Cho High Court Decision 2010Du3556 ( October 26, 2012)

The Plaintiff is negligent in neglecting the investigation into the actual transaction counterpart.

The instant tax invoice constitutes a tax invoice written differently from the fact by a oil supplier, and it is reasonable to deem that the Plaintiff was negligent in neglecting the investigation, even though it was necessary to investigate who is the actual counterpart of the transaction.

Article 17 of the Value-Added Tax Act

2012Guhap17674, revocation of the determination and notice of change in income amount

XX Co., Ltd

Head of Seodaemun Tax Office

August 17, 2012

September 14, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax of KRW 000 on July 1, 201 against the Plaintiff on July 1, 201 shall be revoked.

1. Details of the disposition;

A. From January 1, 2007, the Plaintiff is a company that runs gas station business under the trade name of "Pridong in Eunpyeong-gu Seoul (hereinafter "the gas station of this case")".

B. In 2008, the Plaintiff received a tax invoice in an amount equivalent to the total value of 000 won (hereinafter “instant tax invoice”) from an office of office located in an O Energy Co., Ltd. (hereinafter “O Energy”) during the 2nd VAT period, and filed a return on the value-added tax for the 2nd period of 2008 return to the Defendant, while filing a return on the value-added tax for the 2nd period of value-added tax

(c) As a result of conducting a tax investigation on the O-Energy Offices, the head of the Dong-ju District Tax Office confirmed that the O-Energy is so-called material that it issues a tax invoice without a real transaction, and notified the Defendant of the results of such investigation.

D. Accordingly, on July 1, 2011, the Defendant confirmed that the O-Energy Office was data, and on the ground that the Plaintiff’s content of the return of the value-added tax for the second period of 2008 was examined in light of the survey data, the Plaintiff’s non-deduction of the input tax pursuant to the instant tax invoice and notified the Plaintiff of KRW 00 of the value-added tax for the second period of 2008 (hereinafter “instant disposition”).

E. On September 29, 2011, the Plaintiff filed an appeal with the Tax Tribunal, but was dismissed on April 26, 2012.

[Reasons for Recognition] Unsatisfy, Gap evidence (including each number), 13 evidence, Eul evidence Nos. 1 through 5, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The Plaintiff was actually supplied with oil from the O-Energy Cheongju Branch, and wired the purchase price to normal transaction, and thus, the instant tax invoice is not a different tax invoice from the fact.

2) Even if the Plaintiff’s oil supplier is not an O-Energy supplier, but an other company, which is not an O-Energy supplier specified in the instant tax invoice, and the instant tax invoice constitutes a false tax invoice, the Plaintiff was unaware of the fact that the oil was supplied by another company, not an O-Energy supplier, but an O-Energy supplier, and the Plaintiff was unaware of the fact that the oil was confirmed with the O-Energy supplier’s trade with the O-Energy supplier, and thus, the Plaintiff was not negligent.

(b) Related statutes;

/ Value-Added Tax Act (amended by Act No. 9268 of Dec. 26, 2008)

Article 17 (Payable Tax Amount)

(1) The amount of value-added taxes payable by an entrepreneur (the tax amount payable under 01) shall be the amount obtained by deducting the tax amount under the following subparagraphs (hereinafter referred to as the “purchase tax amount”) from the tax amount on the goods and services supplied by him (hereinafter referred to as the “sales tax amount”):

(2) The following input taxes shall not be deducted from the output tax amount:

1. An input tax amount in case where the list of the total tax invoices for purchase and punishment is not submitted under Article 20 (1) and (12), or the input tax amount on the portion not entered or entered differently from the fact, in case where the whole or part of the registration numbers or supply values by transaction parties is not entered or entered differently from the fact, from among the list of the total tax invoices for the total tax invoice by customer submitted: Provided,

1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a “necessary entry item”) is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be excluded

(c) Fact of recognition;

(i)in the case of normal oil transactions:

When oil is delivered to a gas station through normal distribution channels, one orderer shall keep the oil station, and one copy shall keep the oil station, and one copy shall receive the signature of the business partner's oil station where the oil is delivered after being delivered to the transporter of the relevant oil, and one copy is collected by the driver, and the other one is delivered to the gas station, because there is an increase or decrease in the volume of the oil products after the temperature of the petroleum products.

