this case’s tax invoice constitutes a false tax invoice entered by that supplier.

Since the oil actually purchased by the instant transaction partner at the time of the instant transaction, it is difficult to deem that the Plaintiff was supplied with oil under the instant tax invoice by the instant transaction partner, and the actual supplier of the oil listed in the instant tax invoice is deemed to be a third party, not the instant transaction partner.

Article 16 of the former Value-Added Tax Act

2014Guhap51358 Disposition to revoke the imposition of value-added tax

GG

Head of the tax office

September 3, 2015

October 8, 2015

1. On January 7, 2013, the Defendant’s imposition of value-added tax of KRW 96,46,880 in excess of KRW 80,96,180 in the imposition of value-added tax of KRW 132,252,410 in the imposition of KRW 110,375,630 in the imposition of KRW 117,173,910 in the imposition of KRW 117,173,910 in the imposition of KRW 120,15,180 in the imposition of KRW 120,94,890 in the year 201, the imposition of KRW 57,729,480 in the imposition of KRW 20 in the imposition of KRW 117,257,340 in the imposition of KRW 141,257,91 in the imposition of KRW 120,15,180 in the imposition of value-added tax in the year 2012.

2. All remaining claims of the Plaintiff are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s imposition of value-added tax for the first term of 2010 against the Plaintiff on January 7, 2013, KRW 96,446,880 for the first term of 2010, KRW 132,252,410 for the second term of 2010, KRW 141,257,340 for the second term of 201, value-added tax for the second term of 201, KRW 120,15,180 for the second term of 201, and KRW 57,729,480 for the first term of 201 (including each penalty tax) shall be revoked.

1. Details of the disposition;

A. From July 10, 2006, the Plaintiff is a business operator who operated a Friju station in ○○○○○-ro, ○○○○, ○○○.

B. The Plaintiff received a tax invoice of KRW 3,103,421,00 (hereinafter “instant tax invoice”) in total from nine companies, including DDR (hereinafter “the instant transaction partner,” and omitted from the company name) as listed below during the first taxable period of the value-added tax from 2010 to 2012, and reported and paid the value-added tax including the input tax amount equivalent to the value of supply, as well as the input tax amount to be deducted.

C. On January 7, 2013, the Defendant denied the input tax deduction by deeming the instant tax invoice as the processed tax invoice, and on January 7, 2013, the Defendant imposed the Plaintiff the value-added tax of KRW 96,446,880 (including the penalty tax for unfair underreporting), KRW 132,252,410 (including the penalty tax for unfair underreporting), value-added tax of KRW 132,252,410 (including the penalty tax for unfair underreporting), value-added tax of KRW 141,257,340 (including the penalty tax for unfair underreporting), value-added tax of KRW 141,257,340 (including the penalty tax for unfair underreporting 32,111,240), value-added tax for the second half of 2011 including the penalty tax for underreporting KRW 120,15,180 (including the penalty tax for unlawful underreporting 213,720), and the penalty tax for tax for 20129,797.

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on April 5, 2013, but was dismissed on November 22, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2 (including each number), 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 is unlawful for the following reasons.

1) Since the Plaintiff was actually supplied with oil by the instant transaction party and received the instant tax invoice, it cannot be deemed that the instant tax invoice was a false tax invoice.

2) Even if the actual supplier of oil is not a customer of the instant case, the Plaintiff was unaware of such fact and was unaware of such fact, and thus, is a bona fide trading party.

3) Furthermore, even if the instant tax invoice constitutes a false tax invoice and the Plaintiff’s good faith and negligence are not acknowledged, the Plaintiff’s return of the value-added tax base based on the instant tax invoice without knowing that it is a false tax invoice, and thus does not constitute “the case of underreporting the value-added tax base by an unjust method.” Therefore, the portion of imposing the unfair underreporting penalty tax is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to whether the instant tax invoice is false or not

A) If a taxpayer of value-added tax proves that a tax invoice submitted 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 the tax authority has a substantial burden of proof as to whether it is an actual purchase or the authenticity of the entries in a tax invoice. In a case where a transaction with a supplier stated in a tax invoice claimed by the taxpayer has been proved to the extent that it is considerably false, it is necessary for a taxpayer to prove that it is easy for him/her to present data, such as books and evidence, regarding the actual transaction with the supplier stated in the tax invoice (see, e.g., Supreme Court Decisions 94Nu3407, Jul. 14, 1995; 2007Du1439, Aug. 2

In addition, a tax invoice shall be issued from an entrepreneur who supplies goods or services pursuant to the Value-Added Tax Act, and a person liable to pay value-added tax shall be deemed to be a person who actually performs a transaction of supplying goods or services to an entrepreneur who actually receives or is supplied goods or services, not from an entrepreneur who forms a nominal legal relationship (see, e.g., Supreme Court Decision 2002Do4520, Jan. 10, 2003).

