National High Court Decision 2001Du3266, 03.26

Addition

Dismissal

The case imposing additional tax on non-delivery of the tax invoice on the amount verified by the customer, on the ground that the gas station has purchased the oil from the intermediate material without any documentation and converted the oil into sales, and on the amount verified by the customer.

Article 6 of the Value-Added Tax Act

I dismiss the appeal.

1. Summary of disposition;

The claimant had been operating the OO station from March 1, 1997 to the corporation (main) on August 1, 1998 when he had been converted from the OO station located in the Manan-dong OO station in Gyeonggi-do.

The disposition agency decided 249,760,00 won, converted the key amount into the value added rate, and notified the applicant of KRW 1,42,00,00 for value added tax in August 30, 201 and KRW 249,760,00,000 for the reason that the claimant was found to have failed to purchase gasoline 1,360 D/M (573,000 liters), 264,928,00 (hereinafter referred to as "point amount") from the non-request (hereinafter referred to as "non-claimed corporation") located in the OOO located in the Orcheon-gu Seoul Metropolitan Government OO (OOOO) in the second taxable period in 198.

On November 16, 2001, the claimant appealed and filed an appeal for adjudication.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

In July 198 and August 1998, the disposition agency imposed tax on the claimant and the non-applicant (OO)O by converting the issue amount corresponding to the purchase of the OO oil into a value added rate for the purchase of the OO oil in the manner that it purchased gasoline 2,865D/M (57,00 liter) from the non-claim corporation (264,928,000 won for the purchase of OO oil, 293,174,000 won for the purchase of (OO oil)OO) and that it did not receive the tax invoice. The non-claim corporation uses the office same as the office of the O energy of the Seocho-gu Seoul Metropolitan Government for the non-claimed corporation and one female employee manages the order of the O energy of the non-claimed corporation and the (O) corporation.

Between July 1998 and August 1998, the Ministry of Foreign Affairs purchased gasoline 2,400 D/M (480,000 litres) from non-claimed foreign energy in the amount of KRW 466,968,00 (cost of supply) and deposited the purchase price into non-claimable foreign currency. Despite the fact that the tax invoice was lawfully received, the Ministry of Foreign Affairs has a disposition that deemed that the claimant purchased gasoline separately from the non-claimed foreign corporation on the basis of the order found in the non-claimed foreign corporation and imposed tax by deeming that it was omitted.

The amount of 65,00,000 won for non-delivery of the tax invoice which was imposed by the non-delivery of the tax invoice in the first period of 1998 at the agency was purchased and remitted directly from non-payment of the tax invoice to non-payment of the tax invoice. The disposition imposing additional tax on non-issuance of the tax invoice is unreasonable on the ground that the claimant was not issued even though he was not related to the claimant at all.

(b) Opinions of disposition agencies;

With respect to the purchase of the claimant's 264,928,00 won among the purchase of non-data between July 1, 1998 and August 9, 1998 by the claimant and the non-applicant (O)O purchased without data between July 1, 1998 and August 1998, the claimant purchased 2,40D/M (480,000 litres) from non-claimed (O) O energy in August 1, 1998 and 46,968,000 won (supply price) so the disposition that the purchase of gasoline is unfair. However, the non-claimed corporation purchased 18,019,474,217 won and sold without data, and there is no objection to the subsequent tax disposition.

65,00,000 won, which the claimant did not issue a tax invoice during the first period of 1998, was 71,50,000 won from the proceeds of 340,323,000 won, which is the claimant's deposit in the applicant's account by the non-Claimant (State) OOOO station and its representative, the claimant's deposit in the applicant's account, and 71,50,000 won, which is the value of 268,823,000 won deducted from the value of the tax invoice issued by the claimant to the non-claim (State) OO station, the initial disposition

3. Hearing and determination

A. Key issue

1) The legitimacy of the disposition imposing tax by converting the issue amount into the omission of sale on the part of the omission of purchase

2) It is reasonable to impose an additional tax on non-delivery of the first tax invoice in 1998.

(b) Related statutes;

The laws enforced as of the date of establishment of the VAT taxation requirement are as follows.

Article 6 of the Value-Added Tax Act

(1) The supply of goods shall be a delivery or transfer of goods pursuant to all contractual and legal grounds.

