Suwon District Court 201Guhap3161, 2012 03.20

National Tax Service Review Division 201-0021 (Law No. 29, 2011)

The tax invoice of this case may not be recognized as a good faith or negligence as a false tax invoice.

Even if the contents of the other company are different from the fact that the company supplied oil, and the plaintiff confirmed the business registration certificate and the registration certificate for petroleum sales business of the customer, it is not allowed to recognize the negligence without knowing the fact of the customer's name in light of all the circumstances shown in the transaction process.

Article 17 of the Value-Added Tax Act

2012Nu10309. Revocation of the imposition of value-added tax

Gangwon A

Head of the Pakistan Tax Office

District Court Decision 2011Guhap3161 Decided March 20, 2012

January 15, 2013

February 8, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first island shall be revoked.

The Defendant’s imposition of the first value-added tax in 2009 and the second value-added tax in 2009 against the Plaintiff on December 1, 2010 shall be revoked.

1. Value-added tax;

In full view of the overall purport of the pleadings, the following facts are recognized in each description of Gap, 2, and 19, and Eul, 1, 5, and 19 (including household numbers):

[1]

○ On October 1, 2008, the Plaintiff registered the OOri 000 as a place of business and operated a gas station under the trade name of “BB gas station”.

○ In the first period of 2009, the Plaintiff received two tax invoices of KRW 000,000 in total supply value, and received three tax invoices of KRW 000,000 in total supply value from DD (hereinafter “DD”), and received six tax invoices of KRW 00,00 in total supply value from DD in the second period of 2009.

○ In 2009, the Plaintiff reported input tax deduction based on the said tax invoice when filing the first and second tax returns.

[2]

○ The Defendant recognized the Plaintiff’s total tax invoice of KRW 000,000, which was received fromCC, as a false tax invoice, and recognized that all of the said tax invoice received by the Plaintiff D was a false tax invoice.

○ As above, the Defendant denied the input tax deduction based on the tax invoice recognized as false tax invoice (hereinafter referred to as “instant tax invoice”), and on December 1, 2010, imposed upon the Plaintiff the imposition of KRW 000,000,000, value-added tax No. 200,009, respectively (hereinafter referred to as “instant disposition”).

○ The Plaintiff dissatisfied with the instant disposition and filed a petition for review with the National Tax Service on February 16, 201, but was dismissed on April 29, 2011.

2. The plaintiff's assertion

Inasmuch as the Plaintiff was supplied with oil fromCC and D and received the instant tax invoice, the instant tax invoice is not a false tax invoice. Even if the instant tax invoice is a false tax invoice, the Plaintiff did not know such circumstances without fault. Therefore, the instant disposition denying the input tax deduction based on the recognition of the instant tax invoice as a false tax invoice is unlawful.

3. Facts of recognition;

The following facts are recognized in full view of the overall purport of the pleadings (written request for dispatch) at each period of Gap's 4, 7, and 10 through 15, and Eul's 2 through 18, and 21 through 23 (including paper numbers), and the testimony of Gap's 6-2, Gap's 18-2, and Gap's 18-2, and the testimony of the highestF is difficult to believe, and the testimony of Gap's 3, 5, and 20, and 21 (including paper numbers) are insufficient to reverse the above recognition:

[1]

○ On September 1, 200, the Plaintiff: (a) registered 000 U.S. OG petroleum in the place of business; (b) closed the business on August 31, 2005; and (c) registered O00 in the place of business on October 1, 2008 as 'BB oil station'; and (b) sold oil in the name of i.e., her husband Kim HH in fact.

○ The Plaintiff was supplied with oil directly by oil refining companies, such as III and J-Energy Co., Ltd., and was supplied with oil for sales purposes other than oil refining companies.

○ The oil distributed in the Republic of Korea shall be shipped out from four oil refineriess, and the oil transport shall be limited to vehicles registered as hazardous materials transport vehicles. The oil refining company shall issue four copies of the shipment slips which indicate the orderer, the transport vehicle, the date and time of the shipment, the arrival, the quantity and condition of the oil, etc. in the oil reservoir, and the two copies shall be kept by the oil refining company, and the remainder shall be provided to the article of the oil transport vehicle for submission after confirmation at the place of destination.

Pursuant to the type and proportion of oil, the oil shall be entered in the pre-delivery table, the temperature, the oil source, the shipper, the shipper's signature, the tank heading, etc. are entered, and the date of issuance shall be entered in the first unit. The oil station, etc. in receipt of the oil may confirm whether the oil is refined by comparing the scheduled transport time from the place of shipment to the place of destination, the actual transport time, etc. based on the shipment date and the place of shipment listed in the shipment slip with the actual transport time.

