Cho High Court Decision 2009J3841 (Law No. 12, 2010)

Whether a processing tax invoice without real transaction related to oil purchase has been received

The judgment that the transaction partner who issued the tax invoice received no real transaction tax invoice on the ground that the oil business, such as purchase, transportation vehicle management, sale, etc. of oil without any oil, and the statement that only the bank business and the tax invoice were issued, was received without any real transaction.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

Value-added tax for the second period of October 6, 2008 imposed by the Defendant on the Plaintiff on October 6, 2009 32,109,270 won

The disposition shall be revoked.

1. Details of the disposition;

A. From April 1, 2007, the Plaintiff: (a) was operating a gas station in the trade name of “△△△△△,” and (b) received six copies of purchase tax invoices equivalent to KRW 191,836,364 (hereinafter “the purchase amount”) from the △ Energy Co., Ltd. (hereinafter “△ Energy”); and (c) filed a value-added tax return by deducting the tax amount related to the purchase amount of the instant tax from the Defendant among the 2008 taxable period of value-added tax for the second period of the value-added tax (hereinafter “the instant taxable period”).

B. As a result of the tax investigation into △ Energy, the director of the Central Regional Tax Office: (a) deemed each of the tax invoices of this case as a processed tax invoice issued without a real transaction; and (b) notified the Defendant as taxation data. In this regard, on October 12, 2009, the Defendant issued the instant disposition to correct and notify the Plaintiff of KRW 32,109,270 for the second term value-added tax for the year 2008.

C. On October 23, 2009, the Plaintiff filed an appeal seeking the revocation of the instant disposition with the Tax Tribunal, but was dismissed on March 2, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The instant tax invoice is not a tax invoice by a processing transaction (hereinafter referred to as “principal invoice 1”).

(2) The plaintiff did not know that the name of the tax invoice of this case was disguised, nor did he know that the name was disguised (hereinafter referred to as "principal").

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Judgment on the assertion No. 1

(가) 살피건대 갑 제3호증의 2, 을 제3호증의 각 기재 및 변론 전체의 취지에 의하면 ① 중부지방국세청장이 2009. 2. 17.부터 같은 해 4. 13.까지 □□에너지의 본점 소재지인 ◇◇시 ◇◇동에 있는 사업장 조사결과 □□에너지는 2008. 6. 2. 유류저장시설 및 운반차량이 전혀 없는 상태에서 유류도매업을 개시하였고, 위 사업장에는 간판도 없고 매출처에 대한 거래명세표 외에 영업 관련 서류도 없었으며 □□에너지의 직원은 위 사업장에서 유류의 구매, 운송차량관리, 판매 등 유류 영업과 관련한 업무가 전혀 이루어지지 않았고 은행업무와 세금계산서 발행업무만 이루어졌다는 취지의 진술을 한 사실,② 또 유류저장탱크를 □□에너지에 임대한 소외 주식회사 ☆☆텍은 □□에너지가 계약일 이후 위 유류저장탱크를 한번도 사용한 적이 없다고 한 사실,③ □□에너지의 대표자 소외 권AA은 중부지방국세청장의 위 조사 당시 매출 ・ 매입 관련 장부 및 거래사실을 입증할 서류를 전혀 제시하지 못한 사실,④ □□에너지의 영업이사의 직함을 갖고 있던 소외 손BB는 자료상 실행위자로 고발되어 검찰조사를 받고 있는 사실,⑤ □□에너지는 매출처로부터 거래대금이 입금되면 소외 주식회사 ▽▽에너지(이하 '▽▽에너지'라 한다)의 계좌나 □□에너지의 부장의 직함을 갖고 있던 소외 고CC의 계좌로 입금하고 나머지는 20,000,000원 미만의 현금으로 출금하였으며, ▽▽에너지로 입금된 돈은 즉시 고CC나 손DD의 각 계좌로 입금되었다가 전액 20,000,000원 미만의 현금으로 인출된 사실,⑥ 손DD가 고CC의 계좌를 관리한 사실,⑦ □□에너지의 이 사건 과세기간 중 매입처인 □□에너지와 소외 주식회사 ▽▽에너지는 실제 거래사실을 증명할 증빙을 제시하지 못해 자료상으로 고발된 사실,⑧ □□에너지의 이 사건 과세기간 중 매출처의 하나인 소외 주식회사 ○○트의 사업장에는 간판도 없고 사무실에 최소한의 집기 비품도 구비되지 아니하였고 석유류 저장탱크 및 운반차량도 없는 사실,⑨ 중부지방국세정창은 □□에너지를 자료상으로 고 발한 사실을 인정할 수 있다.

According to the above facts of recognition, it is reasonable to see △ Energy as data that issued only tax invoices without real transactions.

(B) However, according to Gap evidence Nos. 6 through 11 (including each number), and Eul evidence Nos. 4, the plaintiff's representative director made a statement to the effect that the Gangwon-do Head of Jung-gu Regional Tax Office (hereinafter referred to as "the door answer of this case") carries oil in the process of investigation into △ Energy, which was prepared by the director of Jung-gu Regional Tax Office of Jung-gu (hereinafter referred to as "the plaintiff's representative director") had started transactions with △ Energy upon introduction by BaB, and from August 2008, the non-party 1, who was his birth, entered in the transaction with △B, and the plaintiff made a statement to the effect that the place of destination was recorded as an agent other than △△△ oil station, but the non-party YF and the non-party YG, who argued that the plaintiff was the driver of the oil transport vehicle in the above investigation process, were carrying oil in the name of the plaintiff, but all of the plaintiff's receipt and sale of the oil in this case's account No. 3.

According to the above facts, it is reasonable to view that the Plaintiff actually purchased oil from the BaB or DoD, not from △ Energy. Therefore, it is reasonable to deem that each of the tax invoices of this case was issued by a disguised transaction, not a processing transaction.

(C) Ultimately, the argument ① is justified.

(2) Judgment on the assertion 2

(A) According to the overall purport of the statements and arguments by Gap 3 to 5 and Eul 4, the plaintiff can verify the name of the BaB, the certificate of registration of the Dol Energy Business Operator, the certificate of registration of the petroleum sales business, and the account in the name of the plaintiff, each copy of the account in the name of the plaintiff, and then recognize the commencement of Dol Energy and oil transactions.

(B) However, according to the statements in the evidence No. 6-1 to No. 8 Eul No. 4, the statement was made to the effect that the Gangwon Energy made a statement to the effect that it is doubtful that it is not a normal agency, and the confirmation of this case issued by △ Energy may be found out the fact that the vehicle number is omitted. In addition, in the above written answer, the person who carries oil was taking the shipment ticket issued by △△ Oil station, and the place of arrival was made a statement to the effect that the place of destination was recorded as an agency other than △△△ oil station or △ Energy, and the fact that the Plaintiff operated the gas station from April 1, 2007.

According to the above facts, it is reasonable to view that the Plaintiff, who had been operating a gas station for a long time, was aware that the oil supplier was not the actual supplier of the oil, or was unaware of the fact that he was not the actual supplier of the oil, even though he was aware of the fact that the oil supplier was not the actual supplier of the oil. Therefore, it is insufficient to recognize that the fact that the Plaintiff was aware of the disguised fact that the name of each of the instant tax invoices was nominal, or that the Plaintiff was not negligent.

(C) Ultimately, the argument ② is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.