Early High Court Decision 2008J3667 ( October 27, 2009)

Whether a processed tax invoice related to oil purchase has been received;

The amount of oil paid to the account was fully withdrawn in cash after it was transferred to the account in the name of an individual related to the other data account at the time of the deposit, which is judged to have received the processed tax invoice that is not traded in real by the method of typical money laundering to conceal the act of data.

1. The plaintiff's claims against the defendants are all dismissed.

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

The imposition of the value-added tax for the first term of August 1, 2008 against the Plaintiff, the imposition of the value-added tax for the first term of 2007, the value-added tax for the second term of 2007, the value-added tax for the second term of 1,626,319,860 won, the value-added tax for the first term of 2,135,788,780 won for the first term of 2008, and the imposition of the value-added tax for the first term of 2,32,32,00 won against the Plaintiff on August 1, 2008 shall be revoked.

1. Details of the disposition;

A. On March 7, 2006, the Plaintiff was established as its principal office on March 7, 2006 by setting up a 576-dong, Jung-gu, Seoul. On December 1, 2006, the Plaintiff is a private business operator who established a branch in Eunpyeong-gu, Seoul, KK-dong 163-3 and operated oil wholesale and retail business.

B. From January 2007 to July 7, 2008, the Plaintiff received a tax invoice from AA Energy Co., Ltd., TT Energy Co., Ltd., Ltd., TT Energy, FF Energy Co., Ltd., Ltd., and GG Energy Co., Ltd. (hereinafter the above companies referred to as “AA Energy, etc.”), and filed a return and pay the value-added tax by deducting the relevant input tax amount from the output tax amount in the pertinent taxable period. The Seoul Regional Tax Office conducted a tax investigation with respect to the Plaintiff between April 24, 2008 and July 24, 2008, and then the Plaintiff confirmed the amount of the tax invoice on the following table processing column (the total tax invoice was 13,118,000,000 won for the year 207 to January 1, 2008, 2007, 307, 2007, 2007, 2007).

D. On August 1, 2008, pursuant to Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 8826 of Dec. 31, 2007, the Value-Added Tax Act) against the Plaintiff, the head of the tax office having jurisdiction over the instant disposition imposing the value-added tax of which the input tax amount equivalent to the processed amount is deducted from the input tax amount corresponding to the processed amount, and was imposed the disposition of imposing the value-added tax of 1,626,319,860, the value-added tax of 207 for the second period of 2007, which is 1,626,319,860, the value-added tax of 2,135,788,780, respectively.

E. On August 1, 2008, the head of the Dong-gu Tax Office imposed corporate tax of KRW 232,332,00 on the Plaintiff on the ground of the failure to receive the documentary evidence pursuant to Article 76(5) of the former Corporate Tax Act (amended by Act No. 9898, Dec. 31, 2009) (hereinafter “each disposition of this case”) and imposed corporate tax of KRW 232,332,00 on the Plaintiff (hereinafter “each disposition of this case”).

[Ground for Recognition: Facts without dispute, Gap evidence 1, Gap evidence 3-1 through 4, Eul evidence 1-5, the purport of the whole pleadings]

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Plaintiff was issued the instant tax invoice in the course of normal real transaction of oil.

The actual supply of oil to the Plaintiff is a third party, and even if the role of the Plaintiff was to lend the name of the third party supplying oil with free materials, it is limited to the activities conducted in the internal relationship between AA Energy, etc. and the third party, and the Plaintiff and the opposite party are only AA Energy, etc., and thus, the instant tax invoice delivered from AA Energy, etc. does not constitute a false tax invoice.

(2) Since AA Energy, etc. are each data, even if the tax invoice in this case is different from the facts, the plaintiff was unaware of such fact, and there was no negligence in failing to know, so the input tax amount according to the tax invoice in this case should be deducted, and it is also unreasonable to impose additional tax on the evidence.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The Plaintiff’s type of transaction, etc.

(A) The Plaintiff’s petroleum trading method stated by the Plaintiff is as follows.

(1) After being notified of the volume and unit price secured on the day from AA Energy, etc., the amount of order shall be determined in currency with the Plaintiff’s seller, etc.

