early 2009 Mine2878 ( October 09, 2009)

Since a business operator operating a gas station has received a tax invoice different from the facts, the disposition that deducts input tax amount is legitimate.

Since a business operator operating a gas station has received a tax invoice different from the fact, and the Plaintiff is insufficient to recognize the fact that the supplier is bona fide and without fault, the disposition that did not deduct a substantial amount of input tax invoice is legitimate.

209Guhap2808 Disposition of revocation of Value-Added Tax Imposition

AAA

○ Head of tax office

may 3, 2011

May 31, 201

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of correction of value-added tax amounting to KRW 56,698,090 on February 1, 2009 against the Plaintiff on February 1, 2009 shall be revoked.

1. Details of the disposition;

A. From December 1, 2003, the Plaintiff operates a gas station under the trade name of ○○○○○○ Dong 329-8 (hereinafter “instant gas station”).

B. For the period from March 10, 2008 to April 18, 2008, the first taxable period of the value-added tax in 2008, the Plaintiff received 13 copies of the tax invoice (hereinafter referred to as the “instant tax invoice”) stating the total value of supply as stated in the purchase tax invoice sheet in the attached sheet from the △△△△ branch, Inc. (hereinafter referred to as “Cheonggu Energy”), and reported and paid the instant tax invoice by deducting the input tax amount of 41,772,728, and 728 won related to the instant tax invoice from the output tax amount, as stated in the purchase tax invoice list in the attached sheet.

다. △△지방국세청장은 2008. 4경부터 2008. 6경까지 △△ △△구 △△동 1162-9 △△빌딩 4층 1002호에 위치한 □□에너지 본점, ♧♧ ♧♧구 ♧♧동 432-5 ♧♧상가 103동 106호에 위치한 □□에너지 ♧♧지정 및 ▽▽ ●●구 ●●동 604-2 ●●오피스텔 411호에 위치한 □□에너지 ▽▽지점에서 각 발행된 출하전표 및 세금계산서에 대한 조사결과 □□에너지가 원고에게 발급하여 준 이 사건 세금계산서는 실물거래 없이 허위로 발행된 것이라는 결론을 내리고, 이러한 초사결과를 피고에게 통보하였다.

D. Accordingly, on February 1, 2009, the Defendant deducted the pertinent input tax amount of the instant tax invoice from the Plaintiff on the ground that the instant tax invoice was issued falsely without any actual transaction, according to the above notice, and corrected the value-added tax for the first period of 2008 at KRW 56,698,090 (hereinafter “instant disposition”).

E. The Plaintiff, who is dissatisfied with the instant disposition, filed an objection on May 15, 2009, and filed an appeal with the Tax Tribunal on August 3, 2009. However, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on October 9, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 4, 6 evidence, Eul evidence 1 to 4 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff was issued with a copy of the certificate of registration of the business operator of Seocho Energy, who is a member of Seocho Energy Business, and was actually supplied with oil through the above Seocho, and deposited oil in the passbook opened in the name of Seocho Energy, so the transaction is true. Even if the tax invoice of this case constitutes a so-called "data market" and even if the tax invoice of this case constitutes a false transaction or processing transaction, the plaintiff was not aware of the disguised fact that the name of Seocho Energy was disguised, and was not negligent in failing to know it.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) After completing the registration of petroleum retail business on June 19, 2007, the △ Energy is a business operator who registered the business with the type of oil as the purchase of oil on July 1, 2007, and closed the business on April 24, 2008. The △ Energy did not have been shipped oil in the name of △ Energy even at any of the above nationwide oil storage stations during the business period. In addition, while concluding a lease contract for oil storage facilities and transportation vehicles of △△ International Stock Company for the registration of the petroleum retail business, it was not possible to use the oil reservoir, transportation vehicles, etc. for the above period.

