a tax invoice issued as a petroleum retailer shall constitute a false tax invoice.

As a result, it is insufficient to recognize that a tax invoice issued as a petroleum retailer constitutes a tax invoice different from the fact, and that it is in good faith and negligence in believing that the tax invoice received as such is a proper tax invoice, and thus, a disposition imposed upon the non-taxation of the value-added tax is legitimate.

2010Guhap4067 Disposition to revoke the imposition of value-added tax

주식회사〇〇

〇〇세무서장

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of KRW 38,252,510 of value-added tax for the second period of 2008 against the Plaintiff on February 8, 2010 is revoked.

1. Circumstances of dispositions;

A. From September 1, 2008, the Plaintiff is a corporation that operated the wholesale and retail business of petroleum in the trade name of ○○○○○-dong 526-7, ○○○-dong 526-7.

B. In the second taxable period of the value-added tax in 2008, the Plaintiff received a tax invoice for 169,836,364 (hereinafter “1 tax invoice”) totaling the supply value from the △△△ Petroleum branch (hereinafter “△△ Petroleum”), and received a tax invoice for 67,654,545 (hereinafter “2 tax invoice”) for the total sum of supply value from the △△△ Energy Co., Ltd. (hereinafter “△△△ Energy”), and filed and paid the value-added tax by deducting the input tax amount.

C. On the ground that a tax invoice on February 1, 2010 was issued without a real transaction, the Defendant issued the instant disposition imposing KRW 38,252,510 on the Plaintiff on the following grounds: (a) the input tax amount was not deducted; and (b) the Defendant issued the said tax invoice.

D. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on April 27, 2010, but the Commissioner of the National Tax Service dismissed the request on June 14 of the same year.

[Grounds for Recognition] Facts without any dispute, Gap Nos. 1, 2, Eul No. 1 (including virtual numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was actually supplied with oil from △△ Petroleum and △△ Energy, and was normally traded by remitting the purchase price, and thus, the tax invoice Nos. 1 and 2 was not false. Even if false tax invoices were made, the Plaintiff was supplied oil for the first time by opening a gas station on September 1, 2008. The Plaintiff was issued a business registration certificate, a name card, and a corporate passbook, etc. from △△ Petroleum and △△ Energy, and verified it. The Plaintiff was not negligent in not knowing that the tax invoice Nos. 1 and 2 was a false tax invoice by directly remitting the oil price to the corporate account of each of the above companies, and received the tax invoice from each of the above companies. Thus, the instant disposition

B. Relevant statutes

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

C. Facts of recognition

1)◇◇석유는 2007.11.16. 사업자등록을 한 후 2008.9.30.폐업한 사업자인데, 석유판매업 등록을 위하여 주식회사 ▽▽티의 유류 저장 시설과 수송 장비 등을 임차하였으나 이를 한 번도 사용한 사실이 없으며, □□석유, 주식회사 ▷▷에너지로부터 2008년 제1기 69억 4,100만 원, 2008년 제2기 23억 2,300만 원 합계 92억 6,400만 원(전체 매입금액의 99.9%)을 매입하였다고 신고하였으나 위 매입처는 각 자료상으로 판명되어 고발되었고, ◇◇석유가 송금한 유류대금이 인출되어 ◇◇석유의 계좌에 다시 입금되는 등 금융거래를 조작한 것으로 밝혀졌다. 또한 ◇◇석유는 2008년 제1기 69억 7,300만 원, 제2기 23억 2,800만 원을 매출액으로 신고하였으나 출하전표에 기재된 저유소에서 유류가 출고된 사실이 없어, 중부지방국세청장은 ◇◇석유의 2008년 1,2기 매입 92억 6,400만 원 및 매출 전액을 가공 거래로 판단하여 ◇◇석유를 자료상으로 고발하였다.

2) On October 1, 2008, 2008, △△△ Energy was a business operator registered as a business operator and closed on January 29, 2009. There was no fact of using oil storage facilities and transportation equipment leased from △△ City, Inc. for the registration of petroleum retail business once. In 2008, 23.735 billion won (total purchase amount 9.9%) was reported by △△△△△, a corporation (the total purchase amount was clearly stated as a processing transaction and the sales amount was clearly stated as a material transaction) from △△△△△, a corporation, a △△△△△, a △△△△△, a business operator registered as a business operator. Moreover, △△△△△△△△△, a business operator reported the sale of △△△△△△△, and then released the total amount of oil transferred from 27.5 billion won to △△△△△, a business operator of △△△△△, a business operator of △△△△△, had purchased a tax invoice 282000.