[2]

○ CCCC에 대한 중부지방국세청장의 세무조사에서，▲ CCCC의 2009년 제1기 매입액 000원 중 33.2%인 000원이 가공매입액이고， 같은 매출액 000원 중 95.5%인 000원이 가공매출액이며，▲ CCCC의 대표이사 박KK이 관리하는 매입 ・ 매출 부분과 CCCC의 사실상 대표자 이EE가 이EE 가 관리하는 매입 ・ 매출 부분이 별도로 존재하고，▲ CCCC의 법인계화 이외에 이 EE와 박KK의 개인계좌로 유류대금이 송금 또는 입금된 것이 확인되었다.

○ 박KK은 위 세무조사 당시 진술하면서，▲ 자신이 2008. 3. 4.부터 CCCC의 운영 에 참여하였으나 실질적인 권한은 이EE에게 있었고，▲ 이EE는 CCCC의 매입물량을 주문하거나 매입대금을 지불한 사실이 없으며，▲ 이EE가 CCCC의 사장인양 거래처에 돌아다니며 허위 세금계산서를 교부하였던 것을 2009년 하반기에 와서 느꼈고，▲ 이EE가 CCCC의 유류를 단 한 방울도 판매한 사실이 없다고 진술하였다.

○ 이EE는 위 세무조사 당시 진술하면서，▲ LL상사 주식회사와 같은 유통업체의 기름을 사가지고는 영업이익이 남지 아니하므로 박KK이 무자료로 구입하여 판매하는 일명 파배기 업체의 물량을 받았을 것이고，▲ 박KK이 매출 자료를 맞추기 위하여 가공매입 세금계산서를 받았을 것으로 추정된다고 진술하였다.

○CC supplied the oil from the oil to LLS Co., Ltd., and with respect to these oil, the orderer stated in the shipment slips of oil refining company as LLS Co., Ltd., and India, asCC, the input side, products, tanks, temperatures, quantities, shipping quantities, shipping quantities, and vehicle numbers, and the date of publication are stated in the first unit. The Defendant issued tax invoices fromCC with respect to the said oil by the Plaintiff, except for the tax invoices different from the facts.

○ In the facts acknowledged earlier, the Defendant: (a) recognized the Plaintiff’s total tax invoice of KRW 000,000, which was received fromCC, as a false tax invoice; and (b) issued by the oil company, did not confirm the shipment slip of the oil company; and (c) there was no financial data other than those with double payment, or any financial data other than payment stamps.

○ 원고의 남편 김HH는 원고에 대한 세무조사 당시 진술하면서，▲ 원고는 BB주유소의 사업자등록만 하였을 뿐 남펀인 자신이 실질적으로 BB주유소를 운영하였고，▲ CCCC의 이사라는 이EE에게 주문을 하였으며，▲ 유류수령 후 유류대금을 지급하고 CCCC 명의의 세금계산서를 교부받았다고 진술하였다.

○ 또한 김HH는 수사기관에서 진술하면서，▲ 실제 업무를 하는 이EE와 거래하였을 뿐이어서 CCCC의 대표이사가 누구인지는 모르고，▲ BB주유소에서는 기름의 입고량을 기입하는 장부를 작성하지 않았다고 진술하였다.

[3]

○ 한편으로 DD에 대한 서울지방국세청장의 세무조사에서，▲ DD의 2009년 제1기와 제2기 매입액 000원 중 97%인 000원이 가공매입액이고， 같은 매출액 000원 중 97.3%인 000원이 가공매출액이며，▲ 지점인 서울 노원구 OO동 00 소재 MM오피스텔 000호는 8평 규모에 불과하고， 유류저장 시설이나 유류운송차량을 차량을 보유하지 않았으며， 본점의 시설이나 차량을 사용한 적도 없는 것으로 확인되었다.

○ 또한 위 세무조사에서，▲ DD이 교부받은 세금계산서에는 NN에너지， PPP에너 지， QQ에너지 등이 매입처로 기재되어 있는데， 이러한 매입처가 정유회사에 유류주문을 한 내역이 나타나지 않고，▲ DD이 교부한 세금계산서에는 원고， RRR， SS정유 등이 매출처로 기재되어 있는데， 이러한 매출에 관하여 DD이 제출한 차량별， 일자별， 거래처별 운송내역은 정유회사가 제출한 출하내역 및 운송내역과 다른 것으로 확인되었다.

○○ N Energy, etc. requires DNA to recover shipment slips issued by oil refining companies, and as a result, DNA recovered shipment slips issued by oil refining companies from the above selling places of the Plaintiff et al. and returned them to N Energy, etc.

○○D issued its own shipping slips and delivered them to the above selling places of the Plaintiff et al., and the oil transport vehicle and the date indicated in the shipping list of suchD issuance are different from those indicated in the shipping details by vehicle prepared by the oil refining company at all from the orderer and destination of the oil. In addition, the shipping slips of DD issuance include only the type, quantity, and vehicle number of the oil in which the Plaintiff’s operation is described in high quantity, and the shipping price is described in high quantity, but do not include specific details on the arrival or the state of oil.