2) The headB, who is the actual business operator of △ Energy, performed the duty of transfer by opening the so-called “DD” under the name of “DD” by receiving or delivering a false tax invoice without a real transaction. From July 2007, 2007, the headB issued the sales tax invoice under the name of △ Energy to the gas stations without a real transaction and traded to pay a certain fee to the gas stations, and made it difficult to secure the gas stations to deliver the oil without materials to the gas stations in connection with the lightingE, etc.

3) When a oil is delivered to a gas station through normal distribution channels, one of the orderer among Chapter 4 of the shipment slips issued at the time of shipment (the date and time of shipment, the name of the customer, the arrival, the place of arrival, transportation equipment, items and the volume of the shipment, temperature, weight, etc.) at the oil reservoir, etc. at the oil reservoir, etc. at the same time of shipment shall be kept by the oil reservoir, and one of the orderer shall be kept by the oil reservoir, and one of the two copies shall be kept by the driver, and the other one shall be kept at the oil station, because there is an increase or decrease in the volume of the petroleum product after the temperature of the petroleum product.

4) On the other hand, △ Energy did not issue a shipment ticket to the delivery operator on the date of shipment, and did not issue a shipment ticket of △ Energy to the relevant gas station. However, after the oil was delivered, △ Energy staff prepared a shipment ticket using a computer and twitter, and prepared a tax invoice in accordance with the oil details shipped at the same time, and then sent the said shipment ticket and tax invoice to the relevant gas station by mail or on a selective basis.

5) △△지방국세청장은 □□에너지를 실제로 유류를 공급함이 없이 허위 세금계산서를 교부한 자료상으로 보아 수사당국에 고발하였고, ♧♧지방검찰청은 2009. 3. 31 ♧♧지방법원 2009고합199호로 장BB 등을 특정범죄가중처벌 등에 관한 법률위반(허위세금계산서교부 등) 혐의로 ♧♧지방법원에 기소하였다 이에 대한 항소심인 서울고등법원은 2010. 3. 25. 2009노2687호로 □□에너지의 실제사업자인 장BB에 대한 이 사건 세금계산서 부분을 포함한 허위 매출세금계산서교부의 점에 관하여 실제의 유류 거래는 비과세 유류 등을 보유한 자와 해당 주유소 사이에서 이루어졌고 □□에너지는 이와 같은 실물거래에 있어 세금계산서 등의 필요한 자료를 구비해 주고 실물거래를 중개하는 역할을 한 것에 불과하므로 장BB는 가공의 세금계산서를 발행하여 교부하거나 이를 교부받은 자에 해당한다고 보아 유죄를 선고하였으며, 이에 대한 상고심인 대법원 2010도4068호 사건에서 상고기각 판결이 선고됨으로써 위 항소심 판결이 그대로 확정되었다.

6) From December 1, 2003, while operating the gas station of this case, the Plaintiff was recommended by an oil carrier, known to the Plaintiff, to supply the transit from the GF to 15 won per liter (10 to 15 won per liter) of the price during the time of the operation of the gas station of this case, and began transactions with the △ Energy after introducing the SA of the Ma of the Magu Energy Business Operator.

7) At the time, Western, upon receiving orders from the Plaintiff and the business partners secured by it, contact the headB with the oil distributors exempt from non-data-free sources, the Plaintiff did not receive the shipment slips issued at the oil reservoir at the time of receiving the oil from KimF, and received the shipment slips issued in the name of △ Energy later by mail along with the tax invoice.

8) Each shipment slip that the Plaintiff received from △ Energy did not indicate the temperature of the petroleum products at the time of shipment, and the density was uniformly stated 826 all the 16 shipment slips. On April 8, 200 of the shipment date, 2:00 o.m. pre-delivery of the shipment slips issued in P.m. 2:30 o.m. and 4:30 o.m., the pre-delivery number of the shipment slips issued in P.m. 000 o., and the serial number of the shipment slip issued in P.m. 4:30 o.m. were written later.

