National Trial 2010 Before 0950 ( October 16, 2010)

It seems that he received a processed tax invoice which is not a real transaction related to oil purchase.

The purchaser is deemed to have received the processed purchase tax invoice in view of the fact that the purchaser was a company established for the purpose of business from the beginning of the year to the data, that the purchaser did not have received the oil in its name at the oil reservoir.

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s imposition of value-added tax of KRW 105,695,890 for the second quarter of 2007 against the Plaintiff on January 4, 2010, KRW 4,233,821 for the first quarter of 2008, KRW 13,65,800 for the global income tax of KRW 13,65,80 for the year 2007, and KRW 532,800 for the global income tax of KRW 208 is revoked.

1. Circumstances of dispositions;

A. From July 20, 2004, the Plaintiff is operating the gas station of this case from 158 to 00 ○○○○○-gun, Chungcheongbuk-do (hereinafter “instant gas station”).

B. The Plaintiff asserted that he purchased oil of KRW 620,718,183 and KRW 24,218,182 (hereinafter referred to as the “oil of this case”) for each taxable period from △ Energy Co., Ltd. (hereinafter referred to as the “△ Energy”) while reporting the value-added tax for the second taxable period of the value-added tax in 2007 and the first taxable period of the value-added tax in 2008 (hereinafter referred to as the “the taxable period of this case”), and then deducted the pertinent input tax amount by submitting a document proving that he purchased the oil of KRW 620,718,18,182 for each taxable period.

C. After conducting a tax investigation, the Defendant issued a conclusion that the instant tax invoice differs from the fact, and deducted the relevant input tax amount on January 4, 2010, and imposed on the Plaintiff the value-added tax for the second term portion of 207, KRW 105,695,890, KRW 4,233,821, KRW 13,65,800, global income tax for the year 2008, KRW 13,65,800, and KRW 532,800, global income tax for the year 2008 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on March 15, 2010, but was dismissed on June 16, 2010.

[Ground of recognition] Facts without any dispute, Gap Nos. 1, 7, Eul No. 1, 3, 5, and 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was actually supplied with the instant oil from △ Energy and transferred the price to the account in the name of △ Energy, which is not a false transaction. Even if there are parts different from the facts in the instant tax invoice, the Plaintiff was unaware of such facts at the time of the transaction, and there was no negligence, and thus, the instant disposition was unlawful at any time.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) On May 21, 2007, 2007, the head of the Gu established the △△△△ for the purpose of using the so-called data, and completed the registration of the petroleum selling business on June 19, 2007 and the registration of the business on July 1, 2007, with a branch office in the △△△△△△ and △△△△△△△△△, while running the business as the former office of the △△△△△△△ was closed on April 24, 2008.

(2) From July 2007, △ Energy issued sales tax invoices to the nationwide gas stations without real transactions, and traded data on which commission fees were collected. During that process, △ Energy supplied oil free to the relevant gas stations in connection with ChoD, etc., which is an oil distributor without real documentation.

(3) In order to meet the registration requirements at the time of the initial petroleum seller’s registration, the contract itself was terminated due to the failure to pay the oil to the oil reservoir and the transportation vehicle once, although the oil reservoir and the transportation vehicle were leased and secured to meet the registration requirements, but the contract was not made after the horse rental contract. In addition, there was no record of shipping the oil in its name at any national oil reservoir during the period of business.

(4)□□에너지의 명목상 주된 유류 매입처는 ☆☆에너지와 ▷▷에너지이지만 납품받았다는 유류에 관하여 정상적인 거래와 달리 출하전표를 받지 않았고, 다만 매월 말경 조DD를 통하여 한 달 동안 출하했다는 유류의 내역에 맞추어 한꺼번에 매입세금계산서를 교부받았다. 그 후 ☆☆에너지와 ▷▷에너지는 모두 자료상으로 고발되었다.

(5)In normal course, when oil is delivered to a gas station, two copies shall be issued at the oil station, such as oil refineries, including the date and time of shipment, customers, arrival, destination, transportation equipment, items, temperature and weight of the oil, and two copies shall be kept in one orderer and the oil reservoir, and two copies shall be delivered to the truck driver, and the driver shall, after delivering the oil to the oil station to the truck station, keep one of them and one of them shall be delivered to the gas station. The oil in this case was shipped to the gas station by South Sea Chemical Co., Ltd., Sk Energy Co., Ltd., Sk-Bail Co., Ltd., Hyundai Myil Bank Co., Ltd., Hyundai Myil Bank Co., Ltd., Ltd., and gsk teex Co., Ltd., Ltd., but all of the transaction parties listed in each of the oil set forth in the list were different from the arrival of the oil in this case, and the plaintiff was also supplied with some of the oil in this case to the truck driver of the oil in this case.