(2) Where the details of an order are specifically determined, it shall be notified at the same time of the amount of order determined to be delivered by telephone to AA energy, etc., and the number of vehicle to be delivered, porting (one of the reservoir at dopco), etc.

(3) The Minister of Land, Infrastructure and Transport shall request the delivery service provider, who deals with the Plaintiff, to provide transportation by informing the details of the final order and the fixed storage thereof, and the delivery service provider shall verify whether the oil supplied by the delivery service provider is in conformity with the details of the order and notify the Plaintiff thereof, and then immediately deliver the oil to the Plaintiff’s sales office.

④ Upon receipt of communications from a delivery engineer’s general call that an oil consistent with the details of an order has been supplied, the Plaintiff shall transfer the price to AA Energy, etc., the purchaser, and the Plaintiff’s sales place shall transfer the price to the Plaintiff before most of the oil was stored.

(B) The Plaintiff received a shipment slip or tax invoice under the name of AA Energy, etc. while making the said oil purchase transaction, and remitted the price to the account of passbook, such as AA Energy, etc.

(C) Each oil oil oil refining is issued at the time of the shipment of oil, and the delivery company received the oil at the time of the supply of the oil, and deliver it to the delivery place. Therefore, in normal transactions, the Plaintiff recovered the oil oil distribution slip from the selling place and delivered it to the TT Energy. H energy offered that the oil would be discounted by 0,000 won at the fora, on condition that the oil is recovered from the oil distribution place. Accordingly, it is difficult for the Plaintiff to recover the oil distribution slip from the selling place and obtain it for H energy.

(D) On March 16, 2007, the issuance of the PPP Bank Co., Ltd. issued in the course of the transaction with AA Energy by the Plaintiff was written by the customer as the (ju) LLL energy; and on March 23, 2007, the issuance of the MFM Co., Ltd. on March 23, 2007, the transaction partner as the N Energy (N Energy).

(E) The Plaintiff’s representative director, as well as prior to initiating a transaction with AA Energy, etc., but continues the transaction, did not have a permanent domicile in AA Energy, etc. until the Plaintiff’s tax investigation is commenced, and only received a business registration certificate, agency license, and contact information from the officials in charge of each purchasing place, and made a transaction only through telephone communications.

(f) The Seoul Regional Tax Office determined that the Plaintiff’s transaction was not a processed transaction in light of the Plaintiff’s sales data and the actual shipment data, and the monetary content with the dispatch engineer.

(2) AA Energy-related facts

(가) AA에너지는 2006. 7. 18. 설립되었는데, 2006. 11.경 김RR이 이를 인수한 후 2007. 1. 23.자로 대표이사를 남QQ으로 변경했으며, 중부지방국세청은 2007. 9. 18.부터 2008. 2. 12.까지 기간 동안 AA에너지의 자료상혐의에 관한 세무조사를 실시했다.

(B) The Z Energy, the purchase source of the AA Energy, was a corporation acquired by the Kim R, the actual operator of the AA Energy, to conceal the issuance of a false tax invoice by the AA Energy, and was already determined in another tax investigation and accused.

(C) On January 2007, AAE traded oil without tax invoices from LL Energy, N Energy and other purchasing places, etc. (total purchase amount of non-data in 2007 KRW 9,941,00,000). Some of them were supplied without tax invoices (total purchase amount of non-data in 2007 KRW 54,00,000).

(D) In the sales statement of KRW 113,318,183 as of March 23, 2007, which was recorded in the AA Energy Sales Statement (the files that monthlyly arranged the current status of the issuance of tax invoices) confiscated at the time of the investigation into AA Energy, "C", which was indicated in the remarks column, was written in red as to each sales statement of KRW 972,509,092 as of August 31, 2007, and KRW 516,109,091 as of September 30, 2007.

The female employees of the AA Energy stated that "*", "request", and "work" in the remarks column in the sales statement of the AA Energy sales statement, and that the oil type was entered in the red color is the portion of the false tax invoice issuance, and Kim R also applied to the investigation agency.

(E) The Central Regional Tax Office made a processed transaction on March 23, 2007 (113,318,183 won) and part of the transactions on August 31, 2007 and September 30 of the same year (235,636,364 won).

