early 209 Heavy2123 ( October 26, 2009)

Whether a processing tax invoice without real transaction related to oil purchase has been received

Since there is no room for using oil storage facilities, and it is a typical fund laundering method to conceal financial transactions from data, it seems that the purchaser is only a person who issues a false tax invoice, etc.

The contents of the decision shall be the same as attached.

1. The disposition of imposition of global income tax amounting to KRW 18,768,090 on February 16, 2009 by the director of the Chuncheon Tax Office against the Plaintiff on February 16, 2009 shall be revoked.

2. The plaintiff's claim against the defendant head of Seo-○ Tax Office is all dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the head of Seocheon Tax Office shall be borne by the Plaintiff, and the part arising between the Plaintiff and the head of Seocheon Tax Office shall be borne by the said head.

The disposition of Paragraph (1) of this Article and the disposition of imposition of value-added tax of KRW 21,572,950 for the second term of November 10, 2008 against the plaintiff by the head of Seo-○ Tax Office and the head of Seo-○ Tax Office (hereinafter referred to as the "head of Seo-○ Tax Office") and the disposition of imposition of value-added tax of KRW 5,742,430 for the second term of February 11, 2009 shall be revoked.

1. Details of the disposition;

A. The Plaintiff, who operates a gas station in the trade name of ○○○○○-dong 604-6, ○○○○-dong 604-6, was liable to pay the value-added tax for a period of two years in 2006 and the comprehensive income tax for a period of two years in 2006;

(1) Between September 22, 2006 and December 22, 2006, the total value of five purchase tax invoices received from △△△ Energy Co., Ltd. (hereinafter referred to as “△△△ Energy”), equivalent to KRW 116,814,364;

(2) The amount equivalent to 37,963,636 won per purchase tax invoice received from ○○ Energy Co., Ltd. (hereinafter “○○ Energy”) on December 29, 2006; and

(3) The purchase tax invoice received from △ Energy Co., Ltd. (hereinafter referred to as “△ Energy”) around November 2006 is equivalent to KRW 40,400,000, etc. per purchase tax invoice.

A total of KRW 195,178,000 was deducted as input tax and appropriated as necessary expenses.

B. From August 2007 to November 2007, the head of competent tax office conducted a tax investigation on △△ Energy, ○○ Energy, and △△ Energy, and confirmed that each of the above corporations mainly issued false tax invoices, and notified Defendant 2 to the head of Seo-○ Tax Office of taxation data on the customer of the above corporations including the Plaintiff.

C. After conducting on-the-spot verification on the Plaintiff, the director of the tax office having jurisdiction over the Plaintiff determined that each of the tax invoices of this case is a false tax invoice, and against the Plaintiff:

(1) On November 10, 2008, the input tax amount on each tax invoice for △△ Energy and ○○ Energy was not deducted, and the input tax amount was corrected and notified 21,572,950 won for the second period of 2006.

(2) On February 11, 2009, the VAT was imposed KRW 5,742,430 for the second term of 2006 by deducting the input tax amount on the tax invoice for △ Energy (hereinafter “instant disposition imposing the value-added tax”).

D. On the other hand, on February 5, 2009, the head of Seocheon Tax Office notified the head of Seocheon Tax Office of the global income tax correction resolution in 2006 that the supply value on the tax invoice for Cheongcheon Tax did not be recognized as necessary expenses. Accordingly, on February 16, 2009, the head of Seocheon Tax Office corrected and notified the Plaintiff of KRW 18,768,090 of the global income tax for the year 2006 (hereinafter “instant disposition imposing global income tax”).

