Disposition Imposing Value-Added Tax

Comprehensively taking account of the fact that there is sufficient circumstance to suspect the good faith of the Plaintiff in oil transactions, it is believed that the transaction partner was not a person supplying oil, and even if not aware of the fact, there was the negligence of the Plaintiff.

The contents of the judgment are the same as attachment.

2013Guhap4645 Disposition of revocation of Disposition of Imposition of Value-Added Tax

Partnership*

Head of Pyeongtaek Tax Office

on March 27, 2014

on April 17, 2014

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of imposition of corporate tax of 6,015,480 won for the year 2007, value-added tax of 1 year 2007, value-added tax of 38,551,770 won for the second period of 2007, value-added tax of 1 year 2007, and value-added tax of 19,708,220 for the second period of 207 shall be revoked, respectively.

1. Circumstances of the disposition;

A. From around 1969, the Plaintiff operated a gas station in the trade name called "AA gas station" (hereinafter referred to as "the gas station in this case") in Pyeongtaek-dong 117-4, Pyeongtaek-dong.

B. The Plaintiff received each tax invoice of KRW 199,090,000, total value of supply during the first taxable period of the value-added tax in the year of 2007 from BB Energy Sources (hereinafter “B Energy Sources”) and KRW 104,781,000, total value of supply during the second taxable period of the value-added tax in the year of 2007 (hereinafter “instant tax invoice”), and filed a value-added tax return including the value of supply subject to deduction in the input tax amount, and filed a corporate tax return by including the value of supply in the deductible expenses.

C. On July 2, 2012, the Defendant: (a) deemed the instant tax invoice as a tax invoice different from the fact; (b) denied the input tax amount; and (c) imposed an additional tax on non-declaration of evidence based on the false tax invoice; (b) imposed the Plaintiff the value-added tax for the first period of July 2, 2007; (c) KRW 19,708,220 of the value-added tax for the second period of 2007; and (d) KRW 6,015,480 of the corporate tax for the year 207 (hereinafter “each disposition in the instant case”).

D. On August 8, 2012, the Plaintiff dissatisfied with each of the dispositions of this case and filed an objection with the Commissioner of the Central Tax Office of the Central Tax Office of the Central Tax Tribunal of the Central Tax Tribunal of the Republic of Korea, but the Plaintiff was dismissed on September 21, 2012. On December 10, 2012, the Plaintiff filed an administrative appeal with the Tax Tribunal, but was dismissed on March 7, 2013.

【Unsatt dispute over recognition? Facts, Gap evidence 1, 4, Eul evidence 1, 2, and 9 (including branch numbers, if any; hereinafter the same shall apply), each statement, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

Inasmuch as the Plaintiff received the instant tax invoice from the BB Energy Source, the instant tax invoice cannot be deemed to be a false tax invoice, and even if the actual supplier of oil was not the BB Energy Source, the Plaintiff did not know thereof, and did not have any negligence, and thus, the instant disposition was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) The developments leading up to the establishment of the BB Energy Sources

A) NewCC, ED, E, etc. took over the BB Energy Head Office (hereinafter “BB Energy Head Office”) established and operated around February 2005 in the name of KimF around November 2005, and around that time, the BB Energy Head Office (hereinafter “BB Energy Head Office”) was also established in the name of KimF and completed the business registration in the name of KimF on November 25, 2005.

B) After the death of NewCC, AD et al. transferred BB energy source points and its headquarters to KimGG, etc. around March 2007, while the actual operating office, oil storage facilities, etc. were not owned or leased. KimGG, et al. agreed to maintain business registration in the name of KimF even after KimGG et al. acquired BB energy source points and source points.

2) Circumstances such as the supply of oil at BB energy source points

A) Oil supplied to each of the gas stations at the end of January 2007 and February 2007, most of the documents were supplied from the HH Energy Co., Ltd. (hereinafter “H Energy”) to the second energy sources, from the second energy to the BB energy source points, and from the BB energy source points to the Plaintiff’s order at the BB energy source points, only the remaining 600,545,000 won was supplied to the BB energy source points from the original company.

B) The money deposited by the Plaintiff et al. to the account at the BB energy source point according to the tax invoice was most withdrawn after most of the money was transferred to HH energy through the second energy, and most of the money was paid to the actual operator, etc. of the BB energy source point, the representative director of the II Energy, and some of the money was returned to the BB Energy source point.

