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Title
The taxpayer has the burden of proving that there was a transaction with the supplier listed in the tax invoice.
Summary
If it is proved that the transaction with the supplier listed in the tax invoice claimed by the taxpayer is significantly false, it is necessary for the taxpayer to prove that the transaction with the supplier listed in the tax invoice was actually conducted with the supplier and to present data such as books and evidence.
Cases
2013Guhap20197 Revocation of Disposition of Imposition of Value-Added Tax
Plaintiff
Park AA
Defendant
○ Head of tax office
Conclusion of Pleadings
September 5, 2013
Imposition of Judgment
October 10, 2013
Text
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The imposition of the value-added tax imposed by the Defendant on the Plaintiff on April 6, 2012 and the imposition of the value-added tax imposed on July 1, 2013 is revoked.
Reasons
1. Details of the disposition;
A. From April 18, 2008, the Plaintiff is a business operator who operated a BB station from OO-Myeon O-si 136-1 on November 18, 2010 and moved the place of business to OO-gun 394-4 on November 18, 201 and operates the gas station name by changing it to CCC oil station.
B. The Plaintiff issued three tax invoices of the supply price OOO on January 31, 2010, supply price OOOOOO, supply price OOOOOO on February 28, 2010, supply price OOOOOOOOOO on March 31, 2010, and three tax invoices of the supply price on March 31, 2010 (hereinafter “instant tax invoice”). On July 26, 2010, the Plaintiff deducted the input tax amount from the output tax amount and filed the first value-added tax for the year 2010.
C. On April 15, 2010, the director of the BB tax office, which is the district tax office having jurisdiction over D petroleum, discontinued D petroleum ex officio (the date of business closure, December 31, 2009) and notified the Defendant of taxation data that the Plaintiff was issued the said tax invoice from D petroleum, a closed corporation.
D. Accordingly, on April 6, 2012, the Defendant, following an investigation, deemed that there is no real transaction with regard to the total amount of supply (including value-added tax) for which it is objectively confirmed whether the payment was made out of the amount of supply indicated in the instant tax invoice, and accordingly, issued a correction and notification of the value-added tax amount for the first period portion of value-added tax (this tax OO + additional tax OOOwon + less than KRW 10) to the Plaintiff on April 6, 2012.
E. On September 5, 2012, the Plaintiff filed an objection against the above disposition, and filed an appeal with the Tax Tribunal seeking the revocation of the above disposition, but the claim was dismissed on November 23, 2012.
F. On July 1, 2013, when the instant lawsuit was pending, the Defendant revoked ex officio the portion of the penalty tax during the said disposition, and subsequently re-issued the amount of penalty tax, specifying the type of the penalty tax and the basis for calculation (hereinafter the above disposition, including the imposition of the principal tax on April 6, 2012 and the imposition of the penalty tax on July 1, 2013).
[Based on Recognition] Facts without dispute; Gap evidence 1-2; Eul evidence 1-5; Eul evidence 1 through 5; 14-1 through 3 (the same shall apply to the evidence 30-1 through 3); 22-1 through 26; 31-37; and the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The plaintiff asserts that the disposition of this case on a different premise is unlawful, since the plaintiff, among the OO members, withdrawn in cash from the plaintiff's deposit account, and the OOO members paid to each D petroleum in cash stored in the BB oil station, and actually received oil from each D petroleum in cash.
B. Relevant statutes
/ Value-Added Tax Act (amended by Act No. 10409, Dec. 27, 2010)
Article 16 (Tax Invoice)
(1) Where an entrepreneur registered as a taxpayer supplies goods or services, he/she shall issue an invoice stating the following matters (hereinafter referred to as "tax invoice") to the person who receives the supply, as prescribed by Presidential Decree, at the time specified in Article 9 (referring to the time specified otherwise by Presidential Decree, if any). In such cases, a tax invoice may be revised and issued, as prescribed by Presidential Decree, if any ground prescribed by Presidential Decree, such as error or correction, occurs after the issuance of the tax invoice:
1. Registration number, name or denomination of the businessman who provides;
2. Registration number of the person who receives;
3. Supply value and value-added tax;
4. Date of preparation;
5. Matters prescribed by Presidential Decree, other than those under subparagraphs 1 through 4.
Article 17 (Payable Tax Amount)
(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as the "paid tax amount") shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as the "in-house tax amount") from the tax amount on the goods and services supplied by him/her (hereinafter referred to as the "the output tax amount"): Provided, That in cases of an input tax amount exceeding
1. The tax amount for the supply of goods or services used or to be used for his own business;
(2) The following input taxes shall not be deducted from the output tax amount:
2. An input tax amount, in cases where a tax invoice under Article 16 (1), (2), (4) and (5) is not issued, or where the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as "necessary matters to be entered") are not entered or entered differently from the fact on the issued tax invoice: Provided, That the input tax amount in cases prescribed by Presidential Decree shall be excluded;
(c) Fact finding;
1) DDR was supplied with oil from EE and supplied it again to the Plaintiff, etc., and DDR’s sales and purchase details in 2010 are as follows:
Sales Office
Purchase Agency
Trade Name
Representative
Value of supply (cost)
Trade Name
Value of supply (cost)
BBBL station
Plaintiff
OOO
EE
OOO
FFP station oil;
OO
OOO
OOO
Total
OOO
Total
OOO
2) The oil transaction details between the Plaintiff and the Plaintiff indicated in the transaction statement, deposit sheet, and receipt certificate submitted by the Plaintiff between January 6, 2010 and March 22, 2010 are as follows (YG is the Plaintiff’s husband and the Plaintiff’s husband and the person operating the BB oil station, and Kim H was the former employee of D petroleum from January 12, 1993 to April 8, 2010. Of the following table, * in the list, the Plaintiff immediately remitted the oil price to EE.
