Early High Court Decision 201J 2866 ( October 27, 2011)

The tax invoice of this case is a tax invoice entered falsely by the supplier, and the plaintiff's good faith and negligence should not be recognized.

The instant tax invoice is a tax invoice different from the facts entered falsely by the supplier; the Plaintiff has engaged in the oil distribution industry for a long time; the Plaintiff’s receipt of the shipment slips differs in the form of ordinary shipment slips and the temperature and density; and the Plaintiff did not confirm the place of business of the purchaser. Thus, the Plaintiff’s good faith and negligence cannot be recognized.

Article 17 of the Value-Added Tax Act

2012Guhap251 Revocation of Disposition of Imposition of Value-Added Tax

Park XX

Head of Namyang District Tax Office

July 3, 2012

August 21, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition disposition of KRW 000 on July 8, 201 against the Plaintiff on KRW 1, 2008, KRW 000 on KRW 2,00 on value-added tax in 2008, KRW 000 on value-added tax in 2009, and KRW 000 on value-added tax in 2009 is revoked.

1. Details of the disposition;

A. From October 1, 2007, the Plaintiff operated a gas station with the trade name of 'xx250-1' in Jindo-si, Jyang-si, Nam-si, the Plaintiff: (a) 15 copies of tax invoice totaling 000 won from OE Energy Co., Ltd. (hereinafter "OE Energy"); (b) 2 copies of tax invoice totaling 000 won from YY Energy Co., Ltd. (hereinafter "YY Energy") during the second taxable period of 2008; (c) 22 years in 2009; and 1 year in 2010, 2000 won in total from 200 won in supply value; and (d) ○○-do Co., Ltd., Ltd. (hereinafter referred to as "YY-si") in the aggregate of the supply value of the above input tax invoice (hereinafter referred to as 'O energy, YY energy, and YY-do, 200.

B. On July 8, 2011, the Defendant: (a) deducted the input tax amount for the transaction portion with the instant purchaser on the grounds that “the instant purchaser issued a tax invoice without real transaction; and (b) the instant tax invoice constitutes a disguised processing and purchase tax invoice different from the fact; (c) imposed on the Plaintiff the input tax amount for the transaction portion with the instant purchaser in 2008; (d) KRW 000 of the value-added tax for 1 year, 2008; (e) KRW 000 of the value-added tax for 2 year, 2009; and (e) KRW 000 of the value-added tax for 1 year, 2010 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on August 9, 201, but was dismissed on October 28 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1-1-4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Inasmuch as the Plaintiff purchased oil from the purchaser of the instant case and received the instant tax invoice, it cannot be deemed that the instant tax invoice constitutes a false tax invoice. Even if the instant tax invoice is a false tax invoice, the Plaintiff constitutes a bona fide transaction party inasmuch as it was verified by being issued the name of the head of the sales division, petroleum sales registration certificate, business registration certificate, etc., while making a transaction with the purchaser of the instant case, and transferred the oil price directly to the corporate account at the time of the transaction, and completed necessary verification and documentary evidence expenses, such as receiving the shipment slip, etc. Accordingly, the instant disposition made by the Defendant on a different premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

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

The meaning that the tax invoice under the Value-Added Tax Act differs from the fact is that the necessary entries of the tax invoice refer to cases where the contents of the requisite entries of the tax invoice are inconsistent with those of the actual supplier or supplier of the goods or service, regardless of the formal entries such as the transaction contract, etc. made between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 1996).

We examine whether the customer who supplied oil to the Plaintiff is the purchaser under the tax invoice of this case. Considering the overall purport of the arguments in the evidence Nos. 2, 3, 4-1, 2, and 5 of the evidence Nos. 4-1, 5 of this case, the purchaser of this case is confirmed as the so-called "data that only issues the processed tax invoice without actual oil transaction, such as purchase and sale at a level below 100% of the total purchase and sale, etc., ② The purchaser of this case did not use the leased oil storage facilities and transportation equipment once, and ③ if the non-data distributor supplies oil to the gas station, only the name of the tax invoice and the shipment slip are issued to the gas station, and if the oil supplier deposits the oil into the corporate account under the name of the purchaser of this case, it is reasonable to view that the remaining portion of the purchase price less the amount of the fees for the issuance of the tax invoice is remitted to the purchaser of this case, or that the plaintiff's allegation that the purchaser of this case was not the purchaser of this case.

(2) Whether the Plaintiff constitutes good faith and negligence

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 fact that the supplier was unaware of the fact that the supplier was unaware of the name of the tax invoice, and that the supplier was not negligent in not aware of the fact that the supplier was unaware of the above fact of the name, the person who claims the deduction or refund of the input tax amount must prove the fact that the supplier was not negligent (see Supreme Court Decision 2002Du2277, Jun. 28, 2002). Furthermore, in light of the details of the issuance and delivery of the tax invoice, the price of the goods or services supplied, the specific route and process of the supply of the goods or services, etc., the actual supplier is the person, and the name of the tax invoice, if there was a sufficient circumstance that the beneficiary was doubtful of the fact that the beneficiary was not aware of the fact of the supplier’s business registration certificate, the business permit, the sales statement of the goods or services, etc.

On the other hand, according to the evidence submitted by the Plaintiff, whether the Plaintiff was unaware of the nominal name of the instant tax invoice, and was negligent, the Plaintiff confirmed the Plaintiff’s business registration certificate, petroleum sales registration certificate, etc., and received tax invoices, shipment slips, transaction specifications, etc. from the instant purchaser, and the Plaintiff was provided with oil and remitted oil to the corporate account of the instant purchaser. However, it is not sufficient to recognize that the facts alone are insufficient to recognize that the Plaintiff was unaware of the fact that the tax invoice issued by the instant purchaser was a false tax invoice while purchasing oil from the instant purchaser, and that there was no negligence on the part of the Plaintiff, and that there was no other evidence to prove otherwise.

Rather, the following circumstances acknowledged by adding up the plaintiff's evidence as stated in Eul evidence No. 6 and the evidence mentioned above, i.e., ① the plaintiff opened a gas station from July 5, 1998 to operate a gas station for about 10 years prior to the trade with the purchaser of this case. Thus, it is presumed that the plaintiff had been sufficiently aware of the normal structure and distribution route of the oil supply, the general trade type or method of the industry, and the actual situation of transactions in the oil industry and the danger of the spread of the oil industry through experience, and ② The oil reservoir is not the date of shipment, "the date of shipment", "the arrival", and "the arrival" are not the same for the plaintiff to submit two copies before the shipment and keep the remaining two copies after obtaining confirmation from the article transporting the oil, and thus, the plaintiff did not necessarily have to be aware of the purchase price of the oil prior to the shipment at the same time as the actual purchase price of the oil prior to the shipment at the time of the time of sale.

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.