early 2011 Heavy0696 (201.04.04)

Since trade flows are entered in the schedule of similar issuance pre-issuance, it cannot be viewed as a false tax invoice.

In fact, after receiving oil and paying the price, the oil agency received the shipment ticket of the oil refinery issuance, and the oil agency entered that the petroleum agent supplied the oil to the Plaintiff purchaser (the name of the petroleum agency in the transaction place column, the delivery place column, and the Plaintiff’s purchase place are entered) in the shipment slip of the oil oil issuance, etc., the Plaintiff appears to have received the oil in fact from the Plaintiff purchaser.

Article 17 (Payable Tax Amount)

2011Guhap661 Revocation of Disposition of Imposing Value-Added Tax

XX Kim

Head of Suwon Tax Office

October 12, 2011

December 7, 2011

1. The Defendant’s imposition of value-added tax of KRW 14,032,820 against the Plaintiff on October 6, 2010 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is operating a gas station in the name of Suwon-si from 000-1 to 000-1, Suwon-si, Suwon-si, with the trade name of XX gas station.

B. On July 31, 2008, the Plaintiff received the tax invoice of KRW 59,418,182, tax amount of KRW 5,941,81,818, total of KRW 65,360,000, and the tax invoice of KRW 29,709,091, total of KRW 2,970,90,000, and KRW 32,680,000,000, from the ○○ Energy Co., Ltd. (hereinafter referred to as “○○ Energy”), and filed a value-added tax return by deducting the input tax amount.

C. On October 6, 2010, the Defendant deemed that the instant tax invoice constituted a false tax invoice, and subsequently notified the Plaintiff of KRW 14,032,820 of value-added tax for the second period of October 6, 2008 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on February 10, 201, but the Tax Tribunal dismissed the appeal on April 4, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 7-5, 6, Gap evidence 1-1, 12-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff purchased the transit oil from the oil refining company (SK Energy) to sell it to ○○ Energy from oil refining company, and confirmed the shipment of normal products from oil refining company, and did not know that it was a disguised transaction by fulfilling all the duty of care, such as the issuance of the tax invoice in this case. Thus, the instant disposition was unlawful.

B. Relevant statutes

Article 16 (Tax Invoice)

Article 17 (Payable Tax Amount)

(c) Fact of recognition;

(1) The Plaintiff was issued a copy of the ○○ Energy Business Registration Certificate and a copy of the petroleum selling business registration certificate (general agency) by KimA, a business employee of the ○○ Energy.

(2) The Plaintiff purchased light oil and received the shipment slips of SK Energy Issuance from YB, an article of transportation vehicle, and from KS, and the details thereof are as follows.

【Resuring [Resuring] The name of the company] [Resuring] The name of the company [Resuring]

on July 31, 2008 17:52 Incheon Oil storage Center 3851 ○○ (Indones) 27.50824.2

on July 31, 2008, 22.30, 22.30, 3851 ○○, 21.70824.0

on August 1, 2008, 10.23, 10.23, 2008, the petroleum Gyeonggi-gu, Seoul Special Metropolitan City, Do Governor, 9705 ○○ 22.60824.0

(3) On July 31, 2008, the Plaintiff deposited KRW 98,040,000 into the ○○ Energy Corporation Account. Of the above money, KRW 95,940,000, out of the above money, the Plaintiff deposited KRW 95,940,00 into the △△ Petroleum Account.

(4) On August 1, 2008, the final date for the POS computer system of the Plaintiff’s operating gas station is indicated as 26,825 L, 60,00 L, 8,626 L, 78,19 L on the day, and 26,825 L, 600 L, 8,626 L, and 79 L, respectively.

(5) On July 31, 2008, the shipment slips issued by the Plaintiff are written as acceptance by KimGK, who is an employee of the Plaintiff’s gas station, on the same day, 6:50 p.m. on July 31, 2008, 11:30 p.m., 11:30 p.m. and August 1, 2008.