Article 21 of the Value-Added Tax Act

(1) The head of a district tax office having jurisdiction over the place of business, the head of a district tax office having jurisdiction over the place of business, or the Commissioner of the National Tax Service shall correct the tax base of value-added tax or the tax amount to be paid in the taxable period

1. Where the final tax return is not filed;

2. Where there are any mistakes or omissions in details of the final tax return;

3. through 4. (Omission)

[Additional Tax] Article 22 of the same Act

(2) Where an entrepreneur falls under any of the following subparagraphs, 1/100 of the value of supply shall be added to the payable tax amount or deducted from the refundable tax amount, to the amount equivalent to 2/100 of the value of supply in the case of an individual, or in the case of a juristic person:

1. If the tax invoice as provided in Article 16 (1) is not delivered, or the requisite entries of the tax invoice on the delivered portion are not wholly or partly entered, or are different from the fact (it shall be December 31, 1993);

C. Facts and determination

1) We examine the propriety of the disposition imposing tax by converting the issue amount by omitting the purchase amount into the omission of sale.

First, from among the purchase cost in July 1998, 1,360D/M in 1998, 2,865 D/M (573,000 l, 558,102,000 l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l. l

Second, the claimant is an enterprise that can not handle gasoline by the non-claim corporation, and the non-claim corporation purchases gasoline 2,40D/M (480,000 litres) from the non-claimed foreign energy in July through August 1998 and August 1998, and deposits the purchase price into the non-claimed foreign-capital power (46,968,00 litres). Since the tax invoice was lawfully delivered, the disposition imposed on the non-claimed foreign corporation on the non-claimed foreign corporation is deemed to have been imposed double taxation. Thus, the non-claimed foreign corporation can deal with gasoline 1,200 litres and 1,200 litres and 1,200 litres from the non-claimed foreign corporation.

Third, between July 1998 and August 1998, the claimant purchased gasoline 2,40D/M (480,000 litres) from the non-claimed (OO) energy using the same office as that of the non-claimed (OO) corporation, and deposited the purchase price into (O) non-claimed (O energy) foreign, and therefore the tax invoice was lawfully delivered, so the double taxation disposition is unreasonable, but the non-claimed (O)O did not present financial evidence of KRW 46,968,00 that it paid gasoline for the non-claimed (O) energy.

On the other hand, when examining the computerized data presented by the agency, the claimant (OO) purchased gasoline 2,865D/M (573,000 liter) from the off-going corporation in July 1998 to August 1998, and paid 558,102,00 won (payment). The sales status by each customer and sales specifications by each date are verified in detail the sales details sold to the claimant by the off-request corporation. In addition, in the OO regional tax office's investigation document of the off-request corporation, the applicant company purchased gasoline 18,019,474,217 won from the off-request foreign corporation to sell them as oil without permission, and in light of the fact that it appears that it purchased gasoline 18,019,474,217 from the off-request foreign corporation to sell them as oil without permission, it is deemed that there is no other issue of tax conversion from the off-site corporation and the off-site corporation.

2) We examine the propriety of the disposition imposing the additional tax on non-delivery of the first tax invoice in 1998.

First, according to the taxation records presented by the agency, the claimant sold 340,323,00 won oil to the (supply price) station other than the claim located in Ischeon-do, Gyeonggi-do during the first period of 1998, and the tax invoice issued 268,823,000 won and levied 650,000 won of supply price for the difference of 71,50,000 won.

Second, the claimant asserts that the disposition imposing additional tax on non-tax invoice is unfair because the non-tax invoice was directly purchased from non-claim-to-claim-to-non-claim-to-claim-to-Energy and transferred the purchase price to the 65,000,000 won which was imposed by the 198 disposition agency as additional tax on non-tax invoice-to-tax invoice-to-tax invoice-delivery.

Third, the review materials presented by the agency are presented by the agency after conducting a financial tracking investigation and depositing 340,323,000 won in the applicant's account during the first period of 1998. However, the agency is judged to be legitimate to impose 65,000 won in the amount calculated by subtracting 268,823,000 won (supply) issued by the claimant to the applicant's account from 340,323,000 won (supply price) deposited in the applicant's account during the first period of 1998.

D. Conclusion

This case's petition for adjudication is without merit, so it is decided as ordered by Article 81 and Article 65(1)2 of the Framework Act on National Taxes.