Seocho 2010west 1856 (01.02.01)

It is not recognized as good faith or negligence because it keeps a voluntary issuance pre-issuance ticket, other than the issuance of a oil reservoir.

The plaintiff's good faith and negligence cannot be recognized on the ground that there is no entry that the plaintiff received the shipment slips in the oil order agency and the final arrival column. However, the fact that the shipping slips were returned to the main purchaser, and instead, the shipping slips were kept at the main purchaser's discretion.

Article 17 (Payable Tax Amount)

2011Guhap3845 Revocation of Disposition of Imposition of Corporate Tax and Value-Added Tax

Energy XX 1 other

Head of Sejong District Tax Office et al.

October 27, 2011

December 1, 2011

1. On January 6, 2010, the head of the Chungcheong District Tax Office revoked the disposition of imposition of value-added tax of KRW 3,821,651,150 against Plaintiff Manju.

2. The Plaintiff’s claim against the Defendants in Energy XX is dismissed in entirety.

3. Of the costs of lawsuit, the part arising between the Plaintiff Co., Ltd. Energy XX and the Defendants shall be borne by the said Plaintiff, and the part arising between the Plaintiff Jeong XX and the Defendant Chungcheong Tax Office shall be borne by

The disposition of imposition of KRW 94,134,90, corporate tax for the year 2007, and KRW 631,874,480, corporate tax for the year 2008, and KRW 123,542,630, respectively for the second period of value-added tax for the year 2008, and the disposition of imposition of KRW 740,178,570, 207 for the second period of value-added tax for the year 2007, and KRW 3,171,335,840, 208 for the first period of value-added tax for the year 2007, and KRW 148,271,480, and 480 for the second period of value-added tax for the year 2009, respectively, shall be revoked.

1. Details of the disposition;

A. On April 12, 2004, Plaintiff P, the highestCC, and SongD concluded a partnership agreement with the content that they intend to establish and operate the Plaintiff Company for oil wholesale and retail business (hereinafter “instant partnership agreement”). The Plaintiff Company was established following the date, and the Plaintiff Company was appointed as the representative director.

나. 원고 회사는 유류 도ㆍ소매업을 영위하는 주식회사 DK(이하 'DK'이라고 한다)의 충주지점(충주시 가금면 가흥리 100-1 소재)을 인수한 다음 이를 본점 사업장으로 하여 2004. 7. 15.부터 영업을 시작하였고, 2006. 6. 20.부터 위 가흥리 100-1에 지점인 XXXX주유소를 설치ㆍ운영하였다. 그 후 원고 회사는 2009. 6. 9. 위 지점을 폐쇄하였고, 같은 해 30일 원고 회사의 주소지를 서울 종로구 동숭동 1-54, 6층으로 변경하였다.

C. The instant agreement states that “the Plaintiff is 45% equity interest of 135,00,000 won invested in 135,000 won, 31.67% equity interest of 95,000,000 won invested by the largestCC, and 16.67% equity interest of 50,000 won, and the shares equivalent to 6.66% equity interest shall be granted to a person who has contributed to the company.” From 2004 to 2004, the details of changes in the shares in the Plaintiff’s shares in the Plaintiff’s name of the company are as follows.

[The following table omitted]

D. During the taxable period of value-added tax from the second to the second period in 2007, the Plaintiff Company received a tax invoice from the △△△ Energy Co., Ltd., △△△ Energy Co., Ltd., ○○ Energy Co., Ltd., and △△ Energy Co., Ltd. (hereinafter referred to as the above companies, omitted, and all of the above companies referred to as the “market purchaser”) and reported and paid value-added tax by deducting the pertinent input tax amount from the sales tax amount in the pertinent taxable period.

E. From July 9, 2009 to September 30, 2009, the director of the Seoul Regional Tax Office conducted a tax investigation with respect to the Plaintiff Company. From the second to the second period of the value-added tax in 2007, the Plaintiff Company received from the major purchaser during the taxable period of the value-added tax from the second to the second period in 2008, the purchase tax invoice equivalent to KRW 35,920,801,000 (hereinafter “instant tax invoice”) constitutes a false tax invoice. The tax invoice was confirmed to have been omitted from the Plaintiff’s branch office’s return of KRW 23,980,000, and the taxation data was notified to the Defendants.

