Cho Jae-2013- Daejeon-3562 ( December 19, 2013)

The tax invoice of this case shall not be deemed to be a bona fide trader, false tax invoice.

It is difficult to deem that the supplier was not negligent due to the failure of the actual supplier to know the fact of misrepresentation of the name of the supplier solely on the basis that the supplier did not verify the distribution route, etc. and the supplier’s business registration certificate, etc.

Cheongju District Court

○ ○

○ Head of tax office

July 10, 2014

July 24, 2014

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 81,215,020 and global income tax of KRW 8,945,110 on July 1, 2013 against the Plaintiff on July 1, 2013 is revoked, respectively.

1. Details of the disposition;

A. From January 20, 2010, the Plaintiff is operating a gas station in the trade name, “○○○○○○○○○○○○○○○○○,” which is called “△△△△△△△△△.”

B. The Plaintiff received each of the following tax invoices (hereinafter “instant tax invoices”) from AA Petroleum Co., Ltd. (hereinafter “AA Petroleum”), and deducted the supply value under the said tax invoices from the Defendant when filing a value-added tax return for the first period of value-added tax in 2011.

Table Omission of the Table

C. Since then, the head of ○○ Tax Office, after conducting a tax investigation on AA Petroleum, confirmed AA Petroleum as data which issued a false tax invoice and notified the Defendant of the taxation data.

D. On July 1, 2013, the Defendant decided to deduct the input tax amount for the pertinent transaction portion on the ground that the instant tax invoice that the Plaintiff received from AA Petroleum was a false tax invoice, and notified the Plaintiff of the rectification of KRW 81,215,020, and KRW 8,945,110, the global income tax for the year 201, and KRW 8,945,110, which accrue for the year 201 (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Director of the Tax Tribunal on August 13, 2013, but the said appeal was dismissed on December 19, 2013.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 3, 7, 10

Each entry, including branch numbers, hereinafter the same shall apply) and the purport of the whole pleading

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's assertion

1) As the Plaintiff actually purchased oil equivalent to the instant tax invoice from AA Petroleum and remitted the oil price to an account in the name of AA Petroleum, the instant tax invoice cannot be deemed as a false tax invoice.

2) Even if the instant tax invoice is a tax invoice different from the fact, the Plaintiff started a transaction by receiving a introduction from a Aa, which operated AA Petroleum, and the Plaintiff sold oil stored in a large capacity oil tank installed at the address of the principal office of the company. The oil supplied to the Plaintiff was delivered to the Plaintiff as a vehicle of AA Petroleum, the transaction statement, etc. in the name of AA Petroleum was confirmed at the time of transaction, and the Plaintiff remitted the oil price to a bank account in the name of AA Petroleum. The Plaintiff did not know that the actual supplier of the oil and the supplier of the tax invoice were different, but was not negligent.

(b) Entry in the attached Form of relevant Acts and subordinate statutes;

C. Determination

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

A) Article 17(2)1 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter “Value-Added Tax Act”) provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries in a tax invoice are different from the facts. Inasmuch as the meaning that an entry in a tax invoice differs from the facts, the requisite entry amount refers to a case where the requisite entry in a tax invoice does not coincide with an actual supplier of goods or services, or with the price and time of the goods or services, notwithstanding the formal entry in a transaction contract, etc. made between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). Even if a transaction of supplying goods, etc. actually exists, such transaction constitutes “tax invoice different from the fact that the issuer of the tax invoice is different from

Meanwhile, in a case where a tax invoice submitted by a taxpayer for value-added tax as a basis for input tax deduction is falsely prepared without a real transaction, or is proved to be different from the fact, the tax office’s substantial purchase or the authenticity of the entries in the tax invoice is disputed. In a case where a transaction with a supplier stated in the tax invoice alleged by the taxpayer is proved to be considerably false, it is necessary for the taxpayer to prove that it is easy for him/her to present data, such as books and documents regarding the actual transaction with the supplier stated in the tax invoice (see, e.g., Supreme Court Decision 2007Du1439, Aug. 20, 2009). In addition, in general, in a tax imposition disposition suit, the burden of proving the fact of taxation requirements should be borne by the imposing authority. However, in a case where the facts alleged to have been discovered in light of the empirical rules in the specific litigation process, the pertinent tax disposition cannot be readily concluded as unlawful unless it proves that the taxpayer’s issue is inappropriate to apply the empirical rules or that there were special circumstances to exclude the application of such empirical rules.