(바) 김RR, 남QQ, 김SS(AA에너지 관리과장)은, 일정 수수료를 받고 허위세금계산서를 발행하여 이익을 취득하고, 허위매출세금계산서상의 공급가액을 매출금액으로 기재한 매출처별세금계산서합계표를 세무서에 제출하기로 공모한 후, 2007. 4. 25. 2007년 1기분 부가가치세 예정신고를 하면서 실제로는 공급하지 않은 113,318,183원 상당의 유류를 원고에게 공급한 것처럼 기재하고, 2007. 10. 25. 2007년 2기분 부가가치세 예정신고를 하면서 마찬가지로 공급하지 않은 235,636,364원 상당의 유류를 원고에게 공급한 것처럼 기재하였다는 등의 범죄사실로 2009. 5. 20. 대전고등법원에서 유죄판결을 선고받았으며(2008노477), 대법원은 2009. 9. 10. 위 판결에 대한 상고를 기각하였다(대법원 2009도5138).

(3) Facts related to TT Energy

(A) On April 7, 2007, 2007, KimU established TU as the representative director of the TU, in collusion with thisJ, etc., established several forms of non-data distributors, and issued a false tax invoice in sequence or in cross-section by issuing a false tax invoice. Since then, on December 31, 2007, the TPP energy was voluntarily closed as of December 31, 2007, as a result of the tax investigation.

(B) The Central and Medium Regional Tax Office received a false tax invoice from TT Energy amounting to KRW 154,852,00,000,000, and discovered that it issued a false tax invoice of KRW 35,712,00,000 to W Energy Co., Ltd. (hereinafter referred to as “W Energy”), and conducted a tax investigation on TT Energy Data suspicion from April 24, 2008 to July 7, 2008.

(C) Five companies, including the TPP Energy, Y Energy Co., Ltd., and Z Energy Co., Ltd. (hereinafter referred to as “V energy, etc.”) were retail gas stations that are general agents are unable to supply oil to the TT Energy, or companies filed a complaint after having become final and conclusive in other tax audits as data.

(D) TT Energy opened approximately 20 bank accounts, and the average period of use for each account was about 2-3 months. TT Energy, upon receipt of oil payment from the Plaintiff including the Plaintiff, transferred it to the account of XX Energy, etc. or transferred it to another account of TT Energy, after cash transfer.

(E) On January 18, 2008, GJ was convicted of the Daejeon High Court on December 18, 2009 (2009No250, 2007) on the following facts: (a) the Plaintiff was supplied with oil not supplied to the Plaintiff; (b) the Plaintiff was falsely prepared and submitted a list of the total tax invoice by buyer as if the Plaintiff were supplied with oil equivalent to KRW 142,276,87,685; and (c) the Plaintiff was convicted of having falsely prepared and submitted a list of the total tax invoice by buyer (2009No250, 2007; (d) the supply price on the Plaintiff’s total tax invoice submitted by KimU-U et al. on January 2008, the Supreme Court dismissed the Plaintiff’s total tax invoice by 8,936,700, 2010, 201, 201, 2003.36).

(4) Facts related to H Energy

(A) H Energy commenced business on January 1, 2008. The Central Regional Tax Office conducted a tax investigation on suspicions of HH energy material from September 18, 2008 to December 26, 2008. As a result of the investigation, KRW 112,115,00,000, which was 93.8% of H energy’s total sales in January 2008, became a processed sales.

(B) The 93.2% of the H Energy’s total purchase in January 2008 was purchased from EE Energy Co., Ltd. (hereinafter “EE Energy”), and EE Energy was already determined as data in other tax audits and accused.

