early 2010 Heavy0636 (2010.05.04)

A corporation operating a gas station, which has received a false tax invoice from the supplier;

As a corporation operating a gas station, it is insufficient to recognize the fact that the supplier was issued a tax invoice different from the fact, and that the supplier was bona fide and negligent in believing that the tax invoice received as such was properly prepared, the non-taxation of value-added tax and the imposition of corporate tax are legitimate.

2010Guhap2986 Revocation of disposition of imposition, including corporate tax

○○ Co., Ltd.

○ Head of tax office

April 7, 2011

May 12, 201

1. The plaintiff's claim is dismissed.

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

The Defendant revoked each disposition of KRW 61,047,610 of value-added tax for the second period of 2008 against the Plaintiff on January 8, 2010 and KRW 7,619,990 of corporate tax for 2008.

1. Details of the disposition;

A. From October 16, 2006, the Plaintiff is a corporation that operates gas stations in ○○○○-dong 286-5, ○○○○-dong, 286-5.

B. The Plaintiff received the purchase tax invoice amounting to KRW 380,99,999 (hereinafter “instant tax invoice”) from △△△ in the 2008 taxable period for the second taxable period of the value-added tax, and subsequently reported and paid the value-added tax to the Defendant by deducting the input tax amount from the total value of supply at KRW 380,99,99 (hereinafter “instant tax invoice”).

C. On January 8, 2010, the Defendant, on the ground that the instant tax invoice was written differently from the fact, deducted the input tax amount of value-added tax for the second period of 2008, and subsequently notified the amount of KRW 61,047,610 for the second period of 208, applying the penalty tax for non-Evidence of evidence under the Corporate Tax Act to the instant tax invoice (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed a request for review with the Tax Tribunal on February 18, 2010, but the Tax Tribunal dismissed the request on May 4, 2010.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 17, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff is not a tax invoice different from the facts, since the Plaintiff was actually supplied with oil from △△ in fact and was normally traded by remitting the purchase price, and even if the Plaintiff was a false tax invoice, the Plaintiff was involved in the transaction of △△B, a director of the △△△ Operations through the introduction of the operator, and all measures to confirm whether the Plaintiff was actually supplied with oil at the storage place designated by △△△ through the above A, and then remitted the price after receiving the tax invoice, and thus, the Plaintiff constitutes a bona fide transaction party, and thus, the instant disposition based on a different premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

(1) Disposition imposing value-added tax

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

The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts is the case where the necessary entries in the tax invoice are inconsistent with those in the actual supply of goods or services or the price and time of the supply, notwithstanding the formal entries in the transaction contract, etc. made between the parties to the goods or services.

In light of the overall purport of the pleadings, △△△△’s account that the Plaintiff supplied oil to the Plaintiff is a supplier of the instant tax invoice. In light of the following: (a) Nos. 3, 5, 7, and 8 (including a serial number) and the entire purport of the pleadings, △△△△△ does not have any separate oil storage facilities or transportation vehicles, and the transfer of oil prices to the customer is repeated on the same day; (b) △△△△’s account is a typical form of transaction for pretending the processing transaction in normal transaction; (b) △△△△△△△’s purchase amount of 5.3 billion won out of the purchase amount of 2008 KRW 5.24 billion, 18 billion, which is not a normal transaction; and (c) △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△’s purchase of oil without any possibility of the Plaintiff’s purchase of the oil at the time of supply of the oil to the Plaintiff.

(B) Whether the Plaintiff is bona fide and without fault or not

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 nominal name of the tax invoice, and that the supplier was not negligent in not knowing the nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

As to whether the Plaintiff did not know the name of the tax invoice of this case and did not commit negligence, each of the entries in Gap, Gap, Nos. 4 through 8, 11, 12, 18, and 19 (including the number of branch numbers) is insufficient to recognize it, and there is no other evidence to acknowledge it.

Rather, in full view of the following circumstances, the Plaintiff was at fault or negligence even if △△△△ was aware that the Plaintiff was not a person who actually supplied oil under the tax invoice of this case. In other words, the Plaintiff had been engaged in wholesale and retail business since October 16, 2006. As such, the Plaintiff had been aware of the current status and risk of transactions in the normal structure and distribution route of oil supply, the general forms and methods of transactions in the industry, and the oil industry through experience so far. ② At the time of commencement of transactions with △△△△△△△, the Plaintiff did not issue the tax payment certificate, the corporate seal impression certificate, etc. to verify whether the Plaintiff was a legitimate oil supplier, and it did not verify whether △△△△△△△△△△△△△△△△△ was a director of the actual △△△△△△△△△△△△△△△△△ (11), and 3, the oil reservoir did not provide the Plaintiff with the cargo delivery schedule and the cargo delivery schedule, and thus, it did not provide the remainder at the place for delivery.

(C) Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and it is insufficient to recognize the fact that the Plaintiff is bona fide and negligent in believing that the said tax invoice was properly received. Therefore, the Defendant’s disposition imposing value-added tax is lawful.

(2) Disposition of imposing corporate tax

Article 76(5) of the former Corporate Tax Act (amended by Act No. 9898, Dec. 31, 2009; hereinafter the same) provides that the amount equivalent to 2/100 of the unpaid amount may be added and collected in cases where goods or services are supplied by an entrepreneur and the evidential documents under each subparagraph of Article 116(2) of the former Corporate Tax Act are not received by the entrepreneur. The purport of the provision is to enhance transparency in the content of expenditure of a corporation and induce the other entrepreneur’s tax base cultivation, and it is difficult to achieve such legislative purpose solely on the ground that imposing the other entrepreneur’s duty of bona fide return on the goods or services being supplied with the goods or services, thereby imposing a duty of tax base cultivation is difficult to achieve such legislative purpose. Therefore, it is a sanction to require the corporation that is supplied with the goods or services to receive regular

Although the Plaintiff received oil under the instant tax invoice from a third party transaction rather than △△ branch, it is clear that the Plaintiff merely received a false tax invoice as if it were supplied by △△ branch, and the actual supplier did not receive all documentary evidence, such as each tax invoice. Therefore, it is legitimate for the Defendant to correct and notify corporate tax by applying Article 76(5) of the former Corporate Tax Act for this reason.

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.