early 2010 Gwangju 1166 ( October 13, 2010)

(1) The invoice shall not be deemed to have been issued with the omission of entry, but with the false tax invoice, and shall be deemed to have been issued with the omission of entry.

The Plaintiff received the shipment slips issued in the name of the purchasing office (not the temperature but the density is the same as the shipment slips) instead of the shipment slips issued at the oil reservoir, and the borrower denies the delivery fact. Therefore, it is reasonable to see it as a false tax invoice, and it is reasonable to see it as a false tax invoice, on the ground that it neglected to verify whether the supplier’s official seal is affixed on the shipment slips, etc.

Article 17 of the Value-Added Tax Act

2010Guhap3098 Disposition to revoke the imposition of value-added tax

XX Kim

Head of the Military Tax Office

June 14, 2011

July 12, 2011

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 for the second period of February 1, 2010 against the plaintiff on February 1, 2010 and the imposition of value-added tax for the first period of February 2008 and value-added tax for the first period of February 21, 2009 shall be revoked.

1. Details of the disposition;

A. From October 1, 2007, the Plaintiff operates a gas station under the trade name of Pound 000-0 from Round Round Round 00-0 from Gunsan City (hereinafter “the gas station of this case”).

B. On December 29, 2008, the second taxable period of the value-added tax in 2008, the Plaintiff received each purchase tax invoice of KRW 41,090,909 from the former main place of O Energy Co., Ltd. (hereinafter “O Energy”), and filed a return by deducting the purchase tax amount related to the instant tax invoice from the output tax amount, when filing a return on the purchase tax invoice of KRW 127,090,90 (hereinafter “the instant tax invoice,” including the purchase tax invoice of Chapter 4”) with the Defendant for the second taxable period of 2008 and the first taxable period of 2009, from January 7, 2009 to February 13, 209, the first taxable period of the value-added tax in 209.

C. On June 2009, the Director of the Jeonju District Tax Office conducted an investigation of tracking the distribution process of O-Energy, and confirmed that O-Energy is the data that issued a tax invoice without real transactions, and notified the Defendant of the taxation data.

D. Accordingly, on February 1, 2010, the Defendant deducted the input tax amount stated in the instant tax invoice on the ground that the instant tax invoice was a false tax invoice entered differently from the fact by the supplier, and subsequently corrected and notified each of the input tax amounting to KRW 21,062,770 for the second period of 2008, the value-added tax amount of KRW 7,03,120, and value-added tax amount of KRW 21,062,70 for the first period of 209 (hereinafter “instant disposition”).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on April 5, 2010, but the appeal was dismissed on October 13, 2010.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 3, 4, 10 (including each number), Eul evidence Nos. 1-1 and 2-2, and the purport of the whole pleadings

A. The plaintiff's assertion

(i) argument that transactions withO energy are true;

The Plaintiff received oil equivalent to the total value of KRW 168,181,818 from the O energy and received the instant tax invoice by fully paying the price. Thus, the instant tax invoice is not a false tax invoice.

(ii) argument that the plaintiff is the opposite contractual party in good faith and without fault.

Even if the O-Energy was based on data, the Plaintiff was unaware of the fact that the O-Energy was not a real supplier, and there was no negligence in not knowing it.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) On June 19, 2008, thisA had taken over the O-Energy Busan Head Office (at the time of acquisition, the representative director was changed to thisA himself/herself, and on November 12, 2008, the representative director was changed to November 12, 2008) and completed business registration for the purpose of conducting so-called data, and operated O-Energy with a branch office located in the Cheongju and Jeonju, but was accused of the data and closed ex officio on March 31, 2009.

2) From June 2008, the O Energy issued a sales tax invoice to the nationwide gas stations and traded data on which commission was paid without real transaction.

3) O energy is purchased by leasing oil reservoirs and vehicles for transport, which are storage facilities, to satisfy the requirements for registration at the time of initial registration of a petroleum selling business operator. However, there is no time only when the oil reservoir or vehicles for transport are actually used.

4) Under the name of the O-Energy, the main oil purchaser is the Daejeon Petroleum Daejeon located in △△△ and △△△△, but the O-Energy did not actually receive oil from these companies. However, in order to comply with the sales tax invoice issued by the O-Energy, it was issued a processed purchase tax invoice as if they were supplied with the oil by these companies. The petroleum Daejeon located in △△ and △△△△△, both of which were accused of the fact that they were supplied with the oil in question.

5) As a result of the tax investigation conducted by the Jeonju Tax Office, 93.1% of the purchase tax invoice received from the O Energy during the taxable period of the value-added tax from the first to the first half of the year 2008 (not less than KRW 13.6 billion out of the purchase amount of oil reported by the O Energy), 8.7% of the sales tax invoice issued during the same taxable period (not less than KRW 1.3 billion out of approximately 1.4.6 billion of the oil sales reported by the O Energy), was confirmed as a processing tax invoice, and the OO was confirmed as having issued the shipment slip to the "OO Energy Storage" for the actual sales, and the shipment slip to the "OO Energy Storage" for the processed sales.