(C) At the time of the registration of the petroleum sales business, H Energy reported that H-energy was leased with a storage tank used by P-Energy Co., Ltd. in Yangju qq 516-5 at the time of the registration of the petroleum sales business and used as an oil storage facility. However, the above lease agreement was not a formal agreement, and there was no fact that H-energy-related oil, etc. was loaded in the storage tank

(D) A company established or managed by the KimU has W Energy, EE Energy, TT Energy, HH Energy, and II Energy. Around August 2007, Kima, who was employed as an accounting employee of WW Energy, was mainly engaged in TT Energy’s operations until December 2007. From January 2008, EE Energy and HH Energy’s operations were carried out together with EE and HH Energy’s operations. The duties of TT Energy and HH Energy, in charge of Kima, were notified by the oil distributor of the unit price by telephone, and were sold at 20 won per liter to 25 won per liter (the amount of fees for the issuance of tax invoices) and issued tax invoices for them, or under the direction of KimU, issued tax invoices.As a result of Internet banking tracking on the EE energy, the Internet bank’s Internet address and place of business was confirmed as the same place of business with HIP energy’s account, and the Internet bank was identified as the place of transactions in the Internet.

(E) GG energy was transferred to the account of EE Energy, etc. immediately after receiving the oil payment from the seller, including the Plaintiff, or deposited in cash after transferring it to another account of HH energy.

(F) In the criminal judgment related to TT, in collusion with Ebbb, etc., the representative director of HH energy, KimU, UV, Lee J et al. filed a value-added tax return for the first period of July 2008 with the Goyang Tax Office around July 2008, the Plaintiff submitted a false list of the list of the list of the list of the list of the list of the list of the list of the list of the list of the list of the sold goods, as if he supplied the oil not supplied to the Plaintiff. Although from April 2008 to October 208, the Plaintiff did not supply the oil to the related business entities, including gas stations, the total amount of KRW 61,212,895,127, as if the oil was supplied by each buyer was falsely recorded and submitted (However, the value of the supply of the Plaintiff on the list of the total tax invoice submitted around July 2008 was 13,67,487,280).

(5) F Energy-related facts

(A) The FF Energy commenced the business on July 1, 2007, and was closed ex officio on March 31, 2008 by the Seomancheon Tax Office. The FF Energy Tax Office conducted a tax investigation on the suspicion of material suspicion of FF Energy from April 24, 2008 to July 7, 2008.

(B) 62.1% of the total purchase of FF Energy in January 2008 was purchased from EE Energy Co., Ltd. (hereinafter “EE Energy”), and EE Energy was determined as data in other tax audits and accused.

(C) At the time of the registration of petroleum sales business, FF Energy reported that FF Energy was leased the storage tank of FF Energy Co., Ltd. and used for oil storage facilities. However, the above lease agreement was a formal agreement, and there was no fact that FF Energy-related oil, etc. was released in the said storage tank after the above lease agreement was entered. Moreover, FF Energy was confirmed to have not been registered as a result of inquiry on each shipment ticket in the name of FF Energy issued by FF Energy (No. 25 No. 1 through 5 of the Certificate No. 25) in the name of FF Energy.

The amount of oil transferred by sales companies, including the Plaintiff, to FF energy, was immediately transferred to the account of OrCC, the actual operator of BB petroleum, and the amount of such deposit was not transferred to TB Petroleum purchaser, and most of the money was deposited in cash after the transfer to 56 persons, such as OD, was made.

(D) Although FF Energy’s actual operator did not supply oil to the Plaintiff, the actual operator of FF Energy entered false statements in the list of total tax invoices by sales place as if he/she supplied oil equivalent to KRW 988,500,000 in supply price around October 25, 2007, and entered false statements in the list of total tax invoices by sales place as if he/she supplied oil equivalent to KRW 286,390,909 in supply price around January 25, 2008, and submitted false statements in the list of total tax invoices as if he/she supplied oil equivalent to KRW 234,336,364 in supply price around April 25, 2008 (hereinafter “FF Energy’s total tax invoice”) and submitted a suspended sentence by the Incheon District Court on June 25, 2010.