(6) As a result of the investigation into the △ Energy, the entire amount of the sales declaration was found to be processed, and thereafter, the headA and the GovernmentB were indicted for the crime of issuing a false sales tax invoice of the amount equivalent to KRW 33,94,03,106, including the instant tax invoice. The first instance court acquitted the Defendant on the grounds that there is insufficient evidence as to this, but the appellate court found the Defendant not guilty on the ground that the actual transaction was conducted between the owner of non-taxable oil and the relevant gas station, and the △ Energy reversed the judgment of the first instance court and convicted him of the Defendant on the grounds that the said real transaction was conducted between the owner of the non-taxable oil and the relevant gas station, and that it was merely a mere act of mediating the real transaction by furnishing necessary materials, such as tax invoices, etc., and thereafter,

[Ground of recognition] Facts without a dispute, Gap evidence 3, 4, Eul evidence 4, Eul evidence 4, 7 to 11, 15 to 22 (including each number), witness E, testimony of HuF and the purport of the whole pleadings

D. Determination

(1) Whether the instant tax invoice is false

As to the fact that the Plaintiff actually purchased the instant oil, there is no dispute between the parties concerned, but it is the key issue of the instant case to determine whether the purchaser was the purchaser of the instant oil, as the Plaintiff’s assertion, or after purchasing it from another company and then purchasing it from the data merchant. Comprehensively taking account of the following circumstances acknowledged by each evidence and factual basis as seen earlier, Cheonggu Energy does not directly engage in real transactions, but merely provided necessary data, such as a tax invoice, as to real transactions between the company holding non-taxable oil and the oil station, and merely provided a broker for real transactions. Ultimately, it is apparent that the Plaintiff purchased the instant oil from other third party-free oil suppliers, not from Cheonggul, but from other third parties-free oil suppliers. As such, the instant tax invoice is a false tax invoice written by the supplier.

(1) The △ Energy is a company established for the purpose of carrying on the data-based business without real transactions from the beginning of the year, and the result of tax investigation verified as data and accused of the investigation agency. The actual operator and the representative director of the company were convicted of the crime of trading false purchase and sales tax invoices.

(2) There is no record of shipping oil under one’s own name at any oil reservoir across the country during the project period, and there is no container using his oil reservoir and transport vehicle for actual oil transaction. As an oil wholesaler, it is not actually purchased oil and supplied it to the oil station, but is merely an act as a material supporting the transaction of non-data transaction and an act as an intermediary for the transaction of non-data.

③ In the event that the Plaintiff is supplied with the instant oil, the details of the shipment slips confirmed by the Plaintiff and the post slips received by mail last from △ Energy are different from the facts, and the details of the two pages are different from the normal details of the preparation.

④ The Plaintiff asserted that △ Energy purchased the instant oil at other general agencies and sold it to the Plaintiff, and directly delivered it to the instant gas station without going through the oil reservoir for convenience. However, △ Energy is a general agency subject to the Enforcement Decree of the Petroleum and Petroleum Substitute Fuel Business Act, and it was not allowed to purchase oil from other general agencies than petroleum refiners or petroleum exporters or importers at the time of the instant taxable period. Therefore, in this respect, the transaction of △ Energy was out of the lawful route.

(ii)whether the plaintiff is bona fide and without fault or not;

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 the supplier was negligent in not knowing the fact that the purchaser was unaware of the nominal name of the tax invoice, and the supplier shall prove that the supplier was not negligent in not knowing the above nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

We look back to the instant case. In full view of the statements in Gap evidence Nos. 2, 9, and 12 (including each number), witness E and DoF's testimony, the Plaintiff commenced △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, the Plaintiff, while doing the instant oil transaction, transferred the oil price to the account in the name of Dol Energy. He sent the instant oil to the instant gas station under the direction of MaE and transported the oil to the instant gas station, and the F was transported to the gas station under the direction of MaE, other than the gas station of this case. However, the fact that the Plaintiff was unable to know the fact that the name of the other company was entered in the name of the instant tax invoice, and there is no other evidence to prove otherwise.

(1) Although the EE had a position as the chief of the business of △ Energy, it is an independent person who introduces the transaction of free oil using the name of △ Energy in an independent position. The Plaintiff entered into the instant oil transaction with the introduction of △ Energy from △E to be supplied with oil less than ordinary oil prices, but did not prepare the supply contract. Since such a form of transaction was somewhat ambiguous than the similar transaction from the beginning of the first stage, it should have taken measures to actively confirm the authenticity of the transaction partner and the distribution process of oil, such as whether the oil reservoir and the transport vehicle registered with △ Energy are actually used.

② Since July 2004, the Plaintiff and the Plaintiff’s husband operated the gas station of this case from around July 2004, a variety of experiences for a long period of time to know about the normal structure and distribution route of oil supply, the general forms of transactions in the industry, and the actual conditions and risks of transactions in the oil industry.

③ In the instant oil supply, the form in which the shipment slips were sent and the details of the shipment slips were kept far from normal trade, and thus, if the operator of the ordinary gas station is a person operating the oil station, he should have thoroughly investigated where the actual supplier is aware of the existence of the oil station by taking care of the doubt about the oil refining of the Cheonggu Energy. Although the Plaintiff asserts that the shipment slips are not different from the actual one according to the trade practice of the gas station, it is unreasonable for the Plaintiff to correct the Plaintiff’s assertion, even if the Plaintiff’s assertion was a very wrong behavior detrimental to the legitimate realization of the right to taxation, by concealing or distortioning the actual transaction situation, even if the Plaintiff’s assertion was harsh, it is not reasonable to correct it based on such erroneous trade practice.

④ The Plaintiff emphasizes that the school gas station and the new gas station in transactions with △ Energy have been relievedd by a bona fide transaction party through an inquiry by the Tax Tribunal. However, there is no ground to deem the transaction of each of the above gas stations identical to the gas station in this case. If a private person is identical, the judgment by the said Tax Tribunal was erroneous, and thus, the Plaintiff cannot be deemed to have fulfilled its duty of care as a bona fide party in performing the instant oil transaction only with this fertilizer.

(3)Indivates

The disposition of this case is legitimate, and the plaintiff's assertion disputing this is without merit.

3. Conclusion

rejection of a claim.