2) Oil transactions, etc. at O-Energy and Cheongju Points

A) The OEM is a business operator who reported on June 5, 2009 after having registered his/her business on August 29, 2007 and reported on the closure of his/her business on June 5, 2009. The OEM is a business operator whose official business was discontinued on May 20, 2008 after having registered his/her business on December 31, 2008.

B) The representative of the O-Energy and the O-Energy Headquarters received false tax invoices or delivered them without a real transaction, and completed the business registration by accepting the O-Energy Busan Head Office and completed the business registration. After the establishment of a branch office in the Cheongju and Jeonju, there was a transaction in data on which the sales tax invoices were issued to the nationwide gas stations without a real transaction and fees were collected.

C) O energy is purchased by leasing oil reservoirs and vehicles for transport, which are storage facilities, in order to meet the requirements for registration at the time of initial registration of a petroleum retail business operator. However, it is not possible to use the oil reservoir or vehicles for transport in fact.

D) Under the name of the main oil supplier at the O-Energy Cheongju Branch, △△ Petroleum Co., Ltd. and YY Petroleum Daejeon Branch, but the O-Energy Cheongju Branch did not actually receive oil from these companies. However, a processing tax invoice was issued as if they were supplied with the oil in order to meet the sales details on the sales tax invoice for processing. △△ Petroleum and YY Petroleum Daejeon Branch were charged with all of the material and subsequently dismissed ex officio.

E) On April 2009, the result of the tax investigation conducted by Dong Cheongju Tax Office with respect to the O-Energy Office, which was confirmed as a result of the tax investigation conducted by the O-Energy Office, a tax invoice equivalent to approximately 95% of the sales tax invoice issued during the second taxable period of value-added tax in 2008 was confirmed as a processed tax invoice.

3) Transaction between the Plaintiff and the O-Energy

A) At the time, the Plaintiff came to know KimCC, an employee of the OCC, through KimB, the president of the instant gas station, and, as his main station, decided to purchase the O-Energy petroleum with a level of 20 won per liters below the current oil market price. The Plaintiff confirmed the O-Energy business registration certificate and transferred the oil price to the O-Energy main office of O-Energy by ordering the oil equivalent to the supply price under the instant tax invoice four times on December 2008, and transferred the oil price to the bank account under the name of O-Energy. The Plaintiff was issued a detailed statement of O-Energy name and the instant tax invoice.

B) At this time, the Plaintiff instructed KimB to get on the oil tank to verify whether the oil was refined or not, and KimB, upon the Plaintiff’s instruction, confirmed that he was carrying petroleum on the oil tank in the North Seoul Oil reservoir located in XXdong at ancientyang-si. KimB, after having arrived at the oil station in this case, issued a shipment slip from the driver of the transport vehicle under the name of other distributors, such as airport oil, not OO energy, and signed on the consignee’s column.

C) After that, the Plaintiff heard the horses that “it is necessary to exchange for the shipment slips in the name of O energy,” and exchanged for the shipment slips issued by O Energy and the shipment slips issued by airport petroleum, etc. as above. However, the shipment slips in the name of O energy were different from the fact that the temperature, shipment time, shipper, and consignee column were all the official columns.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 5, Gap evidence 7, 13, Eul evidence 4, witness KimB's testimony and purport of 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 the tax invoice is disputed. In a case where a transaction with a supplier stated in a tax invoice claimed by a taxpayer has been proved to a considerable extent that it is false, it is necessary for a taxpayer to prove that it is easy for him/her to present data, such as books and documentary evidence, regarding the fact that he/she actually traded with a supplier listed in the tax invoice (see, e.g., Supreme Court Decisions 94Nu3407, Jul. 14, 1995; 2007Du143

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 receives goods or services from an entrepreneur who does not form a nominal legal relationship with an entrepreneur who supplies goods or services, or who actually performs transactions of supplying goods or services to a supplier (see, e.g., Supreme Court Decisions 2002Do4520, Jan. 10, 2003; 2007Do10502, Jan. 28, 2010).

