Cho High 2010 Before 1094 (2010.09.07)

It is not enough to recognize that it is good faith and negligence as a oil station business operator.

Since a tax invoice delivered to a gas station operator constitutes a tax invoice different from the fact, and it is not sufficient to recognize that the plaintiff is a bona fide and no fault, the defendant's disposition not to deduct the input tax amount is legitimate.

2010Guhap2307 Disposition of revocation of the imposition of value-added tax

XX

O Head of tax office

August 11, 2011

September 22, 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 45,568,320 against the Plaintiff on January 2, 2010 shall be revoked.

1. Details of the disposition;

(a) From April 1, 1999, the Plaintiff operated a gas station with the trade name of the Chungcheongbuk-gun 00 to the XX200 to the place of business from July 6, 2009, and operated the gas station with the trade name of the 'OOO-Gu O-dong 00-0' until July 6, 2000. (b) The Plaintiff received 10 copies of the purchase tax invoice of KRW 10,365 from the △△△ Petroleum Co., Ltd. (hereinafter referred to as '△△△ Petroleum’) during the 1st Value-Added Tax period of 2008 (hereinafter referred to as 'the tax invoice of this case' from 10 copies of the purchase tax invoice of KRW 259.236,365 (hereinafter referred to as 'the tax invoice of this case') from the 2008 sales tax amount after deducting the input tax amount related to the value-added tax from the output tax amount.

C. The Defendant, upon receiving the notice from the head of the AA Tax Office of the result of the investigation that the instant tax invoice issued by △ Petroleum to the Plaintiff was a data transaction, issued by the Plaintiff, and on January 2, 2010, deducted the input tax amount of value-added tax for the first quarter of 2008 on the grounds that the instant tax invoice was written differently from the death, and dismissed KRW 45,568,320 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on March 26, 2010, but the Tax Tribunal dismissed the appeal on September 7, 2010.

[Ground of recognition] Facts without dispute Gap evidence Nos. 1 through 3 (if there are provisional numbers, including branch numbers; hereinafter the same shall apply), Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff actually received oil from △△ Petroleum and received the instant tax invoice, which cannot be deemed to be a false tax invoice. Even if the instant tax invoice is false, the Plaintiff is a bona fide trading party who was unaware of the name of △△ Petroleum and was not negligent in not knowing the fact. Therefore, the instant disposition that the Defendant denied the input tax deduction related to the instant tax invoice was unlawful.

B. Relevant statutes

Attached Form A shall be as follows:

(c) Fact of recognition;

(1) Normal oil transactions;

In the event that a oil is delivered to a gas station through normal distribution channels, one copy of the shipment slips issued at the time of shipment (the date and time of shipment, the name of the customer, the arrival, the place of arrival, transportation equipment, items and the volume of shipment, temperature, weight, etc.) at the oil reservoir, etc. at the oil reservoir, etc. at the same time of shipment shall be stated, and one copy of the oil station shall be kept at the oil reservoir, and one copy of the oil station shall be delivered to the oil station after receiving the signature of the customer oil station at the oil station where the oil is delivered to the driver of the vehicle transporting the relevant oil, and one copy of the others shall be delivered to the oil station. In ordinary, such normal shipment slips include the date and time of shipment, temperature at the time of shipment, etc., because there is an increase or decrease in the volume after

(2) Oil transactions, etc. of △△ Petroleum

(A) △△ Petroleum was a business operator closed on September 30, 2008 after its business registration was made, and 207, 11, 16, and △△ Petroleum was a business operator who was closed on September 30, 2008. However, for the registration of petroleum retail business, it did not have used the oil storage facilities and transportation equipment for the above period.

(나) △△석유 AA지점은 거래처로부터 2007년 제2기 14억 6,723만 원, 2008년 제1기 253억 8,314만 원,2008년 제2기 43억 2,528만 원의 유류를 매입하였다고 신고하였으나, 매입처 중 ◇◇석유, 주식회사 ●●에너지, 주식회사 ■■기업에너지는 각 자료상으로 판명되었고, △△석유가 송금한 유류대금이 인출되어 △△석유의 계좌에 다시 입금되는 등 금융거래를 조작한 것으로 밝혀졌다 또한 △△석유 AA지점은 2007년 제2기 14억 7,833만 원,2008년 제1기 254억 9,901만 원, 2008년 제2기 43억 3,232만 원을 매출액으로 선고하였으나, 출하전표에 기재된 저유소에서 그에 상당한 유류가 출고된 사실이 없었다.

(C) Accordingly, the head of the AA Tax Office determined that the purchase amount of △△ Petroleum’s 31 billion won, 7.2 billion won, and 31.23 billion won, out of the sales amount, were processed and accused of the representative of △△ Petroleum and △△△ Petroleum, on the basis of data.

