The legitimacy of the assertion that the instant disposition was actually offered through a processing transaction

If a tax invoice has been prepared in a fraudulent manner without a real transaction, it is necessary to prove that the amount paid under the tax invoice of this case has been actually paid by the defendant.

Article 17 of the Value-Added Tax Act

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 of KRW 22,253,850 on October 2, 2006 against the Plaintiff on October 2, 2006 is revoked.

1. Details of the instant disposition

The following facts are not disputed between the parties, or acknowledged by comprehensively considering the whole purport of the pleadings in each entry of Gap evidence 1, Gap evidence 2-1 to 24, Gap evidence 3-1, 2, Eul evidence 1 to 3.

A. From August 16, 2001, the Plaintiff is operating the gas station in ○○○○-ri 285-2 (hereinafter “the gas station in this case”).

B. On September 26, 2005, the Plaintiff purchased transit from ○ Energy Co., Ltd. (hereinafter “○○ Energy”) from September 26, 2005 to November 25, 2005 during the second taxable period of 2005, and received ten copies of purchase tax invoice (hereinafter “instant tax invoice”), citing the total value of supply 174,540,217, the Plaintiff reported and paid the value-added tax after deducting the input tax amount equivalent to the above amount at the time of filing the value-added tax return.

C. On October 2, 2006, the Defendant issued a false sales tax invoice without real transaction during the second taxable period of 2005, and the instant tax invoice is also a false tax invoice different from the fact that the supplier denies the deduction of the other input tax amount, and issued a revised notice of KRW 22,253,850 for the second taxable period of 2005 (hereinafter “instant disposition”).

D. On November 6, 2006, the Plaintiff asserted for the adjudgment against the Director of the National Tax Tribunal, but was dismissed on June 21, 2007.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff confirmed whether ○○○ Energy’s facility standards for petroleum sales business are satisfied through the business registration certificate, agency license, etc., and, at each time, sent the Plaintiff’s vehicle to the ○○ Storage Storage Station designated by ○○ Energy, and received the instant tax invoice from ○○ Energy by being supplied via the oil reservoir, and did not know that ○○ Energy was not a person who actually supplied via the oil reservoir. Unless there was gross negligence, the Plaintiff asserts that the input tax amount under the instant tax invoice should be deducted pursuant to Article 60(2)2 of the Enforcement Decree of the Value-Added Tax Act, and thus, the instant disposition should be revoked.

(b) Related statutes;

The entry in the attached Form shall be as follows.

C. Determination

(1) According to the instant tax invoice, the supply of light oil to the Plaintiff is indicated as ○ Energy, but the company that actually supplied light oil to the Plaintiff is not a dispute between the parties, and thus, the instant tax invoice, in principle, is not subject to the input tax deduction pursuant to the main sentence of Article 17(2)1-2 of the Value-Added Tax Act.

However, if the tax invoice of this case falls under the proviso of Article 17 (2) 1-2 of the Value-Added Tax Act and Article 60 (2) 2 of the Enforcement Decree of the Value-Added Tax Act, that is, if the actual transaction is confirmed, and if the supplier of the tax invoice is deemed to be the case of entry into ○○ Energy due to the plaintiff's mistake, the tax invoice of this case will be subject to the deduction of the value-added tax amount. The Supreme Court consistently held that "the tax invoice of this case is the case where the person who received the supply of the goods or services was unaware of the fact that the other party in the name was not the person who actually supplied the goods or services, and there was no negligence due to the fact that the person who received the supply was not aware of the above fact of false name, it shall be proved by the person who asserts the deduction or refund of the input tax amount (see, e.g., Supreme Court Decision 20

(2) Ultimately, the issue of whether the instant disposition is legitimate shall be determined by the Plaintiff as to whether the supplier listed in the instant tax invoice differs from that of the actual supplier, and the burden of proof for good faith and without fault shall be borne by the Plaintiff.

(3) The following facts do not conflict between the parties, or are acknowledged by considering the following facts as a whole in Gap evidence 1 to 24, Gap evidence 1,2, Eul evidence 3-2, Eul evidence 2, Eul evidence 3, Eul evidence 4, Eul evidence 7-2, Eul evidence 8-1 to 10, Eul evidence 8-1 to Eul evidence 8-1, and witness's testimony as a whole.

(A) The ○○ Energy was opened on February 16, 2005 and closed on December 8, 2005. The representative director stated that only lent the name in the process of investigation by the head of the ○ Tax Office, and that there was no participation in the business at all.

(B) After the opening of the business, the ○ Energy reported the purchase of KRW 9,468,181 to June 30, 2005. In 2005, the ○ Energy issued the sales tax invoice of KRW 3,199,569,00 to the Plaintiff and approximately 18 trading companies. However, the gas station businesses, including the gas station of this case, including the gas station, received actual oil from other trading companies than the ○ Energy, and received the tax invoice under the ○○ Energy name, but the actual supplier was the other company, and issued the processed sales invoice without receiving the full amount to some other trading companies.

