Diab01bu 2005 ( October 30, 2011)

The imposition of non-taxable input tax amount deduction for false tax invoices is legitimate.

A tax invoice delivered from data falls under a false tax invoice different from the fact that the supplier has entered the place of business, oil storage facilities, distribution route, etc., and the fact that the supplier has confirmed a copy of business registration and a copy of a certificate of registration of petroleum selling business alone is not sufficient to deem that the supplier has fulfilled his/her duty of care to prove

Article 16 (Tax Invoice)

2011Guhap2833 Revocation of Disposition of Imposition of Value-Added Tax

AAA

BB Director of the Tax Office

August 20, 2013

September 17, 2013

1. The plaintiff's claim is dismissed.

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

The imposition of the value-added tax for the second period of March 3, 201, which the Defendant rendered to the Plaintiff on March 3, 201, is revoked.

1. Details of the disposition;

The following facts may be admitted by each entry into evidence A, 2, 3, 7, 17, and 1 and 3:

A. From September 26, 2001, the Plaintiff opened a gas station with the trade name "CC gas station" from OO-dong O-dong 25-1 in OO-dong 25-1, and has operated it until now.

B. On December 25, 2009, the Plaintiff received the tax invoice (the supply price OO, the input tax OOO, and hereinafter referred to as the “instant tax invoice”) from D Energy on December 31, 2009 on the ground that the Plaintiff purchased oil from DD Energy Co., Ltd. (hereinafter referred to as “DD Energy”) four times from December 25, 2009, and filed a value-added tax return after deducting the said input tax amount from the output tax amount in 209.

C. On December 28, 2010, the Defendant issued a prior notice of taxation that the input tax amount should not be deducted from the output tax amount, but should be corrected and imposed on the Defendant on January 28, 201, on the ground that the entry of the instant tax invoice was different from the actual oil supplier. On the other hand, the Defendant filed a request for review of the legality of taxation prior to the Defendant on January 28, 201, but the Defendant decided not to adopt the Plaintiff’s request for review, and the Defendant corrected and imposed the KRW OOO on March 3, 201 (hereinafter “instant disposition”).

D. On May 27, 2011, the Plaintiff filed an appeal with the Tax Tribunal, and the Tax Tribunal dismissed the Plaintiff’s appeal on June 30, 201.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Inasmuch as the Plaintiff was actually supplied with oil from D Energy, the instant tax invoice is not a false tax invoice. Even if the instant tax invoice constitutes a false tax invoice, the Plaintiff did not know that D Energy was a disguised business operator due to so-called data, was actually supplied with oil, deposited the price into D Energy account, and fulfilled its duty of care as a transaction party, such as confirming the registration certificate of D Energy at the time of supply of oil, and the petroleum sales registration certificate. Therefore, the instant disposition was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant tax invoice constitutes a false tax invoice

Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the facts, and "the details of a tax invoice are different from the facts" refers to cases where the requisite entries of a tax invoice do not coincide with the subject, value, and timing of the actual supply of the goods or services, notwithstanding the formal descriptions of a transaction contract, etc. prepared between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

In full view of the items in Eul evidence 4-1, Eul evidence 4-2, and Eul evidence 5, and the whole purport of the pleadings, DD Energy is only the so-called data in which the processed tax invoice was issued, and it can be recognized that the plaintiff did not supply oil to the plaintiff, and the tax invoice of this case delivered by the plaintiff from DD Energy constitutes cases where the contents are different from the facts and are different from the facts. Accordingly, the plaintiff's assertion against this is without merit.

2) Whether the Plaintiff is bona fide and without fault

A) Unless there is any special circumstance that the supplier and the actual supplier under the tax invoice are different, the input tax amount under the tax invoice shall not be deducted or refundable, and the supplier shall be attested by the party asserting the deduction or refund of the input tax amount (see, e.g., Supreme Court Decisions 2002Du2277, Jun. 28, 2002; 2009Du1808, Jun. 11, 2009; 201Du22111, Dec. 27, 2011).