3) The Plaintiff, via the Internet gas-sharing website, became aware of △△ Petroleum through the Internet website of AAB, an oil brokerage company, and traded △△△ Energy by ordering oil to △△ Petroleum and △△△ Energy, and then remitting the oil price to each corporate account after being supplied with it.

4) At the time of undergoing an investigation by the ○○ Tax Office around December 2009, the Plaintiff confirmed the copy of the △△ Petroleum’s business registration certificate, the name of the person in charge of the transaction, and the copy of his identification card, etc., and began transactions with △△ Petroleum. In the case of △ Energy, the Plaintiff did not confirm transaction data differently since it traded through the Internet website of the oil brokerage company. The shipment slips received oil from the oil reservoir at the time of receiving each oil from △△ Petroleum and △△ Energy, and thereafter, the Plaintiff returned the Plaintiff to the Plaintiff and stated that the employee of △△△△△△ Petroleum and △△△ Energy was returned to the Plaintiff, and was replaced by the shipment slips in

5) YellowB, the representative director of the Plaintiff, operated the gas station from August 1, 2006 to 55-4, △△△△△△△△, 55-4, and around September 1, 2008, the aforementioned gas station was converted into the Plaintiff’s branch and operated the gas station. During the second taxable period from 2007 to 2008, on the ground that the individual entrepreneur received tax invoices different from the facts from △△ Petroleum, etc., the value-added tax was revoked, and the value-added tax was corrected on the grounds that he received false tax invoices from △△△ Petroleum during the second taxable period from 2008, which was converted into a corporation.

[Ground of recognition] Facts without any dispute, Gap evidence 3, Eul evidence 2 through 7 (including additional numbers), the purport of the whole pleadings

D. Determination

1) Whether the instant tax invoice is false or not

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., regardless of the formal entries in the transaction contract, etc. made between the parties to the goods or services.

B) The Defendant also acknowledges that the Plaintiff actually purchased oil in the quantities listed in the first and second tax invoices. As such, the customer who supplied oil to the Plaintiff is the supplier of △△△△ Petroleum and △△ Energy on the tax invoice. As recognized earlier, the business entity reported by △△△ Petroleum and △△ Energy to the purchaser was found to be all data and the details of the purchase reported were also identified as a processed transaction. In light of the fact that △△ Petroleum and △△△ Energy cannot be deemed to have actually supplied its oil to the Plaintiff in the absence of oil, and that △△△△ Petroleum and △△△△△△△△△ did not have entirely used oil storage facilities or transportation vehicles reported after receiving the business registration of petroleum sales, and the Plaintiff’s oil purchase place in the tax invoice 1 and 2 should be deemed to be a third party, not △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△

(ii) Whether the plaintiff is a bona fide trader

A) Unless there is any special circumstance that the actual supplier and the supplier on the tax invoice are not aware of the disguised name of the tax invoice and that there is no negligence on the part of the person who received the tax invoice, the input tax amount cannot be deducted or refunded, and that there is no negligence on the part of the person who received the tax invoice not knowing the above nominal name, the person who asserts the deduction or refund of the input tax amount must prove (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28

(b)First, as to whether the Plaintiff was unaware of the title of the tax invoice Nos. 1 and 2, and whether there was no negligence on the part of the Plaintiff, each of the entries of Nos. 3 through 6 (including the paper numbers) is insufficient to recognize it, and there is no other evidence to acknowledge it.

C)In full view of the following circumstances, the Plaintiff, even though he knew, or did not know, that the petroleum and △△ Energy was not the actual supplier of the instant oil, was negligent in doing so.

In other words, ① the Plaintiff opened the instant gas station on September 1, 2008. However, the Plaintiff’s representative director had been operating the gas station in the previous years. As such, the Plaintiff was aware of the normal structure and route of oil supply, the general type and method of transactions in the industry, and the actual situation of transactions in the oil industry widely spreaded to the oil industry through experience during the past. ② The Plaintiff is unable to submit the registration certificate, etc. that it obtained from its customer, and it is difficult to view that the Plaintiff was exempt from the duty of due care to confirm the customer solely because the Plaintiff traded through the oil intermediary. ③ The pre-delivery ticket issued at the oil reservoir at the time of shipment was not the date and time of shipment, the name of the customer, the place of arrival, the transportation equipment, the volume of shipment, the volume of shipment, and the temperature, etc., and the Plaintiff did not know of the oil transport vehicle at the time of shipment, the Plaintiff did not have been negligent in the Plaintiff’s △△△△△△△△△△△△△△, which was in the name of the Plaintiff.

(iii)Indivates

Therefore, the first and second tax invoices constitute false tax invoices, and it is insufficient to recognize the circumstances that the Plaintiff is bona fide and negligent in believing that such tax invoices were 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.