National Tax Service Review Division 2010-0047 (26 April 2010)

A gas station operator who has received a false tax invoice from the supplier;

A tax invoice delivered to a gas station operator falls under a tax invoice entered differently from the fact, and since the plaintiff cannot be deemed as a bona fide and no fault with regard to the fact that the tax invoice was entered falsely, the disposition that the value-added tax was not deducted and imposed is legitimate.

2010Guhap2825 Disposition to revoke the imposition of value-added tax

CHAPTER A

○ Head of tax office

May 19, 2011

June 23, 201

1. The plaintiff's claim is dismissed.

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

Each disposition of KRW 6,452,40,40, value-added tax for the first year of 2007 imposed on the Plaintiff on August 1, 2009, value-added tax for the second year of 2007, KRW 6,902,820, and value-added tax for the first year of 2008 shall be revoked.

1. Details of the disposition;

A. From August 23, 2004, the Plaintiff is a person who operates a gas station under the trade name of ○○○○-dong 000 to ○○○○-dong 000.

B. On February 9, 2007, the Plaintiff received purchase tax invoices of KRW 40,00 liter, supply price of KRW 37,490,910 (including value-added tax), via 40,000 liter, supply price of KRW 41,240,00 via 40,000 liter, supply price of KRW 41,436,363 (including value-added tax, KRW 45,580,00), and purchase tax invoices of KRW 20,00 liter, supply price of KRW 230,309, value-added tax (including value-added tax, 2300,000, value-added tax, 2309,09, value-added tax (hereinafter referred to as “value-added tax invoices”). On January 16, 2008, the Plaintiff received the purchase tax invoices of KRW 40,000 from each of the Plaintiff.

C. On August 1, 2009, the Defendant issued the instant disposition to rectify and notify the Plaintiff of KRW 4,159,90 for the first quarter of 2007, on the ground that each of the instant tax invoices was identified as data on the purchase price of each of the instant tax invoices, and that each of the instant tax invoices was written differently from the facts. The Defendant did not deduct the input tax amount for the first quarter of 2007, on the grounds that the relevant tax invoices were written differently from the facts.

D. On March 11, 2010, the Plaintiff appealed to the National Tax Service, but the National Tax Service dismissed the request on April 26 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 6, 7, 8, and Eul evidence No. 1 (including branch numbers, if any; hereinafter the same shall apply)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, an oil agent, ordered and paid the price for oil to the △△△ Energy, △△△ Energy, and △△ Energy Durler. The Plaintiff stored in the Plaintiff’s gas station by transporting household oil to the oil reservoir designated by the transportation business entity who directly entered into a contract with the Plaintiff. Since △△ Energy, etc. purchased oil from oil wholesalers and oil refineries, and supplied it directly to the Plaintiff at the oil reservoir of the oil wholesaler and oil refineries, each of the instant tax invoices issued by △△ Energy, etc. is not false. Even if △△ Energy, etc. is a disguised business entity, the Plaintiff constitutes a bona fide business entity by confirming all documents, such as the registration certificate for △△△ Energy, the registration certificate for petroleum retail business, the copy of passbook, etc., and making transactions as an oil agent, and thus, the instant disposition on different premise is unlawful.

B. Relevant statutes

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

C. Facts of recognition

1) The process of determining the data of △△ Energy

A) After registering the business on June 28, 2006, △△ Energy was closed ex officio on December 28, 2006. While registering the petroleum selling business, there was no record of vehicle maintenance and transportation expenses after August 31, 2006 on the account book, and there was no record of paying vehicle maintenance expenses or transportation expenses. From November 2006, 200, ○○○-dong, ○○○○-dong, a place of business, delayed the rent of 000 from November 2006 to December 2007, the lease contract was terminated and the said place was not used as a place of business.

나) ○○세무서의 세무조사 결과 △△에너지는 2006. 7. 1.부터 2007. 3. 31.까지 실물 거래 없이 ☆☆에너지, △△에너지 AA지점, 주식회사 ▽▽자로부터 공급가액 99,219,052,000원의 세금계산서를 교부받아 부당하게 부가가치세 매입세액을 공제받고, 실물 거래 없이 주식회사 ◆◆에너지 외 85개 업체에 95,999,216,000원의 세금계산서를 교부한 것으로 조사되어, ○○세무서장은 △△에너지를 자료상으로 확정하여 고발하였다(다만, △△에너지는 원고와 한 거래를 매출내역으로 신고하지 않아 위 85개 매출처에 원고는 포함되지 않았다).

