Appellate Court Decision 201Da1668 ( October 11, 2011)

The tax invoice of this case is false or false on the part of the oil supplier.

The instant tax invoice is a false tax invoice entered by the oil supplier, and it cannot be deemed that the Plaintiff was negligent in not knowing or not knowing the disguised name of the person entered as the supplier on the tax invoice at the time the Plaintiff received the instant tax invoice.

Article 17 of the Value-Added Tax Act

2011Revocation of revocation of the imposition of value-added tax

LAA

Head of tax office

October 11, 2012

November 22, 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 for the second term portion of March 1, 201 against the Plaintiff and KRW 000 for the first term portion of March 7, 201, respectively, shall be revoked on March 1, 201.

1. Details of the disposition;

A. The plaintiff was entitled to the deduction of input tax amount from the output tax amount pursuant to seven tax invoices for purchasing oil from EE Energy Co., Ltd. (hereinafter "EE Energy"), upon filing a return of the value-added tax for the second and second years of 2009 and l.2010 under the trade name of "ODR 98-9 of Changwon-si, Changwon-si, Changwon-si, OEsi, Masi, and 200." (2) The plaintiff was entitled to the deduction of input tax amount from the output tax amount. (3) The head of Busan District Tax Office determined that the EE Energy was a businessman who is engaged in the oil sales business without real transactions, and notified the defendant of the tax invoice for the second and 200 won of the value-added tax for the second period of 200, and the defendant notified the plaintiff of the tax invoice for the second period of 100,000 won for 20,000 won for 30,010.

C. On May 3, 2011, the Plaintiff appealed to the Tax Tribunal for a trial on May 3, 201, but on May 10, 201

11. received a ruling of dismissal.

[Ground of Recognition] The facts without dispute, Gap 1 through 4, and 10, and Eul 1 through 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff, ① during the second and second years of 2009 and 2010, the plaintiff actually purchased oil equivalent to the tax invoice of this case, received transaction specifications, shipping slips, and tax invoices, and remitted the price to the deposit account in the EE Energy name. Thus, the tax invoice of this case cannot be viewed as false tax invoice. ② Even if the tax invoice of this case is false, the plaintiff confirmed the oil sales registration certificate of EE energy, the business registration certificate, and the name of the FF, which is composed of the director in charge, and made oil transactions, the plaintiff asserts that the disposition of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) The EE Energy was established on September 15, 2008 and closed on February 18, 2011, and the EE Energy's petroleum retail registration certificate is written as follows: around October 2009, its representative was changed to EF from static to OF, the location of the representative was changed to 000 OF, and the transportation equipment was changed to Gyeongnam-gu, Busan, 0000 (Borrower Co., Ltd., 000, 200), and Gyeongnam0 A0000 (Borrower Co., Ltd., 00, 00) total to 000 (lease, 00).

2) On September 2010, the Director of the Busan Regional Tax Office filed an accusation against the FF to the prosecution on charges of violating the Punishment of Tax Evaders Act in relation to false sales or purchase tax invoices related to EE energy. On May 18, 2012, the FF was sentenced to three years of imprisonment and fine of 00 won at the Busan District Court, and on September 19, 2012, was sentenced to two years of imprisonment and fine of 00 won at the appellate court, and the sentence was finalized on September 27, 2012.

"3) On the other hand, EE Energy has received processed tax invoices of KRW 000 from data, such as GG Energy, and issued processed tax invoices of KRW 000,000, while it was in the first taxable period of January 2010, on the ground that the purchase amount of KRW 00 (9.8%) was received only from GG Energy, Co., Ltd. without real transaction, for the reason that the purchase amount of KRW 00,00,000, out of the purchase amount of KRW 00,00, is so-called "in the so-called data received only from GG Energy, etc. without real transaction." (Grounds for recognition), and without dispute, the entry of KRW 3 and 6, and 12 and 16, and the purport of the entire pleadings, as a whole.

D. Determination

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

A) The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries in the tax invoice refer to cases where the contents of the tax invoice do not coincide with those of the person who actually supplied or is supplied with the goods or services, regardless of the formal entries in the transaction contract, etc. made between the parties to the goods or services.

B) Even if the Plaintiff actually purchased and sold oil in the quantities listed in the instant tax invoice, it is difficult to see that the transaction partner who supplied the oil to the Plaintiff, and the fact that the Plaintiff was the EE Energy, the fact of recognition, the witness H, and the testimony at leastAH, and the purport of the entire pleadings, i.e., the EE Energy was accused on September 2010, and the representative director of EE Energy was found guilty of the above criminal facts, including transaction parts with the Plaintiff. (ii) The Plaintiff argued that the EE Energy's business was actually supplied with EE energy through the F, but the Plaintiff is not clear whether the F was working in EE energy, and the vehicle transporting the oil was not registered with the supplier under the tax invoice, and the vehicle is not the vehicle for which the e.g., the e., the vehicle is not the vehicle for which the e., but the e., the e.g., the vehicle is not the vehicle for which the e., but the vehicle is not the vehicle for which the e.

