early 2009 Mine2592 (Law No. 2009.03)

Since a business operator operating a gas station has received a tax invoice different from the facts, the disposition that deducts input tax amount is legitimate.

A business operator operating a gas station, who has received a tax invoice different from the fact, and the Plaintiff cannot be deemed as a good faith and negligence, and thus the disposition that did not deduct an input tax amount equivalent to the tax invoice is legitimate.

209Guhap2815 disposition of revocation of the imposition of value-added tax

KimA

○ Head of tax office

may 3, 2011

May 31, 201

1. The plaintiff's claim is dismissed.

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

The defendant's imposition of value-added tax for the second period of 207 against the plaintiff on April 1, 2009 and the imposition of value-added tax for the first period of 20,192,200, and value-added tax for the first period of 2008 shall be revoked.

1. Details of the disposition;

A. From December 10, 1997, the Plaintiff is operating a gas station with the trade name of ○○○○○○ 1461, 199 to 1461.

B. As between December 13, 2007 and December 31, 2007, 2007, the Plaintiff received respectively the purchase tax invoice of KRW 151.872,727, and 5 as between February 1, 2008 and April 23, 2008, 2008, the total value of supply from △△△ Energy (hereinafter referred to as “△△△ Energy”), and the purchase tax invoice of KRW 436,454,547, total value of supply from △△△△ Energy (hereinafter referred to as “the instant tax invoice” in total of purchase tax invoices of Chapter 23), and the Defendant filed a return on the sales tax invoice of this case after deducting the input tax amount from the output tax amount.

C. On June 2008, the director of the Busan Regional Tax Office confirmed that △△ Energy is a material that issued a tax invoice without a real transaction and notified the Defendant of taxation data.

D. Accordingly, on April 1, 2009, the Defendant deducted the input tax amount stated in the instant tax invoice on the ground that the instant tax invoice was a false tax invoice entered differently from the fact by the supplier. In 2007, value-added tax amounting to KRW 20,192,90, and value-added tax amounting to KRW 60,012,420 for the first period of 2008 was corrected and notified, respectively (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 30, 2009, but the Tax Tribunal dismissed the Plaintiff’s appeal on September 3, 2009.

[Basis] Facts without dispute, Gap evidence 1, 2, Gap evidence 3, Gap evidence 5-1 to 13, Gap evidence 6-1 to 37, Eul evidence 1-2, Eul evidence 2, and Eul evidence 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff received oil equivalent to the total value of KRW 588,327,274 from △△ Energy and received the instant tax invoice by fully paying the said price. Thus, the instant tax invoice cannot be deemed as a false tax invoice. Even if the data on household △△ Energy, the Plaintiff was unaware of the fact that △△ Energy was not an actual supplier, and was not negligent in not knowing that it was not an actual supplier. The instant disposition made by the Defendant on a different premise is unlawful.

(b) Related statutes;

As shown in the attached Form.

(c) Fact of recognition;

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the following facts: Gap evidence 2, Gap evidence 4, Eul evidence 5-2 through 14, Gap evidence 6-2 through 38, Eul evidence 7-2 through 20, Eul evidence 2, Eul evidence 3 and 4 (including each number), Eul evidence 5, and Eul's testimony and whole purport of pleadings:

1) Since June 19, 2007, △△ Energy commenced petroleum sales business and discontinued business around April 2008. During the pertinent business period, no oil reservoir was shipped out in the name of △△ Energy. In addition, while entering into a lease agreement on oil storage facilities, transportation vehicles, etc., which are storage facilities of △△ International Stock Company, to meet the requirements for registration, the said agreement was concluded, but there was no time to use the oil reservoir, transportation vehicles, etc. during the said period.

2) The head-A, an actual business operator of △△ Energy, established a so-called “△△△ Energy” in order to receive or deliver a false tax invoice without a real transaction and used the so-called “BB” for the purpose of making profits. From July 2007, the head-A, a business operator of △△ Energy, performed a duty of transfer by setting up a false tax invoice, and issuing sales tax invoices in the name of △△△ Energy to gas stations without a real transaction, and traded that he received certain fees from the gas stations. However, securing a gas station to conduct such transaction, in connection with the ChoCC, etc., which participated in the distribution process of the non-taxable oil traded as non-taxable materials, and made transactions that △△△△ Energy received or delivered the pertinent tax invoice, etc.

3) On the other hand, when a oil is delivered through normal distribution channels to a gas station, one orderer (seller) among Chapter 4 of the shipment table (the date and time of shipment, the name of the customer, the arrival, the place of arrival, transportation equipment, items and the volume of the shipment, the use, weight, etc.) issued at the time of shipment at the oil reservoir, etc. at the oil reservoir, etc. at the oil reservoir, one of them is kept by the oil reservoir, one of them is delivered to the oil station at the time of delivery, one of them is delivered to the oil station at the time of delivery, one of them is delivered to the oil station at the time of delivery, and the other one is delivered to the oil station at the time of delivery because there is an increase or a decrease in the volume of the petroleum products after the temperature of the oil products, and the delivery of the oil is mainly made after the payment is made.