E. The Plaintiff filed an appeal with the Tax Tribunal on May 6, 2009, against the imposition disposition on △△ Energy and ○○ Energy. However, the Plaintiff’s appeal was dismissed on June 26, 2009, and the appeal was filed with the Tax Tribunal on May 6, 2009, but was dismissed on June 30, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 3, 4, 7, 8, 9 (including provisional number), and the purport of the whole pleadings

2. Determination as to whether the disposition of value-added tax in this case is legitimate

A. The plaintiff's assertion

The Plaintiff received oil shipment slips issued by each of the above corporations in purchasing oil from △△ Energy, ○○ Energy, and △△ Energy, and transferred oil proceeds to each of the above corporations through the bank. According to the disposition imposing the value-added tax, each of the tax invoices cannot be deemed to have been based on the processing transaction or disguised transaction, and even if the actual transaction partner is not each of the above corporations, the Plaintiff constitutes a bona fide transaction partner who trades the above corporations with the knowledge of the actual supplier, and thus, the disposition imposing the value-added tax in this case is unlawful, and as long as the oil was actually supplied from △△△ Energy, the value of supply

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The Plaintiff received commission fees from around September 2006 through AAA from around December 2, 2006 to around December 12, 2006, supplied the Plaintiff with light oil equivalent to the 116,000 liter and the corresponding fuel amount to △△ Energy Account; ② the corresponding fuel amount was supplied with light oil equivalent to the 40,000 liter; ③ the corresponding fuel amount was supplied to △△ Energy Account; ③ the corresponding fuel amount was supplied with light oil equivalent to the 40,000 liter; and deposit all corresponding fuel amount into ○○ Energy Account.

(2) From March 9, 2004, the △△ Energy commenced business from around August 11, 2006 with ○○ Energy, from around June 28, 2006, and from around June 28, 2006 with the result of the tax investigation: (i) from around September 2004, △△ Energy leased one set of oil storage tank (capacity 1.000) from the place of business where ○○○ Terminal Terminal Co., Ltd., Ltd., and used the oil storage tank from around September 2006; (ii) from around 2006, there was no fact that oil was deposited and released from the above tank; and (iii) from around August 10, 2006, △△△△ Energy leased and used an oil storage tank located in ○○○○○-dong ○○○○-dong 401-21, but there was no fact that the oil was loaded in the above tank.

(3) ① The money deposited in the △△ Energy account by the recipient of the tax invoice from △△ Energy was immediately withdrawn in cash or deposited in several accounts. The instant △△ Energy Tax Invoice deposited by the Plaintiff to the account of △△△ Energy was deposited in the account of △△△△△ Energy, and the money deposited in the account of △△△△△△ Energy was immediately deposited in the account of △△△△△△ Energy or deposited in cash. ② The money deposited in the △○ Energy account by the recipient of the tax invoice was immediately deposited in cash or deposited in several other accounts, and returned again to the △△○ Energy Purchase Agency. ③ The money deposited in the △△ Energy account by the recipient of the tax invoice was immediately withdrawn in cash, and the head of △△ Energy was managed by the head of △△ Energy and thisCC.

(4) ① 이 사건 △△에너지 세금계산서에 대한 출하전표에는 출하처가 기재되지 않거나 '경기 ▲▲', '○○ ◁◁구 ◁◁동 553-3' 또는 '◁◁구'로 기재되어 있는데, 세무조사 결과 위 장소들은 △△에너지의 사업장이 아닐 뿐만 아니라 '○○ ◁◁구 ◁◁동 553-3'는 단순한 사업용 건물인 것으로 밝혀졌고,② 이 사건 □□에너지 세금계산서에 대한 출하전표에는 출하처가 '경기 ▲▲'로 기재되어 있는데, 세무조사 결과 위장소는 □□에너지의 사업장이 아니다.

(5) Under the tax invoice, the main oil supplier of △△△ Energy, ○○ Energy, and △△ Energy is the tidal energy. Since the opening of the business on August 11, 2006, the operation of the tidal energy was discontinued ex officio by deeming that the actual business was not commenced. The ratio of the sales amount on the processing tax invoice issued by ○ Energy was 100% of the total sales amount.