C) On January 25, 2007, the representative director of △△ Energy, on the charge that, while reporting the value-added tax of △△ Energy on January 25, 2007, he/she entered 43,215,345,100 won into and submitted a list of total tax invoices by individual purchaser, which entered the list of total tax invoices by individual purchaser in the purchase amount, and evaded value-added tax amount of 4,321,534,510 won, he/she was indicted of all the above criminal facts on October 12, 2007, and the judgment became final and conclusive.

D) The KimB, an operator of △△ Energy, in collusion with thisCC and the largest DD, prepared and submitted a list of total tax invoices by customer, as if he supplied goods or services, 104,948,793,786 won through four times from July 1, 2006 to July 2007, and the court found the remainder of the portion of the tax invoices by customer was found guilty as it is, as it is, of the facts charged [the judgment (No. 5-1), that prepared and submitted a list of total tax invoices by customer, as if he was supplied with goods or services in total amount of KRW 99,219,053,242 won from July 1, 2006 to April 207, 2006]. The court found the remainder of the portion of the tax invoices by customer, which was not a list of total tax invoices by customer, and found the remainder of the portion of the tax invoices by customer.

2) Circumstances leading to the determination of data from △△ Energy

A) △△ Energy was closed ex officio on December 31, 2007 after its business registration was made on April 7, 2007, and reported that it leased oil storage facilities from the dateCC Co., Ltd. upon its registration of petroleum selling business, but it was not actually used.

B) As a result of the tax investigation conducted by the Seoul regional tax office, △△ Energy was conducted from April 7, 2007 to March 31, 2008, without real transactions, from D Energy Co., Ltd., EE Energy, FF Energy Co., Ltd., GG Energy Co., Ltd., GG Energy Co., Ltd., and HH Energy, after unfairly receiving a tax invoice of an amount equivalent to 174.2 billion won, the value-added tax amount was deducted. It was investigated that the Seoul Regional Tax Office issued a tax invoice of an amount equivalent to 202.5 billion won to the sales office, including the Plaintiff, JS Co., Ltd. without real transactions. The Seoul Regional Tax Office confirmed △△ Energy

C) In collusion with KimB, thisCC, and maximum DD, △△○ Energy representative director reported value-added tax on △△△ Energy, and he found him guilty of preparing and submitting a list of total tax invoices by false place of sale from April 1, 2007 to January 1, 2008 (including 41,436,363 won of sales revenue to the Plaintiff) as if he/she supplied goods or services on three occasions, and found him/her not guilty of the remainder of the facts charged that he/she submitted a list of total tax invoices by false place of sale from April 1, 2007 to January 1, 208.

3) The circumstances leading to the determination of data on △ Energy

A) △ Energy was voluntarily closed on June 19, 2007 after its business registration was made and around May 2008. At the time of its registration, the oil storage facilities and transportation facilities were leased from △ International Co., Ltd. but did not actually use them.

나) 부산지방국세청의 세무조사 결과, □□에너지 ●● 본점, ○○ 지점, ♧♧ 지점은 실물 거래 없이 주식회사 ◇◇에너지, EE에너지 주식회사, 주식회사 MM에너지, 주식회사 NN사로부터 공급가액 합계 349억 원 상당의 세금계산서를 교부 받아 부당하게 부가가치세 매입세액을 공제받고, 실물 거래 없이 주식회사 PP에너지 등의 업체에 공급가액 합계 350억 원 상당의 세금계산서를 교부한 것으로 조사되어, 부산지방국세청장은 □□에너지를 자료상으로 확정하여 고발하였다.

C) The fund of the head of the Dol Energy Representative EE and the Dol Energy Operator was indicted for the charges, etc. that the above company received false purchase tax invoices worth KRW 33,813,257,915 on the aggregate of supply value, even though the above company did not have actually supplied goods or services from July 2007 to March 31, 2008. The court of first instance acquitted the Defendant on the grounds that there was no evidence to acknowledge it, but the court of first instance reversed this judgment, and convicted him of the judgment, which became final and conclusive.

