Whether the tax invoice supplied by a marine salary service provider constitutes a disguised sale

It is not known that the name of the recipient is different from the fact, and that there is no negligence on it, but there is a burden of proving that the taxpayer who fails to prove it, but the taxpayer's assertion is without merit.

Article 22 of the Value-Added Tax Act

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 33,679,436 on July 1, 2006 against the Plaintiff of KRW 32,256,86,863 on the first tax invoice in the year 2004, and the second tax invoice in the year 2004 is revoked. Each imposition of KRW 32,256,863 on the first tax invoice in the year 2005 is revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry of evidence Nos. 4-1, 8-1, 1-1, 3-2, 7-1, 2, 9 through 10-5 of evidence Nos. 4-1, 8-1, and 1-2, 7-1, 7-1, 2, 9 through 10-5.

A. The Plaintiff’s ○○ Headquarters issued 141 copies of sales tax invoice in an amount equivalent to KRW 17,294,780,540, and paid the Defendant the value-added tax for each of the above taxable periods, including 141 copies of the said tax invoice, in which the name of the recipient is the 13 marine oil supply companies, including Nonparty ○○ Energy Co., Ltd. (hereinafter the above 13 marine oil supply companies) during the period from the first taxable period of the value-added tax in 2003 to the first taxable period of the value-added tax in 205.

Persons who receive the supply

Taxation Period

Value of supply (cost)

Purchase Tax Invoice

○ Energy Corporation

1, 2004

635,545,453

4

204 Second Period

973,592,534

8

1, 2005

94,972,730

6

○○ Oil Business Corporation

1, 2003

428,418,00

5

203

67,936,00

6

1, 2004

746,718,185

6

204 Second Period

53,481,818

8

1, 2005

756,387,637

20

○○ Oil Co., Ltd.

1, 2004

105,654,545

2

204 Second Period

295,276,364

4

○ Oil Tank Corporation

1, 2004

1,483,797,270

4

204 Second Period

1,991,581,818

7

○○ Oil Co., Ltd.

1, 2004

103,381,818

1

204 Second Period

199,903,637

3

○○ Energy Corporation

1, 2003

655,474,00

5

203

4,057,000

2

1, 2004

70,508,181

3

○○ Energy Corporation

1, 2004

649,481,820

3

204 Second Period

453,238,181

4

○○ Energy Corporation

1, 2004

17,047,273

1

○○ Co., Ltd.

204 Second Period

369,118,182

5

1, 2005

487,199,99

4

○○ Energy Corporation

204 Second Period

202,153,636

2

1, 2005

848,493,634

5

○○ Energy Co., Ltd.

1, 2004

204,527,273

3

○○ Energy Corporation

1, 2004

98,000,000

1

204 Second Period

1,650,192,364

7

○ Energy Corporation

204 Second Period

713,621,816

7

1, 2004

895,020,001

5

Total

17,294,780,540

141

Taxation Period

Value of supply (cost)

The notified tax amount (cost)

1, 2003

1,083,892,000

21,677,840

203

711,993,00

14,239,860

1, 2004

4,114,661,818

41,146,610

204 Second Period

7,402,159,721

74,021,590

1, 2005

3,982,074,001

39,820,740

Total

17,294,780,540

190,906,640

B. The Defendant, on July 1, 2006, supplied oil equivalent to the supply value of each of the above tax invoices by the Plaintiff to the Plaintiff on July 1, 2006, is not a maritime oil supplier, but a non-party ○○○, so the Plaintiff’s headquarters’s tax invoice 141 of the above tax invoice accrued in the future of a maritime oil supplier constitutes a case where all or part of the requisite entries are

The following additional tax imposed and collected additional tax on non-performance of tax invoices (hereinafter “instant disposition”).

C. After that, around August 2007, the defendant continued to file a lawsuit, on the grounds that the above tax invoice 141, which was issued in the future of ○○ Oil Business, was not included in the certificate of confirmation prepared in the course of ○○○ Tax Investigation, and the certificate of confirmation prepared in the course of ○○ Tax Investigation, the sum of KRW 3,717,83,640, and the disposition of this case was reduced or corrected as follows, by excluding the sum of KRW 3,717,83,640 from the tax base for the year 2003, the first installment portion in the year 2004, and the second installment tax invoice for the year 2005, and 7 copies in the second installment tax invoice for the year 2003, issued in the ○○ Energy Co., Ltd.

