early 2012Gu1437 (2012.08)

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 a gas station for about 12 years, the Plaintiff’s negligence is recognized when receiving a false tax invoice, in light of the fact that the Plaintiff did not verify the customer, place of business, oil reservoir, etc. while purchasing oil at a level below the market price, and did not verify whether the actual supplier is a supplier even after receiving a false shipment slip.

Article 17 of the Value-Added Tax Act

2012Guhap3363 Disposition of revocation of Value-Added Tax Imposition

GangwonAAA

Head of Ansan Tax Office

April 17, 2013

May 24, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 000 of value-added tax for the second period of 2009 against the Plaintiff on October 6, 201, and KRW 000 of value-added tax for the first period of 2010 against the Plaintiff on December 1, 2012, and the Defendant’s imposition of KRW 000 of value-added tax for the second period of 2009 against the Plaintiff on December 1, 201, and KRW 000 of value-added tax for the first period of 200 for the first period of 200.

1. Details of the disposition;

A. From April 15, 1997, the Plaintiff operated a gas station under the trade name “CCC gas station” from 000, an OOOO Ri 000 on the part of the Gyeongbuk-gun, Gyeongbuk-gun, Gyeongbuk-gun, and closed the gas station on October 10, 201.

B. The Plaintiff received the following tax invoices (hereinafter referred to as the “instant tax invoice”) from D Co., Ltd., EE Energy, and FF Energy Daegu Branch (hereinafter referred to as “D”) and the Defendant deducted the supply value under the said tax invoice from the input tax amount at the time of the return of the 2009 and the 1st VAT in 2010.

C. The Director of Daejeon Regional Tax Office and the Director of the Dobong District Tax Office, and the Director of the North Daegu District Tax Office conducted a tax investigation with respect to D Co., Ltd, and EE Energy and GG Energy (hereinafter referred to as “each of the instant transaction parties”), and confirmed each of the instant transaction parties on the data which issued false tax invoices, and notified the Defendant of the data

D. On October 6, 2011, the Defendant, on the ground that the instant tax invoice received by the Plaintiff from each of the instant transaction parties was false tax invoices, decided not to deduct the input tax amount for the pertinent transaction portion on the grounds that it was false tax invoices, and notified the Plaintiff of the correction of KRW 000, value-added tax for the second period of 2009, and value-added tax for the first period of 2010.

E. On March 14, 2012, the Plaintiff, who was dissatisfied with the disposition of rectification of the value-added tax, requested a trial to the Tax Tribunal, but was dismissed on June 8, 2012.

F. On October 1, 2012, the Defendant revoked the imposition disposition of KRW 000 of the second value-added tax in 2009, and KRW 0000 of the first value-added tax in 2010 among the details of the correction notice as of October 6, 2011, and re-dispositioned the same amount with the same type and basis for calculation of the tax amount specified (hereinafter “the instant disposition”).

[Ground of Recognition] The facts without dispute, Gap evidence 1 to 2, evidence 18 to 19-2, each entry of evidence 1 to 3-3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The "tax invoice different from the fact" under Article 17 (2) 1-2 of the Value-Added Tax Act refers to a tax invoice delivered at the time of a processing transaction without actual delivery of goods, and the plaintiff was actually supplied with oil from each of the parties of this case and received the tax invoice of this case, and even if the oil supplied by the plaintiff was supplied from the third intermediate wholesale, not from each of the parties of this case, the tax invoice of this case is not a different tax invoice from the fact, so long as the oil supplied by the plaintiff is actually supplied with oil from

2) Even if the tax invoice of this case is false, the plaintiff confirmed the opposite contractual party through the business registration certificate, petroleum sales registration certificate, etc. with each of the parties in this case, and actually remitted the transaction price to the accounting of each of the parties in this case, and all the transit supplied from each of the parties in this case was determined as appropriate in the quality inspection conducted by the Institute, and there are special circumstances where the plaintiff was not negligent in not knowing that the supplier is not the actual supplier under the tax invoice in this case.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) The findings of the study of Daehan

A) D Co., Ltd. started business in the luminous area, Jeonnam on January 4, 2008, and started business around February 2009, the D Co., Ltd. (hereinafter “D Co., Ltd.”) was the oil wholesaler that moved its place of business to the Daejeon-gu 000 OCo. (0000), and the D Co., Ltd was closed ex officio on April 30, 2010.

