Jeonju District Court 2013Guhap200829 (2015.02.04)

Cho High 2013 Mine2231 (O6.24)

The purchase of oil at issue is not recognized as an obligatory tax invoice which is different from the fact.

The issue oil purchase constitutes a false tax invoice, and there was a negligence that did not confirm it despite the fact that there was a need to verify whether the other party to the transaction is a true tax invoice.

Article 16 of the Value-Added Tax Act

Gwangju High Court (former District Court) 2015Nu191 ( October 24, 2015)

○○ et al.

○ Head of tax office

Jeonju District Court 2013Guhap200829

August 10, 2015

August 24, 2015

1. The plaintiffs' appeal is dismissed.

2. The appeal costs are assessed against the plaintiffs.

3. The phrase "Plaintiff" in paragraph 1 of the order of the court of first instance shall be deemed to read "Plaintiff", and the phrase "Plaintiff" in paragraph 2 shall be deemed to read "Plaintiffs", respectively.

The judgment of the court of first instance is revoked. Each disposition of imposition of KRW 17,886,760 of the corporate tax of 2011 and KRW 15,397,670 of the value-added tax of February 5, 2013 against Plaintiff ○○○○ Co., Ltd. and each disposition of imposition of KRW 6,15,850 of the value-added tax of KRW 15,397,670 of the value-added tax of February 1, 2013 against Plaintiff ○○○○ Co., Ltd. and the imposition of KRW 5,195,780 of the corporate tax of February 1, 2011 shall be revoked, respectively.

1. Details of the disposition;

A. The plaintiff corporation's ○○○ Contac (hereinafter referred to as "the plaintiff's ○ ○ Contac") was established on March 1, 1991 and was established on March 1, 199, for the purpose of manufacturing, selling, collecting soil and rocks from ○ ○○ ○○-ro 439-69. The plaintiff corporation's ○ ○ ○ ○ ○ (hereinafter referred to as "the plaintiff's ○ ○ ○ ○ ○") was established on July 15, 2009 and was for the purpose of manufacturing, selling, etc. of ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

B. In the first taxable period of 201, Plaintiff ○○ received 87,090,909 tax invoices from Plaintiff ○○○○○G (hereinafter referred to as “○○○○○EG”) during the first taxable period. Plaintiff ○○○○ Contac was issued with 34,836,364 tax invoices totaling 34,000 supply values from ○○○○G during the first taxable period of 201 (hereinafter referred to as “instant tax invoices”), and filed a value-added tax return with the Defendant after deducting the relevant input tax amount from the output tax amount. The Defendant deducted the relevant input tax amount on the grounds that the instant tax invoice is different from the fact, and then imposed KRW 17,86,736,364 on Plaintiff ○○ 5,215,201, 2015, 2015, 2015, 2015, 2015, 2015, 2015.

D. On April 25, 2013, Plaintiff ○○○ filed an appeal with the Tax Tribunal on May 3, 2013, but all of the appeals were dismissed on June 24, 2013.

2. Determination on the legitimacy of the instant disposition

A. Summary of the plaintiffs' assertion

1) Since the Plaintiffs actually purchased oil from ○○○NG and remitted the price to ○○○○○G account, the instant tax invoice cannot be deemed to be a false tax invoice.2) Even if the instant tax invoice is tax invoice different from the fact, the Plaintiffs confirmed the ○○○NG’s business registration certificate from the employee who delivers the transit, and received the shipment slips and transaction specifications, and thus, the Plaintiffs constitute a bona fide trading party that fulfilled their duty of care.

3) Even if the plaintiffs are not parties to the transaction with good faith and negligence, it is apparent that they receive oil, and thus, the part related to corporate tax in the disposition of this case should be revoked.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

In full view of the aforementioned evidence, Gap evidence Nos. 5, 6, Eul evidence No. 4 and the purport of the whole pleadings, the following facts are recognized.

1) ○○ENG와 ○○에너지 주식회사(이하 '○○에너지'라 한다)는 모두 ○○군 ○○면 ○○리 322-6에 본점을 두고 유류도매업에 종사하는 법인으로 실질상으로는 동일한 법인인바, ○○지방국세청의 ○○ENG 및 ○○에너지(이하 '○○ENG 등'이라 한다)에 대한 세무조사(조사범위 : 2011. 1. 1.˜ 2011. 6. 30.) 결과 다음과 같은 사실이 확인되었다.

① The oil storage tank for ○○○○○○○-dong 1-1 located in 1-1,000, ○○○○○○○-dong, which was reported as a petroleum storage facility at the time of filing an application for the registration of oil sales business, did not have any oil entry and exit since ○○○○○○○, Inc. leased the oil storage tank from ○○○○, Inc., and ○○ Energy did not have any registration of the oil sales business. However, ○○○, which reported as an oil storage facility at the time of filing an application for the registration of the business, did not have any fact that ○○○-1, which reported as an oil storage tank

② During the first taxable period of 2011, 000, ○○○○○ Police Station was supplied with oil equivalent to KRW 8,773,363,639 and KRW 3,780,145,454 from Company B (hereinafter “B”) during the first taxable period, and received purchase tax invoices and filed a VAT return. Meanwhile, Company A was determined as material through the investigation of trade order in the ○○○ Tax Office and filed an accusation with the ○○○ Police Station. Company B was the one that opened the business as a result of the verification of the ○○ Tax Office’s ○○ Tax Office’s ○○ Tax Office’s ○○ Tax Office’s ○○ Tax Office’s 6,96,000,000 won was determined as established only for the purpose of issuing false tax invoices, etc.; Company A and B did not know that the ○○○○○○ Tax Office’s 60% of the total amount of the above sales tax invoices was not recorded in the 100th of the real goods.

