National Tax Service Review Division 2009-0077 ( December 30, 2009)

Since oil sellers received a tax invoice different from the fact that the supplier entered false matters, the disposition of taxation without deducting the input tax amount is legitimate.

A business operator operating oil sales business has received a false tax invoice different from the fact that the supplier has entered the false information, and the receipt of only a copy of the business registration certificate or a copy of the passbook is confirmed, and it is difficult to deem that there is no negligence due to the failure of the supplier to know the fact of the actual supplier’

2010 Gohap4200 Disposition of revocation of the imposition of value-added tax

○○ Co., Ltd.

○ Head of tax office

o April 13, 201

May 25, 2011

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 5,159,920 for the second period of 2006 against the Plaintiff on April 1, 2009 and the imposition of value-added tax of KRW 3,705,970 for the first period of 2008 is revoked.

1. Details of the disposition;

A. From July 1, 2006, the Plaintiff is an entrepreneur who runs the oil sales business under the trade name, i.e., ○○○-dong 1784-1 to ○○○-do gas station.

B. On December 31, 2006, the date of publication by △△ Energy Co., Ltd. (hereinafter “△△△ Energy”), the Plaintiff received the tax invoice of KRW 40,00 liter and supply value of KRW 38,236,364 (tax amount of KRW 3,823,636) via item, and reported the value-added tax for the second period of time in 2006 by deducting the input tax amount. On March 31, 2008, the Plaintiff received the tax invoice of KRW 20,00 via item, 20,00 liter, supply value of KRW 24,954,54,546 (tax amount of KRW 2,495,454) (hereinafter “tax invoice in the name of △△△△△”) from △△ Energy Co., Ltd. (hereinafter “○”). and filed a return on the value-added tax for the first period of time in 208.

C. On April 1, 2009, the director of the Central Regional Tax Office: (a) conducted an investigation on the data on △△ Energy and △△ Energy; and (b) notified the Defendant of this fact by determining that the instant tax invoice was received only without real transactions; and (c) on April 1, 2009, the Defendant did not deduct the input tax amount of the instant tax invoice from real transactions; and (d) corrected and notified the Plaintiff of KRW 3,705,970 for value added tax No. 2006 and KRW 1,208 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on June 3, 2009, but the Commissioner of the National Tax Service dismissed the request on December 30, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2-1, 2-2, Eul evidence 1, 2-1 and 2-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the instant tax invoice was issued from △△ Energy and △△ Energy after being supplied with the actual oil from △△ Energy and △△ Energy, the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On December 2006, the Plaintiff received a copy of the △△ Energy Business Operator’s registration certificate and a copy of the passbook from the KimA, who was in charge of the business of △△△ Energy, and also received a copy of the △△ Energy Business Operator’s registration certificate and a copy of the passbook through the KimA on March 2008.

(2) The shipment slips that the Plaintiff received oil from △△ Energy and △△ Energy are indicated as follows.

(3) On December 15, 2006, the Plaintiff remitted KRW 20,908,300 to the △△ Energy Account, and KRW 21,080,300 on the 21st of the same month, and around March 5, 2008, remitted KRW 13,900,300 to the △ Energy Account, and KRW 13,550,300 on the 15th of the same month.

(4) The Plaintiff’s certificate of measurement is measured by oil supplied by △△ Energy and △△ Energy, and oil supplied by △△ Energy is registered in the POS system in which each storage tank is electronically managed, but oil supplied by △△ Energy is not registered in the POS system.

(5) From October 19, 2006, △△ Energy was engaged in petroleum retail business in Goyang-si on March 31, 2007, and became ex officio discontinuance of business on March 31, 2007. There was no fact of holding or leasing oil transport equipment, oil storage, and 9.5% of the purchase tax invoice for the taxable period of the value-added tax No. 2 and No. 1 in 2006 and No. 2007, and 9.92% of the sales tax invoice were confirmed as a processing tax invoice for which no real transaction is conducted.

(6) Since July 1, 2007, △△△ City’s petroleum sales business was discontinued on March 31, 2008. There was no fact that the oil of △△ petroleum storage tank was put in and out of the store store, and it was confirmed that the purchase tax invoice for the taxable period of 2007 and 100% of the sales tax invoice was 9.8% of the purchase tax invoice for the taxable period of 2007 and 2008, and 100% of the sales tax invoice was a processing tax invoice for which no real transaction was conducted.

(7) On December 27, 2010, the Tax Tribunal rendered a decision to revoke the notice of change in income amount of KRW 10,115,370 for the business year 2006, corporate tax of KRW 34.930 for the business year 2008, and KRW 69.5.00 for the business year 2006, which was imposed on the Plaintiff.

[Ground of Recognition] Facts without dispute, Gap evidence 4-1 to 8-5-1, 2, Gap evidence 6-1 to 6, Gap evidence 13-2, Eul evidence 2-1, 2-2, Eul evidence 2-3, and the purport of the whole pleadings

D. Determination

Article 17(2)1-2 of the Value-Added Tax Act provides that input tax amounts in cases where the entries of a tax invoice are different from the facts, shall not be deducted from the output tax amount. In this case, the meaning that it is different from the facts is stipulated that if the ownership of income, profit, calculation, act or transaction, which is the object of taxation, is nominal, and there is a separate person to whom such ownership belongs, the person to whom such ownership belongs shall be liable for tax payment and the other person shall be liable for tax payment in accordance with the purport of Article 14(1) of the Framework Act on National Taxes, which provides that the necessary entries of a tax invoice are inconsistent with those of the person to whom the goods or service is actually supplied or supplied,

As seen earlier, it is recognized that the Plaintiff was actually supplied with oil listed in the instant tax invoice and the Plaintiff paid the oil price therefor.

However, the following circumstances recognized by the purport of the above facts and the argument, namely, the name of the company in the △△ Energy shipping table, which is Seoul Petroleum Co., Ltd., rather than △△△△. The place of destination is not inconsistent with the tax invoice in this case, the next generation oil station, the single energy station, and the delivery of the shipment slips to the Plaintiff. The △△△ Energy did not have oil transport equipment or oil storage facilities, and the △△ Energy did not have the oil oil storage tank, and the vehicle of △△ 000 on the △△△△ Energy shipping table was not entered in the usual oil storage tank, and the vehicle of △△△△△ 000 on the △△△ Energy shipping table was the unregistered vehicle, and the sales tax invoice of △△△△△△ and 100% was entered in most of the data. In full view of the fact that the Plaintiff was supplied with oil at least 30-40 won per liter than the oil supplier in this case, the Plaintiff appears to be provided with the tax invoice and the △△△△△ Energy.

In addition, 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 nominal name of the tax invoice and that there was no negligence on the part of the supplier. The fact that the supplier was not negligent in not knowing the nominal name of the tax invoice (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). In light of the aforementioned circumstances, the Plaintiff cannot be deemed to have committed negligence on the part of the supplier by failing to actually ascertain the location of the business place or business facilities of △△△ Energy or Dol Energy, even though there were sufficient circumstances to doubt whether the actual supplier was the actual supplier and the supplier was not the data, and by simply obtaining the copy of the business registration certificate of △△△ Energy and Dol Energy and the copy of the passbook from KimA, the fact that the supplier was not negligent in not knowing the actual nominal name of the supplier.

Therefore, the disposition of this case, which issued a revised and notified value-added tax, is legitimate by deducting the input tax amount of the tax invoice of this case from the Plaintiff.

3. Conclusion

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