Daegu District Court 2012Guhap2087 (No. 12, 2013)

National Tax Service Review Division 2012-007 ( October 15, 2012)

In receiving a false tax invoice, the plaintiff's good faith and negligence should not be recognized.

In light of the fact that the plaintiff operated the gas station for about two years and seven months, the fact that the oil contract has been concluded with the customer, the location of the place of business, the oil storage facilities, the distribution route, etc., and the fact that the form of the shipment slip received and the items to be entered are different from the normal shipment slips, the plaintiff's good faith and without fault should not be recognized.

Article 17 of the Value-Added Tax Act

2013Nu728 Revocation of Disposition of Imposition of Value-Added Tax

AA

Head of Yeongdeungpo Tax Office

Daegu District Court Decision 2012Guhap2087 Decided April 12, 2013

September 13, 2013

September 27, 2013

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

On December 1, 2011, the first instance court's decision is revoked. The defendant revoked each disposition of imposition of the second value-added tax OOOO and the first value-added tax OOOOOOOO in 2009 against the plaintiff on December 1, 201.

1. Details of the disposition;

A. From May 14, 2007, the Plaintiff operated a “B gas station” from OO-gun OO-gun OO-gun 331-7, and closed on June 16, 2010.

B. The Plaintiff supplied the following oil from CC Petroleum Co., Ltd. (hereinafter referred to as 'CC Petroleum') and DDDD (hereinafter referred to as 'DDDD company'), and the Defendant deducted the input tax amount stated in the purchase tax invoice issued by CC Petroleum and DD company (hereinafter referred to as 'the instant tax invoice') from the output tax amount, and sentenced the 2nd and 1st in 2009 value added tax for 209.”

Taxation Period

Issuance Date

Sales Office

Purchase Agency

Value of Supply

December 21, 2009

OOO

2

Low 12 apparatus in 2009

December 22, 2009

CC Petroleum

OOO

3

December 24, 2009

OOO

Sub-committees

OOO

4

January 28, 2010

OOO

5

February 3, 2010

OOO

6

February 4, 2010

OOO

7

low 11, 2010

February 20, 2010

CC Petroleum

OOO

8

March 8, 2010

OOO

9

March 17, 2010

OOO

10

March 31, 2010

OOO

11

April 8, 2010

OOO

Sub-committees

OOO

12

April 24, 2010

OOO

13

April 27, 2010

OOO

14

Low 11, 2010

April 30, 2010

D. D Commercial

OOO

15

May 3, 2010

OOO

16

May 27, 2010

OOO

Sub-committees

OOO

1, 2010

OOO

Moderns

C. On December 1, 2011, the Defendant: (a) with respect to the Plaintiff, “CC Petroleum and D Co., Ltd.” (hereinafter “CC”) taxes without real transactions.

In 209, the input tax amount was not deducted from the output tax amount because it constitutes data issued by the invoice and is not an actual oil supplier, and thus, it was issued a disposition to correct and notify each of the input tax amount in 2009 and the 1st added value-added OOO won in 2010 (hereinafter "the disposition in this case").

D. On January 30, 2012, the Plaintiff appealed to the instant disposition and filed a request for an examination with the Commissioner of the National Tax Service. On March 16, 2012, the Plaintiff was dismissed.

[Grounds for Recognition] The non-satched facts, Gap evidence 1, 2, and 3, and evidence 1 (including each number, hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Inasmuch as the Plaintiff was actually supplied with oil fromCC Petroleum and D Co., Ltd. and received the instant tax invoices, the instant tax invoices are not false. Even if the instant tax invoices fall under the false tax invoices, the Plaintiff did not err in not knowing the fact that the Plaintiff was not aware of the fact that it was a party who traded the oil, and that the Plaintiff received the said company’s business registration certificate, a copy of petroleum sales registration certificate, etc. at the time of being supplied with the oil from CC Petroleum and D Co., Ltd., and that the Plaintiff was investigated by the investigative agency on the facts that the Plaintiff received the tax invoices different from the fact from CC Petroleum and D Co., Ltd.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

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

Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter the same) provides that input tax shall not be deducted from the amount of sales where the entries of a tax invoice are different from the facts, and that "the entries of a tax invoice are different from the facts" refers to cases where the requisite entries of a tax invoice do not coincide with those of the parties to the transaction contract, etc. prepared between the parties to the goods or services, notwithstanding the formal descriptions of the transaction contract, etc. written between them (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

In full view of the respective descriptions of Eul and Eul evidence 2 and 6, andCC and D companies are only the so-called data that issued processed tax invoices, and the fact that the plaintiff did not supply oil to the plaintiff. Thus, the tax invoices of this case delivered by the plaintiff fromCC petroleum and D companies constituted cases where the contents are different from the facts and are different from the facts. Accordingly, this part of the plaintiff's assertion is without merit.