C) However, H Energy was an existing entity that supplies heating oil for the same heating system, and there was no supply or transportation of oil after completion of the business registration under the name of the school in the process of completion on May 2007, and the second energy is also a material company that processed all sales tax invoices at BB energy source points, etc. without real transactions.

D) The JJJ is a company registered as its representative director, which has participated in the acquisition of BB energy headquarters and the establishment of a sub-branch with NewCC, and all sales tax invoices issued at BB energy source points, etc. without real transactions.

3) Accusation, etc. against relevant persons

A) The Director of the Suwon Tax Office, based on the statements of the persons concerned, identified the actual operator of the BB energy source point as Jung K and KimGGG, and accused Jung K and KimG in the Yannam Police Station around April 2010.

B) Meanwhile, as regards the issuance of a false tax invoice in the name of the head office of BB Energy and the CLLLL LL corporation (hereinafter “CLLLL”) in addition to those accused in relation to BB energy source points as above, KK and KimGG were indicted due to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery of False Tax Invoice, etc.) by Suwon District Court 2012 and 547.

C) Regular K is separated from the KimGG whose location is unknown in the course of the trial.

On May 16, 2013, the judgment of innocence was rendered by Suwon District Court on the grounds that it is insufficient to recognize that KJ participated in the crime such as the issuance and receipt of false tax invoices in collusion with KimGG, and the prosecutor appealeded the above judgment to Seoul High Court 2013No1842 and added the crime of aiding and abetting and abetting the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance of False Tax Invoice, etc.) as preliminary charges, but the appeal was rendered on November 8, 2013, and KimGG currently is in progress.

[Ground of recognition] Facts without dispute, Gap evidence 6, 7 evidence, Eul evidence 3 to 9, each of the whole or part of Gap evidence, significant facts in this court, the purport of the whole pleadings

D. Determination

1) Whether the instant tax invoice constitutes a false tax invoice

A) The fact that a tax invoice submitted by a taxpayer for value-added tax as a basis for input tax deduction was prepared in a false way without a real transaction or that the entries in a tax invoice are different from the fact, and thus, the tax office’s substantial proof of whether it is an actual purchase or the authenticity of the entries in a tax invoice is disputed. In a case where it is proved that a transaction with a supplier stated in a tax invoice claimed by a taxpayer is considerably false, a taxpayer who is easy to present data, such as books and evidence, regarding the actual transaction with a supplier stated in the tax invoice, need to prove it (see, e.g., Supreme Court Decisions 94Nu3407, Jul. 14, 1995; 2007Du1439, Aug. 20, 2009).

In addition, a tax invoice shall be issued by an entrepreneur who supplies goods or services pursuant to the Value-Added Tax Act, and a person liable to pay the value-added tax shall be deemed to be a person who actually received goods or services from an entrepreneur who is not a person establishing a nominal legal relationship with an entrepreneur who is supplied or supplied, or a person who actually provided goods or services from the supplier.

Supreme Court Decision 2002Do4520 Decided January 10, 2003 and Supreme Court Decision 2007Do10502 Decided January 28, 2010, etc.

B) In full view of the following circumstances acknowledged earlier, it is reasonable to view that the instant tax invoice constituted a false tax invoice by the supplier, taking into account the facts acknowledged earlier and the overall purport of the pleadings as a whole.

① On November 25, 2005, the BB energy source point was registered as the business place of Suwon-si ○○○○, 931-10 202, Suwon-si, but the above building was awarded a successful bid by auction on May 24, 2006. The owner’s delivery of the BB energy source point was made on September 12, 2006, and the BB energy source point was in the absence of the office, and there was no separate oil storage facility.

② According to the investigation conducted by the director of the Suwon Tax Office, the branch of BB energy source in the document purchased the entire quantity of the oil from the second energy and JJ in 2007 and 207, and the second energy again purchased the entire quantity of the oil from the HH energy. However, the second energy was all purchased from the HH energy. However, the HH energy and the second energy and the JJ was all a material company. In particular, the first supplier only submitted the sales tax invoice to the competent tax office and did not submit any purchase tax invoice.

