early 209do2835 ( October 25, 2010)

As oil retailers fall under a bona fide trading partner, input tax must be deducted.

If a oil retailer is issued with a false tax invoice, but it is difficult to say that the supplier is negligent in believing that he/she is an actual supplier of oil, the non-deductible disposition of input tax amount is illegal.

2010Guhap2755 Disposition to revoke the imposition of value-added tax

Maximum XX

O Head of tax office

November 17, 2010

201.01.06

1. The Defendant’s imposition of KRW 9,874,010 on March 1, 2009 against the Plaintiff on March 1, 2009 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts are either disputed between the parties, or acknowledged by Gap evidence No. 1, Gap evidence No. 2, Eul evidence No. 1, Eul evidence No. 2, and the whole purport of arguments.

A. From January 16, 2007, the Plaintiff is an individual entrepreneur who has been engaged in oil retail business under the trade name of 'A gas station in the large exhibition-gu OOdong 85-A' from 85-A.

B. The Plaintiff received three tax invoices of KRW 72,300,000 (hereinafter referred to as “instant tax invoice”) fromCC Energy Co., Ltd. (hereinafter referred to as “CC Energy”) and filed a value-added tax return by deducting the supply value from the amount of unpaid tax, while receiving oil through CB, Inc. (hereinafter referred to as “B”) during the first taxable period of the value-added tax in 2008.

C. On March 1, 2009, the Defendant notified the head of XX head of the tax office of the taxation that the instant tax invoice was due to the processing transaction, and notified the Plaintiff of KRW 9,374,010 of the value-added tax for the first time in 2008 (hereinafter referred to as the “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on July 15, 2009 on March 27, 2009. However, the Tax Tribunal dismissed the Plaintiff’s appeal on March 25, 2010.

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

The Plaintiff purchased oil through the brokerage of the oil e-commerce broker BB, not directly purchasing the oil fromCC energy, and at the time, the buyer could not choose the purchasing place as a voluntary purchaser during the course of e-commerce, and thus, the Plaintiff could not be aware that it was a data onCC energy and was a situation where the Plaintiff had no choice but to trust BB, which is an Internet broker. As such, the Plaintiff was in good faith and without fault, and thus, the instant disposition that did not deduct the input tax amount was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Facts recognized

The following facts may be acknowledged in full view of each evidence, Gap evidence Nos. 3 through 5, Eul evidence Nos. 3 and 3 through 11 (including each number), witness lectures, and the purport of the whole testimony and arguments of VacantO.

(1) BB’s transaction system

(A) BB opened an Internet homepage around November 7, 2005 with the oil electronic commerce as the target business and started to provide the oil brokerage bus from September 2007 to the company established on the Internet homepage around June 7, 2006. The above brokerage service provided by BB was developed by OO, the representative director of BB, who has worked for not less than 10 years in oil refining company, pursuant to the so-called "the order optimal system" (hereinafter referred to as "the instant system").

(B) BB posted the above patent certificate on the Internet homepage, and BB deposited oil payment to the exclusive account of the D bank that has been affiliated with the business, thereby ensuring the safety of the sales price between the seller and the buyer, obtaining strict verification of qualifications (verification of value-added tax certification, petroleum sales registration certificate, etc.) at the time of the seller’s member membership, and also advertising that the transaction party’s anonymousity is guaranteed.

(C) To purchase oil through BB pursuant to the instant system, first of all, the terms and conditions of purchase, such as kind of oil, flow, desired unit price, and delivery date, which he wishes to purchase after accessing the BB’s website, should be entered into the said website. On the normal receipt of this order, the purchase contract was automatically concluded between the seller and the seller who presented the sale conditions consistent with the purchase terms and conditions, which are already registered in accordance with the aforementioned system, and if there is no seller presenting the consistent sales conditions, the buyer could have expressed the price in the order and wait before maintaining the purchase conditions. Meanwhile, BB received information such as the unit price of oil sales from the seller to the mobile phone of the purchaser, and led the buyer who sent the text messages to the buyer’s mobile phone with the purchaser’s intent to purchase.

