Cho High 2010 High 0150 ( December 23, 2010)

No person may be deemed to have been negligent because he/she was unaware of, or was negligent in, the name.

Unless there is any special circumstance that the actual supplier and the supplier on the tax invoice are not aware of the fact that the supplier was not aware of the fact that the supplier was not aware of the fact that the supplier was not aware of the fact that the supplier was not aware of the fact that the supplier was not aware of the fact that the supplier was not negligent in the fact that the supplier was not aware of the fact that

Article 17 of the Value-Added Tax Act

2011Guhap1652 Revocation of Disposition of Imposing Value-Added Tax

KimA

The director of the North Incheon National Tax Office

December 22, 2011

February 9, 2012

1. The Defendant’s disposition of imposition of global income tax of KRW 7,716,519 against the Plaintiff on May 8, 2010 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment as referred to in Paragraph (1) and paragraph (1) of this Article and the judgment revoking the disposition of imposition of value-added tax of KRW 14,588,330 against the Plaintiff on May 8, 2010, which was imposed by the Defendant on the Plaintiff.

1. Details of the disposition;

A. From July 27, 2007, the Plaintiff operated a gas station (hereinafter “instant gas station”) with the trade name “BB gas station” from 000-0, Gyeyang-gu, Incheon, Gyeyang-gu, Incheon.

B. In 208, the Plaintiff received each tax invoice of 62,023,636 won (hereinafter “first tax invoice of this case”) in total fromCC Energy Co., Ltd. (hereinafter “CC”) during the taxable period of value 271 value-added tax, and filed a comprehensive tax invoice of 21,90,000 won (hereinafter “second tax invoice of this case”) from the main place of DDR (hereinafter “D Energy”) to the supply value of 62,023,636 won, and filed a comprehensive tax invoice of 21,90,000 won, including the supply value of the first and second tax invoices of this case, and filed a return of value-added tax including the input tax amount, by appropriating the supply value on the second tax invoice of this case as necessary expenses.

C. On May 8, 2010, the Defendant: (a) deducted the input tax amount of value-added tax on the grounds that the instant tax invoice was a tax invoice for processing that was issued without a real transaction; and (b) imposed value-added tax of KRW 14,58,30 on 271, 208 (hereinafter “instant disposition imposing value-added tax”); (c) did not recognize the value of supply under the instant tax invoice 2 as necessary expenses; and (d) imposed global income tax of KRW 7,716,519 for the year 2008 (hereinafter “instant disposition imposing value-added tax”); and (e) combined the instant disposition imposing value-added tax and the instant disposition imposing value-added tax.

D. The Plaintiff appealed and filed a request for review with the Board of Audit and Inspection, but the Board of Audit and Inspection dismissed the request on December 23, 2010.

[Reasons for Recognition] Each entry in Category B Nos. 1 and 2 (including the number of branches), the whole pleadings

purport of this chapter

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff received the shipment slips issued by the said transaction party while purchasing fuels fromCC energy and DD energy, and the oil price was transferred to the said transaction party through the bank for normal transaction. Since the instant tax invoice cannot be deemed to be based on the processing transaction, the instant disposition imposing the value-added tax is unlawful, and as long as the oil was actually supplied from DD energy, the value of supply is recognized as necessary expenses, and thus, the instant disposition imposing the income tax is also unlawful.

B. Relevant statutes

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

C. Facts of recognition

(1) On October 1, 2008,CC energy was registered as a business operator and closed on January 29, 2009, and it was not used once for petroleum retail business registration, and it was reported that it purchased 23.735 million won (the total purchase amount was 9.9%) from F Energy Co., Ltd. in 271 in 2008 (the total purchase amount was revealed to be a processing transaction, and the entire purchase amount was stated to be 9.9%) but it was revealed that it was a full processing transaction. Further,CC energy reported 27.488 billion won as sales amount in 271, 2008, but reported 27.48 billion won as well as a fixed amount of the oil remittance from its customer, but it was released in cash immediately after receiving the order from the Director of the Tax Office to supply the oil under its name after arbitrarily receiving the order to supply the oil to the shipper.