[Ground for Recognition: Facts without dispute, Gap evidence 5-1 through 4, Eul evidence 6-4, Eul evidence 13-8 through 12, Eul evidence 5, Eul evidence 7 through 14, Eul evidence 22, Eul evidence 24-1 through 5, Eul evidence 25-26-1, 20, Eul evidence 30, Eul evidence 36-1, 2, Eul evidence 45, Eul evidence 46-1, Eul evidence 47, Eul evidence 49-2, Eul evidence 51, Eul evidence 51, the purport of whole pleadings]

D. Determination

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

(A) It is necessary for a taxpayer to prove that a tax invoice submitted by a taxpayer for value-added tax as a basis for input tax deduction was prepared in a false manner without a real transaction, or that the entries in a tax invoice are different from the fact, and thus, the tax authorities have proved that it is an actual purchase or the authenticity of entries in a tax invoice. In a case where a taxpayer claims that a transaction with a supplier listed in a tax invoice is proved to the extent that it is reasonable, the taxpayer should prove that it is easy for the taxpayer to present data, such as account books and evidence, as to the actual transaction with the supplier listed in the tax invoice (see, e.g., Supreme Court Decisions 94Nu3407, Jul. 14, 1995; 2007Du1439, Aug. 20, 2009). Therefore, in a case where a tax invoice issuer is proved to be a so-called data issue only without a real transaction, the burden of proving that there was a real transaction corresponding to the entries in the tax invoice exists a taxpayer

(B) Upon receipt of a tax invoice from an entrepreneur who supplies under the Value-Added Tax Act, a person liable to pay the value-added tax shall be deemed to be a person who actually received goods or services or a transactional agent that actually supplies goods or services to an entrepreneur, not a person establishing a nominal legal relationship with an entrepreneur who supplies or is supplied (see, e.g., Supreme Court Decision 2002Do4520, Jan. 10, 2003).

(C) As a result of the tax investigation conducted on the Plaintiff, sales transaction is confirmed as normal transaction, and it is reasonable to presume that the Plaintiff actually purchased oil corresponding to the transaction. However, whether the tax invoice of this case is a false tax invoice is an issue as to whether it can be viewed as AA Energy, etc., the issuer of the tax invoice. In full view of the following circumstances revealed by the aforementioned facts, it is reasonable to deem that the Plaintiff supplied oil to the Plaintiff for the pertinent transaction is a third party, not AA Energy. Therefore, the tax invoice of this case is deemed as a false tax invoice by the supplier. Therefore, the evidence, including Gap evidence No. 12-2 through 19, presented by the Plaintiff, including the evidence presented by the Plaintiff, is difficult to reverse it, and there is no other evidence to regard it as an actual transaction as stated in the tax invoice.

① As a result of the tax investigation on AA Energy, the pertinent tax invoice was determined as processed transaction, and thereafter, the actual operator and the representative director of AA Energy reported the first and second half-yearly value-added tax in 2007, and subsequently, the judgment of conviction was finalized on the charge of the crime, such as false preparation of the tax invoice by buyer. The relevant tax invoice included in the criminal facts of the judgment.

② The Plaintiff asserts that the Seoul Regional Tax Office compared the Plaintiff’s sales data and similar ex-factory data and confirmed the transaction part with AA Energy as a transaction consistent with the real transaction. According to the Plaintiff’s 10 evidence, the Seoul Regional Tax Office compared the Plaintiff’s sales data and similar ex-factory data, and the document prepared by the Seoul Regional Tax Office after comparing the Plaintiff’s sales data with the Plaintiff’s sales data and the similar ex-factory data, the Plaintiff’s purchase from AA Energy and the Plaintiff’s sales on March 16, 2007 and the oil transaction on March 23, 203 of the same month were indicated as “the result confirmation column” but the phrase “non-fixedness” is written as “processing confirmation”, and the phrase “the shipping-request company” is also deemed as written as “the name of “LL Energy” or “N Energy (State)” rather than AA Energy, and thus, it cannot be accepted as the Plaintiff’s purchase content, not the purchase content, but the Plaintiff’s purchase quantity.

③ The actual operators of TT energy, HH energy, and FF energy were indicted on charges of establishing each company for the purpose of profit-making and issuing a false tax invoice (TT energy and HH energy already became final and conclusive), and convicted of the charge (TT energy and HH energy), HH energy, F energy, etc. were submitted as evidentiary materials if they were to be leased and used at the time of registering a petroleum retail business, but in fact there was no room for using the storage facilities.

④ As a result of the tax investigation on TT energy, HH energy, and FF energy, most of the purchase and sale transactions were found to have been false.

