Suwon District Court 201Guhap896, 012.17

Cho High Court Decision 2010JJ Decision 2706 ( November 30, 2010)

The tax invoice of this case is a tax invoice received or issued without actual supply or supply of oil

The tax invoice of this case is recognized as a tax invoice received and issued without actually receiving or supplying oil, in full view of the following: (a) the purchaser did not use the storage facilities or transport vehicles; (b) there is no details of orders for oil in the oil refinery; (c) the details of the shipment slips are inconsistent with the factual relations; (d) the Plaintiff collected the shipment slips from the seller; and (e) the Plaintiff appears to have been located at the intermediate stage of the transaction and did not deal with the real.

Article 17 of the Value-Added Tax Act

2012Nu5604. Revocation of the imposition of value-added tax

AA Corporation

Head of the District Tax Office and one other

District Court Decision 2011Guhap896 Decided January 17, 2012

November 13, 2012

January 4, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked.

On June 1, 2010, the assessment of the value-added tax of KRW 000 on the first half of 2009 against the plaintiff shall be revoked.

The imposition of the value-added tax on June 10, 2010 and the value-added tax of KRW 000 on the first half of 2009 against the Plaintiff shall be revoked.

The imposition of the value-added tax on March 16, 201 against the plaintiff on March 16, 201 and the imposition of the value-added tax of KRW 000 for 200 and value-added tax of KRW 00 for 1st year 2010 shall be revoked.

1. Value-added tax;

In full view of the overall purport of the arguments, the following facts are recognized with respect to the descriptions of Gap evidence 1, 2, 27, 28, and Eul evidence 1, 5, 12, and 13 (including household numbers):

[1]

around May 2003, the Plaintiff registered ○○ Dong-dong, Gyeonggi-do, as its workplace, and registered ○○ Dong-dong as its branch business around January 2009, and registered ○○○ Dong-dong, Nowon-gu, Seoul as its branch business.

○○ Seoul Director of the Regional Tax Office shall incorporate a tax invoice with no real transaction in the first and 271 of 2009 by the Plaintiff

It received KRW 000 and notified the defendants that the total amount of tax invoices was 000 won without real transactions.

According to the above notification, on June 1, 2010, the head of the Defendant’s Government Tax Office imposed the Plaintiff a tax amount of KRW 000 on the first half of the year 2009. In addition, on June 10, 2010, the head of the Nowon Tax Office imposed a tax amount of KRW 00 for the Plaintiff and KRW 00 for the first half of the year 2009 and KRW 00 for the second of the value-added tax for the year 2009.

The above taxation disposition was to deny the output tax amount based on the tax invoice recognized as having issued without real transactions, and to deny the input tax amount based on the tax invoice recognized as having received without real transactions.

○ The Plaintiff appealed and filed an appeal with the Tax Tribunal on August 2, 2010 but was dismissed on November 30, 2010.

[2]

In addition to the above tax invoice in 2009, the director of the Seoul Regional Tax Office issued 000 won in total without a real trade without a real trade. In 2010, the director of the Seoul Regional Tax Office notified the defendant Nowon District Tax Office of the fact that the plaintiff received 00 won in total without a real trade and issued 00 won in total without a real trade.

According to the above notification, on March 16, 201, the head of the Labor Standards Tax Office imposed on the Plaintiff the imposition of KRW 000 of the value-added tax for the second year of 2009 and KRW 000 of the value-added tax for the second year of 2010.

○ Each of the above dispositions was denying the sales tax amount based on the tax invoice recognized as having been issued without real transactions, and denying the input tax deduction based on the tax invoice recognized as having received without real transactions.

○ The Plaintiff appealed to the National Tax Service on June 20, 201, but was dismissed on September 29, 2011.

2. The plaintiff's assertion

The above disposition of the Defendants (hereinafter collectively referred to as the "disposition of this case") is limited to the reason that the Plaintiff received or issued a tax invoice without a real transaction, and the Plaintiff actually supplied oil from the purchaser, such as DD Energy, and supplied it to the seller, such as EE oil, and received or issued the said tax invoice (hereinafter collectively referred to as the "tax invoice of this case"). In addition, even if the tax invoice was issued only by the purchaser, the Plaintiff did not know that it was unlawful. Accordingly, the disposition of this case was unlawful.