B) Comprehensively taking account of the following facts acknowledged by the evidence and evidence as mentioned above, Eul evidence Nos. 3 through 13, and evidence No. 19, since the oil actually purchased by the transaction partner at the time of the transaction of this case, it is difficult to view that the plaintiff was supplied with oil under the tax invoice of this case by the transaction partner of this case, and the actual supplier of the oil listed in the tax invoice of this case is bound to be deemed a third party, not the transaction partner of this case. Accordingly, the tax invoice of this case constitutes a false tax invoice stated by the supplier, and this part of the plaintiff's assertion is

① The representative of HJ, Kim J, LeeU, and Lee J petroleum’s representative among the clients of the instant case was indicted in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance, etc. of False Tax Invoices) and the court was finally convicted of having been convicted by the court, even though all of the clients of the instant case did not have actually supplied oil in the pertinent taxable period, as if they supplied oil to various gas stations including the Plaintiff’s gas stations, by stating a false list of total tax invoices by customer as if they were supplied to the competent authorities

② As a result of the investigation of ○○ regional tax office, there was no trace of running petroleum wholesale business, and there was no use of storage tanks in ○○○○-dong ○○○○○○○-dong, which was reported as oil storage facilities, or no entry of oil transport vehicles, and Poil Co., Ltd., a purchaser of D petroleum, was confirmed as a result of the investigation of the Central Tax Office, and the details of shipping oil to D petroleum were found to have been omitted.

③ As a result of the investigation by the Daejeon Regional Tax Office, J Petroleum (representative: B) was confirmed to have never been scambly engaged in oil storage and transportation-related business at its place of business, and this BB was a person who was investigated by the tax authorities regarding the instant case and issued and issued a false sales tax invoice to the Plaintiff without any real transaction with the Plaintiff.

④ From among the clients of the instant case, the Z companies, KK companies, and RR companies did not possess oil storage facilities and transport vehicles as a result of the tax investigation conducted by the competent tax authority, and were confirmed as a typical material with no prior purchase.

⑤ As a result of the tax investigation of the ○○ Tax free book, EE oil was confirmed to have no track for engaging in the oil wholesale business due to the absence of actual use of the leased oil reservoir and the absence of operation of the oil transport vehicle.

6. As a result of the tax investigation of the Central and Regional Tax Office, MM oil was verified as data that issued only false tax invoices without real transactions without using it at all after renting oil storage tanks in the official condition.

7) The results of the tax investigation by the Central and Medium Regional Tax Office verified thatCC energy did not actually use leased oil storage tanks and issued false tax invoices without real transactions.

8) The result of the investigation by the Daejeon regional tax office verified that members of Ma- Petroleum business were transferred as they were and engaged in data processing.

2) Determination as to whether the Plaintiff acted in good faith and without fault

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 person who received the other tax invoice in the name of the supplier, and the person who asserts the deduction or refund of the input tax amount should prove that there is no negligence on the part of the person who received the tax invoice in the said name. (See, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

B) In full view of the following circumstances acknowledged by the evidence mentioned above, Gap evidence Nos. 4-13, Eul evidence Nos. 14-16, and Eul evidence Nos. 14-16, it is reasonable to deem that the plaintiff was negligent even if he knew or was unaware of the fact that the transaction partner of this case was not the actual supplier of oil. Thus, the plaintiff's assertion on this part is without merit.

① Since 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 an oil supplier is an actual supplier if an oil supplier is an ordinary gas station operator.

② Since the Plaintiff had operated a gas station for a long time, it seems that he was well aware of the normal supply structure and distribution channel of oil, etc., and was also aware of the actual state and risk of transaction on the data. If the Plaintiff inquired of the actual state and location of the oil reservoir listed in the instant tax invoice and the shipment slip, and asked of whether the oil was shipped out on the relevant date, and whether the said oil was delivered to the customer, the customer, and the place of delivery, it would have been easily known that the said oil was not shipped out.