[The following table omitted]

F. On November 9, 2009, the director of the tax office of Sejong District Tax imposed corporate tax amounting to KRW 94,134,90,974,480, including the additional tax paid for the year 2007, on the ground that he received the tax invoice of this case from the Plaintiff company by including the omitted amount of sales declaration in the year 2007, while receiving the false tax invoice of this case, on the ground that it constitutes a case where he did not receive the evidential documents of expenditure under Article 76(5) of the former Corporate Tax Act (amended by Act No. 9898, Dec. 31, 2009; hereinafter the same shall apply).

G. In addition, on November 9, 2009, the head of the relevant tax office: (a) deducted the input tax amount related to the portion received from the head office in the instant tax invoice from the Plaintiff Company; and (b) imposed the second additional tax amount of KRW 1,123,542,630 in 208; (c) on December 1, 2007, the head of the relevant tax office included the output tax amount for the omitted sales declaration in 2007; (d) deducted the input tax amount related to the portion received from the branch office in the instant tax invoice from the non-deduction of the input tax amount of KRW 740,178,570 in 207; and (e) imposed the value-added tax amount of KRW 3,171,35,840 in 208 in 2008; and (e) imposed the value-added tax amount of KRW 1,148,271,480 in 208 (hereinafter collectively referred to as the “instant imposition imposition”).

H. After that, on January 6, 2010, the head of Chungcheong District Tax Office held 50,000 shares (41.67%) out of 120,00 shares issued by the Plaintiff Company as of the date when the Plaintiff Company’s liability to pay value-added tax was established (the date when December 31, 2007, June 30, 308, December 31, 2008, and December 31, 2008), and held 38,00 shares (the shares 31.67%) of the largestCC (the shares 31.67%) as an oligopolistic shareholder (the shares 73.3%) on the ground that the Plaintiff Company was designated as the second taxpayer and imposed 3,821,651,150 won (the shares 73.3%) on the Plaintiff Company regularly as the second taxpayer.

[Ground of Recognition] Facts without dispute, Gap 1, 2, 9, 15 through 21, Gap 23-1 through 9, Gap 24, Gap 25-1, 2, Eul 1, 2, 7, and 13-2, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

(1) The Plaintiff Company cannot be deemed to constitute a false tax invoice on the ground that it actually purchased oil from the key purchaser and received the instant tax invoice. Even if the instant tax invoice was a disguised supplier, the Plaintiff Company did not know of such fact and did not have any negligence because it did not know of such fact. Furthermore, insofar as the Plaintiff Company received the instant tax invoice in the course of transaction with the key purchaser, it cannot be deemed to constitute “cases where it did not receive the evidentiary documents” under Article 76 of the former Corporate Tax Act. Accordingly, all of the disposition imposing corporate tax and surtax on a different premise are unlawful.

(2) As of the date on which Plaintiff Company’s value-added tax liability is established (the date on December 31, 2007, June 30, 2008, December 31, 2008, and December 31, 2008), Plaintiff Company held 50,000 shares (the shares 41.67%) out of 120,00 shares issued by Plaintiff Company, and did not constitute an oligopolistic shareholder, since Plaintiff Company did not hold 38,00 shares (the shares 31.67%) out of 120,00 shares (the shares 41.67%) of the largestCC’s shares. Therefore, the secondary tax payment disposition of this case made on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Determination as to the legitimacy of the corporate tax and the surtax of this case

(A) Whether the instant tax invoice constitutes a false tax invoice

1) According to Article 17(2)1 of the former Value-Added Tax Act (amended by Act No. 9268 of Dec. 26, 2008; hereinafter the same), an input tax amount in a case where the entries of a tax invoice are different from the facts are not deducted from the output tax amount. In this case, the meaning that it is different from the fact is merely the title of income, profit, property, act or transaction which is subject to taxation, and if there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable for tax payment and the tax law shall apply. In light of the purport of Article 14(1) of the Framework Act on National Taxes, which provides that the necessary entries of a tax invoice refer to cases where the contents of the tax invoice are inconsistent with those of the person to whom the goods or service is actually supplied or supplied, regardless of the formal descriptions of the transaction contract, etc. prepared between the parties to the goods or service, the person to whom the tax invoice is to be supplied, and further, the person who supplies the goods shall be deemed to be declared the entrepreneur or the service.