6) In a normal distribution route, when the oil is delivered to the gas station, one of the orderer among the shipment slips issued at the time of shipment (the date and time of shipment, the name of the customer, the arrival, destination, transportation equipment, items and the volume of the shipment, temperature, weight, etc.) at the oil reservoir, etc. at the oil reservoir, etc. (the date and time of shipment, the arrival, the place of arrival, the transportation equipment, the volume of the shipment, the item and the quantity of the shipment, etc.) shall be kept, one of them shall be delivered to the oil station, and one of them shall be kept in the oil station, and one of the others shall be kept in the oil station, and one of the others shall be kept in the oil station, because there is an increase or decrease in the volume of the oil at the time of shipment after the temperature of the petroleum products.

7) On the other hand, the O Energy did not issue a shipment slip to the oil driver on the date of shipment, but did not issue an O Energy shipment slip to the oil station in question. However, after the oil was delivered, the O Energy Management Director prepared a shipment slip in accordance with the oil details shipped at the same time, and made it difficult to send the said shipment slip and tax invoice to the oil station in question by mail.

8) From October 1, 2007, the Plaintiff started trading with the O Energy upon soliciting that it can supply O energy from Drown, using the position of the head of O energy department, which he/she had operated the gas station in the instant case from around October 1, 2007, with a view to supplying O energy at a higher level than the market price.

9) The Plaintiff ordered oil to the O Energy and supplied the same oil as indicated in the instant tax invoice. At that time, the Plaintiff did not receive the shipment slips issued at oil storage stations at the time, and later received the shipment slips issued in the name of O Energy en bloc by mail. Each shipment slip issued by the Plaintiff was not indicated at the time of shipment, and the density was indicated at the same time as eight hundred and twenty-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-six-eight-eight-eight, and the seal of the main points of O Energy was not affixed to the above shipment slips. In addition, the Plaintiff stated that, although the operator DD and the transportation vehicle were stated as the former North Korean 80 KLALD in the instant oil station.

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 6, 10 (including each number), Eul evidence Nos. 1 through 9 (including each number), witness KimY's partial testimony, and the purport of the whole pleadings

D. Determination

1) Determination as to the first proposal

A) The meaning that the entries of the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries of the tax invoice refer to cases where the contents of the tax invoice are inconsistent with those of the person who actually supplied or received the goods or services, regardless of the formal entries, such as the transaction contract, etc. prepared between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 1996).

B) Even if the Plaintiff actually purchased oil in the quantity listed in the instant tax invoice, it is found that the transaction partner who supplied oil to the Plaintiff is consistent with the supplier listed in the relevant tax invoice. In other words, it was established for the purpose of trading false tax invoices from the beginning, and accusation was filed by the tax authorities only with the data that issued or received the tax invoice without any real transaction. ② O energy has not been used only once after obtaining registration of the petroleum selling business during the instant taxable period. ③ As a result of the tax investigation of the pre-tax invoice, the entry of the shipment price in the pre-sale list issued in the name of O Energy was confirmed as a processing transaction. The Plaintiff’s pre-sale list also entered the shipment price in the pre-sale list as the “O energy storage place,” and the Plaintiff’s shipping price was also indicated as the “O energy storage place,” ④ It seems that the Plaintiff and the Plaintiff did not have been supplied with the real oil from the third party only through the supply of the real oil in the instant tax invoice.

C) Therefore, we cannot accept the argument that the Plaintiff purchased oil listed in the instant tax invoice from O energy. Accordingly, it is reasonable to view the instant tax invoice as a false tax invoice that is written differently from the fact by the supplier.

2) Determination on the second proposal

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 person who received the other tax invoice in the name of the tax invoice, and the person who asserts the deduction or refund of the input tax amount should prove that the person who received the tax amount was not negligent in not knowing the above fact of misrepresentation (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

B) However, it is insufficient to acknowledge that the Plaintiff did not know the disguised name of the instant tax invoice only with Gap evidence No. 2 and KimY testimony submitted by the Plaintiff, and that there was no negligence on the part of the Plaintiff, and there was no other evidence to acknowledge it. Rather, considering the facts acknowledged earlier and the overall purport of the arguments, the following social problems are revealed: (i) whether the supply structure of the oil industry is complicated and the transaction of free materials using free oil is frequent; (ii) whether the oil supplier is the actual supplier is the operator; (iii) the Plaintiff did not confirm whether the Plaintiff was the operator or the shipper even if he was delivered the oil from others than the operatorD on the shipment list; and (iii) each shipment slip delivered by the O Energy Survey was the same as the first shipment mark, and (iv) the Plaintiff did not know whether the Plaintiff was the actual supplier or the supplier was the supplier’s fault in the process of checking whether the Plaintiff was the supplier or the supplier’s shipper’s identity at the time of the shipment; and (iv) the Plaintiff did not know whether the Plaintiff was an employee or the Plaintiff’s new supplier’s seal at the point.

3) Sub-decisions

Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and the Plaintiff’s person who received the instant tax invoice is not recognized to be a good faith and negligence. Thus, 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 all dismissed, and it is so decided as per Disposition.