B) The name MM, registered as the representative director on the corporate register, was subject to a tax investigation, and he received wages from the actual operator Kim Jong-won, and stated that he merely instructed the accounting according to his instructions, and that he was not aware of the oil chassis or the actual purchaser.

C) While undergoing a tax investigation, a person who is an oil carrier, stated that the oil was loaded in a rooftop store registered as a D's storage place, and the above rooftop store in the petition-gun HH 0000 is not confirmed as having been put in or released from the long-term waste.

D) The JJJ Co., Ltd., JJJ and KK Energy Co., Ltd., Ltd., the main source of oil purchase in DD companies, all of which were found to be the fact of oil shipment, and the so-called data that falsely issues tax invoices without real transactions.

E) The amount of oil transferred by the sales offices including the Plaintiff to the accounts of the D Company was immediately transferred to the accounts of the IIII Korea Co., Ltd., and the full amount was withdrawn in cash.

F) The Director of the Daejeon Regional Tax Office decided that the DNA company was the data that was issued and received by fraudulent means without any actual transaction, and accused the DNA company, the representative director, the mM and the actual operator's inspection staff to the prosecution for violating the Punishment of Tax Evaders Act (the Government's District Prosecutors' Office No. 2011 type No. 10431).

(ii) research results on E-Energy;

A) On October 1, 2009, EE Energy reported its business registration with N0000 Ndong N00 in Gangnam-gu Seoul, Seoul, and reported its business closure on May 3, 2010 on the ground of a business depression on May 3, 2010 without paying the purchase price of KRW 000, and without paying the purchase price of KRW 000, value-added tax on the ground of a business depression on May 3, 2010.

나) EE에너지의 위 사업장은 8평 규모의 오피스텔 사무실로서 2009. 9. 15. 임대차계약을 체결하였으나， 빈번히 교체되는 여직원 1명이 근무하였을 뿐 그 외 다른 직원은 없었다. 또한 EE에너지는 평택시 OOO읍 000에 있는 주식회사 QQ에너텍의 유류저장탱크를 임차하였으나， 실제로 계약일 이후 위 저장탱크를 사용하거나 임대료를 지급한 사실이 없다.

C) New PPP stations, RP stations, etc. for which EE energy reported as oil purchasing places were all accused of the fact, and EE energy purchased oil from other oil refineries is not confirmed, and EE energy was delivered by mail, etc. after the fact without delivering a shipment ticket through a transport engineer transporting oil.

D) According to the details of the EE Energy’s financial transactions from September 2009 to May 2010, the Plaintiff, etc. deposited approximately KRW 000 from 100 to the corporate account of EE Energy, and KRW 2,4500,000, which was immediately deposited after the deposit, was divided into 30 accounts of RR Energy Co., Ltd., and the remainder was divided into the Gwangju, Daejeon, and 000 won from Masan, which is irrelevant to the location of the legal entity - 000 won.

E) Meanwhile, RR Energy Co., Ltd. also transferred 00 won deposited from EE Energy to 90 other accounts by dividing it into small amount (000 won -0000 won), and transferred 0000 won to the new PPPPS by data merchants, and withdrawn the remainder in cash in the ceiling, Daegu, and Changwon, which are not related to the location of the corporation.

F) The EE Energy Representative Director TT had no business experience, and the last day written by this TT in the course of the tax investigation is written in that “the actual EE Energy does not have any storage of oil in the name of the EE Energy, and the actual distribution route of oil was not known, and when ordering oil to the RU representative of the RR stations, he was ordered to transport oil to the seller, and that he was only issued a fund management and shipment slip and a tax invoice.” The EE Energy Director ParkV and audit document were lent only to this TT as a person who was subject to the bankruptcy decision.

G) On December 15, 2010, EE Energy and ETT filed a complaint on December 15, 2010, and EE Energy was subject to a non-scheduled disposition due to the closure of business, and the representative EE Energy was indicted. On January 20, 2012, ETT was sentenced to the suspension of the execution of imprisonment for three years and the fine for a violation of the Act on Punishment, etc. of Specific Crimes (issuance, etc. of False Tax Invoice) (Seoul Northern District Court 201Gohap257), and filed an appeal and a final appeal, and on June 15, 2012, the appeal dismissal ruling (Seoul High Court 201No418) (Seoul High Court 2012No7458) was announced on July 20, 2012 (Supreme Court 2012Do7458).

