early 2010 Mine2940 ( November 04, 2010)

It is not recognized that it is a good faith and negligence as a gas station business operator.

A tax invoice delivered to a gas station operator constitutes a tax invoice different from the facts, and as the plaintiff is not deemed to have acted in good faith and without negligence, the defendant's disposition that did not deduct the input tax amount is legitimate.

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

XX

O Head of tax office

August 23, 2011

September 20, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax of KRW 87,020,940 against the Plaintiff on June 3, 2010 shall be revoked.

1. Details of the disposition;

A. From December 1, 2003, the Plaintiff is operating a gas station under the trade name of XX 000-0 from the GATT 000 to the “gas station” (hereinafter “instant gas station”).

B. The Plaintiff received 19 copies of the purchase tax invoice (hereinafter “instant tax invoice”) equivalent to the total supply amount of KRW 497,945,455 won from AA branch during the period from July 4, 2008 to November 28, 2008, which is the taxable period of the value-added tax for the second quarter of 2008, and filed a return on the instant tax invoice with the Defendant after deducting the input tax amount of KRW 49,794,545 from the output tax amount for the second quarter of 2008.

C. On June 2009, the head of the AAA Tax Office confirmed that the O Energy is a material that issued a tax invoice without real transactions and notified the Defendant of such findings and taxation data.

D. On June 3, 2010, the Defendant: (a) deducted the pertinent input tax amount of the instant tax invoice on the ground that the instant tax invoice was a false tax invoice written differently from the fact by the supplier; and (b) corrected the value-added tax for the second period of 2008 to KRW 87,020,940 (hereinafter “instant disposition”).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on September 8, 2010, but on January 1, 2010

4. An appeal was dismissed.

[Reasons for Recognition] Each entry of Gap evidence 1 to 4 (including each number), the purport of the whole pleadings without dispute

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) argument that transactions withO energy are true (section I);

The Plaintiff received oil equivalent to the total value of KRW 497,945,455, and paid the price in full, and received the instant tax invoice. Thus, the instant tax invoice is not a false tax invoice.

2) The Plaintiff’s assertion that he/she is the opposite contractual party to good faith and without fault (section 2)

The plaintiff received a copy of the certificate of registration of O-Energy's business operator from the Western called "O-energy business operator", and received oil through the above letter A, and deposited all oil in the passbook opened in the name of the O-Energy corporation. Even if the O-Energy is so called "data", the plaintiff was not aware that the O-Energy was not the actual supplier, and was not negligent in not knowing that it was not the actual supplier.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) On June 19, 2008, thisB acquired the head office of O Energy BB on the basis of so-called data (at the time of acquisition, the representative director was the largestCC, but the representative director was changed to the BB himself/herself on November 12, 2008) and completed the business registration, and thereafter, this B was accused of the O Energy on March 31, 2009, when it operated O Energy with a branch office inCC and AA, and the O Energy was discontinued ex officio.

2) From June 2008, the O Energy issued a sales tax invoice to the nationwide gas stations and traded data on which commission was paid without real transaction.

3) O energy is purchased by leasing oil reservoirs and vehicles for transport, which are storage facilities, to meet the requirements for registration at the time of filing for registration of a petroleum retail business operator. However, it is not possible to do so only once less than once the oil reservoir or vehicles for transport.

4) Under the name of the O-Energy, the main oil purchaser is △△ Petroleum DD points, but the O-Energy does not actually receive oil from these companies, but is issued a processed purchase tax invoice as if they were supplied with the oil in order to meet the sales details on the processing tax invoice issued by the O-Energy. Both △△ Petroleum and △△ Petroleum D points were accused of all of them on data, and ex officio discontinuance of business.

5) AA세무서에서 실시한 세무조사 결과, OO에너지에서 2008년 제l기부터 2009년 제1기까지의 부가가치세 과세기간 동안 수취한 매입세금계산서의 93.1%(OO에너지가 신고한 유류매입액 약 146억 원 중 약 136억 원 상당), 같은 과세기간 동안 교부한 매출세금계산서의 88.7%(OO에너지가 신고한 유류매출액 약 146억 원 중 약 130억 원 상당)에 해당하는 세금계산서가 가공의 세금계산서로 확인되었으며, 또한 OO에너지는 실제매출에 대해서는 출하지를 '정유사 ◇◇뱅크(주)'로 한 출하전표를, 가공 매출에 대해서는 출하지를 'OO에너지 저장소'로 한 출하전표를 각각 발행한 것으로 확인되었다

6) When a oil is delivered to a gas station through normal distribution channels, one orderer out of Chapter 4 of the shipment slips issued at the time of shipment at the oil reservoir, etc. (the date and time of shipment, the name of the customer, the arrival, destination, transportation equipment, items, temperature, weight, etc.) at the oil reservoir, etc. (the date and time of shipment, the arrival, the place of arrival, the transportation equipment, the volume of the goods and the shipping volume, the temperature, etc.) shall be kept, one of them shall be delivered to the oil station, and one of them shall be kept in the oil station, and one of the others shall be kept in the oil station, and one of them shall be kept in the oil station, because there is an increase or decrease in the volume after the temperature of petroleum products, the date and time of shipment, temperature at the time of shipment, etc.