In addition, there is a need for a taxpayer to prove the fact that a tax invoice submitted by a taxpayer for value-added tax as a basis for input tax deduction was falsely prepared without a real transaction, or that the entries in a tax invoice are different from the fact, and thus, it is considerably proven by the tax authority as to whether it is a real purchase or the entries in a tax invoice. In a case where a transaction with a supplier stated in a tax invoice claimed by a taxpayer is proved to a considerable extent that it is false, there is a need for a taxpayer to prove that it is easy for the taxpayer to present data, such as books and documents regarding the actual transaction with the supplier stated in the tax invoice (see, e.g., Supreme Court Decisions 94Nu3407, Jul. 14, 1995; 2007Du1439, Aug. 20, 2009).

2) Examining the instant tax invoice in light of the aforementioned legal principles, ○○○○○○○○○○○○ Energy, which included the real tax invoice for the supply of △△△△○○○○○○, in the fact that it was impossible to use the tax invoice for each of the above △△△△△△△△△△△△△△△△△△, and the fact that the tax invoice was issued for the supply of △△△△△△△△△△△△△△△△△△△△△△△△△△△, and the fact that each of the instant tax invoices was issued for the supply of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, and the fact that each of the instant tax invoices was not actually used for the transportation of △△△△△△△△△, and that the remaining tax invoices were not found to have been used for the transportation of △△△△△△, which was found to have been used for 20.

(B) Whether there was any good faith or negligence on a false tax invoice

1) 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 tax invoice in the name of the actual supplier and that there is no negligence on the part of the person who received the tax invoice, and the person who asserts the deduction or refund of the input tax amount should prove that there is no negligence on the part of the person who received the tax invoice in the said name. (See Supreme Court Decision 2002Du2277, Jun. 28

2) 위 법리에 비추어 이 사건에 관하여 살펴보건대, 위 기초사실 및 갑 20, 21호 증, 갑 25호증의 1, 2, 을 1, 3 내지 10, 13호증, 을 14호증의 1 내지 4, 을 15 내지 22 호증의 각 기재에 변론 전체의 취지를 더하여 알 수 있는 다음과 같은 사정, 즉 ① 원고 회사의 대표이사인 원고 정XX은 1997년경 남양주시에서 주유소를 운영한 바 있고, 원고 회사의 이사로서 물량 구입, 영업, 거래처 관리 및 직원 관리 등 회사의 전반 적인 운영을 담당한 최CC은 2003년경 유류 도ㆍ소매업을 영위하는 DK의 경기도 지점의 지배인으로 근무한 적이 있을 뿐만 아니라, 원고 회사가 2004년경부터 유류 도ㆍ소매업을 시작했으므로 자료상 거래 및 무자료 유류의 유통 가능성 등에 대해 잘 알고 있었던 것으로 보이는 점, ② 원고 회사가 2007. 3.경 쟁점매입처와의 거래를 시작하기 전에는 주로 주식회사 안국상사, 에쓰오일 주식회사 등으로부터 유류를 매입하였고 당시에는 최종도착지가 원고 회사의 지점인 XXXX주유소로 기재되어 발행된 출하전표를 교부받아 보관하였으나, 쟁점매입처와 거래를 하면서부터는 유류주문대리점 및 최종도착지란에 원고 회사가 기재된 출하전표를 교부받은 적이 없는데다가 쟁점 매입처에 출하전표를 반환하여 주었고 대신에 쟁점매입처에서 임의로 발행한 출하전표를 보관해 온 점, ③ 쟁점매입처와의 거래 당시 원고 회사의 리터당 평균 매입단가는 현물가격과 비교할 때 경유의 경우 40.7원, 등유의 경우 22.3원, 무연휘발유의 경우 35.3 원이나 낮았던 점, ④ 최CC은 서울지방국세청의 조사 당시 '2007. 3.경 처음으로 유SH을 통해 ☆☆에너지와 거래를 시작하였는데 당시 저유소를 확인하지는 않았다. 그후 유SH이 △△에너지로 옮겼다고 하여 △△에너지와 거래를 하였고 당시 △△에너지 사무실을 방문한 적은 없다. 유SH이 2008. 2.경 ○○에너지로 옮겨 그때부터 ○○에너지와 거래를 시작하였고, 같은 해 8월경 유SH이 세무조사 등의 문제로 회사운영이 어렵다고 하여 유SH의 소개로 □□에너지와 거래를 하였다'고 진술한 점, ⑤ 유SH은 검찰 조사 당시 '매출처별세금계산서합계표 금액이 큰 XXXX주유소 등에 교부한 매출세금계산서는 허위'라고 진술한 점(그 후 검찰에서 위 진술을 번복하였으나 그대로 기소되었고 그에 대한 유죄판결이 확정되었다), ⑥ 나아가 이 사건 세금계산서 상의 거래금액 합계가 359억을 상회할 정도로서 원고 회사와 쟁점매입처 사이의 거래 규모가 상당히 컸던 점 등에 비추어 보면 원고 회사로서는 당해 유류의 공급자가 쟁점매입처가 아니라는 사실을 알았거나 알 수 있었다고 봄이 상당하다. 따라서 원고 회사의 위 주장도 이유 없다.