(iii) research results on the F Energy;

A) On March 10, 2010, the FF Energy established the Daegu Northern-gu OOdong 000 (TG 1) and closed ex officio on October 27, 2010. At the time of tax investigation on October 2010, the said Daegu-gu branch office was in the situation where electricity was cut off due to the unpaid payment of electricity charges, and there was no oil storage or transport vehicle in the surrounding areas, and the lessor was in contact with FF energy, thereby deducting the amount of monthly rent from the deposit.

B) FF energy leased oil storage tanks from OOOO stations in Daegu-dong OOdong 000, and oil business and ex-factory management was performed by the lessor, and there were no computer facilities necessary to prepare shipment slips in the oil storage tank.

(C) The FF Energy Processing Schedule was not drawn up after the verification of oil shipping capacity from the oil storage tank, and the oil carrier received the request for delivery by telephone from the staff of GG Energy in the oil storage tank and delivered to the oil station with a shipment mark already drawn up, regardless of oil transport capacity, or the FF Energy personnel delivered the oil in a way that the oil supplier directly delivers it to the oil station.

D) The FF Energy transferred the amount of money deposited by the Plaintiff et al. to the Plaintiff and other suppliers on the same date, and both the purchasing parties confirmed the tax invoice without real transactions in so-called so-called material that the tax invoice was issued falsely, and the FF Energy actually purchased oil from the above purchasing parties.

E) The FF energy and representative Kim XX was accused of violating the Punishment of Tax Evaders Act, and the Kim XX was subject to the suspension of prosecution, and the FF energy was subject to the suspension of witness (Tgu District Prosecutors' Office 000,000, No. 0000, No. 0000, and No. 0000).

4) Transactions between the Plaintiff and each business partner of the instant case

(A) The Plaintiff was supplied with petroleum products from YY Bank Co., Ltd. (hereinafter “YY Bank”), and the Plaintiff was supplied with diesel oil from each of the instant transaction partners at a low price of 00 - 00 won per L. The Plaintiff did not directly confirm that the Plaintiff was supplied with petroleum and gasoline from YY Bank during the 2009 period and 2010 period, which was traded with each of the instant transaction partners, and continued to have been supplied with YY Bank with oil and diesel oil.” (B) The Plaintiff was traded with DD companies, EE Energy and FF energy through Doz, and the Dozz did not provide the Plaintiff with each of the instant transaction partners with each of the instant oil storage facilities, even though it was presented from DD companies to change its workplace into EE energy and FF energy again from D companies within a short period of time.

C) On the shipment slips delivered by the Plaintiff from each of the instant transaction parties, the entry forms in the part of the shipment slips delivered by the Plaintiff from DD companies, there are no 'day number, temperature, and density', and some of the shipment slips are made by the date of shipment and the name of the transaction parties, and some of the shipment slips are recorded only as "D companies", and it is not known at all whether the kind of oil has been shipped from any of the regions because the name of the consignee is in blank, and the shipment price is 'D companies', and (2) there is no serial number, temperature, and tank number delivered from EE Energy, and some of the shipment slips are made in the air space, and the shipment price is 'EE Energy', and the shipment price is 320 minutes' and 'EE Energy', and the shipping price is 320 minutes at the time of shipment at the storage tank on the lease agreement, and there is no ordinary number of the consignor and 280k away from the place of shipment, and 30 meters away from the place of arrival.

D) On the other hand, the shipment date column of the Plaintiff received from YY Bank (A evidence 10-1 to 55) includes not only the date, but also the first shipment time, the number and transport equipment number, temperature and density are indicated, and all names or signatures are written in the approved person, the shipper, and the consignee column.

E) In ordinary oil transactions, the purchasing party pays the cost after confirming the oil's business status, and receives the shipment slips on the date of receiving the oil, and most of the settlement dates are earlier than the date of shipment on the shipment slip, and the Plaintiff has made a deposit in full, and the payment was made on the following day after the payment, and the shipment dates on the shipment slip and on the shipment slip are higher than the date of shipment on the shipment slip.