③ In relation to the process of purchasing oil from the business partner of the instant case, the Plaintiff made a statement that it is low compared to the oil price directly purchased from the oil refinery. The profit of the wholesaler, etc. would be added to the oil price in the case of purchasing the oil through the intermediate wholesaler, etc. under generally accepted social norms. Therefore, there is sufficient reason to suspect the distribution process of the instant business partner who supplies oil at a lower price than the market price, or the possibility of defluence in the name of the transaction partner of the instant case, because it is more likely that the oil price would be lower

④ The Plaintiff did not submit as evidence the shipment slips received at the time of the supply of oil from the business partner of the instant case, and only received the business registration certificate, the petroleum sales certificate, and the copy of passbooks in the name of the relevant business partner from HH and New N, and there is no evidence to deem that the Plaintiff made an active effort to confirm whether the business partner of the instant case was the actual supplier of oil by visiting the business place of the instant business, the oil storage facility, etc.

⑤ Even if the Plaintiff was actually supplied with oil and deposited the price into the account under the name of the transaction partner of the instant case, it is merely a means to disguised normal transaction in so-called “data transaction,” and it is difficult to find that there was no negligence due to the Plaintiff’s failure to know the disguised transaction of the tax invoice of this case

3) Determination as to whether the imposition of unfair under-reported additional tax is legitimate

A) In light of the language, structure, etc. of relevant provisions, including Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the “former Framework Act on National Taxes”), even if a taxpayer obtained a false certification and under-reported the tax base, the taxpayer cannot be deemed to fall under the case where a taxpayer under-reported the tax base by improper means, if he/she did not know that such certification was false, and the taxpayer did not know that he/she was under-reported the tax base by gross negligence. In addition, in order to constitute “where a taxpayer under-reported the tax base by improper means” under Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the “former Framework Act on National Taxes”), a taxpayer who received the tax base by either filing or paying the tax base for value-added tax, other than the fact that he/she is subject to deduct or refund the tax base by 15.

B) In light of the following circumstances acknowledged as a whole, the Plaintiff appears to have been actually supplied oil at the supply amount and price as stated in the instant tax invoice at the time indicated in the instant tax invoice, and thereafter, paid the purchase price and the total value-added tax thereon through the account in the name of the transaction party in the instant case. However, even if the Plaintiff received a false tax invoice from the transaction party, the evidence submitted by the Defendant alone is insufficient to deem that the Plaintiff was aware that “the tax invoice at issue is different from the fact” and “the transaction party at issue” and “the Plaintiff was aware that the Plaintiff would have received a deduction of the input tax amount by evading the liability to pay value-added tax under each of the said tax invoices by either filing a tax return or filing a request for correction, excluding the output tax under each of the said tax invoices, or filing a tax return or filing a refund, and thereby resulting in the reduction of national revenues.”

Therefore, in imposing value-added tax on the Plaintiff as to the business partner of the instant case, the general penalty tax for filing a lawsuit under Article 47-3(1) of the former Framework Act on National Taxes shall be imposed, not the penalty tax for filing a report under Article 47-3(2). As such, the part exceeding the amount where the general under-reported penalty tax was imposed, not the penalty

(iv) a reasonable tax amount;

In light of the aforementioned legal principles, the reasonable amount of tax calculated against the transaction partner of this case is as indicated below in the aggregate amount of tax as follows. 80,964,964,180 won in the imposition of value-added tax of KRW 96,446,880 in January 7, 2013, and KRW 110,375,630 in the imposition of value-added tax of KRW 141,257,340 in the imposition of KRW 141,257,340 in the year 2010, and KRW 117,173,910 in the imposition of value-added tax of KRW 120,15,94,890 in the imposition of value-added tax of KRW 120,94,890 in the imposition of value-added tax of KRW 57,729,480 in the imposition of value-added tax in the year 2012.

Therefore, on January 7, 2013, the part exceeding KRW 80,96,180 of the imposition disposition of KRW 10,96,880 for the first period of value-added tax for the year 2010 against the Plaintiff; the part exceeding KRW 110,375,630 of the imposition disposition of KRW 110,252,410 for the second period of value-added tax for the year 2010; the part exceeding KRW 117,173,910 among the imposition disposition of KRW 141,257,340 for the first period of value-added tax for the year 20,15,180 for the second period of value-added tax for the year 20,94,890 for the second period of value-added tax for the year 201; the part exceeding KRW 57,729,480 for the first period of value-added tax for the year 2012.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.