Taxation Period

Value of supply (cost)

The notified tax amount (cost)

1, 2003

0

0

203

0

0

1, 2004

3,367,943,633

3,679,436

204 Second Period

6,983,317,903

69,833,179

1, 2005

3,225,686,364

32,256,863

Total

13,576,947,900

135,769,478

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff's purchase order of oil against the plaintiff, deposit of oil price, request for delivery, etc. shall be made in the name of each maritime oil supplier, and the shipment of oil was made by each maritime oil supplier registered in the oil reservoir, so the person who actually received oil from the plaintiff is an oil supplier at each sea level. However, this ○○ is supplied with the oil supplied by the plaintiff from the oil supplier at sea level again. The person who actually received the oil from the plaintiff is not a oil supplier at sea level but a person who actually received the oil from the plaintiff is not a oil supplier at sea level but a oil supplier at this ○○, the plaintiff was issued a business registration certificate and registered with the business owner at each time of the transaction, and the deposit was made in the name of the oil supplier at each time, and the notification of the oil release was not negligent in not knowing it due to shipping after confirming the stamp image and the certificate of seal impression on the request for delivery, and thus, the disposition at issue is unlawful.

B. Determination

(1) Article 22(2)1 of the Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006) provides that an amount equivalent to 1/100 of the value of supply shall be imposed as an additional tax when the necessary entry of a tax invoice is different from the fact.

(2) Therefore, in light of the overall purport of pleadings as to whether a person who actually received oil from the Plaintiff constitutes ○○○○○, not a maritime oil supplier, and as to whether a person who actually received the oil from the Plaintiff constitutes ○○○, this constitutes ○○, and as such, this constitutes an unregistered petroleum retailer under the name of ○○, ○○, as the whole, issued a tax invoice under the same name as the Plaintiff in order to conceal illegal acquisition in selling the oil illegally acquired from the ship at sea in the name of ○○, ○, as well as a marine oil supplier under the name of ○○○, which was issued a tax invoice under the name of ○○○, to the Plaintiff by purchasing the oil from the same oil reservoir under the name of ○○○, which was the same as that of the Plaintiff, and then disposing of the remaining amount under the name of ○○○○, which was the maritime oil supplier under the name of ○○, 10% of the total amount of the oil so purchased from ○○, which was the maritime oil supplier under the name of this case.

(3) Next, even if the Plaintiff did not know the above circumstances and did not know it, it is difficult to conclude that the Plaintiff did not know such circumstances and did not know it. Rather, according to the above evidence, the tax invoice, which forms the basis of the disposition of this case, was delivered to ○○○○ through the entrusted manager of the ○○ station, even though the Plaintiff did not know it, it continued the above transaction with ○○○○ in order to increase the sales performance of the ○○ station. Even if ○○ was aware of the fact that the ○○○ used the ○○○ store's sales performance, it was just for ○○○○○○○ to receive some of the management services charges that the Plaintiff received from ○○○○○○○ to use the ○○○○○ store's sales performance, and even if so, according to the management services contract between ○○○ and the Plaintiff, ○○○○ operated the management services at its own expense, which could not have any substantial influence on the Plaintiff's interest in the ○○○ office's sales charge.

Furthermore, the plaintiff asserts that the total value of supply of the tax invoice, which is the basis of the disposition of this case, is 13.5 billion won or more, and that the remaining 4.1 billion won is negligent in the plaintiff on the ground of the act of ○○○○. Thus, as seen earlier, all the tax invoice, which forms the basis of the disposition of this case, is different from the fact of the recipient, and the plaintiff has the burden of proving that he did not know it and did not know it. According to the statements in subparagraph 4-1, 2, from January 4, 2004 to May 31, 2005, 00 won, it is difficult to conclude that ○○○ was negligent in aiding and abetting the petroleum sales business without registration of this case by supplying the oil equivalent to 11.3 billion won to ○○, and thus, it is hard to acknowledge that the remaining part of the supply price of this case, other than the above summary order, which became final and conclusive solely on the ground that ○○ had not been charged with the above summary order.

(3) If so, the disposition of this case is legitimate, and the plaintiff's assertion of this case is without merit.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed. It is so decided as per Disposition.

[Supplementary High Court Decision 2007Nu445 (Law No. 13, 2008)]

1. The plaintiff's appeal is dismissed.

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

The decision of the court of first instance is revoked. The defendant revoked each disposition of imposition of KRW 33,679,436 on July 1, 2006 against the plaintiff of the first tax invoice of the year 2004, additional tax on non-performance of the second tax invoice of the year 2004, 69,83,179, and additional tax on non-performance of the first tax invoice of the year 2005, and 32,256,863.

1. The court's explanation on the instant case is identical to the reasoning of the judgment of the court of first instance, and thus, citing it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. If so, the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.