It is insufficient to recognize that the Plaintiff was not negligent in not knowing the fact that the instant tax invoice was a false tax invoice, and that there was no negligence in not knowing it.

The plaintiff was aware that the actual counterpart of the transaction was not the transaction partner of this case, or at least there was a negligence that did not investigate, even though it was necessary to investigate the other party's identity as the actual counterpart of the transaction.

Article 16 (Tax Invoice)

2014Guhap5461 Disposition to revoke the imposition of value-added tax

V

The director of the tax office

July 8, 2015

August 12, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On January 2, 2013, the Defendant imposed value-added tax on the Plaintiff on January 2, 2010 ○○○ for the first term of 2010;

Imposition of Value-Added Tax ○○○○ for a second term in 2010, and value-added Tax ○○ for a first term in 2011

Each disposition of imposition shall be revoked.

1. Details of the disposition;

A. From January 21, 2009 to ○○○○○○○○-9, the Plaintiff is operating a gas station (hereinafter “instant gas station”) under the trade name called “D gas station”.

B. In the first taxable period of the value-added tax in 2010, the Plaintiff received the tax invoice of KRW 00 from LL Energy Co., Ltd. (hereinafter “LL Energy”), from BB Energy Co., Ltd. (hereinafter “B Energy”), the tax invoice of KRW 00 from the supply value from TB Energy Co., Ltd. (hereinafter “T Energy”), the tax invoice of KRW 00 from the supply value from the Co., Ltd. (hereinafter “SS Energy”), the tax invoice of KRW 00 from the supply value from the SS Energy Co., Ltd. (hereinafter “S Energy”), the tax invoice of KRW 00 from L Energy in the second taxable period of the value-added tax in 2010, and the tax invoice of KRW 00 (hereinafter “K Energy”) in the first taxable period of the value-added tax in 2011, and reported and paid the value-added tax by deducting the relevant input tax amount from the output tax amount.

C. The Defendant deemed that the instant tax invoice was a tax invoice written differently from the fact, and thus, deducted the relevant input tax amount from the output tax amount. In the first taxable period of the value-added tax in 2010, the Defendant deemed that there was an omission in sales equivalent to KRW 39,890,00 for J petroleum in the amount of the value-added tax in the second taxable period of the value-added tax in 2010, and accordingly, added it to the Plaintiff on January 2, 2013, the amount of value-added tax for the first taxable period of 2010 (including the additional tax), KRW 00,000 for the second taxable period of the value-added tax (including the additional tax), KRW 00,00 for the second taxable period of 2010, and notified the Plaintiff of the correction and notification of KRW 00,00 (including the additional tax) for the first taxable period of 201 (hereinafter “instant disposition”).

D. The Plaintiff filed an objection against the instant disposition and filed an appeal with the Tax Tribunal, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on May 12, 2014.

Facts that there is no dispute over recognition, Gap evidence 1, Eul evidence 1-3, Eul evidence 1-2-1, 9-2, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) Since the Plaintiff was actually supplied oil by LLL Energy, BB Energy, T Energy, SS Energy, and KK Energy (hereinafter “the instant transaction party”), and accordingly received the instant tax invoice, it cannot be deemed that the instant tax invoice was a false tax invoice.

2) Even if the instant tax invoice constitutes a false tax invoice, the Plaintiff was unaware of such fact at the time of the purchase of oil, and was negligent in not knowing such fact.

3) As a business entity of J petroleum, HA only subsidized the sale of oil by receiving fees from the Plaintiff and delivering oil to the end-user. It does not directly sell the oil to J petroleum. Nevertheless, the Defendant’s disposition of this case is unlawful on the premise that the Plaintiff omitted sales equivalent to the total amount of KRW 92,217,000 for J petroleum.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether a tax invoice constitutes a false tax invoice

A) Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 2011; hereinafter the same) 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 fact. It means that the entries of a tax invoice are different from the fact. In light of the purport of Article 14(1) of the Framework Act on National Taxes, which provides that where the ownership of income, profit, calculation, act or transaction, which is the object of taxation, is merely nominal, and there is a separate person to whom they actually belong, the person to whom they actually belong shall be liable as a taxpayer and the person to whom the tax invoice actually supplies the goods or service and the person to whom the tax invoice actually supplies the goods or service regardless of the formal entries of the contract, etc. prepared between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 1996).

B) In light of the above legal principles, the following facts were comprehensively taken into account: (a) No. 2-1, (b) evidence No. 3-8, and (c) evidence Nos. 11 through 13 (including each number); and (b) the entire purport of the pleading.

In light of the following circumstances, it is reasonable to view that the instant tax invoice received by the Plaintiff from the business partner of the instant case as a false tax invoice is different from the fact stated by the supplier.

⑴ 이 사건 거래처 중 LL에너지의 대표자 나RR, BB에너지의 대표자 이MM및 SS에너지의 대표자 이QQ는 모두 해당 과세기간에 실제로 유류를 공급한 사실이 없음에도 원고의 이 사건 주유소를 비롯한 여러 주유소에 유류를 공급한 것처럼 매출처별 세금계산서 합계표를 거짓으로 기재하여 이를 주무관청에 부가가치세 신고 관련 서류로 제출하였다는 범죄사실[특정범죄가중처벌등에관한법률위반(허위세금계산서교부등)] 등으로 기소되어 법원에서 이미 유죄의 확정판결을 받았다.

