early 2013 Middle 4390 ( December 26, 2013)

The tax invoice of this case is different from facts, and it is difficult to regard it as a bona fide trading party.

It is insufficient to recognize that the instant tax invoice is a false tax invoice entered by the supplier, and that there was no negligence due to the failure to know and failure to know the fact that the instant tax invoice was entered in the name of the supplier.

Articles 16 and 17 of the Value-Added Tax Act

Suwon District Court 2014Guhap2455 Disposition revoking Value-Added Tax Imposition

IsaA

BB Director of the Tax Office

May 12, 2015

June 2, 2015

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 122,267,910 (including additional tax) for the first period portion of the year 2010 against the Plaintiff on January 2, 2013 (see, e.g., Supreme Court Decision 89,974,730 (including additional tax) for the second period of the year 2010, respectively, shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a business operator operating a gas station from April 20, 2010 to the trade name of “CC gas station” in OO-Eup O-Eup 76-7.

B. The Plaintiff received five copies of the purchase tax invoice of KRW 475,748,182 from D Energy Co., Ltd. (hereinafter referred to as “D Energy”) in the first taxable period of the Value-Added Tax in 2010 from the supply price of KRW 475,748,182, EE Energy (hereinafter referred to as “EE Energy”), KRW 136,527,272, and KRW 42,509,091 in total, KRW 654,784,545 in total, and KRW 496,521,817 in the second taxable period of the Value-Added Tax in 2010, and received three copies of the purchase tax invoice in total from D Energy supply price of KRW 496,521,817 in the second taxable period of the Value-Added Tax (hereinafter referred to as “each of the above purchase tax invoices”) and reported and paid the value-added tax to the Defendant by deducting the input tax amount under each of the instant tax invoice.

C. However, on January 2, 2013, the Defendant denied the deduction of the relevant input tax amount on the grounds that each of the instant tax invoices constitutes a tax invoice written differently from the fact by the supplier, and notified the Plaintiff of the correction and notification of the amount of value-added tax of KRW 122,267,910 (including additional tax) and value-added tax of KRW 89,974,730 for the second period of 2010 (including additional tax) (hereinafter “each of the instant dispositions”).

D. On December 26, 2013, the Plaintiff filed an objection against the instant disposition with the Tax Tribunal and filed an appeal, but the said claim was dismissed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 and 2 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① Since the Plaintiff was actually supplied with oil from the above transaction parties and received each of the instant tax invoices accordingly, each of the instant tax invoices does not constitute a false tax invoice, and ② even if not, the Plaintiff was supplied with oil without knowing that the said transaction parties were a disguised business entity even though the Plaintiff fulfilled the duty of care as a transaction party at the time of the purchase of oil, and thus constitutes a transaction party with good faith and negligence, and thus, the Defendant’s disposition of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether each of the tax invoices of this case is different from the facts

A) Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201) provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the facts. It means that the entries of a tax invoice are different from the facts. In light of the purport of Article 14(1) of the Framework Act on National Taxes, which provides that where a person to whom a tax invoice belongs actually belongs is liable for tax payment and the person to whom a tax invoice actually belongs is liable for tax payment and the person to whom a tax invoice is actually supplied or supplied, and the person to whom a tax invoice is actually supplied or supplied goods or services is not liable for tax payment (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

B) In light of the above legal principles, the following circumstances acknowledged by the purport of the statement and the entire argument of the Plaintiff’s statement and evidence Nos. 3 through 7 (including paper numbers) as to the instant case, namely, (i) the representative of D Energy NaG and EE Energy H among the Plaintiff’s business partners indicated in each of the instant tax invoices, although there was no actual supply of oil in the pertinent taxable period, the representative of DDG and EE Energy H entered a false list of the tax invoices by the seller as if he supplied oil to various gas stations including the Plaintiff’s gas stations, and submitted them to the competent authorities as documents related to the return of value-added tax [Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of Specific Crimes (issuance of False Tax Invoice)], and (ii) among the Plaintiff’s business partners, it was revealed that the Plaintiff’s transaction partners were a disguised supplier for the purpose of issuing a false tax invoice without real transactions, and (iii) the Plaintiff’s allegation that the Plaintiff actually purchased each of the instant tax invoices is not reasonable.

2) Whether the Plaintiff acted in good faith and without negligence

(A) the actual supplier and the supplier under a tax invoice are supplied with any other tax invoice;

Unless there is any special circumstance that there was no negligence in knowing the fact that the purchaser was unaware of the name of the gold bullion, the input tax amount cannot be deducted or refunded, and the person claiming for the deduction or refund of the input tax amount should prove that the supplier was not negligent in not knowing the above fact (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

B) Based on the above legal principle, in this case, whether the Plaintiff was unaware of the nominal name of each of the tax invoices of this case and was not negligent in not knowing the fact, there is no evidence to deem that the Plaintiff made efforts to verify whether the customer as the supplier was an entrepreneur capable of supplying oil in each of the tax invoices of this case. The Plaintiff, upon undergoing a tax investigation conducted by the tax authorities with respect to the instant case, was not well aware of the process of selling and purchasing oil, and the Plaintiff stated to the effect that “the customer as the supplier was aware of the existence only after he was subject to the tax investigation of each of the tax invoices of this case.” In light of the above, it is insufficient to find that the entries of subparagraphs 3 through 6 alone in each of the tax invoices of this case were insufficient to prove that the Plaintiff was unaware of the nominal name of each of the tax invoices of this case and was not negligent in not knowing the fact that the Plaintiff was negligent in not knowing, and there is no evidence to prove otherwise.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.