early 2010 Heavy3104 ( November 18, 2010)

Since oil is a good faith trading party that actually receives oil, input tax deduction must be made.

The business operator who supplied oil to the Plaintiff asserts the real transaction in a criminal case suspected of suspicion on the data, and the contents of conviction do not include the transaction with the Plaintiff. The fact that oil was actually shipped at the oil reservoir cannot be viewed as a false tax invoice. The oil electronic commerce brokerage system cannot be arbitrarily selected from the supplier, and there was no negligence in believing the data as the actual supplier.

2011Revocation of revocation of the imposition of value-added tax

Park XX

Head of Suwon Tax Office

August 10, 2011

September 7, 2011

1. The Defendant’s disposition of imposition of value-added tax amounting to KRW 14,29,030 for the second period of 2008 against the Plaintiff on June 1, 2010 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. From April 1, 2005, the Plaintiff was engaged in the oil retail business with the trade name in the space of " XX oil station" in the e-commerce 000-00 in the e-commerce 1st, 2005, and the Plaintiff received oil from the △△ Energy Co., Ltd. (hereinafter "△△△ Energy") in the 2nd taxable period of the value-added tax in 2008, and filed a value-added tax return after deducting the supply value from the purchase tax invoice for the 81,821,818 cause of supply price (hereinafter "the tax invoice of this case") and deducting the supply value from the input tax amount.

B. On June 1, 2010, the Defendant notified the Director of the Daejeon Regional Tax Office of the taxation data that the instant tax invoice would be a processed transaction. On June 1, 2010, the Defendant corrected and notified the Plaintiff of the value-added tax amounting to KRW 14,29,030 for the second period of 208 without deducting the input tax amount (hereinafter “instant disposition”).

C. Upon filing an objection on June 28, 2010, the Plaintiff filed an appeal with the Tax Tribunal on September 13, 2010, but was dismissed on November 18, 201.

[Ground of recognition] Unsatisfy, Gap evidence No. 1, the purport of the whole pleadings in Gap evidence No. 1

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserted that the instant tax invoice was unlawful since it was issued after the Plaintiff actually supplied oil from △△ Energy in purchasing oil through OO and paid the price, and the said tax invoice was not true. In addition, in light of the e-commerce process, such as the oil purchase method through the OO’s order system, the Plaintiff could not engage in the transaction, and the seller was aware of the fact of △△ Energy after receiving the oil, and thus, the instant disposition that did not deduct the input tax amount of the said tax invoice was unlawful.

(b) Related statutes;

(c) Fact of recognition;

(1) A transaction system of OO

(A) On November 7, 2005, OO made business registration around March 2006 with the purpose of the oil electronic commerce, etc. as a company established on or around September 7, 2005, and opened an Internet homepage around June 2006 and started to provide this kind of oil brokerage service from September 2007, OO provided brokerage service pursuant to the OO’s development of OO’s representative director, an OO’s representative director, and it was in accordance with the OO’s optimal safe order system (hereinafter “the instant system”).

(B) In order to purchase oil through OO pursuant to the instant system, the buyer should first enter into the purchase terms of oil kind, quantity, desired unit price, delivery date, etc. that he/she wishes to purchase after accessing the OO website, and upon receipt of such order normally, the purchase contract was concluded automatically with the seller who offers the sale conditions consistent with the purchase terms and conditions, and if there is no seller who presents the consistent sales conditions, the buyer could have expressed the order price and wait before maintaining the purchase terms and conditions.

(C) When a purchase contract is concluded normally, the buyer shall transfer the oil price to the virtual account number in the name of Han Bank Co., Ltd. (hereinafter referred to as " Han Bank"), which entered into a business partnership agreement with the OO, and receive oil from the seller, and then confirm the payment on the OO website and transfer the oil price from the seller's account to one bank account in the name of the seller (such as the entry of evidence No. 8-3), or pay the oil price by means of remitting the oil price from the seller to one bank account in the name of the seller after receiving the oil (in relation to this case, the plaintiff seems to have paid the oil price to △△△△△△△ in the latter manner). However, even if the purchase contract is concluded, the buyer cannot know the seller's trade name, etc. and the information on the seller can be confirmed after the delivery is completed, and the tax invoice and the specifications of electronic commerce after the settlement shall be input by the buyer and the seller's automatic output and output.

(D) On the other hand, OO visited the pertinent company's office prior to registering the relevant company as the oil seller's Internet homepage, and entered into a petroleum brokerage contract after obtaining a business registration certificate and a certificate of registration for petroleum selling business, and made the said company open an account for deposit of oil payment in the Han Bank.

(2) The Plaintiff’s oil purchase process

(A) On September 208, the Plaintiff entered into the instant system into a contract with the seller of oil at the time of purchasing the terms and conditions of oil, such as oil type (e.g., oil flow (each via angle), flow (20,00liters), unit price (1,50 won, 1,479.2 won, 1,489.25 won) on the OO website three times on the OO website, and the date when the Plaintiff wishes to deliver (18:0-22:00 on September 11, 2008; 16:0-18:0 on September 23, 2008 or September 24, 2008; 16:0-18:00 on September 27, 2008; 200 on September 27, 2008). However, the Plaintiff did not know the terms and conditions of the contract between the seller and the seller at the time of purchasing the oil.

(B) The OO requested thisB and JeonCC to transport oil, and this BB operated the Incheon 86A 6620 vehicle, and sent oil at the Sungnam oil reservoir located in Sungnam-gu, Sungnam-si, Sungnam-si, and completed delivery to the Plaintiff’s gas station on September 11, 2008. The Jeon Nam operated the 186 A 608 vehicle at Incheon 608 vehicle and completed delivery to the Plaintiff’s oil station on September 24, 2008 and September 27, 2008.