4) On the other hand, △△ Energy did not issue the shipment slips to the relevant gas station because it did not issue the shipment slips to the oil provider on the date of shipment. However, at △△△ Energy and the designated office of △△△△△△△△△△△△△△ after the oil was delivered, an employee prepared a tax invoice in accordance with the oil details shipped by using computers and twitter, and sent the above shipment slips and tax invoices to the relevant gas station by mail or door-to-door. However, the Plaintiff did not receive the shipment slips issued at the oil station at the time of receiving the oil from the oil carrier KimD, and received the shipment slips issued in the name of △△△△△△△△△○ Energy after receiving the oil from the oil delivery and remitting the price to the account of the corporation of △△△△△△△△△△△△△ Energy, without stating at all the shipping temperature of petroleum products at the time of delivery, and entered the shipment chart in the order of partial change of the shipment schedule and the order of the shipment in the same order of business place.

5) The director of the Busan Regional Tax Office: (a) deemed that △△ Energy was supplied with false tax invoices without actually supplying oil; (b) filed an accusation with the investigating authority on the grounds that it was charged with the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes; and (c) on March 25, 2010, the headA was issued with Seoul High Court (2009No2687) on the Aggravated Punishment, etc. of Specific Crimes and issued false sales tax invoices of KRW 33,94,03,106 for each of the gas stations including the Plaintiff, and issued false sales tax invoices of KRW 33,813,257,915 for the reason that the supply value was issued with false purchase tax invoices of KRW 33,813,257,915 for the reason that the said judgment was dismissed from the Supreme Court (2010Do4068) to July 22, 2010.

D. Determination

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

A) The meaning that the entries of the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries of the tax invoice refer to cases where the contents of the tax invoice are inconsistent with those of the person who actually supplied or received the goods or services, regardless of the formal entries, such as the transaction contract, etc. prepared between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 1996).

B) Even if the Plaintiff actually purchased oil in the quantity specified in the instant tax invoice, it is found that the customer who supplied oil to the Plaintiff is the supplier of the tax invoice, and the following circumstances revealed by the aforementioned facts: (i) △△ Energy was established for the purpose of trading false tax invoices from the beginning; and (ii) △△ Energy was accused of the fact that only the tax invoice was issued or received without any actual transaction from the beginning; and (iii) △△△ Energy was finally found guilty on the ground that it was issued or received by the tax authorities, and the actual operator was issued or received a false tax invoice, and the judgment became final; (ii) △△△ Energy did not have received oil from any oil reservoir across the country during the instant taxable period, and did not have used all the oil storage facilities or transportation vehicles reported after obtaining a registration of petroleum sales business operator; and (iii) △△△△ Energy received the processed tax invoice and let the supplier of non-data without material to supply non-taxable oil to the Plaintiff and the third party of the real oil supply without any purchase of the oil; and (iv) the Plaintiff could not be deemed to have been directly supplied the oil to the Plaintiff and the third party.

C) Therefore, we cannot accept the argument that the Plaintiff purchased oil listed in the instant tax invoice from △ Energy. Accordingly, it is reasonable to view the instant tax invoice as a false tax invoice different from the fact by the supplier.

2) Whether the Plaintiff is bona fide or without fault

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 supplier, who was unaware of the fact that the supplier was unaware of the name of the tax invoice, and the person who was provided with the tax invoice shall prove that there was no negligence on the part of the supplier on the part of the purchaser, who did not know of the fact that he was the nominal owner (see, e.g., Supreme Court Decision 2002Du2277, Jun.

B) However, in full view of the fact that Gap submitted by the plaintiff 5th floor Gap's 14, Gap evidence 6-38, Gap evidence 7-1, and witness witness testimony alone, it is insufficient to recognize that the plaintiff did not know the disguised fact of the tax invoice in the name of this case and that there was no negligence. There is no other evidence to acknowledge it. Rather, the plaintiff, "the following circumstances known in full view of the facts acknowledged earlier and the overall purport of arguments," i.e., "the plaintiff operated a gas station for a considerable period of time from December 10, 1997, operated a variety of experience to verify whether the oil supply was normal structure and route of the oil supply, the general transaction type and method of the industry, and the oil industry, and the fact that the supplier was not negligent in the delivery of the oil bill to △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, which was not negligent in the delivery of the oil bill.

3) Sub-decisions

Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and it is difficult to view the Plaintiff as a bona fide and without fault, and the Defendant’s disposition that did not deduct the input tax amount equivalent to the instant tax invoice is lawful.

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.