7) On the other hand, the O Energy did not issue the shipment slips to the oil driver on the date of shipment, but did not issue the O Energy shipment slips to the oil station in question. However, after the delivery of oil, the O Energy Management Director ParkD prepared the shipment slips, prepared a tax invoice in accordance with the oil details shipped at the same time, and then sent the said shipment slips and tax invoices by mail to the oil station in question.

8) From December 1, 2003, while operating the gas station in the instant case from around December 1, 2003, the Plaintiff was urged by the members of the O-Energy Business to supply the O-Energy at a price lower than the market price, and began transactions with O-Energy.

9) The Plaintiff ordered oil to the O Energy and supplied the same oil as indicated in the instant tax invoice. At that time, the Plaintiff did not receive the shipment slips issued at oil storage stations at the time, and later received the shipment slips issued in the name of O Energy en bloc by mail. Each shipment slip issued by the Plaintiff was not indicated in the temperature of petroleum products at the time of shipment, and both density were indicated at the same time as 826, and there was no signature or seal of the approved person, shipper, shipper, transporter and consignee, and the official seal of the O Energy AA branch was not affixed.

[Reasons for Recognition] The facts without dispute, Gap evidence 3 through 6 (including each number), Eul evidence 1 to 3 (including each number), the purport of the whole pleadings

D. Determination

1) Determination as to the first proposal

A) The meaning that the entries of the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries of the tax invoice refer to cases where the contents of the tax invoice are inconsistent with those of the person who actually supplied or received the goods or services, regardless of the formal entries, such as the transaction contract, etc. prepared between the parties to the goods or services (see Supreme Court Decision 96Nu617, Dec. 10, 1996).

B) Even if the Plaintiff actually purchased oil in the quantity listed in the instant tax invoice, it is found that the transaction partner who supplied oil to the Plaintiff was in accord with the supplier listed in the relevant tax invoice. In other words, it was established for the purpose of trading false tax invoices from the beginning, and accusation was filed by the tax authorities only with the data that issued or received the tax invoice without any real transaction. ② O energy has not been used only once after obtaining registration as a petroleum selling business operator during the instant taxable period. ③ As the result of the tax investigation in the AA tax invoice, the entry of the shipment price in the shipment slip issued in the name of O Energy was confirmed as a processing transaction, and the shipment price was written as the “O energy storage place” among the shipment slips issued in the name of O Energy. In full view of the fact that the Plaintiff’s shipment price was written as the “O energy storage place,” all of the shipment tickets issued by the Plaintiff, and the Plaintiff did not directly receive the above oil from O energy, but did not possess any necessary data between the Plaintiff and the third party to the real goods transaction.

C) Therefore, we cannot accept the argument that the Plaintiff purchased oil listed in the instant tax invoice from O energy. Accordingly, it is reasonable to view the instant tax invoice as a false tax invoice that is written differently from the fact by the supplier.

2) Determination on the second proposal

A) Unless there are special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence on the part of the person who received the other tax invoice in the name of the tax invoice, and the person who asserts the deduction or refund of the input tax amount should prove that the person who received the tax amount was not negligent in not knowing the above fact of deception (see Supreme Court Decision 2002Du2277, Jun. 28, 2002).

B) However, it is insufficient to acknowledge that the Plaintiff did not know the false name of the tax invoice No. 7 and No. 8 submitted by the Plaintiff, and that there was no negligence on the part of the Plaintiff, and that there was no other evidence to acknowledge it. Rather, the following circumstances acknowledged by the Plaintiff, i.e., (i) the complicated supply structure of the oil industry and the frequent transaction of free materials using free oil, etc., need to be paid attention to the Plaintiff as to whether the oil supplier is the actual supplier; (ii) each shipment slip issued by the Plaintiff was the same as at the time of shipment; (iii) whether the Plaintiff did not know that there was 80 OEM and the place of delivery; and (iv) whether the Plaintiff did not have been negligent in the Plaintiff’s initial distribution of such OEM and the place of delivery, even though it did not appear that there was 0 OEM’s 20 OEM and the place of delivery.

(iii)Indivates

Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and the Plaintiff’s person who received the instant tax invoice is not recognized to be a good faith and negligence. Thus, the Defendant’s disposition that did not deduct the input tax amount equivalent to the instant tax invoice is lawful.

3. Conclusion

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