Cho-2012-China-5045 (2013.06.07)

The disposition that did not deduct input tax amount by deeming the instant tax invoice as a false tax invoice is legitimate.

The tax invoice of this case is a tax invoice different from the facts, and the plaintiff is not a bona fide or no negligence, and thus a disposition that deducts input tax amount is legitimate.

Article 16 of the Value-Added Tax Act

2013Guhap5242 Disposition of revocation of Disposition of Imposition of Value-Added Tax

OO

O Head of tax office

December 4, 2013

January 22, 2014

1. Of the instant lawsuit, the part concerning the claim for revocation of additional dues shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

The defendant's 20O.O.O.O. for the plaintiff 201 200O.O.O., the second value-added tax (including additional tax O.O.), additional O.O., and additional O.O.(including additional tax O.) for the first year 201 201 , respectively, revoked the imposition of additional O.O.(20O.O..'.'.'' in the complaint's statement 20O.O.'.'.'.' are 2O.'.).

1. Details of the disposition;

A. From 20O.O. to 20O.O.O., the Plaintiff operated the gas station (hereinafter “instant gas station”) under the trade name “AAA gas station” in OO-EupO as O-EupO.

B. In 2011, the Plaintiff received each tax invoice from BB Petroleum Co., Ltd. (hereinafter “instant transaction partner”) and from the OOO won during the 2nd VAT taxable period, and the OOO won’s tax invoice (hereinafter “instant tax invoice”) during the 1st VAT taxable period in 2012, and filed a return on value-added tax including the supply value in the input tax amount subject to deduction.

C. The Defendant: (a) deemed that the instant tax invoice was a false tax invoice; and (b) accordingly, (c)

Now, 200O.O.O. in 201, the Plaintiff revised and notified OO(including additional OO) of value-added tax for the second period of value-added tax (including additional OO) in 201, additional OO(including additional OO) of value-added tax, additional OO(including additional OO) of value-added tax for the first period of 2012, and additional OO(hereinafter collectively referred to as "the instant disposition").

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal, but was dismissed by 20O.O.O.O.

[Ground of recognition] Facts without dispute, Gap evidence 1, 9 evidence, Eul evidence 1 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the part concerning the claim for revocation of additional dues in the instant lawsuit is legitimate

A surcharge under Article 21 of the National Tax Collection Act is naturally generated under the provisions of a law without a final procedure by the competent tax office if the national tax is not paid by the due date, and thus, notification of a surcharge cannot be deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005).

Therefore, even if the Defendant stated the additional dues in the notice of payment along with the instant disposition, it is merely a notification of concept informing the existence of the additional dues, and it cannot be deemed a disposition subject to appeal litigation. Therefore, the part of the claim for cancellation of the additional dues in

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Inasmuch as the Plaintiff was supplied with oil by the instant transaction party and received the instant tax invoice, it cannot be deemed that the instant tax invoice constitutes a false tax invoice.

Even if the actual supplier of domestic oil is not a customer of the instant case, the Plaintiff was unaware of such fact, and there was no negligence in not knowing it, so the instant disposition is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the instant tax invoice constitutes a false tax invoice

A) If a taxpayer liable to pay value-added tax proves that a tax invoice submitted as a basis for input tax deduction was prepared in a false way without a real transaction or that the entries in a tax invoice are different from the fact, and thus, the tax office’s substantial proof of whether it is an actual purchase or the authenticity of the entries in a tax invoice is disputed. In a case where it is proved that a transaction with a supplier stated in a tax invoice claimed by the taxpayer is considerably false, a taxpayer who is easy to present data, such as books and documentary evidence, should prove that it was actually traded with a supplier listed in the tax invoice (see, e.g., Supreme Court Decisions 94Nu3407, Jul. 14, 1995; 2007Du1439, Aug. 20, 2009).

In addition, a person who is obliged to issue a tax invoice to an entrepreneur who is supplied with goods or services pursuant to the Value-Added Tax Act shall be deemed not to form a nominal legal relationship with the entrepreneur who is supplied with the goods or services, but to have actually performed the transaction of supplying the goods or services to the entrepreneur (see, e.g., Supreme Court Decisions 2002Do4520, Jan. 10, 2003; 2007Do10502, Jan. 28, 2010).

B) Considering the overall purport of the statements and arguments in evidence Nos. 2, 3, and 4, the transaction partner of the instant case was 20O.O.O.O.O.O.O., but 200O.O.O.O....O. of the instant transaction partner. As a result of the OO’s investigation, the principal office of the instant transaction partner did not have the purchase declaration amount at all, and the total amount of the purchase declaration amount at No. 1, 2011 and No. 2, 2012 was confirmed as a processing transaction. The storage facilities stated on the documents attached at the time of registration of the instant transaction partner did not have any falsity or used, and the office could not be deemed to have operated the instant transaction partner. Thus, it is difficult to view that the Plaintiff’s transaction partner, who is the representative of the instant transaction partner, has received the instant tax invoice as the supplier of the instant case’s violation of the Punishment of Tax Evaders Act. Therefore, the Plaintiff’s assertion that the Plaintiff did not actually receive the instant transaction.

2) Whether the Plaintiff acted in good faith and without fault

A) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice either knew the fact that the supplier was unaware of the name of the tax invoice, and that the supplier was not aware of the fact that there was no negligence on the part of the supplier, the supplier cannot deduct or refund the input tax amount, and that the supplier was not negligent in not knowing the fact that the purchaser was unaware of the said name, the person who asserts the deduction or refund of the input tax amount must prove (see, e.g., Supreme Court Decision 2002Du2277,

B) In full view of the overall purport of the statements and arguments in Gap evidence Nos. 6 and 7, the plaintiff's business registration certificate, petroleum sales registration certificate, and the plaintiff's business registration certificate, at the time of the transaction with the customer of this case,

The fact that the Plaintiff confirmed the corporate account, etc., and the Plaintiff received the tax invoice of this case from the customer of this case and transferred the corresponding amount to the corporate account of the customer of this case. However, the fact that the Plaintiff did not know that the actual supplier of the oil was not the customer of this case, and did not know that the Plaintiff was not the actual supplier of the oil.

Rather, according to the evidence mentioned above and evidence Nos. 2 and 3 above, the plaintiff received oil from the customer of this case and did not indicate the sulfur content, temperature, weight, time of publication, etc. Unlike the oil pre-issuance slip, the customer of this case's address is recognized as OOOOO. The following circumstances revealed according to the above acknowledged facts are social problems, i.e., (1) it is necessary to pay close attention to whether the oil supplier is the actual supplier, and (2) it is important material to confirm that the oil pre-issuance slip was issued or delivered by the customer of this case's oil supply without any specific reasons because the plaintiff did not know that the oil was issued by the customer of this case's business without any specific reasons, and (3) it is not reasonable for the plaintiff to have issued the pre-issuance chart to the extent that the oil was not the actual supplier's oil delivery density.

3. Conclusion

Therefore, the part of the claim for the revocation of additional dues in the lawsuit of this case is unlawful, and it is dismissed as the remaining claims of the plaintiff are without merit. It is so decided as per Disposition.