(C) After receiving each oil delivery, the Plaintiff transferred the oil price to one bank account under the name of △△ Energy (000-000-0000).

(D) Meanwhile, even around 2007, the Plaintiff engaged in oil transactions with KOO, △△ Korea Co., Ltd., and the Plaintiff also engaged in five-time oil transactions with OO between March 2008 and May 2008.

(3) Results of the tax investigation on △△ Energy

(가) 강서S세무서장은 2008. 7. 7.부터 2008. 9. 16.까지 사이에 이YY가 대표자로 있는 △△에너지의 2006. 7. 1.부터 2008. 6. 30.까지의 매입 ・ 매출자료에 대한 세무조사를 하였는데, 조사 결과 △△에너지의 실질적인 운영자는 이YY가 아니라 유RR이고, △△에너지는 2008년 제1기 동안 주식회사 오일☆☆, 주식회사 ■■오일, ●●주유소 등에 합계 96,992,000,000원 상당의 가공매출(가공비율 99.94%)을 한 것으로 판단하였다.

(B) Between November 28, 2008 and January 23, 2009, the Director of the Daejeon Regional Tax Office conducted an investigation into the data on purchase and sale of △△ Energy from July 1, 2008 to September 30, 2008. As a result of the investigation, △△△ was determined as the total value-added tax amount reported by △△△ for the investigation period.

(다) 한편 유RR은 2008. 12. 26. 대전지방검찰청 천안지청에서 조사를 받을 당시 '매출처별세금계산서합계표상 금액이 큰 주식회사 오일☆☆, 주식회사 ■■오일, ●● 주유소 등에 교부한 매출금계산서는 허위이지만 그 외의 주유소에 거래한 것은 딜러들을 통한 덤핑석유를 공급하고 세금계산서를 교부하였다'는 취지로 주장하였다.

(라) 유RR은 2009. 6. 18. 대전지방법원 천안지원에서 2008. 1. 1.부터 2008. 7. 경까지 주식회사 오일☆☆, 주식회사 ■■오일, ●● 주유소에 합계 71,902,172,734원 상당의 재화나 용역을 공급한 것처럼 각 매출처별세금계산서합계표를 허위로 작성하고, 2008. 7. 31.부터 2008. 9. 30.까지 사이에 주식회사 오일☆☆, ●● 주유소에 공급가액 합계 24,301,347,268원의 허위 세금계산서를 작성하여 교부하였다는 등의 범죄사실에 관하여 징역 2년에 집행유예 3년의 형을 선고받았고, △△에너지는 2010. 5. 12. 대전지방법원 천안지원에서 위와 같은 범죄사실에 관하여 벌금 5,000,000원의 형을 선고받아, 위 각 판결은 그대로 확정되었다.

[Reasons for Recognition] Facts without dispute, Gap evidence 2 through 5, 7, 9, Eul evidence 2, 3, and 4 (including the number of branches), the testimony of the witness LA and the purport of the whole pleadings

D. Determination

(1) Whether the instant tax invoice is false or not

In principle, the burden of proving that a tax invoice received in the course of a specific transaction constitutes a “tax invoice different from the fact” under Article 17(2)1-2 of the Value-Added Tax Act where the deduction of an input tax amount is denied on the ground that the specific transaction is a nominal transaction without actual delivery or transfer of goods (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008).

살피건대, 위 인정사실에 의하여 알 수 있는 다음과 같은 사정 즉, △△에너지와 △△에너지를 실질적으로 운영하던 유RR이 자료상 혐의로 고발되어 형사사건에서 유죄판결을 받아 확정되었으나, 한편 유RR은 검찰에서 조사받을 당시 주식회사 오일 ☆☆, 주식회사 ■■오일, ●● 주유소를 제외한 나머지 주유소들에 대하여는 무자료 유류를 실제로 공급하였다는 취지로 주장한 점 유RR과 △△에너지는 주식회사 오일☆☆, 주식회사 ■■오일, ●● 주유소에 대한 허위 매출 등에 관한 범죄사실로만 기소되어 유죄로 인정된 점 원고가 이BB, 전CC를 통하여 성남저유소로부터 실제로 유류를 배송 받은 점 등에 비추어 보면, 원고가 실제로 △△에너지로부터 유류를 공급받지 아니하였다고 단정할 수 없다.

(2) Whether the Plaintiff is bona fide and without fault or not

An actual supplier and a supplier on a tax invoice may not deduct or refund an input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the fact of misrepresentation of the tax invoice, and that the supplier was not negligent in not knowing the fact of misrepresentation of the name, the person who asserts the deduction or refund of the input tax amount must prove that the supplier was not negligent (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

Even if the Plaintiff did not actually receive oil from △△ Energy, the following circumstances revealed by the fact of recognition: (a) the structure of the system of this case is as follows: (b) the Plaintiff could not choose the seller at will and automatically enter into a purchase contract with the seller who presented the terms of sale that meets the purchase conditions entered by the Plaintiff; (c) the Plaintiff becomes aware of the fact that the seller was a △△△ Energy after receiving the oil in fact in accordance with the system of this case; (d) the Plaintiff is also engaged in oil transactions with other oil suppliers outside △△△ Energy through the OO even before receiving the tax invoice of this case; (e) the Plaintiff was a position to believe that the OOOOOO was faithfully conducting an investigation into the eligibility for △△△△△ Energy; and (e) as seen earlier, when the Plaintiff becomes aware of the fact that the Plaintiff was a △△△△△△△, it is difficult to expect the purchaser to investigate whether the seller was a disguised supplier at that time.

3. Conclusion

Therefore, since the disposition of this case is unlawful, the plaintiff's claim seeking its revocation is justified, and it is so decided as per Disposition.