Cho High Court Decision 2009Du4119 ( October 11, 2010)

Whether a processing tax invoice without real transaction related to oil purchase has been received

According to the facts accused by the purchaser on the data, the fact that the purchaser repeatedly fabricateds financial transactions, and according to the statement of accounting, it seems that the purchaser received processed tax invoices without real transactions in view of the fact that the purchaser received a certain fee and issued a tax invoice.

The contents of the decision shall be the same as attached.

쇠鹬 쇠지鹬 3000 쇠지지지지 3000 지지지지지지지지지 3000

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition disposition of KRW 54,208,30 on August 5, 2009 and KRW 64,950,970 on the second half-year value-added tax on August 6, 209 against the Plaintiff shall be revoked.

쇠지지지지 3000 지지지지지지 3000 지지지지지지지지지지 3000

1. Details of the disposition;

A. The Plaintiff, a business operator, who runs a petroleum sales business in the name of “DD gas station” in Cost AAAB B B, was issued from Non-Party EE Energy Co., Ltd. (hereinafter “EE Energy”) during the 171-minute taxable period of value-added tax for the 171-minute taxable period of value-added tax for the year 2008, issued 11 purchase tax invoices equivalent to 336,113,637 won, 6 copies of purchase tax invoices equivalent to 306,181,819 won from new companies during the 2008 taxable period of value-added tax, and returned 11,054,000 won from the supply price from Non-Party JJJ (hereinafter “JJJJ”) to the input tax invoice for the 2008 taxable period of value-added tax for the 1,208 taxable year.

B. On August 31, 2009, the Defendant: (a) considered each of the instant tax invoices as processed tax invoices without real transactions; (b) deducted the input tax amount related to each of the said tax invoices; and (c) issued the instant disposition that corrected and notified the Plaintiff of KRW 54,208,30 for the first period portion of value-added tax in 2008; and (d) KRW 64,950,970 for the second period of value-added tax in 2008

C. On November 4, 2009, the Plaintiff filed an appeal seeking the revocation of the instant disposition with the Tax Tribunal, but was dismissed on March 11, 2010.

[Ground of recognition] Each entry of Gap evidence 1, 4, 6, Eul evidence 1 to 5 (including branch numbers)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Each of the instant tax invoices is not a tax invoice for processing transactions.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) 살피건대 을 제4 내지 8호증의 각 기재 및 변론 전체의 취지에 의하면 ① 중부지방국세청장의 세무조사 과정에서 EE에너지의 경리였던 소외 김KK은 일정한 수수료를 받고 무자료 유류 딜러들에게 세금계산서를 발행하여 주었다고 진술한 사실, ② EE에너지가 자료상으로 형사고발된 소외 주식회사 MM에너지에게 거래대금을 이체하면 MM에너지가 바로 현금출금을 하는 형태로 금융거래를 반복한 사실, ③ 중부지방국세청장은 EE에너지의 매입처 출하내역과 전산장부에서 다운로드받은 매출처별 차량운송내역을 비교하여 EE에너지의 2008년도 제1, 2기분 매출 1,573억 원 중 1,486억 원, 매입 1,571억 원 중 1,476억 원을 가공거래로 확정(원고에 대한 매출은 전액 가공거래로 확정됨)하고 EE에너지를 형사고발한 사실, ④ 또 대전지방국세청장의 세무조사과정에서 JJJJJ의 실질적 운영자인 소외 김YY 등은 매입처인 EE에너지와 소외 주식회사 ☆에너지로부터의 매입금액 전액(5,300,000,000원)이 가공매입이고 매출액이 가공매출인지 여부를 입증할 수 있는 증거가 없다고 진술한 사실, ⑤ JJJJJ은 거래처 명의로 대금이 입금되는 즉시 현금출금하였고 대전지방국세청장은 JJJJJ의 2008년도 제2기분 매출・매입 거래 전부를 가공거래로 확정하고 JJJJJ 을 형사고발한 사실, ⑥ EE에너지의 실질적 운영자인 김ZZ과 JJJJJ에 대한 형사피고사건에서 이 사건 각 세금계산서는 가공거래에 의한 것으로 인정되어 동 범죄 사실에 대하여 유죄판결이 확정된 사실을 인정할 수 있다.

According to the above facts, it is reasonable to view each of the tax invoices of this case as a processing transaction.

(2) Meanwhile, the Plaintiff asserted that the oil was supplied on the basis of the following fact-finding.

In other words, according to Gap evidence Nos. 2, 3, and 5 (including the number of pages) and the witness O's testimony, the plaintiff stated that EE Energy and JJ provided oil in each of the tax invoices of this case to the plaintiff under the shipping slips (Evidence No. 2-1 through 19) and the statement of transaction (Evidence No. 3-1 through 5) submitted by the plaintiff. The plaintiff transferred money equivalent to the total value of supply and value-added tax of each of the tax invoices of this case to EE Energy and JJJ, OO's witness's statement to the plaintiff is hard to reverse the plaintiff's request for delivery of oil within the oil storage facility by using the above 4-5 EE Energy and JJJ's request from July 4, 2008 to November 18 of the same year. However, it is hard to recognize that the plaintiff's above testimony and the JJ's request for delivery of oil again was different from those of supply of oil within the oil storage facility.

(3) Ultimately, the Plaintiff’s assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.