(D) When the purchase contract is normally concluded, the buyer shall transfer the oil price to the virtual account number in the name of the D bank (hereinafter referred to as the "D bank") which entered into the BB business partnership agreement with the BB, and the above oil price shall be confirmed after the buyer received the oil from the seller and confirmed by the BB website after the buyer received the oil from the seller, and then transferred the oil on the BB website to the D bank account in the name of the seller by the D bank. ② If the buyer confirmed the quantity of the oil and deposits the oil price to the seller’s account after the buyer confirmed the quantity of the oil without the buyer’s storage tank, the buyer paid the oil price to the seller’s account. However, even if the purchase contract is concluded, all of the above two methods can be confirmed after the buyer’s trade name, etc. was completed, and the seller’s tax invoice can be printed out by the buyer and the seller’s automatic output.

However, with the reasons why the above online method was used, since the above Esc service was not deposited in real time to the seller, but deposited in a lump sum to all the seller at 4:30 p.m., there was inconvenience for the seller to receive the payment on the following day. On the other hand, the minimum amount of oil was formed in the P.m. day, and in particular, in the case of the limited quantity with very low prices, the seller was able to receive the payment in cash immediately, and there was a phenomenon that the buyer avoided transactions on the P.m. with high temperature as much as possible.

(E) On the other hand, BB visited the pertinent company’s office prior to registering the relevant company’s Internet homepage as a oil seller, issued a business registration certificate and a petroleum retail sales certificate, and entered into a petroleum sales contract with the said company, and had the said company establish an account for oil payment in the D bank. BB failed to ascertain whether the CC energy was in material or material at the time of the registration of the petroleum business operator, and did not directly check the low facilities and transport vehicles marked at the time of the registration of the petroleum business operator.

(F) BB classified the delivery method of oil to be entered into an order contract into into into into into into into into with the order order of arrival and its own order. In the case of an arrival order, BB is transported to the buyer’s request for delivery by the transportation company requested by BB, and in the case of the buyer’s request, BB is transported to the buyer’s own transport lane from the petroleum shipment station to the delivery place. Even in the case of the buyer’s own request, BB notified the buyer of the vehicle number of the truck to the petroleum shipment station and confirmed whether the oil was delivered by telephone communications with the transportation vehicle driver

(2) The Plaintiff’s purchase of oil

(A) On February 2008, according to the instant system, the Plaintiff entered into a purchase contract withCC energy by entering terms and conditions of purchase, such as type, flow quantity, unit price, delivery desire date, transport classification, etc. into three times on the BB website, but the Plaintiff was not aware of the seller’s information at that time.

(B) According to the above purchase contract, Gangnam 85 si16A was operated by Chungcheongnam-gu 10,000 liter 20,000 liter from Daejeon-dong O-dong O-dong 103-A, and the delivery was completed at around 19:46, 208, of the Plaintiff’s operation to AA2A station. The relevant △△△△△△ was operated by Gyeonggi-do 92A 12A 12A, and the Plaintiff was delivered to the Plaintiff on February 29, 2008, after shipping 20,00 liter from the Y 34-A-dong Y 30,00 liter from the Y 34-A, and the Plaintiff’s delivery was completed at around 20:30 on February 29, 208 by changing the Plaintiff’s distribution schedule to the 200,000 liter 10:31,005.

(C) On the other hand, the Plaintiff purchased three times of the above purchase contract using the DRB method. After concluding the purchase contract as above, the Plaintiff remitted the oil payment to the virtual account under the name of the DRB, and entered the storage and confirmation pressing by accessing the BB’s website after receiving the oil. Accordingly, the oil payment deposited into the said DR’s account was remitted to the account in the name of the CC.

(3) The circumstances leading to the determination of data onCC energy

(A) On July 1, 2006, the energy first established the EE Energy Co., Ltd. by reporting the representative of this △△ on July 1, 2006. On January 28, 2008, the trade name was changed toCC energy after the business transfer to this △ on January 28, 2008. However, for the registration of petroleum retail business, the energy leased storage facilities (l3,00KL - Pyeongtaek 66Ari 6Ari Oxxon Co., Ltd.) and three transportation vehicles (60KL - Incheon 86ia 66A, Incheon 86A 62, 86A 66A), but there was no fact that it was used once.

(B) The tax invoice in the name of theCC energy was prepared by the UBB, who actually operated theCC energy, by presenting data such as the company, quantity, unit price, etc. to the employees of the PCC. The tax invoice was prepared in accordance with the content of the gas station’s name, type, quantity, vehicle number, vehicle number, article name, article name, and shipment by telephone using the term “CC energy”, and the transaction amount was immediately remitted after deducting the fee for the issuance of the tax invoice from the passbook in the name of the PCC.