⑤ Since oil wholesalers purchased oil from the purchaser and sell it to the seller of intermediate wholesalers, etc., if the instant oil transaction was a normal transaction, the price shall first be deposited from TT energy, HH energy, and FE energy, etc., and then be paid in the order of TT energy, HH energy, and FE energy deposited from the Plaintiff. However, in the instant case, if the Plaintiff deposits the oil into TT Energy, etc., it was immediately processed in the order of deposit by the Plaintiff. Above all, the oil payment deposited into the account of TT Energy, etc. was immediately deposited into the account of TT Energy, etc., and was fully withdrawn after the transfer of the oil payment to another account or personal account related to the other data, which is a typical method of money laundering to conceal data activities.

(6) If such circumstances are met, it is difficult to view that TT energy, HH energy, and F energy were ordinarily engaged in real transactions as an enterprise ordinarily engaged in real transactions. It is reasonable to view that the said enterprise was in exchange for issuance of a false tax invoice, etc. separate from the actual route of supply of goods and services by connecting the transaction with the Plaintiff rather than supplying oil to the Plaintiff. As such, the tax invoice issued by the said enterprise that did not directly supply goods and services to the customer is prepared separately from the actual transaction, and thus, constitutes a case where the matters to be stated under Article 16(1)1 of the Value-Added Tax Act (the registration number, name, or title of the supplier who supplied the goods and services) are written differently from the actual transaction.

(2) Whether the Plaintiff is bona fide or without fault or not

(A) 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 there is any negligence on the part of the supplier, who was unaware of the fact that the supplier was unaware of the name of the tax invoice, and the person who was provided with the tax invoice shall prove that the supplier was not aware of the fact that he was unaware of the said name and was not negligent (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

(B) The evidence presented by the Plaintiff alone is insufficient to recognize that the Plaintiff was not aware of the fact that the Plaintiff was engaged in the act of material material and that there was no negligence due to the Plaintiff’s failure to know the fact that the Plaintiff was an issuer of the instant tax invoice, and there was no other evidence to acknowledge it. Rather, in light of the following, it is reasonable to deem that the Plaintiff was negligent even if he knew or was unaware of the fact that the Plaintiff was not the actual supplier of the instant oil.

① At the time of the oil industry, data trading was widely spread, and the Plaintiff also knew about the actual state and risk of such data trading. Therefore, even if the Plaintiff had actively taken measures to confirm the authenticity of the transaction partner prior to the commencement of the oil trading with AA Energy, etc., the Plaintiff did not visit the business place of the other company concerned or undergo verification procedures, such as direct contact with the person in charge of the transaction. Since TT energy, HH energy, and FF energy, etc. were the first generation enterprises whose reliability was not verified by the side, it is difficult for the Plaintiff to obtain further details of the transaction.

② On March 16, 2007, the issue of the PPP Bank Co., Ltd. issued in the course of the transaction with AA Energy was written by the transaction partner as the LLL energy, and on March 23, 2007, on the FPP Bank Co., Ltd.’s issuance of the FPP Bank Co., Ltd., the transaction partner was written as the N Energy (NE). Therefore, it is reasonable to deem that the Plaintiff, as the Plaintiff, was aware or could have known that the oil supplier was not a AA Energy.

③ According to Gap evidence Nos. 12-2 through 19, it is difficult to view that the plaintiff was unaware of the plaintiff's H energy being not a normal oil supplier, or was negligent in gathering, in light of the fact that the plaintiff received a similar shipment ticket issued by theff Energy Co., Ltd. in the course of trading with H energy, and the delivery price was indicated as H energy. However, as seen earlier, the plaintiff made a proposal that "if HH energy recovers the oil shipment ticket from the plaintiff, it would give a discount to the plaintiff," and that the plaintiff accepted it and made a withdrawal of the oil shipment ticket, it is difficult to view that the plaintiff was not a normal oil supplier, or that the plaintiff was not negligent in gathering. Rather, as seen earlier, the KimU et al. continued using the H energy from around April 2008 when TU was subject to a tax investigation, and the plaintiff was also changing the oil supply scheme from around 2008 to the plaintiff TT Energy to the normal oil supplier.

(3) Sub-determination

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

3. Conclusion

The plaintiff's claim against the defendants is dismissed on the ground that it is without merit.