2) Circumstances of transactions

A) The Plaintiff supplied oil as follows and remitted oil price to the corporate account such as △△ Energy.

나) 원고는 △△에너지 등에 유류를 주문한 다음, 직접 운송계약을 체결한 운송업자인 장HH을 시켜 △△에너지 등이 지정한 저유소에서 유류를 공급받아 원고의 주유소에 입고하였는데, 그 과정에서 원고가 교부받은 각 정유사 발행의 출하전표는 출하장소가 각 정유사의 ○○저유소로, 거래처가 QQ에너지(주), (주)RR상사, (주)NN사, (주)SS에너지 등 원고가 아닌 업체로 기재되어 있었다. 원고는 그 후 추가로 △△에너지, □□에너지로부터 △△에너지, □□에너지가 발행하고 거래처가 원고로 기재된 출하전표를 교부받기도 하였다.

[Ground of recognition] Facts without dispute, entry of Gap evidence 6 through 9, entry of Eul evidence of subparagraphs 3 through 8, purport of whole pleadings

D. Determination

1) Whether each of the tax invoices of this case is false

A) The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts refers to the case where the necessary entries in the tax invoice are inconsistent with those in the actual supply of goods or services, or the price and time, etc., regardless of the formal entries in the transaction agreement, etc. made between the parties to the goods or services.

B) Since the Plaintiff also recognized the Defendant as to the actual purchase of oil in the quantities listed in each of the instant tax invoices, it is examined whether the customer who supplied oil to the Plaintiff is the supplier of the tax invoice. As seen earlier, in the case of △△ Energy, the actual operator KimB was declared guilty of the total purchase amount of KRW 99,219,053,242 from July 1, 2006 to April 2007, and the judgment of conviction was made. In the absence of the purchased oil, △△△ Energy cannot be deemed to have supplied its oil to the Plaintiff. △△△△ Energy cannot be deemed to have not reported one transaction with the Plaintiff. In the case of △△△ Energy, the representative director was declared guilty of having reported the details of the sales including the sales to the Plaintiff, and in the case of △△△ Energy, each of the instant tax invoices became final and conclusive by each supplier of △△△△△△ in consideration of the fact that each of the instant tax invoices was issued to the actual operator, including sales to the Plaintiff.

2) Whether the Plaintiff constitutes a bona fide trader

A) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice are not aware of the disguised name of the tax invoice and that there is no negligence on the part of the person who received the other tax invoice, the input tax amount cannot be deducted or refunded, and the person who asserts the deduction or refund of the input tax amount must prove that there is no negligence on the part of the person who received the tax invoice not knowing the disguised name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 200

B) The Plaintiff’s failure to know the name of each of the instant tax invoices, and whether there was no negligence on the part of the Plaintiff due to the Plaintiff’s failure to know the name of each of the instant tax invoices, was insufficient to recognize such fact, and there is no evidence to prove otherwise.

C) In full view of the following circumstances revealed in the facts acknowledged earlier, the Plaintiff was at fault, even though he knew or was unaware of the fact that △△ Energy, △△△ Energy, and △△ Energy did not actually supply oil.

In other words, the Plaintiff had been operating the gas station from August 23, 2004, and through experience, the Plaintiff was aware of the normal structure of the oil supply, the general type and method of trading in the distribution industry, and the actual conditions and risks of transactions in the oil industry. ② At the time of shipping, the ticket issued by the oil reservoir, etc. is an important material to confirm that the date and time of shipping, the name of the transaction partner, the place of arrival, the place of destination, the transportation equipment, the volume of the goods and the shipping temperature, etc. are entered, and one copy is recorded in the oil station, and one copy is kept by the driver of the relevant oil transport vehicle, and one copy is the customer oil station in the transaction where the oil is delivered through the normal distribution channel, and therefore, the Plaintiff received the oil supply ticket of the oil station that is written in other companies, not the business partner and the destination of destination, and there was sufficient reason to suspect that △△△△ et al. was not the actual supplier.

3) Sub-decisions

Therefore, each tax invoice of this case constitutes a tax invoice entered differently from the facts, and since the plaintiff cannot be deemed as a bona fide and non-performance of a tax invoice, the defendant's disposition of this case is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.