Early High Court Decision 2010J1413 (Law No. 1010, 296.29)

tax invoices issued by a business operator operating a gas station shall be deemed to have been entered differently from the facts of the supplier.

A tax invoice issued by an entrepreneur operating a gas station was written differently from the facts, and the Plaintiff cannot be deemed as a bona fide and without fault on the disguised name of the tax invoice, and thus the disposition imposing value-added tax on the supplier is legitimate.

2010Guhap4289 Disposition to revoke the imposition of value-added tax

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〇〇세무서장

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 KRW 13,335,30 of the value-added tax of KRW 13,330 of the year 2008 against the Plaintiff on January 4, 2010 (which appears to have been written in the complaint on January 12, 2010) is revoked.

1. Details of the disposition;

가. 원고는 2007. 12. 1.부터 〇〇시 〇〇구 〇〇동 110-5에서 '〇〇주유소'라는 상호 로 주유소를 운영하는 사업자이다.

B. In 208, the Plaintiff received purchase tax invoices equivalent to KRW 85,036,363 (hereinafter “instant tax invoices”) from △△△ Incorporated Co., Ltd. (the trade name at the time was △△ Korea Co., Ltd.) during the first taxable period of the value-added tax, and deducted the purchase tax amount, and reported and paid the value-added tax to the Defendant.

C. On January 4, 2010, the Defendant, on the ground that the instant tax invoice was written differently from the fact, deducted the input tax amount of value-added tax and imposed KRW 13,335,30 on the Plaintiff for the first time of 2008.

D. On April 12, 2010, the Plaintiff filed a request for review with the Tax Tribunal on April 12, 2010, but the Tax Tribunal dismissed it on June 29 of the same year.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, 8, Eul evidence 1, and all pleadings

2. Whether the instant disposition is lawful

Inasmuch as the Plaintiff ordered the oil to △△ Hospital, and paid the price after being supplied with the oil in the storage place designated by Doz, the Plaintiff was engaged in real transactions rather than the disguised transaction with △△ Hospital. Even if the said transaction constitutes a disguised transaction, the Plaintiff was made by receiving a proposal to supply oil at low-value prices, the Plaintiff, the representative of △△△ Group, and the Plaintiff was made a transaction by receiving a proposal to supply oil at low-value prices. The instant disposition made on a different premise is unlawful, by taking all measures to confirm whether △△△△○ Company was actually supplied with oil at the storage place designated by △△△△△△ Company through a transporter designated by the Plaintiff, and then remitting the price after receiving a tax invoice.

B. Relevant statutes

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

C. Facts of recognition

1) The circumstances leading up to the determination of the material of △△ Company

A) On July 25, 2007, 2007 after business registration was made and closed on March 13, 2009. While reporting oil storage facilities and transportation vehicles at the time of the registration of the petroleum selling business, △△△△ Group reported each of the oil storage facilities and the transportation vehicle lease contract, △△T Co., Ltd., and the oil storage facilities and the transportation vehicle lease contract was prepared, and no actual lease was made, and △△△△△△ Group, a business establishment, △△△△△△△ Group, 11-2

B) In 2008, ○○○ Company reported that it purchased KRW 309,181,819 (100% of the total purchase amount) from BY 309,181,819 (100% of the total purchase amount) during the first taxable period of 2008, but the said purchaser was found to be a processed transaction and accused of it

C) As a result of the tax investigation conducted on ○○ Association, AA Contribution, which is the actual operator of △△○ Association, was found to have received an order for oil without oil storage facilities or transport vehicles, contacted oil-free oil business entities, supplied oil, prepared a shipment slip at will after the transaction date, and delivered it to the sales office along with the tax invoice. Upon receipt of the oil payment, it was investigated to have immediately withdrawn the money in cash or distributed and delivered it to a large number of bank accounts so that the oil-free oil business entity could not trace it.

D) Around June 2009, the head of △△△ Tax Office confirmed △△△△ District Tax Office’s false tax invoices without real transactions and filed a complaint with the Defendant, and notified the Defendant of the taxation data.