3. Facts of recognition;

The following facts are recognized in full view of the statements in Gap's three to 89, Eul's first to 4, 6 to 8, 10, 13, and 14 (including household numbers), the highest number of witnesses of the first instance trial, and the purpose of the entire pleadings in each testimony of the Jiny, as follows:

[1]

around May 2003, the Plaintiff registered ○○ Dong-dong, Gyeonggi-do, as its workplace, and operated a mitc oil wholesale business, and around February 2008, the representative director of the Plaintiff decided to establish a branch dealing with light oil as a result of the Plaintiff’s representative director’s YF and business contents.

○ At the time of ○ FF, on the instant tax invoice, is written in the Plaintiff’s purchasing place in the course of receiving a deposit from the representative director of EE oil’s EE oil and having received the oil supply place from EH.

DD Energy was known.

On January 2009, the representative director of the Plaintiff registered the Plaintiff’s ○○○○○○ ○○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

○ The petroleum distributed in the Republic of Korea shall be shipped out from four oil refineriess, and the oil transport shall be limited to the vehicle registered as a hazardous material transport vehicle in the oil refining company, and the oil refining company shall issue a shipment ticket indicating the orderer, the transport vehicle, the carrier, and the final delivery place with respect to the oil released from the oil reservoir.

[2]

○ The instant tax invoice contains DD Energy, II Energy, J Energy, etc. as the Plaintiff’s purchasing source, and the said purchasing source did not appear to have made oil orders in the oil company.

○ The DD Energy stated in the instant tax invoice as the Plaintiff’s purchasing place was registered at the place of business in Gyeyang-gu, Busan Metropolitan City, 00OOO 000 OOO 000, and from K KOTTex, leased oil storage tanks from third-party air transport, and actually did not use the above low-level tank or vehicle. DD energy representative LL did not make accurate statements on the current status of the business entity, such as the tax investigation, the process of operating the business, the process of purchasing oil, the employees, the employees, and the payment of wages.

○ The second energy stated in the tax invoice of this case as the Plaintiff’s purchasing place is Seoul Nowon-gu on July 13, 2009.

The former ○○○○ 000 OO 000 OO 000 was registered at the place of business, but the business was closed on November 30, 2009, and the vehicle was not paid without using the oil storage tank in fact, even though KNT was leased from KNTTT. The representative of II energy stated that, in the course of the tax investigation, KN Energy did not actually store oil, and that, at all, KN did not know about the actual distribution route of oil, and only received orders from many people and received orders to issue cash management and shipment slips and tax invoices.

J Energy stated in the tax invoice of this case as the Plaintiff’s purchasing source is 000, Dobong-gu Seoul Metropolitan Government OO-dong 000

Otel No. 000 was registered as a workplace, and the YN was not paid without using the oil storage tank from KK, while the representative of JJ Energy did not respond to whether the tax invoice was issued only without real transactions, and whether the remaining transactions were real transactions.

○ PP energy stated in the instant tax invoice as the Plaintiff’s purchasing source was deposited at KRW 000 from October 1, 2009 to June 30, 2010 by the Plaintiff and 100 companies, and this amount was immediately deposited at KRW 000,000,000,000,000,000,000.

[3]

○ The instant tax invoice includes the Plaintiff’s good place of sales, and EE oil, and the details of the vehicle submitted by the Plaintiff, the date, and the transport by customer are different from the details of the shipment and transport submitted by the oil refining company.

As seen earlier, the instant tax invoice demanded that the Plaintiff recover the shipment slips issued by oil refining companies, and accordingly, the Plaintiff returned the shipment slips issued by oil refining companies from EE oil oil, etc. entered in the instant tax invoice as the Plaintiff’s sales place, and included them in DDR.

As a result of conducting a tax investigation on the plaintiff, the director of the Seoul Regional Tax Office determined that the delivery place and the actual delivery place listed in the shipment slip issued by the oil company coincide with the actual delivery place, and if not, it was a processing transaction without real transactions.