Schedule of Trading
Deposit List
Certificates of Acceptance
Suppliers (DD Petroleum)
The consignee (GG)
A receiver (GH)
er (GGG, South-North profit)
Monthly/Date
Quantity of liter
Proceeds from supply (including won and value-added tax)
Amount of acquisition (cost)
Category Potable
Quantity of liter
1/6
16,000
OOO
OOO
Non-carbonate
16,000
1/8
16,000
OOO
OO*
16,000
1/15
16,000
OOO
OO*
16,000
1/16
16,000
OOO
OOO
16,000
1/22
17,000
OOO
OO*
17,000
1/23
12,000
OOO
OOO
12,000
1/26
6,000
OOO
OO*
6,000
1/27
8,000
OOO
OOO
8,000
1/29
16,000
OOO
OOO
16,000
1/30
16,000
OOO
OO*
16,000
2/3
16,000
OOO
OOO
16,000
2/5
16,000
OOO
OOO
16,000
2/6
16,000
OOO
OO*
16,000
2/10
6,000
OOO
OO*
6,000
2/12
17,000
OOO
OO*
17,000
2/12
14,000
OOO
OO*
14,000
2/16
16,000
OOO
OOO
16,000
2/20
20,000
OOO
OOO
20,000
2/24
16,000
OOO
OOO
16,000
2/26
14,000
OOO
OO*
14,000
2/27
16,000
OOO
OOO
16,000
3/3
16,000
OOO
OO*
16,000
3/6
16,000
OOO
OOO
16,000
3/9
16,000
OOO
OOO
16,000
3/13
16,000
OOO
OO*
16,000
3/17
12,000
OOO
OOO
12,000
3/20
16,000
OOO
OO*
16,000
3/22
4,360
OOO
OOO
4,360
Total
402,360
OOO
OOO
402,360
3) From the Agricultural Cooperative Account under the Plaintiff’s name (Account Number O-O-O-OOOOOO), the sum of the cash of the KRW O0 was withdrawn on January 14, 2010, on January 25, 2010, on January 27, 2010, on January 17, 2010, on February 10, 2010, on October 10, 2010, on October 10, 2010, on March 2, 2010, on March 19, 2010, on March 22, 2010, on March 222, 2010, on March 29, 2010, on October 29, 2010.
[Reasons for Recognition] The facts without dispute, Gap evidence 1-1, Eul evidence 8-1 to 11-1, witness Kim H and UG testimony, the purport of the whole pleadings
D. Determination
The meaning that the tax invoice under the Value-Added Tax Act differs from the fact is that the necessary entries in the tax invoice refer to a case where the contents of the requisite entries in the tax invoice are inconsistent with the actual supplier of the goods or services or the supplier of the goods or services, the price, and the timing of the transaction, regardless of the formal entries in the transaction contract, etc. made between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 1996). Furthermore, in addition, in a case where the tax invoice submitted by the person liable to pay value-added tax as the basis for the deduction of the input tax amount were falsely prepared without the actual transaction, or the entries in the tax invoice are different from the fact, it is difficult for the person liable to pay value-added tax to present the books, documents, etc. concerning the actual transaction with the supplier as stated in the tax invoice where it is proved to a considerable extent that the transaction with the supplier is false (see, e.g., Supreme Court Decision 2007Du1439, Aug.).
In light of the above legal principles, as seen earlier, DDR was voluntarily closed on December 31, 2009 as the cessation date of business. As to the tax invoice of this case issued after the date of the above ex officio closure date, the transaction was proved to the extent that the transaction was false. Therefore, the plaintiff needs to prove that the transaction was actually conducted on the tax invoice of this case.
(4) The plaintiff's assertion that the plaintiff's transfer of 10G 1 to 0G 1 to 201 is difficult to recognize the fact that the plaintiff's transfer of 1 to 3G 1 to 0G 1 to 3G 1 to 3G 1 to 201 (the plaintiff's transfer of 1 to 10G 1 to 200 to 10 to 10, the plaintiff's transfer of 1 to 3G 1 to 201 to 10 to 10 to 2010 to 10, the plaintiff's transfer of 1 to 200 to 200 to 200 to 200 to 3G 1 to 3G 1 to 1 to 201 to 20 to 1 to 200 to 20 to 20 to 1 to 200 to 20 to 200 to 200 to 200 to 1 to 201 to 20.
Therefore, it is reasonable to view that the part concerning the OOO (including value-added tax) of the instant tax invoice is a tax invoice that is different from the fact issued without actual transaction. Thus, the instant disposition that did not deduct input tax amount for the above amount is lawful.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.