the name of DP, and as long as necessary verification and evidence are completed at the time of the transaction, such as the receipt of the tax invoice, detailed statement, and shipment slip, it is reasonable to deem that the Plaintiff constitutes a bona fide transaction party, and thus, the Plaintiff’s disposition of each of the instant tax invoices is unlawful.

(b) relevant statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) Details of the survey on data of the Central Regional Tax Office with respect to Dpet lines

A) On January 8, 2009, Dpetro was an oil wholesaler operating at the place of business of Busan-si, Nowon-gu, Seoul-gu, 00-0 Emerdik 000, and the following facts were confirmed as a result of the investigation by the Central Regional Tax Office of Dpetro.

(1) Although Dpet lines were oil wholesalers, they did not have oil storage facilities and oil transport vehicles at all, and they did not keep the account books of oil trade or the data on drivers, etc. at the place of business.

(2) Dpet lines do not have the oil storage facilities and immediately move oil from the oil reservoir of the purchaser to the gas station of the Plaintiff including the Plaintiff. As such, the place of destination, including the Plaintiff, etc., should receive the shipment slips issued by the four similar oil refineries. Dpet lines did not deliver the shipment slips issued by the four similar oil refineries to the gas station of the Plaintiff, etc., and recovered as soon as they are delivered. Dpet lines issued the shipment slips under their names to the gas station of the Plaintiff, etc. In lieu of Dpet lines, the portion, density, card number, pre-number, shipper, etc. were all disturbed, and the shipment slips issued by the four similar oil refineries did not conflict with each other.

(3) All of the Grandland Co., Ltd., FFpacks Co., Ltd., and GG Energy Co., Ltd., a purchaser of DDR, were confirmed to be a so-called data that falsely issued tax invoices without real transactions.

(4) The oil price that was transferred by credit transfer from the gas stations to D P P PP has been immediately transferred to the data supplier, and the total amount of the oil price was fully withdrawn in cash.

B) Based on the above facts, the director of the Central Regional Tax Office confirmed that D PP was the data that DP had issued and received tax invoices falsely without real transactions, and found that sales and purchase transactions from January 1, 2009 to March 31, 2010 were all processed transactions, and accused Kim H, an operator of D PP and D PP, to the prosecution under suspicion of violating the Punishment of Tax Evaders Act, and then dismissed D PH ex officio.

2) Details, etc. of transactions between the Plaintiff and DDRs

A) The Plaintiff received oil from Dpets during the taxable period of the Value-Added Tax for the first and second taxable periods of the Value-Added Tax in 2009, and received tax invoices issued by Dpets, shipment slips, and transaction specifications, and transferred the oil to Dpets account immediately after receiving the oil.

B) Although the shipment line issued by the Plaintiff is called “DDR”, the Plaintiff was supplied with oil released from the dopco oil reservoir operated by the Plaintiff.

C) Unlike the general shipment slips issued by DDpetro to the Plaintiff, the shipment slips issued by Dpetro to the Plaintiff include weight and density, weight, card number, tank number, column, etc.

D) In trading with D PP, the Plaintiff confirmed the business registration certificate and the petroleum sales business registration certificate from D PPP, and the petroleum sales business registration certificate includes the number of storage facilities as '9 period'.

E) In 1/209, the sales of BBB stations was not confirmed on the sales date of DBP stations during the period of the 2/2009 VAT.

3) The Kim II, a general manager in charge of the gas station management of theCC gas station, was found at a low-fresh oil supply station, and the head of the nearby gas station stated that the D PP was supplied with petroleum at the low price of 10 won to 20 won per liter by introducing the staff of the D PP, after hearing the words that the DP would normally supply petroleum.

[Reasons for Recognition] Unsatisfy, Gap evidence 4 through 9, 12 through 15, Eul evidence 3 through 6, the purport of the whole pleadings

D. 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 is merely nominal in the name of income, profit, calculation, act or transaction subject to taxation, and if there is another person to whom such matters actually accrue, the person to whom such matters actually accrue shall be liable to pay taxes in light of the purport of Article 14(1) of the Framework Act on National Taxes, which provides that the necessary entries in the tax invoice shall apply to cases where the contents of the necessary entries in the tax invoice do not coincide with those of the person to whom the goods or service is actually supplied or the person to whom the goods or service is supplied, value, and timing of the transaction (see, e.g., Supreme Court Decision 96Nu617, Dec. 10,

B) In light of the above legal principles, the following circumstances acknowledged by the overall purport of the evidence and arguments revealed in the facts acknowledged as above concerning the financial business of this case, namely, ① D P PPL is identified as data that has been issued and received by fraudulent means without real transaction during the period from January 1, 2009 to March 31, 2010, and Kim H-H was accused of violating the Punishment of Tax Evaders Act, and ② the Plaintiff purchased oil from D PPP for the first and second taxable periods of 2009, the Plaintiff was issued a tax invoice and sentenced, but the Plaintiff actually purchased the oil from DP, not through DP, but through DP sales from DP, the Plaintiff did not have any reason to deem that the Plaintiff actually purchased the oil from DP, not only the fact that the Plaintiff actually purchased the oil storage facility, but also the fact that the Plaintiff did not actually possess DP as DP, but also did not have any reason to deem that the Plaintiff purchased the oil from DP.

2) Whether the Plaintiff constitutes good faith and negligence

A) 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 actual supplier and the supplier were unaware of the fact that there was no negligence on the part of the supplier in the name of the tax invoice. The fact that the supplier did not know of the fact that there was no negligence on the part of the supplier on the part of the supplier (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002) must be proved by the person who claims the deduction or refund of the input tax amount (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). In this case, in light of the process of issuance and issuance of the tax invoice, the size and market price of the goods or services supplied, the specific route in which the goods or services were supplied, and the trade practice in the relevant industry, the recipient was aware of who was not the actual supplier or the nominal supplier’s data.

B) In light of the above legal principles, although the Plaintiff was supplied with oil two times from DPs, the Plaintiff received tax invoices, shipping slips, and trading specifications issued by D PPs, and the Plaintiff confirmed the full amount of oil prices to D PPs' corporate accounts, as seen earlier, it is insufficient to find that the Plaintiff did not know the fact that the tax invoice issued by D PPs was false while purchasing the oil from D PPs, and that there was no other evidence to acknowledge that the Plaintiff did not know that there was any negligence on the part of DPs' market price. Rather, the Plaintiff did not know about the fact that the Plaintiff was not a supplier of D PPs' market price and that there was no doubt about the fact that the Plaintiff was no other than DP's market price in the above 2-year supply of D PPs' trade, and that the Plaintiff was not a supplier of DD's market price, and that there was no doubt about the Plaintiff's purchase of DPs' market price and no other evidence for the first time.

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.