나) 갑 제4， 5， 8호증， 갑 제9호증의 1 내지 4， 갑 제10， 11호증， 갑 제12호 증의 1의 각 기재， 증인 홍EE의 증언에 변론 전체의 취지를 종합하면， 원고는 2009. 11. 손FF로부터 DD에너지와 거래할 것을 부탁받고 DD에너지의 사업자등록증 사본， 석유판매업등록증 사본， 법인통장 사본을 교부받아 확인한 다음， 2009. 12. 25., 2009. 12. 29., 2009. 12. 31., 2010. 1. 7. 각 경유 31,000ℓ， 금액 합계 OOOO원 상당의 유류를 공급받았고 2009. 12. 24. 그 대금 중 OOOO원을， 2009. 12. 30. OOOO원을 각 DD에너지 명의의 예금계좌에 입금한 사실이 인정된다.

C) However, in light of the following circumstances, the evidence evidence Nos. 4 and 5, evidence Nos. 9-1 through 4, evidence No. 11, and evidence No. 12-1, and evidence No. 12, which can be identified by considering the overall purport of the pleadings, and the Plaintiff’s business registration certificate for DNA energy (date of issuance of the business registration certificate on Oct. 20, 2009: September 15, 2008), and petroleum sales registration certificate (date of issuance: September 25, 2008), and the petroleum sales registration certificate (date of issuance: September 25, 2008), and the transfer of the oil price to a deposit account for DNA energy, it is insufficient to find that there is no negligence in not knowing the name of DNA energy, and there is no other evidence to support this part of this.

(1) From September 26, 2001, the Plaintiff operated the aboveCC stations until now. In light of the Plaintiff’s experience of oil transactions, the Plaintiff seems to have known about the normal structure and distribution channel of oil supply, the general type and method of the oil industry, and the actual condition and risk of data trading.

(2) The Plaintiff purchased oil from D Energy, a new production company, at 10 won to 20 won per liter than the ordinary supply price of oil refining company, at the recommendation of BaF (Gam F), which was an employee of the business of large-scale energy, prior to transactions with DD energy for three months. The Plaintiff trusted only the fF’s horse that was known in the course of oil transactions for a short period of time, and did not properly check the location of the place of business of DD energy, the oil storage facilities, the distribution route, etc.

(3) Article 10(1) and (4) of the former Petroleum and Petroleum Substitute Fuel Business Act (amended by Act No. 9370, Jan. 30, 2009; hereinafter the same shall apply), and Article 15 [Attachment 2] of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21462, Apr. 30, 2009), and Article 12(1) and (5) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Knowledge Economy No. 69, May 1, 2009) provide that the person who intends to operate a general agency among petroleum retail businesses shall submit a business registration certificate to the Mayor/Do Governor having jurisdiction over the location of the place of business, and that the person who has received an application for registration under Article 10(2) and (2) of the former Enforcement Decree of the Value-Added Tax Act shall not be obliged to submit a copy of the business registration certificate for the first time to verify whether it conforms with the above provision 20(5).

(4) The shipment slips issued at the time of supplying oil to gas stations are evidence to verify that the oil has been traded through normal distribution channels, and the pre-shipment marks on the shipment slips are the unique number of the oil source management, with different numbers at each time of release, and all the pre-shipment marks delivered by the plaintiff from DD energy are written on the pre-shipment number column in lieu of the pre-shipment number number, and the oil differs depending on temperature and density, the normal pre-shipment chart issued by the plaintiff is written on the date of shipment in lieu of the pre-shipment number, and the temperature and density are accurately written in the normal pre-shipment list. Since all of the pre-shipment marks issued by the plaintiff are in blank, the temperature and proportion of the date of shipment are written on the date of shipment, and the plaintiff was written on December 29, 2009, and the plaintiff was fully written on the pre-shipment list without recognizing that the pre-shipment marks were shipped.

(5) Although it appears that the transport vehicle number stated in the certificate of registration for the petroleum retail business of DD Energy is O82OOO, O82OOO, and the vehicle number stated in the list received by the Plaintiff was O93 OOO, and thus, it could be doubtful that the supplier and the actual supplier can differ because the vehicle number stated in the certificate of registration for the petroleum retail business of DD Energy was not O93 OOO, the Plaintiff did not properly check whether the oil supplier is D energy.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.