Cho High Court Decision 2010Du3539 ( October 26, 2011)

Since it is insufficient to recognize the plaintiff's good faith or negligence, the disposition that deducts the input tax amount of a false tax invoice is legitimate.

Although the Plaintiff was actually supplied with oil and deposited the price into the account of the nominal owner, it is insufficient to recognize that the Plaintiff was not negligent due to failure to know or ignorance of the supplier’s name. As such, the Plaintiff’s failure to deduct the relevant input tax amount by deeming the instant tax invoice as a false tax invoice is legitimate.

Article 17 of the Value-Added Tax Act

2011Guhap2608 Disposition, etc. to revoke the imposition of value-added tax

Park AA

Head of the Chang District Tax Office and one other

January 11, 2012

February 15, 2012

1. All of the plaintiff's claims are dismissed.

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

On October 1, 2010, the head of Seog Chang Tax Office revoked the imposition of the global income tax of KRW 14,590,880 for the year 2009 and KRW 86,572,810 for the year 2009, respectively, and the imposition of the global income tax of KRW 14,590,880 for the year 2009 by the head of Seogu Tax Office and the head of Seogu Tax Office shall revoke all the imposition of the global income tax of KRW 171 for the year 2009.

1. Details of the disposition;

A. From March 31, 2009 to around 200-0, the Plaintiff operated "CC oil station" in 00-0 on the 27th anniversary of 2009, among the above 30-year purchase tax invoices (the supply price of 48,363,636, the tax amount of 4,836,364), the purchase tax invoice (the supply price of 47,272,727, the tax amount of 4,727, the supply price of 427, the supply tax amount of 3636, the purchase tax invoice (the supply price of 200,727, the supply price of 40,727, the supply price of 270, the supply price of 360, the purchase tax invoice (the supply price of 200,727, 273636, the purchase price of 20,636, the purchase price of 270, the purchase price of 36360.7.3

B. On October 1, 2010, the head of the Sin Chang District Tax Office rendered a disposition of correction to impose the amount of value-added tax of 171 minute value-added tax (13,49,980 won), 271 minute value-added tax (86,572,810 won) for the reason that the entry of the instant tax invoice is different from the fact, on the grounds that D Energy and EE Energy leased only the name of the tax invoice without real transaction. The head of the Sin Chang District Tax Office imposed the amount of penalty tax of 2/100 of the above input tax amount (hereinafter collectively referred to as the “instant disposition”). On October 1, 2010, pursuant to Article 81(4) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009) by adding the amount of penalty tax equivalent to 2/100 of the above input tax amount to the final tax amount (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1-3, 4-1 through 7 of evidence Nos. 1-2, Eul evidence Nos. 1-1, 2 and 2, and the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

Even if DD Energy and EE Energy did not actually supply oil, the Plaintiff was actually supplied with oil, deposited the price into the account of the said company for normal transactions, and the said company did not know that it was material. At the time of supply of oil, the Plaintiff did not know that it was material, and did not know that it was a party to a transaction, such as receiving a detailed statement of transaction, a transport vehicle number, a transporter, and a shipper’s duty of care, and did not know that it was a nominal owner of the said company. Thus, the instant disposition was unlawful.

3. Determination

A. Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 915, Jan. 1, 2010) 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. However, the meaning of "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 the subject, value, and timing of the actual supply or the supply of the goods or services, notwithstanding the formal entries of a transaction contract, etc. made between the parties with respect to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). In light of the following: (a) No. 18 through 23; and (b) No. 24-1 through No. 25-2; and (c) D energy and E are different from the fact that the supplier issued the processed energy without any actual supply of the oil to the Plaintiff.

B. Where a supplier and an actual supplier are different, an input tax amount under a tax invoice may not be deducted or refunded 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 there was no negligence on the part of the supplier, and that the supplier was not aware of the above nominal name, the burden of proving that the supplier was not negligent on the part of the party claiming the deduction or refund of the input tax amount (see, e.g., Supreme Court Decisions 2009Du1808, Jun. 11, 2009; 2002Du2277, Jun. 28, 2002). In full view of the arguments in each of subparagraphs 5-1 through 6 of the evidence No. 5-2, the Plaintiff was actually aware of the price of oil and deposited the price into the accounts of DD energy and EE Energy, and thus, the Plaintiff’s assertion that there was no negligence on the part of the Plaintiff in light of the following circumstances.

(1) From March 7, 2005, prior to the operation of theCC gas station, the Plaintiff operated 'FF gas station' from 00-0 on the monthly port of Seongbuk-gun, Seongbuk-gun, Seongbuk-do. Therefore, in light of the experience during that period, the Plaintiff was able to know the normal structure and distribution route of the oil supply, the general type or method of the oil industry, the actual situation of the material transaction, and the risk of the material transaction.

(2) The Plaintiff purchased the instant oil through the introduction of Nonparty 1, who did not have a usual friendship, and did not prepare a supply contract with DD Energy or EE Energy, and purchased the instant oil at a level of 30 to 40 won per L, compared to the normal supply price of oil oil company.

(3) The shipment slips issued at the time of supplying oil to gas stations are important data to verify that the oil is traded through normal distribution channels. Since the Plaintiff received the shipment slips with the type of DD energy or EE energy different from normal markets, and ordinary entries (the location of oil reservoir, time of shipment, etc.) were omitted, it is suspected that DD energy or EE energy is not the actual supplier.

(4) The majority of the shipping slips received by the Plaintiff does not indicate the pre-issuance number or the shipment number (in Chapter 31, only Chapter 70 is included in Chapter 6-31, and only Chapter 8-31 is included in Chapter 6-31, and the shipment slips in the name of the branch of DDpper are blanks (No. 6-1 through 15, 4). In addition, oil changes depending on temperature and density, the time of issuance is included in the first unit, and the temperature and density are accurately stated in the shipment slip that is normally published. The shipment slips received by the Plaintiff are all written in the daily period of issuance, and temperature is in the blank.

4. Conclusion

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