(C) As a result of the tax investigation conducted for the first taxable period in 2008, the head of the XX tax office decided that the total amount of theCC energy reported was about KRW 97,05,02,727 and KRW 96,92,00,000, and the total amount reported for each purchase was about KRW 96,890,601,297, and KRW 96,827,99,970, which was harmful to about 99.9% of the total amount of the input reported for each purchase, and filed a complaint with the prosecutor on September 9, 2008, as data.

(D) In addition, the director of the regional tax office of theOO has conducted a survey on the data on four companies, such as FF Energy, in relation to the 2nd value-added tax in 2008, on the first data that generated only sales and closed down the business, and issued tax invoices from the first data, and issued and received false sales and purchase tax invoices by creating a structure on the subordinate data that issues tax invoices to the oil stations instead of the illegal petroleum distributor, and the oilB, the actual agent of theCC energy, was in charge of receiving false tax invoices from GGG energy or FF energy, and then delivering false tax invoices to the second prosecutor's office.

(E) On June 18, 2009, in accordance with the tax authorities’ accusation measures, the Daejeon District Court rendered a suspended sentence of three years for a year, on the grounds that FF-Energy representative director MadD sold false tax invoices, and that the UBB, the representative director of GG energy, Kim H andCC energy, was issued a false tax invoice or issued by them for two years, on the grounds that there was no transaction of goods or services between the company and the company, such as F-Energy, and that there was no transaction of goods or services, the said judgment became final and conclusive around that time.

D. Determination

(1) Determination as to whether the instant tax invoice is false or not

The meaning that the tax invoice under the Value-Added Tax Act differs from the fact that the necessary entries in the tax invoice refer to the case where the contents of the entries in the tax invoice are inconsistent with those of the actual supplier of goods or services, or the price and time of the goods or services, regardless of the formal entries in the transaction contract, etc. entered between the parties to the goods or services. As seen above,CC energy is a material that did not distribute the actual goods, and the judgment of conviction has become final on the ground that the actual operator was issued a false tax invoice by filing a complaint with the tax authorities. Furthermore, in full view of the fact that the oil storage facilities or transportation vehicles ofCC energy reported at the time of the registration of petroleum business operator did not have been entirely used, the actual purchase place of the oil of this case was purchased from other third parties, not theCC energy, and therefore, the tax invoice of this case constitutes a false tax invoice by the supplier.

(2) Determination as to whether the Plaintiff was bona fide and without fault

(A) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice are not aware of the fact that the supplier was not aware of the fact that the supplier was unaware of the name of the tax invoice, and that the supplier was not negligent, the supplier shall not be entitled to deduct or refund the input tax amount, and the person who claims the deduction or refund of the input tax amount shall prove that the supplier was not negligent in not knowing the fact that the supplier was unaware of the name of the tax invoice (see, e.g., Supreme Court Decision 2002Du2277, Jun. 2

(B) In full view of the following circumstances revealed in the instant case’s return to the instant system, namely, ① the Plaintiff could not choose a seller at will, and automatically enter into a purchase contract with a seller who presented sales terms that meet the purchasing conditions entered by the Plaintiff. ② The Plaintiff appears to have known that the seller had become aware of the fact that the Plaintiff wasCC energy after completing the payment of oil according to the instant system and actually receiving the delivery of oil.

(C) In addition, since there is no obligation to actively investigate whether the other party is a disguised business entity, it shall be deemed that the other party was negligent in failing to know that the other party is a disguised business entity, based on the facts revealed in the process of collecting data to determine whether the other party is a person eligible for transaction. In light of the aforementioned facts in the process of collecting data to determine whether the other party is a person eligible for transaction. In addition, the following circumstances, i.e., (i) the Plaintiff did not have any transaction withCC energy prior to the issuance of the instant tax invoice, (ii) the Plaintiff was supplied with oil fromCC energy through the instant system. (iii) the Plaintiff was a position to believe that the Plaintiff was believed to have completed an investigation into the eligibility of transaction withCC energy, and (iii) the Plaintiff was aware that the Plaintiff was supplied with oil fromCC due to the completion of oil payment and oil delivery, and thus it is difficult to expect the Plaintiff to investigate whether the supplier was a disguised business entity at this time.

(3) Sub-decisions

Therefore, as to the fact that the purchaser of the instant tax invoice is different from the fact, the Plaintiff was unaware of such fact, and it is difficult to deem that the Plaintiff was negligent in believing theCC energy as the actual trader. Therefore, the instant disposition was unlawful as it was not recognized as the grounds for disposition.

3.In conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition with the decision of accepting the plaintiff's claim.