Daejeon District Court-2013-Gu Partnership-10613 ( April 17, 2014)

Review-department -2013-0134 ( October 24, 2013)

The instant tax invoice constitutes a false tax invoice, and was negligent in not knowing the fact by the Plaintiff.

It is reasonable to deem that a tax invoice received by the Plaintiff constitutes a tax invoice entered differently from the fact by the supplier, and that the Plaintiff was negligent in not knowing the fact.

Articles 16 and 17 of the Value-Added Tax Act

2014Nu544, revocation of disposition of imposition, including surtax

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Head of Chungcheong Tax Office

November 9, 2016

December 7, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court is revoked. The Defendant revoked the disposition of correction and notification to the Plaintiff’s head office as to the second value-added tax ○○○○○○○ on February 1, 2013, the first value-added tax 201 on January 11, 2013, and the first value-added tax ○○○○○○○ on January 11, 201 on January 11, 2013, and the second value-added tax ○○○ on February 1, 2013 and the first value-added tax ○○○ on January 18, 2013 on January 18, 2013.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows, except for the part of "whether the court has fulfilled its duty of care as a bona fide trading party" as a bona fide trading party, the part of "whether the court has fulfilled its duty of care as a bona fide trading party" is as stated in the reasoning for the judgment of the court of first instance. Thus, it is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

2) Whether a bona fide trading party has fulfilled its duty of care

A) Relevant legal principles

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).

B) the facts of recognition

(1) The Plaintiff’s intra-company director AA had been operating a gas station for about 10 years, and around 201, he directly operated the gas station located in ○○ Gun, and had BB run the gas station after having a branch station located in ○○ Gun. In addition, AAA’s co-operative CCC operated the gas station located at ○○○○.

(2) AA commenced transactions according to the proposal of DD, which visited the gas station of the head office, and ordered 50 won per liter (50 won per liter) to pass through telephone conversations at a lower price than the market price, and mainly accepted oil transported by EE.

(3) In the course of trading, the Plaintiff received a tax invoice of KRW 00 million from October 31, 201 on the gas station in the name of ○○○○, the supply price as of January 31, 201, the supply price as of March 11, 201, the tax invoice of KRW 00,000 on the supply price as of December 31, 201 on the gas station in the name of ○○○, the supply price as of February 29, 201, the supply price as of February 29, 201, and the supply price as of March 11, 201, and paid only the price below KRW 200,000,000 to the supply price as of March 11, 201.

(4) On November 27, 2012, AA was investigated by the Defendant’s office, and made a transaction by means of supply of oil within the limits of the advance payment with the oil station separately operated by BB on the payment of the amount under consideration. However, AA responded to the fact that there was no shipment slip, no transport vehicle number was recorded, and no transport vehicle number was recorded in the account book.

(5) Meanwhile, ○○○○, a corporation whose representative director is AA, leased the gas station located in ○○○○○ to DD, and CCC received oil from DD and received a tax invoice issued in the name of ○ Energy. However, on November 26, 2011, the Institute collected samples of oil transported by EE from the gas station to the gas station and inspected the quality of such products. As a result, pseudo petroleum products were detected. In addition, on August 22, 2012, the Defendant was notified of the data on taxation of the gas station from the ○ National Tax Service, but the CCC submitted evidentiary materials to the effect that the administrative litigation was in progress in relation to the detection.

[Ground of recognition] Gap evidence Nos. 1, 9, 10, Eul evidence Nos. 2, 3, 4, and 7, the purport of the whole pleadings

C) Determination

According to Gap evidence Nos. 1, 4, and 10, the fact that the plaintiff deposited the oil price into the account of ○○ Energy, and the fact that the plaintiff received documents on the import of ○○ Energy from DD. However, in light of the following circumstances inferred by the above fact, the plaintiff was unaware or unaware of the fact that the plaintiff was unaware of the name of the supplier.

It is difficult to see that there is no negligence, and there is no other evidence to acknowledge the objection. Therefore, the plaintiff's assertion on this part is without merit.

(1) In light of the reality of the oil industry that has emerged as a social problem since the complex supply structure and non-material transactions using the tax-free oil, etc., if the oil supplier is an operator of the ordinary gas station, it is necessary to pay special attention to whether the oil supplier is the actual supplier. However, the Plaintiff’s internal director was sufficiently aware of the Plaintiff’s experience in operating the gas station for about 10 years in relation to the normal structure and distribution route of the oil supply, the general form and method of the industry, and the fact and risk of transactions on the data widely spread to the oil industry.

(2) According to the proposal of DD, the Plaintiff’s internal director purchased a large quantity of oil at least 50 won per liter than the normal supply price of oil refining company, and traded only by telephone conversations with an enterprise whose reliability has not been verified, so it was necessary to pay more attention to whether the supplier is not a disguised supplier.

(3) Furthermore, around November 26, 2011, when pseudo petroleum products were detected in oil transported by EE to gas stations, the Plaintiff’s intra-company director appears to have been contacted through the same birth who works in the same industry. At the above point, there is a circumstance to suspect whether the oil supplied in the name of ○ Energy is normal or not after the above point.

(4) In a case where oil is transported to a gas station through normal distribution channels, the shipment slips (the date and time of shipment, the name of the customer, the place of arrival, the place of arrival, the transportation equipment, the quantity of the goods and the quantity of the goods, temperature and weight, etc.) issued at the time of shipment at the oil storage facilities, etc. in the purchaser, etc., must be examined as to whether the name of the customer and the place of arrival, the place of arrival are in accord with the supplier and the supplier of the oil station, the transportation equipment with the transport vehicle, and each item is accurately recorded without any omission. In addition, if there is any error or defect in its contents and form, the gas station operator should take active measures to confirm the oil storage facilities of the supplier, the office or the distribution route of the oil, etc.

(5) However, there is no evidence to acknowledge the fact that the Plaintiff’s internal director had taken active measures such as closely inspecting the shipment slips, which are important data confirming that the Plaintiff’s internal director is transacted through normal distribution channels, or visiting the oil storage facilities or offices of ○○ Energy (the Plaintiff’s internal director presented the shipment slips in the course of an investigation conducted by the tax authorities related to the value-added tax of other gas stations on or around 2009, but did not have been verified. As such, it appears that the essential matters are all stated and the necessity of keeping the shipment slips without errors was reduced. Rather, it is not understood that the Plaintiff’s internal director discarded them).

(6) Even if DoD presented the business registration certificate, petroleum retail business registration certificate, and documents on oil import in the course of transaction, and received the price by supplying oil as ordered, it is merely an ordinary way of using the existing registration name and transaction data with another company’s account in order to disguised normal transaction in the data transaction, and it is difficult to find that the Plaintiff was not negligent on the ground that the Plaintiff was not aware of the disguised transaction of the tax invoice.

2. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.