(2) D Energy is a business operator registered as a business operator on May 16, 2008, and it did not use oil storage facilities, transportation equipment, etc. leased from FF tystrus, etc. for the registration of petroleum retail business, and reported that it purchased oil of KRW 17.894 billion during the taxable period of value-added 271, 2008, but it was found that the 17.9% of 95.9% of the total purchase and sale were received without real transaction from Cze Young Petroleum and Cymsung Petroleum Daejeon Branch (which was clearly stated that purchase and sale were a processing transaction, and thus accused in material material). In addition, D Energy reported a certain amount of KRW 17.92 billion as sales amount in 271,200,000,000,000 from the business operator, but voluntarily withdrawn from DG energy supply facilities under the name of DG supplier for reasons that DG's oil supply was made under the name of DG supplier.

(3) The Plaintiff placed an order for oil onCC energy andD energy, and received oil equivalent to the total supply price of KRW 83.923.636 from October 2008 to November 2008, and traded by receiving a shipment slip issued by the said transaction partner, and remitting the oil price to the said transaction partner’s account.

(4) Meanwhile, in the first taxable period of 2008, the Plaintiff received a false tax invoice from II Energy Co., Ltd. (the actual operator of II Energy Co., Ltd.) during the first taxable period of 2008, on the ground that the input tax amount was denied and the value-added tax was corrected.

[Reasons for Recognition] Each entry in Category 3, 4, and 5 of Category B (including a number of branches), pleading

The purport of the whole

D. Determination

(1) Imposition of value-added tax

(A) Whether the instant tax invoice constitutes a false tax invoice

The meaning of the entry in the tax invoice under the Value-Added Tax Act differs from the fact that the necessary entry in the tax invoice is inconsistent with the actual supplier of goods or services or the price and timing of the goods or services, notwithstanding the formal entry in the tax invoice between the parties to the transaction contract, etc. The above fact is reasonable to deem that the Plaintiff actually purchased the quantity of oil listed in the tax invoice of this case (B) in light of the fact that the Plaintiff’s deposit in the Plaintiff’s bank account was made before the deposit in the tax invoice, it is argued that the Plaintiff did not actually purchase the oil, but the Seojin-gu appears to have actually transported the quantity of oil listed in the tax invoice of this case (B evidence No. 5-1, witness witness testimony). The Plaintiff’s assertion that the Plaintiff’s purchase of the amount deposited in the Plaintiff’s bank account was not consistent with the Plaintiff’s purchase of the DCC’s oil facilities or the Plaintiff’s purchase of the DCC’s petroleum in light of the fact that the Plaintiff’s purchase of the DCC’s purchase without any evidence.

(B) Whether the Plaintiff is bona fide and without fault

The actual supplier and the supplier on the tax invoice are not aware of the fact that they were supplied with the other tax invoices, and they were not aware of the fact that they were not aware of the fact that they were supplied with the input tax invoices, and the supplier was not negligent in not knowing the fact that they were not aware of the above fact (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). The Plaintiff did not know the fact that the Plaintiff was unaware of the name of the instant tax invoices, and there was insufficient evidence to acknowledge the fact that the Plaintiff did not know of the fact that the Plaintiff was not aware of the fact that the Plaintiff was supplied with the container under the name of the supplier, and that there was no other evidence to acknowledge it. Rather, the Plaintiff did not know of the fact that the Plaintiff was not the actual supplier of the instant oil, but the Plaintiff did not know of the fact that the Plaintiff was not aware of the fact that the Plaintiff was not the supplier of the instant goods in the name of the manufacturer, i.e., the method and experience in the Plaintiff’s market.

(C) Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and it is insufficient to recognize the fact that the Plaintiff is bona fide and without fault in believing that the tax invoice received as such was properly conducted. Therefore, the instant disposition imposing value-added tax is lawful.

(2) Imposition of income tax

As seen earlier, it is recognized that the Plaintiff was actually supplied with oil equivalent to KRW 21,900,000 of the value of supply in November 2008, and thus, the Defendant should recognize it as necessary expenses and impose the income tax of this case without recognizing it, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.