③ ○○ENG가 원고들을 포함한 매출처로부터 받은 유류대금은 ○○ENG의 사업용 계좌로 이체된 후 대부분 A나 B의 계좌로 이체되었고, 위와 같이 이체된 금원은 각 은행 창구에서 분산하여 현금으로 출금되었고, 한국석유공사에 보고된 ○○ENG의 유류거래량(2011. 1. 1.˜2011. 6. 30.)은 전무한 것으로 확인된다.

2) Based on the above findings of the investigation, the director of the regional tax office confirmed that ○○○○○○○○○ was the data that was falsely issued a tax invoice without a real transaction, and confirmed the total amount of the first sale in 2011 as a processed sales, and filed a charge of violating the Punishment of Tax Evaders Act against ○○○○, a representative director, and a real business operator’s car ○○○.

3) Meanwhile, Kim○, the actual representative of A and B, upon filing a preliminary return of the first value-added tax in 201, he was sentenced to imprisonment for 4 years, a fine of 60 billion won, and confiscation at the Seoul Northern District Court on the charge that ○○○, etc. submitted a false list of the total accounts by customer to the tax office although there was no fact that the goods or services were supplied.

4) Unlike the general shipment slips issued by the ○○ENG to the Plaintiffs, the shipment slips issued by the Plaintiffs are classified into respective official columns, such as temperature and weight, weight, card number, tank number, etc.

5) Since around 1991, the representative director of the Plaintiff ○○○○○○’s ○○○○ is also the company established around 2009 and also the representative director of the Plaintiff ○○○○ is also the company established around 2009.

D. Determination

1) Determination as to whether the instant tax invoice is “other tax invoice than the fact”

In light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that if the ownership of income, profit, property, act, or transaction subject to taxation is nominal and there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable to pay taxes, it refers to a case where the necessary entries in a tax invoice do not coincide with the actual supplier, the supplier, the supplier, and the supplier of the goods or service, regardless of the formal entries in the transaction contract, etc. made between the parties to the goods or service, and the fact that the tax invoice submitted by the person liable to pay value-added tax on the basis of the input tax is falsely prepared without the actual transaction, or that the entries in the tax invoice are different from the fact, the authenticity of the entries in the tax invoice is proved to a considerable extent. In a case where the transaction with the supplier claimed by the person liable to pay taxes is proved to be false, it is necessary to prove that the taxpayer has actually made the transaction with the supplier as stated in the tax invoice, such as evidence, etc. (see, e.g., Supreme Court Decision 2007Nu164.

In light of the above legal principles, it is difficult to find that the Plaintiffs were actually supplied oil to the ○○○○○○○○○○○○○, which was recorded in the Plaintiff’s tax invoice No. 2, and that the Plaintiffs were actually supplied to the ○○○○○○○○○○○○○, and that the Plaintiff’s testimony was not recorded in the Plaintiff’s account No. 2, and that it was difficult to find that the Plaintiffs were supplied to the ○○○○○○○○○○○○○○○○○○○○○, which was recorded in the Plaintiff’s account No. 1’s 6GN on April 30, 201, and that the Plaintiff’s supply of oil was not recorded in the Plaintiff’s account No. 1’s 6GN on June 1, 201.

2) Determination on the assertion of good faith and negligence

The actual supplier and the supplier on a tax invoice cannot deduct or refund the input tax amount unless there is any special circumstance that the supplier was negligent in not knowing the fact of misrepresentation of the tax invoice, and that the supplier was not negligent in not knowing the fact of misrepresentation of the tax invoice (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

In light of the above legal principles, it is necessary to closely pay attention to whether an oil supplier is a actual supplier or not, and the Plaintiff has been engaged in the above business for more than 20 years. 20 years. The Plaintiffs did not have any other party to the business at least 9GN-2GN-2GN-2, despite the fact that the Plaintiff did not have any other party to the business and did not have any doubt as to whether the Plaintiff had any other party to the business under the name of 20GN2, since the Plaintiff did not have any other party to the business and did not have any duty to verify whether the Plaintiff had any other party to the business since the Plaintiff had any other party to the business and the Plaintiff did not have any duty to verify whether the Plaintiff had any other party to the business since the Plaintiff had any other party to the business and the Plaintiff had any other party to the Plaintiff’s tax invoice 20GN9, which was not the actual supplier’s address or place of the Plaintiff’s business.

3) Determination as to the claim for revocation of the part related to corporate tax in the disposition of this case

As seen earlier, the disposition imposing the corporate tax of this case on the premise that the plaintiffs did not recognize that the oil under the tax invoice of this case was actually supplied by ○○○NG is legitimate. Therefore, the plaintiffs' above assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in its conclusion, the plaintiffs' appeal is dismissed as it is without merit, and since the "Plaintiff" in paragraphs 1 and 2 of the judgment of the court of first instance is obvious that it is a clerical error of "Plaintiffs", it is so ordered to correct it.