Early High Court Decision 2009Du3682 ( December 14, 2009)

Petroleum retailers who received a false tax invoice;

As a result, it is insufficient to recognize the fact that a tax invoice received as a petroleum retailer constitutes a false tax invoice, and that the tax invoice received as such is in good faith and negligence, and thus a disposition that deducts the input tax amount of value-added tax is legitimate.

2010 disposition of revocation of imposition of value-added tax

〇〇주유소

〇〇세무서장

1. The plaintiff's claim is dismissed.

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

The imposition of value-added tax of KRW 91,065,970 on May 1, 2009 by the Defendant against the Plaintiff on May 1, 2009 shall be revoked.

1. Details of the disposition;

가. 원고는 2005. 2. 22.부터 〇〇 〇〇구 〇〇동 3가 53-1에서 석유류 도소매업을 영위하는 법인으로, 주식회사 △△에너지(이하 '△△에너지'라 한다)로부터 공급가액 합계 537,765,455원인 세금계산서 11장(이하 '이 사건 세금계산서'라 한다)을 교부받아 위 세금계산서상의 매입세액을 매출세액에서 공제하여 2007년 제l기 부가가치세 신고를 하였다.

B. The Deputy Director of the Central Regional Tax Office: (a) conducted a tax investigation on △△ Energy to determine △△ Energy as data; and (b) notified the Defendant of the instant tax invoice as false tax invoice prepared without real transactions.

C. Accordingly, on May 1, 2009, the Defendant issued a notice of correction and notification of KRW 91,065,970, value-added tax for the first period of 2007, by failing to offer the input tax amount of the instant tax invoice to the Plaintiff (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on October 12, 2009, but the Tax Tribunal dismissed the appeal on December 14, 2009.

[Ground of recognition] Gap evidence Nos. 1, 4, 12, Gap evidence No. 2-1 to 11, Eul evidence No. 2-1, and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was actually supplied through △△ Energy and traded the purchase price to △△ Energy in a normal way, and thus, the instant tax invoice is not false. Even if the Plaintiff was a false tax invoice with △△ Energy, the Plaintiff was issued and confirmed a certificate of tax payment, certificate of tax base, certificate of personal seal impression, corporate register, etc. while doing business with △△ Energy, and the Plaintiff did not know that the instant tax invoice was a false tax invoice, such as directly remitting the oil price to the corporate account of △△ Energy and receiving the tax invoice from △△△ Energy. Therefore

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

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

The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries in the tax invoice are inconsistent with those in the transaction contract, etc. prepared between the parties to the goods or services, notwithstanding the formal entries in the transaction contract, etc. made between the parties to the goods or services.

As to whether the customer who supplied oil to the Plaintiff is the supplier of the instant tax invoice, it is examined as to whether the customer is the △△△ Energy. In full view of the purport of the arguments in the evidence Nos. 2, 4, 10, 16, and 18 (including the serial number) of the Plaintiff, △△△△ Energy does not own a separate oil storage facility or transport vehicle, and △△△ Energy does not own a separate oil storage facility or transport vehicle, and ② The normal sales, excluding the processed purchase amount of KRW 2.69,8,000,000 for the first period of 2.69,000,000,000 won, are confirmed not to be the normal sales amount of KRW 12.9,99.9%, and ③ The Plaintiff’s shipment agent’s purchase of the oil at the time of supply of the oil does not coincide with the supplier of the instant tax invoice, and thus, it cannot be seen that the Plaintiff’s purchase of the oil at the time of supply of the oil is not the Plaintiff’s actual supplier.

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

The actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not knowing the nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

The Plaintiff’s failure to know the name of the tax invoice of this case and failure to know that there was no negligence on the part of the Plaintiff, each of the entries in Gap’s Nos. 2, 3, 5, and 10 (including the serial number) is insufficient to recognize it, and there is no other evidence to acknowledge it.

Rather, in full view of the following circumstances, the Plaintiff knew that △△△ was not a person who actually supplies the instant oil, and was negligent in doing so. In other words, the Plaintiff operated a wholesale and retail business from February 22, 2005, and the Plaintiff’s operator was actually operating OP Co., Ltd., Gyeonggi Energy Co., Ltd, and Accounting Station in addition to the Plaintiff’s company (the witness witness witness testimony), so it was aware of the normal structure and route of the supply of the oil, the general type and method of the distribution industry, and the actual situation and risk of the distribution of the oil in the oil industry. ② The Plaintiff asserted that △△△△△△ was aware of the fact that the Plaintiff was not a person who actually supplies the instant oil, and that the date of issuance of the certificate of tax payment for △△△△△ Energy was recorded as a legitimate oil shipping company, but the Plaintiff did not issue the certificate of tax payment for the first time after the date and time of issuance of the certificate of tax payment for the Plaintiff’s 2007.

(3) Sub-determination

Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and it is insufficient to recognize the fact that the Plaintiff is bona fide and negligent in believing that such tax invoice was properly received. Therefore, 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.