2) The details of transactions between the Plaintiff and △△ Corporation

가) 원고는 2007. 11. 23. △△석유 주식회사로부터 임대차기간을 2007. 12. 1.부터 2010. 11. 30.까지로 정하여 '〇〇주유소'를 임차하면서 판매 물량의 전부를 위 회사로부터 구입하고 매달 최소 물량을 1,300드럼(260,000리터) 이상으로 하며, 만일 이를 이행하지 아니하면 계약을 해지하고 위약금 50,000,000원을 지급하기로 하는 계약을 위 회사와 체결하고 '〇〇주유소'를 운영하였는데, 인근 주유소의 가격 인하로 매출이 급감하던 상황에서 ◇◇션의 운영자인 AA헌으로부터 리터당 40-50원 저렴한 가격으로 유류를 공급하여 주겠다는 말을 듣고 거래를 시작하였다.

B) After receiving oil from a vehicle operated by Kimhae-dong designated by the Plaintiff, the Plaintiff traded by way of remitting the oil price to the bank account in △△○○ Bank after receiving a transaction statement, tax invoice, and shipment slip from △△○ Bank.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3 through 7, Eul evidence No. 2 through 7, the purport of the whole pleadings

D. Determination

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

A) The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts refers to the case where the necessary entries in the tax invoice are inconsistent with those in the actual supply of goods or services, or the price and time, etc., regardless of the formal entries in the transaction agreement, etc. made between the parties to the goods or services.

B) Since the Plaintiff also recognized the Defendant as to the actual purchase of oil in the quantities listed in the instant tax invoice, it is examined whether the customer who supplied oil to the Plaintiff is a supplier listed in the relevant tax invoice. As seen earlier, it is revealed that the business entity that reported to the Plaintiff as the purchaser was proved to be all the data and the details of the purchase reported was also a processed transaction. As such, in the absence of the purchased oil, it cannot be deemed that the Plaintiff actually supplied its oil to the Plaintiff, and in full view of the fact that △△ has no record of using the oil storage facilities or transportation vehicles reported after receiving the business registration of petroleum sales, the Plaintiff’s oil purchaser listed in the instant tax invoice of this case should be deemed to be a third party, not △△△△. Accordingly, the said tax invoice is a tax invoice written differently from the fact that the supplier entered.

2) Whether the Plaintiff constitutes a bona fide trader

A) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice are not aware of the disguised name of the tax invoice and that there is no negligence on the part of the person who received the other tax invoice, the input tax amount cannot be deducted or refunded, and the person who asserts the deduction or refund of the input tax amount must prove that there is no negligence on the part of the person who received the tax invoice not knowing the disguised name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 200

B) The following facts revealed in the facts as seen earlier, i.e., the Plaintiff, starting the first transaction with ○○○ Company, supplied oil at a price less than 40-50 won per liter than other transaction partners, but did not properly verify the business status of △△△○ Company. △△△○ Company did not actually use oil storage facilities, transport vehicles, etc. and issued a large amount of false tax invoices systematically in collusion with oil-free oil companies, and thus, it appears that the Plaintiff could have known the fact that the instant tax invoice was entered differently from the fact if the Plaintiff paid early attention (in the case where the shipment was made on the shipment slip, it could be easily confirmed that the place where the oil was actually shipped through the Plaintiff’s vehicle article). In full view of the following facts, it is difficult to view that each entry in the evidence of subparagraphs 4 through 7, which alone did not constitute a good manager at the time of the Plaintiff’s transaction with △△△○ Company, the nominal owner of the instant tax invoice, did not know that the Plaintiff did not actually supply the oil in question.

3) Sub-decisions

Therefore, the instant tax invoice was written differently from the fact by the supplier, and the Plaintiff cannot be deemed as a bona fide and without fault on the disguised name of the tax invoice. Therefore, the Defendant’s disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.