Cho High 201-Gu 5178 (29. 2012)

The tax invoice of this case is not recognized as the Plaintiff’s good faith and negligence as a false tax invoice.

The plaintiff operated a gas station for 4 years and seems to have been well aware of the actual conditions of transactions in data and risks, and did not verify the conclusion of an oil contract or the existence of a place of business and a oil reservoir in transactions with a person with no usual friendship, etc., and even if the shipment slip is not properly stated, the plaintiff's negligence is recognized that the actual supplier did not confirm whether he/she complies with the shipment slip.

Article 17 of the Value-Added Tax Act

2012Guhap3714 Revocation of Disposition of Imposing Value-Added Tax

Park AAA

Head of the tax office

May 3, 2013

June 21, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of value-added tax of KRW 000 for the first period of September 1, 2010, imposed on the Plaintiff on the Plaintiff on September 1, 2011, is revoked (the date on which the written complaint was written on July 17, 2011 appears to be a clerical error in September 1, 201).

1. Details of the disposition;

A. From April 14, 2006, the Plaintiff is operating a gas station under the trade name called "OOri 000 of Jinyang-si in Busan Metropolitan City".

B. On June 3, 2010, the Plaintiff: (a) received a tax invoice (hereinafter “instant tax invoice”); and (b) deducted the input tax amount from the output tax amount under the said tax invoice at the time of filing the first tax return for the first period of value added tax in 2010 to the BB Energy Daegu Branch (hereinafter “B Energy”); and (c) deducted the input tax amount from the output tax amount in 2010 to the Defendant.

C. The director of the North Daegu District Tax Office, after conducting a tax investigation on BB energy, confirmed BB energy as data which issued a false tax invoice and notified the Defendant of the taxation data.

D. Accordingly, on September 1, 2011, the Defendant decided to deduct the input tax amount for the pertinent transaction portion on the grounds that the instant tax invoice received from BB energy was false tax invoices, and notified the Plaintiff of the correction of KRW 000 of the value-added tax for the first time in 2010 (hereinafter “instant disposition”).

E. On December 2, 2011, the Plaintiff, who was dissatisfied with the instant disposition, brought an appeal with the Tax Tribunal, and was dismissed on June 29, 2012.

[Grounds for Recognition] The facts without dispute, Gap evidence 1 through 4, 12, and 14, and Eul evidence 1, 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 the tax invoice issued at the time of a processing transaction without actual delivery of the goods, and the Plaintiff was actually supplied with oil from BB energy and received the instant tax invoice, and thus, the instant tax invoice is not a false tax invoice.

2) Even if the instant tax invoice is a false tax invoice, the Plaintiff confirmed the opposite contractual party through the order of EEEE member at the time of energy and trade, and the Plaintiff was not negligent in not knowing that the instant tax invoice was not an actual supplier, and there was no negligence on the part of the Plaintiff that the Plaintiff was not an actual supplier.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(i) the findings of BB energy;

A) On March 10, 2010, BB energy established a Daegu Branch on the 000 OOdong, Daegu Northerndong on October 27, 2010, but was closed ex officio on October 27, 2010. At the tax investigation conducted around October 2010, the said Daegu Branch was in the situation where electricity was obstructed 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 deducted from the deposit money as BB energy and contact was separated.

BB energy has leased oil storage tanks from terminal oil stations in Daegu Dong-gu 000, and oil entry and shipment management has been carried out by the lessor, and there have been no computer facilities necessary for the preparation of shipment slips in the oil storage tank.

(C) The shipment slips for the preparation of BB energy are not prepared in the oil storage tank through the verification of the oil shipment quantity, and the oil carrier received the request for delivery by telephone from the staff of the OO Energy in the oil storage tank and delivered to the oil station with the oil shipment mark already prepared, regardless of the quantity of oil transport, or the staff of BB energy delivered in the way that they directly deliver the oil to the oil station.

D) BB energy transferred the amount of money deposited by the Plaintiff et al. to the Plaintiff, etc., and the Plaintiff, etc., to the Multi-Energy Co., Ltd. on the same date, and both of them were verified as data that falsely issues tax invoices without real transactions, and there was no fact that BB energy actually purchased oil from the above purchaser.