(C) Whether the requirements for imposing additional duties not received are satisfied

1) Article 76(5) of the former Corporate Tax Act provides that a corporation supplied with goods or services shall bear penalty taxes in cases where it fails to receive regular documentary evidence of payment is to enhance transparency in the content of expenditure of a corporation, and to induce other business operators to cultivate the tax base of the transaction partner, and imposes a duty of bona fide return on the transaction partner who is subject to tax base training. As such, it is difficult to achieve such legislative purpose, imposing a duty of bona fide return on the transaction partner. Therefore, it is subject to sanction that the corporation supplied goods or services receive regular documentary evidence of payment and pay an amount equivalent to a certain percentage of the amount not received for the breach of such duty (see, e.g., Constitutional Court Order 2004HunGa7, Nov. 24, 2005; Constitutional Court Order 2006HunBa88, May 31,

Meanwhile, Article 15 of the former Value-Added Tax Act provides that when an entrepreneur supplies goods and services, the value-added tax on the supply price shall be fixed from the person who receives the supply price thereof. Article 17(1) provides that the value-added tax to be paid by an entrepreneur shall be the amount obtained by deducting the input tax amount from the output tax amount, and that the input tax amount exceeding the output tax amount shall be refundable. This is based on the fact that an entrepreneur who supplies goods and services in each transaction phase prior to reaching the final consumer collects the output tax amount from the entrepreneur who receives the supply and pays it to the State, and that an entrepreneur who receives the tax amount shall, in turn, transfer the burden of the tax amount to the final consumer in the following phase through the process of deducting the input tax amount from the input tax amount, and ultimately imposes the burden on the final consumer. In such structure, it is impossible to maintain the system of value-added tax unless the output tax amount collected at each transaction phase is paid to the State (see Supreme Court Decision 2009Du16367, Feb. 10, 201).

2) However, in full view of the above facts and the purport of the entire arguments, the following circumstances revealed: ① although the Plaintiff Company appears to have engaged in the real transaction of oil, it is difficult to regard the oil supplier as the key purchaser as stated in the instant tax invoice; ② there is a need to impose sanctions, such as imposing additional tax, in cases where the actual supplier and the supplier on the tax invoice have received different tax invoices intentionally or by negligence, thereby making it difficult for the State to exercise the right to impose taxes on the actual supplier; ③ In this case, the Plaintiff Company argues that it is unlawful to impose additional tax on the Plaintiff in addition to the amount of additional tax for receiving evidence in this case, since it overlaps with the amount of additional tax for receiving false tax invoice under Article 22(3) of the former Value-Added Tax Act, it constitutes a requirement for imposing additional tax, and thus, it is difficult to view that it constitutes a requirement for imposing additional tax for collecting additional tax for the purpose of training additional tax for the other party to the transaction, and thus, it does not constitute a requirement for imposing additional tax for the same purpose.

(D) Therefore, all of the disposition imposing corporate tax and surtax are legitimate.

(2) Determination as to the legitimacy of the second tax payment disposition of this case

In light of the facts stated above, it is difficult to conclude that Plaintiff 50% shares were owned by Plaintiff 2 as the actual owner of the company’s 300 shares (31.67% shares) and that Plaintiff 2 was 0% of the total amount of 00 shares and 0% of the 00 shares at the time of its incorporation, and that Plaintiff 5% of the 00 shares were 60% of the 19,00 shares and 19,000 shares were acquired at the time of its incorporation. Plaintiff 60% of the 00 shares were 0 shares and 50% of the 19,000 shares were 0 shares and 50% of the 00 shares were 0 shares. Plaintiff 60% of the 00 shares were 0 shares and 50% of the 19,000 shares were 50 shares and 60% of the 50% shares were 60% of the 19,000 shares shares.

3. Conclusion

Then, the plaintiff's claim is justified and accepted, and all of the claims against the defendants of the plaintiff company are dismissed as it is without merit. It is so decided as per Disposition.