F) The Plaintiff was supplied with oil from DNA companies with the place of business in Daejeon in the second half of 2009, from EE Energy with the place of business in Seoul in the first half of 2010, and from FF Energy with the place of business in Seoul in the first half of 2010 in the first half of 2010, even though the supplier and the place of business have changed, the supplier of the oil and the supplier of the oil were the same as bold or Kim-jin, etc.

[Ground of Recognition] The facts without dispute, Gap evidence 1 through 5, evidence 1 to 11, evidence 9-1 to 30, Eul evidence 1 to 17, and the purport of the whole pleadings

D. Determination

1) As to the plaintiff's first argument

A) Article 17(2)1 of the Value-Added Tax Act provides that input tax shall not be deducted from the output tax amount in cases where the entries of the tax invoice are different from the fact, and that the entries of the tax invoice are different from the fact, and in cases where the ownership of the income, profit, calculation, act or transaction subject to taxation is nominal, and where there is a person to whom it actually belongs, the person to whom it actually belongs shall be the taxpayer, and in cases where the necessary entries of the tax invoice are inconsistent with those of the person to whom the goods or service is actually supplied or supplied, regardless of the formal entries of the transaction contract, etc. made between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

B) The following circumstances revealed with respect to the instant case, i.e., the transaction partner of the instant case, i.e., the data company that issued a false tax invoice without any snow transaction, and each transaction partner and each representative director of the instant case were accused of violating the Punishment of Tax Evaders Act, and ii) DD companies and EE energy did not actually use the reported oil storage facilities, and FF energy did not have all the fact that they purchased oil and managed the entry and release thereof.

사건 세금계산서상의 유류를 공급할 능력이 없었던 것으로 보이는 점，③ 이 사건 각 거래처가 유류 매입처라고 신고한 IIII코리아， 새PPP주유소， RR주유소， 주식회사 QQ에너지，주식회사 신라 등은 모두 자료상으로 고발된 점，④ 원고를 비롯한 매출처들이 이 사건 각 거래처의 계좌로 이체한 유류대금은 그 즉시 경유계좌를 거쳐 전 국 각지에서 현금으로 인출되는 등 비정상적인 자금흐름을 보인 점 등을 종합하여 보 면， 원고가 제3의 업체로부터 정품 유류를 실제로 공급받은 사실이 있는지 여부와 상관없이， 이 사건 세금계산서에 공급자가 자료상인 이 사건 각 거래처로 기재되어 있는 이상 이 사건 세금계산서는 필요적 기재사항인 공급자 등이 허위로 기재된 세금계산서，즉 부가가치세법 제17조 제2항 제1호의 '사실과 다르게 기재된 세금계산서'에 해당 하므로 그 매입세액을 매출세액에서 공제할 수 없다. 따라서 원고의 이 부분 주장은 이유 없다.

2) As to the plaintiff's second argument

A) Unless there are extenuating 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 supplier, and the person who received the other tax invoice is not negligent in not knowing the above fact of the nominal name (see Supreme Court Decision 2011Du26695, Mar. 29, 201).

B) Each of the instant tax invoices delivered by the Plaintiff for the purchase of oil from each of the instant transaction parties was not known that the Plaintiff was a false tax invoice, solely based on the health stand, the entries of Gap evidence Nos. 3-1 through 17-39, and some testimony after the witness circumstances.

It is insufficient to recognize that there is no negligence, and there is no other evidence to acknowledge that there is no other negligence. (i) The plaintiff opened the "CCC oil station" on April 15, 1997, and operated the oil station between about 12 years before it deals with DDA, and through experience, the plaintiff seems to have been sufficiently aware of the normal structure and distribution route of the oil supply, the general trade type or method of the industry, and the situation of the spread of the oil industry in the oil industry, and the danger of the trade. (ii) The plaintiff purchased oil less than the market price but did not actually confirm the business place or oil reservoir of each of the parties to the case, and (iii) the plaintiff did not know that there was no usual friendly ties, and that there was no actual need for the plaintiff to do so, and that the plaintiff did not enter into each of the above transactions with the supplier, and that the plaintiff did not enter into the contact with the supplier, and that it did not enter into the contact with each of the YE market, and that it did not enter into the contact with each of this case.

3) Sub-decisions

Therefore, the defendant's disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.