(3) Operation of gas stations by the Plaintiff

(A) From April 1, 1999, the Plaintiff operated the XX gas station. On November 2007, the Plaintiff made a transaction with △△ Petroleum upon the recommendation of the BB in charge of the business of around △△ Petroleum.

(B) At the time, HanB received orders from the business parties secured by the Plaintiff and the assets, and contacted ParkCC, a management director of △△ Petroleum, made it possible for ParkCC to deliver oil to the Plaintiff, etc.

(C) Although the decentralization, which is described as a driver in the shipment slips issued to the Plaintiff in the name of △△ Petroleum, was small at the request of other oil agents, and was delivered to the gas station operated by the Plaintiff, there was no request from the Plaintiff for oil transport. Meanwhile, the Plaintiff’s shipment slips received from △△ Petroleum are described as a AA oil reservoir or BB oil reservoir, and the shipment price is described as a AA oil reservoir. The shipment price is described as a AA oil reservoir.

(라) 원고가 △△석유로부터 유류를 공급받았다고 주장하는 2008. 1 경부터 2008. 6.경까지 사이에 출하전표에 출하지로 기재된 AA저유소와 BB저유소, 즉 ▲▲공사 AA지사, SS에너지 주식회사 BB물류센터, YY칼텍스 BB저유소, HH뱅크 및 KK BB저유소에서 △△석유 또는 원고에게 유류가 출고된 내역이 없다

[Ground of recognition] Facts without dispute, Gap evidence 11, Eul evidence 2 to Eul evidence 7, Eul evidence 2, Eul's testimony and the purport of 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 that the necessary entries in the tax invoice refer to cases where the contents of the necessary entries in the tax invoice are inconsistent with the subjects, values, and timing of the supply of the goods or services as a snow, notwithstanding the formal entries in the transaction contract, etc. made between the parties to the goods or services.

(B) Comprehensively taking into account the above facts, the oil was supplied as oil station in each of the instant tax invoices to the Plaintiff’s operation, and the Plaintiff appears to have deposited oil prices in the account held in the name of △△ Petroleum. However, the following circumstances revealed by the above facts are as follows: (i) △△ Petroleum engaged in financial transactions in oil supply transactions; (ii) △△ Petroleum was discovered as having been either published or received only from a third party without any actual transaction; and (iii) the reported purchase details were revealed as having been proved to have been a processed transaction; and (iv) △△ Petroleum was not supplied with its oil to the Plaintiff under the circumstances where △△ Petroleum was purchased by △△ Petroleum; (iii) △△ Petroleum did not have completely used oil storage facilities or transportation vehicles, etc., reported by △△△ Petroleum sales business operator; and (iv) the Plaintiff appears to have purchased the instant tax invoice from a third party, which was merely a disguised purchase of real oil from the Plaintiff and a third party.

(C) Therefore, we cannot accept the argument that the Plaintiff purchased oil listed in the instant tax invoice from △ Petroleum. Accordingly, it is reasonable to view the instant tax invoice as a false tax invoice by the supplier.

(2) Whether the Plaintiff constitutes a bona fide trader

(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 the person who was provided with the tax invoice shall prove that there was no negligence on the part of the supplier that he was unaware of the said name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

(B) First, as to whether the Plaintiff was unaware of the disguised fact in the name of the instant tax invoice, and whether there was no negligence on the part of the Plaintiff, the entries in the evidence No. 1, No. 1, No. 2, and No. 4 through No. 14 are insufficient to acknowledge it, and there is no other evidence to acknowledge it.

(C) Rather, the following circumstances revealed in the facts acknowledged earlier, namely, (i) since the Plaintiff operated a gas station from around 199, the Plaintiff appears to have been aware of the normal structure and distribution route of the oil supply, the general forms and methods of transactions in the industry, and the actual conditions and risks of transactions in the oil industry through diverse experiences, and (ii) the Plaintiff started transactions after hearing the horses that there was low-bratified oil from Korea-B in charge of △△ Petroleum business. At the time of the training of the oil, the Plaintiff did not directly receive the oil shipment slip from the driver of the vehicle, but rather did not directly receive the oil shipment slip from △△△△△△, and even after receiving the oil shipment slip in the name of △△△△△△△, even if he did not know whether the oil was actually shipped out of the oil station listed in the tax invoice in this case, the Plaintiff did not know that the Plaintiff did not actually know, or did not know, even if he did not know the fact that the oil was actually shipped out of △△△△.

(3) Sub-decisions

Therefore, it is insufficient to recognize that the instant tax invoice constitutes a tax invoice different from the facts, and that the Plaintiff is bona fide and without fault. Therefore, the Defendant’s disposition that did not deduct the input tax amount equivalent to the instant tax invoice is lawful.

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.