B) Even if the Plaintiff actually purchased oil in the quantity stated in the instant tax invoice, it is examined as to whether the customer who supplied oil to the Plaintiff accords with the supplier listed in the tax invoice.

The following circumstances revealed by the above recognition, namely, ① O Energy Authority's point is the company determined and accused in the data issued by the tax authorities without a real transaction, ② O Energy Authority's point was also identified as data and the purchase details reported was also identified as a processing transaction. In the absence of oil purchased from these companies, it cannot be deemed that the O Energy Authority's point was actually supplying the Plaintiff's oil. ③ The supplier's column on the shipment slip that the Plaintiff first received from the transporter after the Plaintiff was supplied with the oil at the North Seoul Oil reservoir was written in the name of another company, not OOE, but the first supplier's name on the shipment slip that the Plaintiff first received from the transporter. As a result of the tax investigation into the O Energy Authority's point, the Plaintiff's assertion that the Plaintiff did not directly receive the instant tax invoice from the O Energy Authority, but merely did not constitute the Plaintiff's third party's goods supplier's supplying the instant goods, and thus, the Plaintiff's allegation that the Plaintiff did not directly receive the instant tax invoice from the third party.

2) Whether the Plaintiff is bona fide and without fault

A) An actual supplier and a supplier on a tax invoice may not deduct or refund an input tax amount unless there is any special circumstance that the person who received another tax invoice was unaware of the fact that he/she was unaware of the fact of misrepresentation of the tax invoice and that the person who received the tax invoice was not negligent in not knowing the fact of misrepresentation of the name as above (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009). In such cases, the fact that the person who asserted for the deduction or refund of the input tax amount was not negligent in ascertaining the fact of misrepresentation of the name of the supplier is the actual supplier in light of the details of issuance and delivery of the tax invoice, the size and market price of the goods or services supplied, the specific route in which the goods or services are supplied, the transaction practice in the relevant industry, etc., and the recipient was not aware of the fact of misrepresentation of the name of the supplier.

B) The plaintiff received oil four times from the O Energy and received tax invoices, shipment slips, and transaction specifications issued by the O Energy, each of which was received by the plaintiff, the plaintiff supplied oil, transferred the full amount of oil price to the corporation account of the O Energy, and the plaintiff confirmed the certificate for the registration of the O Energy business, as seen earlier. However, it is insufficient to find that the fact that the fact that the plaintiff received oil from the O Energy and did not know that the tax invoice issued by the O Energy was a false tax invoice, and that there was no negligence on the part of the plaintiff. There is no other evidence to prove otherwise.

Rather, the following circumstances, namely, ① the supply structure of the oil industry is complicated and frequent, so it is necessary to pay attention to whether an oil supplier is an actual supplier. Furthermore, the Plaintiff has been engaged in gas station business since January 1, 2007. As such, the Plaintiff had been aware of the normal structure and distribution route of the oil supply, the general form and method of the industry, and the fact that the oil industry was widely spread in the oil industry, and the risk of the spread of the data. ② The office of the Plaintiff did not know the fact that the Plaintiff was not negligent in supplying the oil market at the time of the above small-scale office, and its employees were not aware of the business related to petroleum sales, and the Plaintiff did not receive any doubt about the fact that the Plaintiff was not negligent in supplying the oil market at the time of the first exchange with theO and the fact that the Plaintiff was not negligent in supplying the oil market at the time of the first sale of the oil market.

3. Conclusion

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