National Tax Service Review Division 2010-0199 ( November 22, 2010)

The plaintiff was negligent because the ship received the shipment slip with no important entry therein.

In light of the fact that the Plaintiff did not state the tank number, temperature, weight, and ex-factory number different from the normal shipment slips, and that the Plaintiff did not affix the name and seal of the consignee, the Plaintiff was negligent in failing to conduct an investigation, even though it was necessary to investigate the mark with the knowledge of the transaction partner's name, or suspected of being the actual counter-party.

Article 17 of the Value-Added Tax Act

2011Revocation of revocation of the imposition of value-added tax

Quantity XX

Head of the Pakistan Tax Office

November 8, 2011

November 22, 2011

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of value-added tax of KRW 2,914,980 against the Plaintiff on August 15, 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is operating a PPP station in the Y 000-0 of the PPPP station in the case of Pakistan-si.

B. On December 21, 2009, the Plaintiff received a tax invoice of KRW 23,968,000 (hereinafter “instant tax invoice”) from the O-Energy Co., Ltd. (hereinafter “O-Energy”) and reported the value-added tax including the input tax amount.

C. On August 15, 2010, the Defendant denied the deduction of the input tax amount pursuant to the above tax invoice on the ground that theO energy, which traded oil with the Plaintiff, constitutes data that issued sales and purchase tax invoices without real transaction, and the instant tax invoice also constitutes a tax invoice different from the fact, and issued the instant disposition to the Plaintiff, which corrected and notified KRW 2,914,980 for the second term portion of value-added tax in 2009.

D. On October 21, 2010, the Plaintiff filed a petition for review against the instant disposition. On November 22, 201, the Plaintiff filed the instant lawsuit upon receipt of a decision of dismissal on November 22, 201.

[Ground of recognition] Facts without dispute, Gap evidence 8-1, Eul evidence 1, Eul evidence 2-1, 2-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Inasmuch as the Plaintiff purchased oil from OE and received the instant tax invoice, the instant tax invoice cannot be deemed to constitute a false tax invoice. Moreover, the Plaintiff confirmed the sales business registration certificate and business registration of OE and remitted the price to a bank account under the name of OE, and accordingly, the Plaintiff was not aware of the fact that OE was a disguised business operator, and was not negligent in not knowing the fact. Accordingly, the instant disposition was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether the instant tax invoice is a false transaction or processing transaction

In light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that if the entries of a tax invoice under the Value-Added Tax Act are nominal, and there is a person to whom such entries belong, the person to whom such entries belong shall be liable to pay taxes, the provisions of the tax invoice refer to cases where the necessary entries of the tax invoice are inconsistent with those of the person to whom the goods or services are actually supplied or supplied, and the price and time of the goods or services, regardless of the formal entries of the 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 purport of the argument in the statement Nos. 2-1, 2, 3-1, 2-1, and 2 of the evidence Nos. 2-1, 3-1, and 2, the O Energy may be recognized as constituting a false tax invoice from September 16, 2008 to December 31, 2009 without real transaction of oil, and as a so-called "data" in which sales tax invoice was issued without supplying oil, the place of business of the OO energy in the Guri-si, the size of five square meters, the representative director of the office, and the office did not own facilities or vehicles for storing oil. According to the above facts of recognition, it is reasonable to view that the tax invoice of this case constitutes a tax invoice prepared without real transaction or disguised transaction between the Plaintiff and the O Energy (in light of the above recognition, the evidence No. 1, 4-1, 5-1, 5-1, 5-2, and 5-1).

2) Determination on the Plaintiff’s good faith and negligence

The actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the fact that the supplier was unaware of the name of the tax invoice, and that the supplier was not negligent in not knowing the fact that the purchaser was unaware of the said name, the person who asserts the deduction or refund of the input tax amount must prove (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

Therefore, according to the statements in Gap's evidence Nos. 4 through 9 (including each serial number, if any), and witness ChoB's testimony, the plaintiff can be found to have received the tax invoice of this case and remitted the amount stated in the above tax invoice to O energy after confirming the sales business registration certificate and the business registration certificate of O energy, but the above facts of recognition alone did not know the fact that the plaintiff was unaware of the name of OO energy and did not know that there was no negligence.

Rather, Gap evidence No. 3, Eul's oil storage document, which can be acknowledged by comprehensively considering the overall purpose of arguments, such as "the date and time of shipping", "the date and time of shipping", "the place of arrival", etc., two oil storage documents shall be delivered to the article transporting the remaining two copies, and the transportation expenses shall be paid to the plaintiff upon confirmation of the destination company. Thus, the oil station, etc. which received the oil can be confirmed by comparing the shipment time with the actual transport time from the shipment place to the destination. Since the plaintiff's duty of care is not clearly stated in the above list, the plaintiff's duty of care is not required to verify whether the plaintiff's oil distribution facility was actually supplied with the oil's oil storage facility because the plaintiff's signature and seal was not stated in the above list, and the plaintiff's duty of care is not required to verify whether the oil supplier's goods were actually supplied with the shipment time and the actual transport time. Thus, the plaintiff's duty of care is not required to state that the plaintiff's oil supplier's duty of care was not stated in the above list.

3. Conclusion

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