"(7) The ratio of the amount of sales on the processed tax invoice issued by △△ and △△ Energy in the two taxable periods of 2006 and the 171st taxable periods of 207, to approximately 9% of the total amount of sales, and the ratio of the amount of sales on the processed tax invoice issued by ○○ Energy from December 26, 2005 to March 31, 2007, to approximately 87.6% of the total amount of sales." [Grounds for recognition], without any dispute, each entry in Gap's 3 through 18, 22 through 33, Eul's 1 through 22, and Eul's 1 through 22 (including a serial number), witness A, and Eul's testimony and the purport of the entire pleadings, as a whole.

D. Determination

(1) Whether each of the instant tax invoices is false

(A) A tax invoice shall be issued from an entrepreneur who supplies under the Value-Added Tax Act, and a person liable to pay value-added tax shall be deemed to be a person who actually received goods or services or who actually provided goods or services to a supplier rather than a nominal legal relationship with an entrepreneur who provides or is supplied (see, e.g., Supreme Court Decision 2002Do4520, Jan. 10, 2003). A tax invoice entered as a supplier by a person who merely provided and mediated real transactions shall be deemed to be a false tax invoice different from the fact.

(나) 살피건대, 원고가 △△에너지, ○○에너지 및 □□에너지에 실제로 유류 대금을 지급하고 유류를 수령한 점 등에 비추어 이 사건 각 세금계산서 기재 상당의 실물거래가 있었던 사실은 인정되나{피고는, 원고의 총괄일보 및 출하전표에 의하면 2006. 11. 한 달 동안 공급받은 유류는 총 140.000ℓ로서 총괄일보상 공급량과 출하전표상 공급량이 일치하고, 위 출하전표에는 원고가 □□에너지로부터 2006. 11. 공급받았다고 주장하는 유류 40,000ℓ에 대한 출하전표가 포함되어 있지 않으므로 위 유류 40,000ℓ를 실제로 공급받은 것으로 볼 수 없다고 주장하지만, 갑제16호증의1, 갑제17호증의1, 갑제26호증, 갑제27호증의1 내지 5, 갑제28호증의31, 갑제29호증의31, 을제11 호증의1 내지 7의 각 기재에 변론 전체의 취지를 더해 인정되는 다음과 같은 사정, 즉, 2006. 11. 한 달 동안 원고가 수취한 출하전표는 총 9장(각 장당 유류 공급량은 20,000ℓ)이고 그 중 2장은 □□에너지로부터 수취한 출하전표인 점, 원고는 2006. 11.경 40,000ℓ 상당의 유류에 대한 대금을 □□에너지 계좌에 입금한 점, 원고는 2006. 10. 31. 동국석유 주식회사로부터 유류 20,000ℓ를 공급받기로 하고 같은 날 유류 대금을 지급하였으나 실제로는 다음 날인 2006. 11. 1. 입고됨에 따라 출하전표상 공급일은 2006. 11. 1.로 기재되어 있음에도 송금 날짜와 입고 날짜를 맞추기 위해 총괄일보에는 전날인 2006. 10. 31. 위 유류를 공급받은 것으로 기재된 점 원고는 2006. 11. 30. ▷▷스 주식회사로부터 유류 20.000ℓ를 공급받음으로써 출하전표상 공급일은 2006. 11. 30.로 기재되어 있으나 공급받은 시각은 오후 6시경으로서 원고의 정산 처리 시간인 오후 2시를 지났기 때문에 총괄일보에는 다음날인 2006. 12. 1. 위 유류를 공급받은 것으로 기재된 점에 비추어 보면, 원고가 2006. 11. 수취한 9장의 출하전표 중 동국석유 주식회사 및 ▷▷스 주식회사로부터 수취한 2장의 출하전표에 해당하는 유류 40,000ℓ는 같은 달 총괄일보상 공급받은 것으로 기재되어 있는 총 140,000ℓ 에서 제외되어 있어 그에 상응하는 40,000ℓ는 □□에너지로부터 수취한 2장의 출하전표에 해당하는 것으로 봄이 상당하므로 원고는 2006. 11. □□에너지로부터 유류 40,000ℓ를 실제로 공급받았다고 인정된다}, 이 사건 각 세금계산서가 사실과 다른 세금계산서인지 여부의 판단 기준이 되는 세금계산서 발행자인 △△에너지, ○○에너지 및 □□에너지가 위 유류의 실제 공급자인가에 대하여 보건대, 앞서 인정한 사실에 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정 즉 ① △△에너지, ○○에너지 및 □□에너지가 2006년 2기에 발행한 매출 세금계산서의 대부분이 가공 거래에 의한 것인 점,② △△에너지 및 □□에너지는 유류저장시설을 사용한 적이 없는 점,③ 원고가 △△에너지, ○○에너지 및 □□에너지 계좌에 입금한 돈은 그 즉시 출금되어 다른 여러 계좌로 분산 이체된 후 다시 전액 현금 인출되었는바, 이는 자료상 행위를 은폐하기 위한 전형적인 자금세탁의 방식인 점,④ 이 사건 각 세금계산서상 유류에 대한 출하전표상 출하처는 △△에너지, ○○에너지 및 □□에너지의 사업장이 아니거나 유류를 출고할 만한 곳이 아닌 점 등에 비추어 보면, △△에너지, ○○에너지 및 □□에너지는 정상적으로 실물거래를 하는 업체로서 통상의 영업을 하고 있었다고 보기 어렵고, 단지 무자료 유류유통업자들과 원고의 거래를 연결하여 주면서 실제 재화 ・ 용역의 공급 경로와는 별도로 허위의 세금계산서 등을 발급하여 준 자에 불과하다고 봄이 상당하므로, △△에너지, ○○에너지 및 □□에너지가 공급자로 기재된 이 사건 각 세금계산서는 사실과 다른 허위의 세금계산서라 할 것이다.