E) BB energy and representative KimCCC was accused of violating the Punishment of Tax Evaders Act, and at present, KimCCC was subject to the suspension of prosecution, and the suspension of BB energy was subject to the suspension of witness (Tgu District Prosecutors' Office 201 type No. 4413, No. 2010 type No. 26606).

2) Transaction between the Plaintiff and BB Energy

A) The Plaintiff was supplied with petroleum products by DD Co., Ltd. (hereinafter referred to as DDD), and was supplied with DD during the first period of 2010 when trading with BB energy.

B) The Plaintiff was able to purchase the BB energy through the EE, a business employee of the BB energy, and was engaged in one transaction with the BB energy upon request for a transaction several times, and did not take measures such as identifying the transaction partner by directly communicating with the B energy, and did not confirm the BB energy storage facilities, etc.

C) The Plaintiff’s shipment date on the shipment slip (Evidence A(6) to which BB energy received 20,000 L via the shipment date is not indicated and the approved person’s shipment date is only called “on-site director”, and the shipmenter’s shipment date is written only as “B Energy” and the shipment date is written only as “B Energy.” Therefore, it cannot be seen that the oil has been shipped in any region.

[Grounds for Recognition] The non-satched facts, Gap evidence 2's evidence 1 to 3, evidence 6, evidence 12, evidence 19, evidence 28 to 31, and evidence 1 to 6, 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, and that the entries of the tax invoice are different from the facts, and that if the ownership of the income, profit, calculation, and act which is the object of taxation is nominal and there is another person to whom it actually belongs, the person to whom it actually belongs shall be the taxpayer, and in light of the purport of Article 14(1) of the Framework Act on National Taxes, where the necessary entries of the tax invoice do not coincide with those of the person to whom the goods or services are actually supplied or supplied, regardless of the formal entries of the transaction contract, etc. made between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

B) The following circumstances revealed with respect to the instant case, i.e., the BB energy was confirmed to be a data company that issued a false tax invoice without real transactions, and the BB energy and the representative director KimCCC was accused of the prosecution under the suspicion of violating the Punishment of Tax Evaders Act. ② BB energy is presumed to have no ability to supply oil under the instant tax invoice to the Plaintiff because it was never purchased oil and managed the entry and exit, and ③ the purchaser of CB energy reported by BB energy to be the purchasing place, and new stock companies, etc. were accused of all of the data, regardless of whether the Plaintiff was actually supplied with oil from the third party, and so long as the instant tax invoice is written by the supplier as data BB energy, the instant tax invoice constitutes a false tax invoice entered by the required supplier, i.e., a tax invoice entered differently from the fact under Article 17(2)1 of the Value-Added Tax Act, and thus, it cannot be deducted from the output tax amount. Accordingly, the Plaintiff’s assertion on this part is without merit.

2) As to the plaintiff's second argument

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 received the tax shall prove that there is no negligence on the part of the person who did not know the above fact of the name of the tax invoice (see Supreme Court Decision 201Du26695, Mar. 29, 201).

B) The descriptions of Gap evidence 3 to 9 are insufficient to find that the plaintiff purchased oil from BB energy, did not know the fact that the tax invoice issued by BB energy was a false tax invoice, and that there was no negligence on the part of the plaintiff, and there was no evidence to support this.

Rather, the following circumstances that can be known by the above recognition, i.e., the plaintiff opened the "OO oil station" on April 14, 2006 and operated the "O oil station for about four years before trading with BB energy. Thus, through experience, the plaintiff could have been sufficiently aware of the normal structure and distribution route of the supply of oil, the general trade type or method of the industry, and the oil industry, and the actual situation and risk of transactions in the BB energy of the supplier while making the oil transaction through the machinery unless there is usual friendship, and (ii) the plaintiff did not check the fact of concluding the oil contract, the actual work of the EEE, and the existence of the phone or oil reservoir, and (iii) the plaintiff did not know that there was a need to investigate the transaction with BB energy while making the transaction with BB energy and there was no doubt that the supplier did not know that there was a substantial need to do so in light of the fact that the supplier did not know that there was a need to do so.

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.