(C) Comprehensively taking account of the provisions of Articles 10(4), 13(3), and 46 of the Petroleum and Petroleum Substitute Fuel Business Act, the requirements for registration of petroleum retail business (general agency) in attached Table 2 of the Enforcement Decree of the same Act, and Article 12(1) of the Enforcement Rule of the same Act, in order to operate a petroleum retail business like ○○ Energy, the registration must be made with documents proving that the operation of the petroleum retail business is a facility that owns or rents for exclusive use at least 700 km storage facilities or underground storage facilities that can store at least 70 km, and the registration shall be revoked if the registration is violated, and criminal punishment (a fine not exceeding 50 million won or less) shall be imposed if the petroleum retail business

(D) Although ○○ Energy entered into a lease agreement with ○○ tank terminal, it did not keep petroleum products at all in the ○ tank terminal after the conclusion of the lease agreement.

(E) From September 26, 2005 to November 25, 2005, the Plaintiff purchased light oil equivalent to KRW 174,540,217 (excluding value added tax) on a ten-time basis, and received the instant tax invoice from the supplier of ○ Energy on the day of receipt of the tax invoice, and remitted via ○○○○ bank account.

(F) Despite the fact that ○○-si ○○○○-dong 427-5, ○○-gu ○○○-dong ○○○○, the Plaintiff ordered oil to the ○○ Energy, and received oil supply from the ○○-do ○○ Oil Storage Center, instead of the storage facility in the registration certificate for the petroleum retail business of ○ Energy.

(G) On September 26, 2005 and October 12, 2005, 2005, ○○ Energy Co., Ltd. supplied oil to the Plaintiff on two occasions, and the tax invoice was issued under the name of ○ Energy, and submitted a written confirmation to the head of ○○ Tax Office.

(h) In general, the Plaintiff and the same gas station operators ordinarily receive a tax invoice at the end of each month. The Plaintiff received the instant tax invoice at the time of each transaction between ○○ Energy and the said paragraph (e).

(i) The Plaintiff was notified of the rectification of value-added tax on the ground that the Plaintiff submitted purchase tax invoices received from data merchants during the first half of 2005 from ○○ Energy.

(4) 살피건대, 위 인정사실 및 이 사건 변론에서 알 수 있는 다음과 같은 사정, 즉 원고는 ○○에너지의 석유판매업등록증 등 관련서류를 확인하고 ○○에너지와 유류구입 거래를 시작하였다는 것이나, 이에 부합하는 증인 강○○의 증언은 믿기 어렵고 달리 이를 인정할 증거가 없는 점 특히, 원고는 강○○를 통하여 ○○에너지 이사 김○○와 위 거래를 하였다는 것이나, 그러한 거래실체를 확인할 만한 객관적인 자료가 전혀 없는 점, 원고의 위와 같은 주장이 사실이라면 ○○에너지의 석유판매업등록증상 저장시설은 ○○시 ○○구 ○○동 427-5로 되어 있는데 원고는 ○○에너지에 기름을 주문한 뒤 ○○주유소에서 기름을 공급받았으므로, 원고가 조금만 주의를 기울여 ○○저유소를 통해 알아봤다면 ○○에너지가 실제 공급업체가 아니라는 사실을 알 수 있었을 것으로 보이는 점, ○○에너지와 같은 신생업체와 거래를 하면서 원고가 기름을 싸게 구입하는 것도 아닌데 ○○저유소에 직접 원고의 차를 보내 기름을 받아온 것은 ○○에너지가 2-3일 정도 후불의 혜택을 주었기 때문이라고 주장하나, 기름을 받아온 당일 바로 대금을 송금하였으므로 후불의 혜택을 그리 크지 않는 것으로 보이므로, 원고가 굳이 ○○에너지와 거래를 한 동기가 부족해 보이는 점, 원고가 주장에 부합하는 진술을 한 증인 강○○는 자신도 다른 주유소를 운영하면서, 원고의 부탁을 받고 직접 ○○에너지에 대금을 송금했다고 진술하였으나 실제 송금전표에 의하면 송금자는 강□□로 나타난 점, 원고는 일반적인 세금계산서 수수관행과 달리 건건이 세금계산서를 ○○에너지로부터 수수하였다고 하는 점, ○○에너지 주식회사의 경우 원고에게 기름을 공급하면서 ○○에너지 명의로 세금계산서를 발부해주었다고 자인서를 ○○세무서에 제출한 점 등의 사정에 비추어 보면, 원고는 ○○에너지가 경유의 실제 공급자가 아님을 알았다고 보이고, 설령 선의라 하다라도 거기에 과실이 있었다고 봄이 상당하다(원고가 내세우는 바와 같이, 원고와 동일·유사하게 ○○에너지와 거래한 □□주유소 서○○, ■■주유소 박○○은 이의신청 내지 국세심판단계에서 구제되었다는 사정은 이러한 이 사건 결론을 좌우할 만한 것은 되지 못한다.)

(5) Therefore, the instant disposition is lawful, and the Plaintiff’s assertion disputing this is without merit.

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.