(2) Whether the Plaintiff is bona fide and without fault or not

(A) Unless there are special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence on the part of the supplier, who was unaware of the fact that the supplier was unaware of the name of the tax invoice, and that the person who was provided with the tax invoice was unaware of the fact that the supplier was not aware of the fact that the purchaser was unaware of the name of the tax invoice, the person who claimed the deduction or refund of the input tax amount should prove the fact that the supplier was not negligent (see, e.g., Supreme Court Decision

(B) Therefore, the evidence submitted by the Plaintiff alone is insufficient to find that the Plaintiff was negligent in not knowing that the Plaintiff was engaged in the act of purchasing △△ Energy, ○○ Energy, and △△△ Energy, the issuer of each of the tax invoices of this case, and that there was no negligence. Rather, there was no evidence to find otherwise. Rather, the following circumstances acknowledged as follows: ① at the time of oil industry, data transactions were widely spread, and the Plaintiff was also well aware of the actual state and risk of such transactions. The Plaintiff was also aware of the authenticity of the customer even in order to prevent damage caused by the purchase of oil without oil before commencement of oil transactions. However, even if the Plaintiff did not know the business registration prior to the commencement of transactions with △△△, ○○ Energy, and △△△△△○ Energy, or visiting the related business establishment, or having been directly in charge of the business, and the Plaintiff did not know that the Plaintiff did not actually receive or sell the oil at the time of supplying △△△△△, an independent oil distribution facility.

3. Determination as to whether the instant global income tax disposition is legitimate

As seen earlier, the Plaintiff is recognized to have been actually supplied with oil 40,000 liters from Cheongcheon Energy on November 2006. Therefore, Defendant Chuncheon Tax Office’s imposition of global income tax of this case, without recognizing the proceeds from the supply of oil 40,000 liters as necessary expenses, is unlawful.

4. Conclusion

Therefore, the plaintiff's claim against the defendant Chuncheon Tax Office is accepted on the ground of its reasoning, and all of the claims against the defendant Cheongcheon Tax Office is dismissed as it is without merit. It is so decided as per Disposition.