○ 원고의 남편 김HH는 원고에 대한 세무조사 당시 진술하면서，▲ 원고는 BB주유 소의 사업자등록만 하였을 뿐 남편인 자신이 실질적으로 BB주유소를 운영하였고，▲ DD의 영업상무인 최FF에게 주문을 하였으며，▲ 유류를 수령한 후 유류대금을 지 급하고 우편으로 세금계산서를 교부받았고，▲ DD은 정유회사 발행의 출하전표를 원고에게 교부하였다가 유류대금 지담 후 이를 회수하고 DD 발행의 출하전표를 다시 교부하였다고 진술하는 한편，▲ 자신은 DD의 영업상무라고 하는 최FF만을 상대하였고， DD이 직접 유류를 공급하는지는 확인하지 않았으며， DD이라는 회사는 잘 모른다고 진술하였다.

4. Determination

(a) A false tax invoice;

(1) Article 17 of the Value-Added Tax Act provides that the input tax amount in a case where the entries of a tax invoice are different from the fact shall not be deducted from the output tax amount. The meaning that it is different from the fact is that the ownership of income, profit, calculation, act or transaction subject to taxation is nominal, and where there is a separate person to whom it actually belongs, the person to whom it actually belongs shall be liable for tax payment in light of the purport of the Framework Act on National Taxes, which provides that the necessary entries of a tax invoice shall be applied to the person to whom it actually belongs, and the cases where the necessary entries of a tax invoice are inconsistent with those of the person to whom the goods or service is actually supplied or supplied, regardless of the formal entries of a transaction contract, etc. made between the parties to the goods or service (see Supreme Court Decision 96Nu617, Dec.

(2) Unless there are special circumstances where an entrepreneur who actually supplies and a supplier different tax invoices are different from the fact that the supplier was unaware of the name of the tax invoice, and there is no negligence on the part of the supplier, the input tax amount cannot be deducted or refunded, and the person who received the tax shall prove that the supplier was not negligent in not knowing the above fact of the name of the invoice (see Supreme Court Decision 97Nu4920, Jun. 27, 1997).

B. The instant tax invoice

We examine the tax invoice of this case in accordance with the above facts and the evidence.

(1) In the tax investigation intoCC, it was confirmed that the purchase amount and sales amount ofCC were confirmed to be a substantial partial processing, and that the oil price was remitted or deposited to the personal account of the representative director Park KK and the de facto representative E in addition to the corporate account ofCC. In addition, according to the statements of Park K and EO at the time of the tax investigation conducted by Park K and EO, it is recognized that there was a substantial case where other companies thanCC supplied oil, andCC issued or received a false tax invoice. According to these circumstances, it is recognized that there was a considerable case where the company other thanCC supplied oil, andCC issued only the tax invoice. In addition, as to the portion of the tax invoice that the Plaintiff received fromCC, there was a shipment slip issued by the oil company, while the Plaintiff did not confirm the shipment slip issued by the oil company, the instant tax invoice was issued to the Plaintiff, and that there was no room for the Plaintiff to do so before the date of the instant tax investigation, and that there was only the Plaintiff’s statement that it did not know that it had been issued the tax invoice in its name before the Plaintiff’s.

(2) According to the above circumstances, since the purchase amount and sales amount of DD were confirmed to be processed with a considerable portion, and DD did not use oil storage facilities or oil transport vehicles, and D did not appear in the list of the tax invoices issued by DD, and the transport details submitted by DD with respect to the sale of the plaintiff et al. entered in the tax invoices issued by DD were found to be different from the shipment details and transport details submitted by the oil refining company. According to the above circumstances, since D other companies than D supplied oil to the oil, the above purchase places such as NN Energy, etc. require the above purchase places to collect the shipment slips issued by the oil company, and DD did not actually enter the list in the above sales places of the plaintiff et al., and it was found that DD's delivery places were different from D's delivery places, and the plaintiff's provision of D's delivery places did not appear to have been different from D's delivery places, while comparing D's delivery places to those of the plaintiff et al., the plaintiff's delivery places.

(3) In full view of the above circumstances, it is recognized that CCTV and D were issued with the instant tax invoice in supplying fuel by other companies thanCC and D, and it is a false tax invoice, and even if the Plaintiff confirmed the business registration certificate and the petroleum retail business registration certificate ofCC and D, it cannot be said that there was no negligence on the part of the Plaintiff, and there was no evidence to acknowledge the Plaintiff’s negligence on the part of the Plaintiff. Accordingly, the Plaintiff’s assertion is without merit.

5. Conclusion

If so, the plaintiff's claim seeking the cancellation of the disposition of this case is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.