2) Whether the Plaintiff is bona fide and without fault

A) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice are not aware of the fact that there is no negligence on the part of the supplier, the actual supplier and the supplier on a tax invoice shall not deduct or refund the input tax amount, and that the person who claims the deduction or refund of the input tax amount is not negligent in not knowing the aforementioned disguised fact (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). Furthermore, where the circumstances exist that the actual supplier is in light of the details of issuance and delivery of the tax invoice, the price of the goods or services being supplied, and the specific route and process in which the goods or services are supplied, and the supplier is not in the name of the tax invoice, it is difficult to deem that the recipient was not aware of the actual fact that the supplier’s business registration certificate, the sales permit of the goods or services, and the sales specifications of the goods or services, etc. are not due to the supplier’s failure to know the fact of misrepresent.

B) In respect of the instant case, the facts recognized as above, Gap evidence 13, and Eul evidence 8, and evidence

인 김HH， 최AA의 각 증언 및 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정， 즉 ① 원고가 EE에너지로부터 수령한 출하전표에는 수송장비번호가 인천00아0000로 기재되어 있는데， 이는 EE에너지의 석유판매업등록증상 등록 차량 번호가 아니었던 점，② EE에너지는 2008. 9. 15. 사업자등록을 마친 업체인데 원고 제출의 매입세금계산서 상대금 000원에 달하는 유류를 선금을 주고 매입하였다면서도 앞서 본 바와 같은 비정상적인 출하전표를 교부받았을 뿐만 아니라 해당 출하전표에 근거하여 저유소에서 EE에너지로 유류가 실제 출하된 사실이 있었는지 여부도 제대로 확인하지 않았던 점，③ 원고가 EE에너지의 직원으로 믿고 거래한 손FF은 실제 EE에너지의 직원이 아니었는데， 원고가 손FF으로부터 받은 명함에는 EE에너지의 주소，손FF의 개인 휴대전화 번호만이 기재되어 있을 뿐 사업장의 전화번호조차 기재되어 있지 않아 실제 직원인지여부를 의심할 만한 사정이 있었던 점，④ 원고는 EE에너지의 석유판매업 등록증만을 확인하였을 뿐 EE에너지의 실제 영업 형태에 대해서는 확인 절차를 거치지 아니한 점，⑤ 원고는 EE에너지가 대금만 먼저 지급받고 설제 유류를 공급해 주지 않을 것을 우려하여 손FF 개인이 운영하는 주유소를 방문한 사실은 있으나 EE에너지의 사업장을 방문해서 확인하지는 않았던 점，⑥ 김HH는 20여년전 주유원으로 근무한 경력이 있었을 뿐 자칭 정수기 판매업자일뿐 주유소 관리업무를 맡아본 적도 없고 유류거래에 관한 경력도 지식도 없는 자였고 원고도 유류판매업이나 주유소 운영 경력이 전혀 없었던 점 ➆ 그럼 에도 불구하고 원고는 주유소를 인수하여 영업을 시작한 2009. 5.부터 EE에너지와의 거래가 계속된 2010. 9.까지 김HH의 말만 믿고 그를 고용하여 김HH에게 전무직함을 사용하도록 하면서 거래처영업을 포함한 주유소의 전반적인 관리를 맡기고， 김HH에게 EE에너지를 비롯한 주요 유류거래처와의 거래와 그에 따른 대금결제， 세금계산서， 출하전표의 수취 등의 업무를 전담시키다시피 한 점. ➇ 그러한 김HH의 소개로 위와 같이 신원이 의심되는 손FF이 공급을 주선한 EE에너지와 선금을 주면서 거래를 했다는 점 ⑨ 유류거래장부도 거래직후에는 작성하지 않았다가 한달에 한번 정도 사후에 작성하였고，거래처 기재도 부정확하여 그 기재내용도 허술하게 보이는 점 등을 종합해 보면，원고가 이 사건 세금계산서를 교부받을 당시 자료상인 EE에너지의 명의위장 사실을 알지 못하였거나 알지 못하였음에 과실이 없었다고 볼 수 없다.

3) Sub-decisions

Therefore, the disposition of this case is legitimate.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as there is no ground.