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

Unless there are special circumstances where a supplier and an actual supplier are different, input tax amount pursuant to a tax invoice may not be deducted or refundable, and the person who received the tax invoice shall prove that there was no negligence on the part of the supplier, who did not know the fact that he/she was unaware of the name of the tax invoice (see, e.g., Supreme Court Decisions 2002Du2277, Jun. 28, 2002; 2009Du1808, Jun. 11, 2009; 201Du22111, Dec. 27, 2011).

In full view of the statements in Gap's evidence Nos. 4 and 8, and part of ER witnesses of the first instance trial, the plaintiff was actually supplied with oil, and the price was deposited into the deposit account in the name ofCC Petroleum and DD companies, and the plaintiff was investigated on the facts of violation of the Punishment of Tax Evaders Act by issuing the tax invoice in this case as if the plaintiff was supplied with oil by means of the tax invoice in this case and by filing the value-added tax return on July 26, 2013, it is recognized that he was subject to a non-prosecution disposition (Evidence of Evidence) by the prosecutor on July 26, 2013.

However, considering the following circumstances in which evidence Nos. 2, 4 and 24, evidence Nos. 2, 6, 9 and 10, and evidence Nos. 2, 2, 6, 9 and 10, witness KimW and ER of the first instance trial, the Plaintiff was issued with the business registration certificate, petroleum sales registration certificate, etc., and remitted oil payments to the account in the name of the above company, and the fact of violation of the Punishment of Tax Evaders Act related to the issuance of the tax invoices in this case, it is insufficient to recognize that the Plaintiff was not guilty and was not negligent in finding the fact of violation of the Punishment of Tax Evaders Act, and there is no evidence to support it.

① On May 14, 2007, the Plaintiff opened the “BB gas station” and operated the gas station for about two years and seven months before trading withCC petroleum. As such, through the experience in oil trade, the Plaintiff was fully aware of the normal structure and distribution channel of the supply of oil, the general type and method of the industry, and the actual situation and risk of personal data trading in the oil industry.

② On May 14, 2007, the Plaintiff opened the BB oil station and supplied oil from large oil companies, such as the SK Energy and Energy Corporation. From December 2009, the Plaintiff started to be supplied with oil from HaHHHHHHHH (hereinafter “HHH”) on the introduction of KimW, which had no usual friendship from December 2, 2009, and continued to be provided with oil by HaHHHHHHHHHHH, in order, the Plaintiff was provided with oil from CC andD companies in a short period. Although the GW changed its workplace into HH and D companies, the Plaintiff did not confirm the fact that the oil contract was actually concluded or check its location, oil storage, distribution route, etc. In addition, Kim W was engaged in the insurance-related business and did not know at all about the oil distribution route, etc.

(3) On the basis of the "date and time of shipment" as stated in the "date and time of shipment," and "place of arrival", two oil refineriess shall be issued and kept in custody, and two remaining oil carriers shall be given to them with confirmation of the destination company, and accordingly, transportation expenses shall be paid to them. On the basis of the "date and time of shipment" as mentioned above and "place of shipment", transportation engineers can confirm whether oil is refined or not from the place of shipment to the place of destination, and, on the basis of the "place of shipment", the number of oil products vary depending on temperature and density. Accordingly, the normal bill of shipment should be issued (up to the beginning unit) and temperature and proportion/groups should be accurately stated, and even if they were not aware that they were supplied to them, the plaintiff did not know that they were petroleum products or those who were supplied to them, but did not know that they were actually inspected or licensed, and that they were not suspected.

④ In addition, “CC Petroleum and D Co., Ltd. DDDDD, Co., Ltd., Ltd., 1238-1 at the time of OOO's 'OO207' and ‘O238-2' are the respective places of business of CC Petroleum and DDR, and they were not registered or reported as the oil storage time room. In addition, even though this RR actually loaded oil, it is not the shipment line listed in the shipment slip. However, even though the Plaintiff had conversations with EDR from time to time, the Plaintiff did not confirm that RR had been withdrawn from time to time.

⑤ Even if the Plaintiff was issued a copy of the business registration certificate, a copy of the petroleum sales registration certificate, and the actual oil, and deposited the price into the accounts ofCC Petroleum and DD companies, it is merely a tool to disguised normal transactions in so-called so-called data transactions, and it is difficult to find that there was no negligence on the part of the Plaintiff due to the failure to know the disguised fact of the instant tax invoice.

④ The Plaintiff was indicted of violating the Punishment of Tax Evaders Act in relation to the instant tax invoices (defluence of evidence) and was issued a non-prosecution disposition on the charge of violating the Punishment of Tax Evaders Act (defluence of evidence) is merely a lack of evidence to acknowledge that the Plaintiff was issued the instant tax invoices on purpose even if the Plaintiff knew of the fact in the name of

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed without any ground, and the judgment of the court of first instance shall be just and the plaintiff's appeal shall be dismissed as it is without any ground, and it shall be so decided as per Disposition.