(6) On April 24, 2008, the ○○ Energy established a corporation at the 000-1 Dong-dong, Seoyang-dong, Seoyang-gu, Yongsan-gu, Busan-si, and then was registered as a business operator in the Goyang-si 00-1, but the registration was rejected on the grounds of the impossibility of payment of the stock price. On May 19, 2008, the Seoul Songpa-gu moved the business to 00-3 and closed the business ex officio on August 30, 2008.

(7) During the second taxable period in 2008, petroleum of △△△ has been reported to the tax authority by supplying 461,000,000 oil to the ○○ Energy Gangwon-do Branch. At the time of the tax investigation, △△△ Petroleum ordered oil at the point north of the river branch to issue a tax invoice with the person who is supplied with the ○○ Energy Gangwon-do Branch, not the ○○ Energy, and ○○ Energy, stated that ○○ Energy used the transported vehicle and transported oil.

(8) On September 1, 2008, ○ Energy changed the name of the legal entity to △△ Energy Co., Ltd. and the location of its head office in Yang-si, Yang-si, Yang-si, Yangju-si, to 00-7.

[Ground of recognition] Facts without dispute, Gap evidence 3, 5, 6, Gap evidence 7-4, Gap evidence 8, Gap evidence 10-1, 2, 3, Eul evidence 3-1, 2-2, and the purport of the whole pleadings

D. Determination

(1) Whether the instant tax invoice is false or not

In principle, the burden of proving that a tax invoice received in the course of a specific transaction constitutes a “tax invoice different from the fact” under Article 17(2)1-2 of the Value-Added Tax Act where the deduction of an input tax amount is denied on the ground that the specific transaction is a nominal transaction without actual delivery or transfer of goods (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008).

In light of the following circumstances revealed by the fact of recognition, △△△ Petroleum, which is the actual supply of oil to the ○○○ Energy Branch, the Plaintiff actually received oil through the YB and YS employed by ○○○ Energy, and the Plaintiff received the shipment ticket of the oil, and the Plaintiff entered the shipment slip of the oil in the shipment slip of the oil in order to supply the oil to ○○○ Energy, and the Plaintiff’s deposited money into the ○○ Energy Account was immediately transferred to the ○○○ Petroleum Account. In light of the fact that the Plaintiff’s money deposited into the ○○ Energy Account was directly transferred from the ○○ Energy Account, it cannot be concluded that the Plaintiff was not actually supplied with the oil from the ○○ Energy.

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

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 supplier was unaware of the fact that the supplier was unaware of the fact of misrepresentation of the tax invoice, and that the supplier was not negligent in not knowing the fact of misrepresentation of the name, the person who asserts the deduction or refund of the input tax amount must prove that the supplier was not negligent (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

Even if the Plaintiff was not actually supplied with oil from ○○ Energy, the Plaintiff’s actual supplier of oil was supplied with the oil, and it was difficult to find out whether it was ○○ Energy and ○○ Energy Branch, and it was not easy for the Plaintiff to confirm it. ○○ Energy transferred the name of the Plaintiff to ○○○○○ Energy on September 1, 2008, and changed the name of the Plaintiff into △△△ Energy. The Defendant determined that the instant tax invoice was a processed transaction on the grounds that only between △△ Petroleum and △△ Gangwon-do Branch was traded. The time when the name of the Plaintiff changed to △△△○ Energy was after the date of the instant tax invoice. Since the instant tax invoice was transferred from the account of ○○ Energy before the change of the name of △△△○ Energy to the account of △△○ Petroleum, it cannot be concluded that there was no transaction between △△ Petroleum and ○○ Energy, and the Plaintiff was negligent in the Plaintiff’s actual acquisition of oil from the oil due to the fact that it was within one hour.

3. Conclusion

Therefore, since the disposition of this case is unlawful, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning and it is so decided as per Disposition.