4. Determination

(a) A false tax invoice;

(1) Article 1(1)1 of the Value-Added Tax Act provides that "the supply of goods as taxable subject to value-added tax" and Article 6(1) provides that "the supply of goods shall be the delivery or transfer of goods by all contractual or legal causes." In light of the fact that the value-added tax has characteristics as multi-stage transaction tax, and the delivery or transfer under Article 6(1) of the Value-Added Tax Act includes all acts of causing the transfer of the right to use and consume the goods regardless of the actual profits gained, and in this case, whether a specific transaction constitutes the supply of the goods under the Value-Added Tax Act is determined individually and specifically by considering all the circumstances such as the purpose, process and mode of the transaction, the subject of the profits, and the payment relationship, etc. of the goods, and then the specific transaction constitutes "the tax invoice under Article 17(1)19-20 of the Value-Added Tax Act that is denied the deduction of the input tax amount from the transaction process on the ground that it is a nominal transaction without actual delivery or transfer."

(2) Unless there are special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence that the supplier was unaware of the fact that the supplier was unaware of the name of the tax invoice, and the person who received the tax shall prove that the supplier was not negligent in not knowing the fact of the above name (see Supreme Court Decision 2009Du1808, Jun. 11, 2009).

B. The instant tax invoice

We examine the tax invoice of this case in accordance with the above facts and the evidence.

(1) 이 사건 세금계산서에 원고의 매입처로 기재된 DDD에너지 등은 유류저장시설과 유류운송차량을 사용한 바가 없고， 정유회사에 유류를 주문한 내역이 나타나지 않는다. 이러한 사정에 비추어 보면 원고가 QQ에너지 등으로부터 유류를 실제로 공급 받았다고 보기 어렵다.

(2) The pre-issuance slip of oil company issued by the Plaintiff is written by a third party, not DD energy, and the arrival date is also written by the Plaintiff or DD energy other than EE oil listed in the instant tax invoice, and the content of the pre-issuance slip is inconsistent with the date and quantity stated in the instant tax invoice. In light of these circumstances, it is difficult to view that the Plaintiff was actually supplied with oil from DD energy and actually supplied oil to EE oil, etc. In addition, there is considerable room for deliberation that the Plaintiff may not engage in normal trade when receiving the instant tax invoice from DD energy, etc.

(3) Under the instant tax invoice, DD Energy, etc. entered in the Plaintiff’s purchase place, demanded the conditions of recovering the shipment slips issued by the oil company, and the Plaintiff returned the shipment slips issued by the oil company from EE oil, etc. entered in the instant tax invoice as the Plaintiff’s sales place, and added them to DD Energy, etc. In light of these circumstances, it is difficult to view the transaction entered in the instant tax invoice as a normal transaction, and it appears to have recovered the shipment slips issued by the oil company for the purpose of disguised transaction. Moreover, there was considerable room for deliberation that the Plaintiff may not be a normal transaction when receiving the instant tax invoice from DD Energy, etc.

(4) The Plaintiff did not sell oil to the final consumer, and according to the Plaintiff’s assertion, the Plaintiff received oil orders from the EE oil oil, etc. stated in the instant tax invoice as the Plaintiff’s sales place.

In the instant tax invoice, the Plaintiff issued the same order of oil to the DDR with the same content as the Plaintiff’s purchase source, and the PP Energy stated in the instant tax invoice as the Plaintiff’s purchase source was deposited from the Plaintiff, etc., and was withdrawn immediately from the deposit to the relevant company and withdrawn in cash throughout the country. In light of these circumstances, there is a lot of room to view that the Plaintiff only received or issued only tax invoices without dealing with the real property at the interim stage of transaction.

(5) In full view of the above circumstances, the tax invoice in this case is recognized as the tax invoice received or issued by the plaintiff without actually being supplied or being supplied, and it cannot be said that the plaintiff was not negligent in receiving the tax invoice in this case, and all of the plaintiff's arguments are without merit.