B) Even if the Plaintiff was actually supplied oil as specified in the instant tax invoice, if the customer who supplied oil to the Plaintiff is not a supplier of the tax invoice but a supplier of another supplier, the instant tax invoice is different from the fact. Therefore, we examine whether the customer who supplied oil to the Plaintiff is consistent with the supplier under the tax invoice.

In light of the above legal principles, the following circumstances are acknowledged to show the overall purport of the pleadings in the entries and videos of the above evidence and evidence Nos. 4 through 6, 8, 9, 11 through 13. ① The representative of AA Petroleum establishes a foreign exchange bank account in the name of BB, a corporation, at the request of BB’s representative director, and then bB delivers the passbook and seal impression to B. bB. bB, the above foreign exchange bank account was managed under the lead of its responsibility and calculation. ② The oil price deposited from the above bank account in the name of AAB from the Plaintiff et al. ② immediately after the deposit is made by the Plaintiff et al., the Plaintiff’s place of business to which AAB bank account was located, and ③ (a) the Plaintiff is not aware of the details of the shipment of the above foreign exchange bank account; (b) the Plaintiff’s place of business to which the Plaintiff used the cargo delivery of the oil is not an objective document that the Plaintiff alleged to be an oil supplier’s entry and delivery of the oil.

Therefore, this case's tax invoice in the name of the supplier AA oil that the plaintiff received constitutes a tax invoice entered differently from the fact by the supplier. Therefore, this part of the plaintiff's assertion is without merit.

2) Whether the Plaintiff constitutes good faith and negligence

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 recipient was unaware of the fact that he/she was unaware of the nominal name of the tax invoice, and that the recipient was not negligent in not knowing the fact that he/she was not aware of the nominal name (see, e.g., Supreme Court Decision 2011Du26695, Mar. 29, 2012). In such cases, a person who asserts the deduction or refund of an input tax amount ought to prove that there was no negligence on the part of the supplier, based on the process of issuance and issuance of the tax invoice, the size and market price of the goods or services supplied, the specific route in which the goods or services were supplied, and the trade practice in the relevant industry, etc., where there was a sufficient reason to suspect that the recipient was the actual supplier, as to whether the nominal supplier was not the data, the recipient was the place of business of the nominal supplier, the business facilities or the distribution route of the goods or services supplied, etc., and the supplier’s business registration certificate is insufficient.

B) In light of the above legal principles, it is insufficient to acknowledge that the Plaintiff was not aware of the fact that the tax invoice issued by AA Petroleum was a false tax invoice while purchasing oil from AA Petroleum, and that there was no negligence on the part of the Plaintiff. There is no evidence to acknowledge otherwise.

Rather, it is social problem that the purpose of arguments as a whole can be seen as follows. ① The supply structure of the oil industry is complicated and free data transactions using free oil are frequent. Thus, if an oil supplier is an ordinary gas station operator, it is necessary to pay attention to whether the oil supplier is an actual supplier. Thus, the Plaintiff, who has operated the gas station for about six years through his experience, seems to have been sufficiently aware of the normal structure and distribution route of the oil supply, the general transaction type and method of the industry, and the actual situation of transactions in the oil industry, and the danger of widely spreading data in the oil industry. ② The delivery slips are issued when the oil supplier supplies the oil. The delivery slips are smaller than the temperature, weight, weight, and volume of the oil supply. The delivery slips, the delivery date, shipping volume, transportation article, and transportation number, etc. are stated, and it is important that the Plaintiff supplied the oil under the name of a small-scale oil storage facility without the verification of the supply of the oil under the name of the Plaintiff's oil in question.

3) Therefore, the instant disposition, which the Defendant decided to exempt the Plaintiff from the input tax amount on the transactional portion on the ground that the instant tax invoice is a false tax invoice, is lawful.

3. Conclusion

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