9) The oil transport engineer KimF received contact from SA and around that time delivered the same oil as listed in 16 copies of the shipment table 16 of this case to the Plaintiff’s gas station. However, KimF received the oil from a person who was unable to identify at the oil station behind the mobilization station located in the Geumsan-si, which is not the ○○ oil station indicated as not going out of the instant shipment slip, and delivered it to the oil station in this case.

10) The Plaintiff: (a) transferred KRW 327,90,000 from March 10, 2008 to April 18, 2008, the period of receipt of the instant tax invoice from △ Energy; and (b) confirmed that the amount of the said remittance was not deposited to the Plaintiff again.

[Reasons for Recognition] Unsatisfy, Gap evidence l through 7 (including each number), Eul evidence 1 to 7 (each number satisfy), witness witness testimony and the purport of the whole pleadings

D. Determination

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

A) The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries in the tax invoice refer to cases where the contents of the tax invoice are inconsistent with the liquor tax on the goods or services actually supplied or the supplied price and the time, etc., notwithstanding the formal entries in the transaction contract, etc. made between the parties to the goods or services.

B) According to the above facts, each oil recorded in the item quantity of the above list at the time of issuance of the purchase tax invoice of this case was supplied as the oil station operated by the Plaintiff, and it seems that the Plaintiff paid the oil price to △ Energy.

C) However, the following circumstances are as follows: (a) △ Energy was established for the purpose of trading false oil without any actual transaction from the beginning; (b) the headB, who was the actual operator, accused of the tax invoice without any actual transaction at all; and (c) the judgment became final and conclusive upon conviction for the reason that the tax authorities issued or received only the tax invoice without any actual transaction; (b) △ Energy did not have received oil at any time in the country during the instant taxable period; (c) △ Energy received the petroleum sales businessman, etc., and did not entirely use the oil storage facility or transportation vehicle, etc. reported; and (d) △ Energy received the processed purchase tax invoice and supplied the non-data without any material to the distributor, and did not actually purchased the oil; (c) under the circumstances where the oil was not purchased, it appears that the Plaintiff only purchased the real oil from the third party, such as the Plaintiff, and did not have any false purchase of the oil from the third party.

D) Accordingly, it is reasonable to view the instant tax invoice as a false tax invoice by the supplier.

2) Whether the Plaintiff constitutes a bona fide trader

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 supplier, who was unaware of the fact that the supplier was unaware of the name of the tax invoice, and the person who was provided with the tax invoice shall prove that there was no negligence on the part of the supplier on the part of the purchaser, who did not know of the fact that he was the nominal owner (see, e.g., Supreme Court Decision 2002Du2277, Jun.

B) First, as to whether the Plaintiff was unaware of the name of the tax invoice of this case, and whether there was no negligence on the part of the Plaintiff’s failure to know, each of the entries in the evidence Nos. 4 through 7 (including each number), and the witness testimony in the witness evidence Nos. 4 through 7 (including each number), is insufficient to recognize it, and there is no other evidence to acknowledge it.

C) Rather, the following circumstances acknowledged by the evidence and the purport of the entire pleadings, namely, ① the Plaintiff operated a gas station from December 1, 2003 with the Plaintiff, and the Plaintiff’s father, who was in charge of the order of oil in operating the gas station from around 1989, appears to have been aware of the normal structure and distribution route of the oil supply, the general form and method of the industry, and the actual situation of transactions in the oil industry widely spread to the oil industry through diverse experiences. ② the Plaintiff did not directly receive the oil delivery slip from the operator of the vehicle at the time of receiving the oil, but did not receive the oil delivery slip under the name of 2-3 days after receiving it by mail, ③ The Plaintiff did not know that each of the instant oil stations was not the owner of the oil station at the time of receiving the oil, but did not appear to have been negligent in the Plaintiff’s actual confirmation of whether it was the owner of the oil station at the time of receiving the oil, and the Plaintiff did not know whether it was the owner of the oil station at the time of issuing the oil station.

3) Sub-decisions

Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and it is not sufficient to recognize the fact that the Plaintiff was a bona fide and negligent person, so 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.