Since the results of the tax authority's investigation on Doshe T Energy and the FFchemical Co., Ltd., a purchaser of T Energy, were finalized by data, the transaction on the tax invoice issued by T Energy, including the gas station in this case, is likely to be a transaction that does not actually supply oil.

Secondly, in light of the tax authority’s investigation results on the K Energy, YY Petroleum, the purchaser of K Energy, was confirmed as complete data as a result of the tax investigation, and ○○ Storage Place, and ZZ was not used almost in the contract for oil storage, the transaction on the tax invoice issued by K Energy, including the gas station in this case, is highly likely to be a transaction without actual supply of oil. Moreover, K Energy shows a typical form of financial manipulation on data, such as immediately transferring funds deposited from the seller to the account of YY Petroleum’s representative, and withdrawing in cash.

C) Therefore, this part of the Plaintiff’s assertion against this is without merit.

2) Whether the Plaintiff is a party to good faith and negligence

A) The actual supplier and the supplier on a tax invoice were not aware of the fact that the supplier was unaware of the name of the tax invoice, and that there was no negligence on the part of the supplier.

Unless there are circumstances, a person who asserts the deduction or refund of an input tax amount shall not be allowed to deduct or refund the input tax amount, and a person who claims the deduction or refund of the input tax amount shall prove that the person who received the supply was not negligent in not knowing the above nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28,

B) Evidence Nos. 2 through 4 (including each number), in light of the following circumstances, etc.

Each entry alone is insufficient to recognize that the Plaintiff was unaware of the fact that the instant tax invoice was a false tax invoice, and that there was no negligence due to the Plaintiff’s failure to know it, and there is no other evidence to acknowledge it.

Rather, the evidence mentioned above and Eul evidence No. 2-2 and the whole purport of the pleading are reviewed.

알 수 있는 다음과 같은 사정들, 즉 ① 원고는 2009. 1.경부터 이 사건 주유소를 운영하여 왔고, 이 사건 주유소 외에도 2개의 주유소를 더 운영하는 등 그 동안의 경험을 통해 유류 공급의 정상적인 구조와 유통경로, 업계의 일반적 거래 형태나 방식 및 유류업계에 널리 퍼진 자료상 거래의 실태와 위험성에 관하여 충분히 알고 있었을 것으로 보이는 점, ② 원고는 이 사건 거래처로부터 유류를 공급받을 당시 4대 정유사에서 발행한 출하전표의 원본이 아니라 이 사건 거래처에서 발행한 출하전표를 교부받은 것으로 보이는 바, 이는 통상의 유통 관행과는 달라 원고로서는 이 사건 거래처가 실제 공급자가 아닐지도 모른다고 의심할 만한 충분한 사정이 있는데도, 원고가 이 사건 거래처의 사업장 소재지나 유류저장시설 등을 방문하는 등으로 이 사건 거래처가 실제 유류를 공급하는 사업자인지 확인하기 위한 적극적인 노력을 기울였다고 보기 어려운 점, ③ 원고는 과세관청으로부터 세무조사를 받으면서 "유류의 매출 및 매입, 세금계산서의 발행 및 수취와 관련된 모든 사항은 전적으로 박�� 소장에게 위임하였고, 원고는 이 사건 거래처로부터 유류를 매입하였다는 사실도 세무조사 과정에서 비로소 알게 되었다"는 취지로 진술한 바 있는 점 등에 비추어 보면, 원고는 거래의 실제 상대방이 이 사건 거래처가 아님을 알고 있었거나, 적어도 거래의 실질적인 상대방이 누구인지에 대하여 의심을 품고 이를 조사할 필요성이 있었는데도 조사하지 않은 과실이 있다고 봄이 타당하다.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

3) Whether the Plaintiff omitted the sale of J petroleum

A) Generally, in a lawsuit seeking revocation of the disposition imposing tax, the burden of proving the facts of taxation requirements should be borne by the imposing authority. However, if the facts alleged in light of the empirical rule in the specific litigation process are revealed, it cannot be readily concluded that the other party is an illegal disposition that fails to meet the taxation requirements, unless the other party proves that the pertinent facts at issue are not eligible for the application of the empirical rule (see, e.g., Supreme Court Decision 2002Du6392, Nov. 13, 2002).

B) Upon considering the overall purport of the statements and arguments stated in Eul evidence 2-3, 9-2, 10, 17 through 19 (including each number), the following circumstances, i.e., the representative of J petroleum purchased non-data amounting to KRW 109,562,00 from the gas station of this case in 2010, and KRW 84,304,00 from the oil station of this case in 2010, and the Plaintiff’s submission of a comprehensive document verifying that the amount of KRW 2,31,97,000 from the oil station of this case was 1,67,00, KRW 2,000, KRW 31,97,000 from the oil station of this case and KRW 2,00,000 from the date of investigation, and the Plaintiff’s submission of a comprehensive document verifying that the Plaintiff’s purchase of the oil from the oil station of this case was able to receive the Plaintiff’s request for adjudication from the police office of this case.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

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

(c)