(3) At the trial proceedings of the case on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery, etc. of False Tax Invoice) against Jeong K, the PP testified testified to the effect that "GGG et al. were to serve at the BB energy source point from April 2007 to introduce "GGG et al., and mainly operated by telephone at its own house located in Gangnam-gu Seoul Metropolitan Government, Gangnam-gu, Seoul. Upon receipt of an order to request the supply of oil from the gas station, the date related to the order was mainly delivered to KimGG. The tax invoice was delivered by article or by mail, and the shipment slip was delivered by article."

④ 또한 BB에너지 수원지점과 유사하게 운영되었던 BB에너지 본점의 영업사원 박QQ 위 공판절차에서, "김GG의 소개로 BB에너지 본점에서 근무하게 되었고, 주유소로부터 유류를 공급하여 달라는 주문을 받으면 정KK에게 이를 알려주고 김GG 등이 주유소로 유류를 보내주었다"고 증언하였다.

⑤ 위와 같은 박QQ 및 차PP의 진술 등과 BB에너지 수원지점의 계좌로 입금된 돈이 II에너지를 거쳐 HH에너지로 이체되었다가 출금되어 II에너지의 대표이사인 최RR과 BB에너지 수원지점의 실제 운영자 등에게 현금으로 지급된 점 등에 비추어보면, BB에너지 수원지점의 관계자들은 주유소로부터 유류를 공급하여 달라는 주문을 받으면 정KK 또는 김GG에게 이를 알려주었고, 김GG 등은 출처를 알 수 없는 곳에서 매입한 유류를 각 주유소에 공급하였으며, 이로 인한 유류대금은 BB에너지 수원지점의 영업이익으로 바로 귀속되지 않고 II에너지 및 HH에너지 명의의 계좌 등을 거쳐 현금으로 출금된 후 개인의 이익으로 귀속되었던 것으로 볼 수 있다. 사정이 그러하다면 원고가 공급받은 유류의 실질적인 거래상대방이 BB에너지 수원지점이라고 보기는 어렵다.

Therefore, this part of the plaintiff's assertion is without merit.

2) Whether the Plaintiff acted in good faith and without negligence

A) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice either knew of the fact that they were not aware of the fact that they were not aware of the fact that they were nominal, the input tax amount cannot be deducted or refunded, and the fact that the person who received the tax did not know of the fact that he was not negligent shall be proved by the person who asserts the deduction or refund of the input tax amount (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

B) According to the facts acknowledged earlier and each of the evidence cited earlier, the Plaintiff may acknowledge the fact that the Plaintiff, after receiving the instant tax invoice from the BB Energy Source, remitted the amount less than that set forth in the said tax invoice to the account in the name of BB Energy Source. However, the fact that the Plaintiff was unaware that the oil supplier was not the BB Energy Source, and did not know that the Plaintiff was not the actual supplier of the oil, and that there was no negligence.

Rather, since ① the supply structure of the oil industry is complicated and transactions without authentic documentation are frequent, it is necessary to pay close attention to whether the oil supplier is an actual supplier, ② The Plaintiff’s representative member is a person who operated the gas station from around 1969 to about 45 years, and thus, seems to have been well aware of the actual conditions and risks of transactions in the general supply structure and distribution route of the oil, the general trade type or method of the industry, and the distribution industry.

③ In addition, the Plaintiff’s supply of oil at a lower price than the market price, which is difficult to sell petroleum products at a lower price than the market price, barring any special circumstances, if an intermediate distributor, who is not an oil refining plant, supplies petroleum products at a lower price than the market price, and thus, could have any problem in the distribution process. However, the Plaintiff alleged to the effect that the Plaintiff was unable to verify the fact that the Plaintiff had known that the oil was shipped out at the BB energy source point by confirming the oil oil oil oil oil’s oil reservoir location at the BB energy source point. ⑤ In fact, the Plaintiff did not submit any data on the instant tax invoice while trading the instant tax invoice from the BB energy source point, asserting that the Plaintiff was issued a business registration certificate, etc., and the Plaintiff did not know of the fact that each of the instant tax invoice was discarded at a lower price than the market price, even if the Plaintiff knew of the fact that the Plaintiff had not been negligent in supplying the oil at a lower price than the market price at the time of the tax proceeding.

Therefore, the plaintiff's assertion on this part is without merit.

3.

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