The instant tax invoice constitutes a false tax invoice, and was negligent in not knowing the fact by the Plaintiff.

It is reasonable to deem that a tax invoice received by the Plaintiff constitutes a tax invoice entered differently from the fact by the supplier, and that the Plaintiff was negligent in not knowing the fact.

Articles 16 and 17 of the Value-Added Tax Act

2013 Dohap10613 Demanding revocation of imposition, including surtax

Co., Ltd 】

Head of Chungcheong Tax Office

June 19, 2014

July 17, 2014

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of correction and notification to the Plaintiff’s head office on the second value-added tax OO on February 1, 2013, the first value-added tax OO on January 11, 2013, and the first value-added tax OO on January 2013, 201, the second value-added tax OO on February 1, 201, and the first value-added tax OO on January 18, 2013 is revoked for the Plaintiff’s branch office.

1. Details of the disposition;

A. From January 7, 2011, the Plaintiff operated a gas station in the name of “AAA” (hereinafter referred to as “the gas station in the head office”) as its head office, and received two copies of the tax invoice of the supply price OO won during the second taxable period in 2011, and two copies of the tax invoice of the supply price OO won during the first taxable period in 2012 (hereinafter referred to as “the tax invoice of each of the above tax invoices”), and the related input tax amount was deducted from the output tax amount at the time of filing the value-added tax return.

B. From November 15, 201 to September 30, 2012, the Plaintiff operated an oil station in the name of “CCC” (hereinafter “branch oil station”) as a branch in the OO, and received from BB a tax invoice of supply OO members during the second taxable period of 201, and received two copies of the tax invoice of supply price OO members during the first taxable period of 201 (hereinafter “branch tax invoice”), and deducted the relevant input tax amount from the output tax amount at the time of return of value-added tax return.

C. Meanwhile, the director of a regional tax office filed an accusation against BB on the data basis, while deeming the head office and branch tax invoice as a false tax invoice and notifying the Defendant of the taxation data. The Defendant did not deduct the relevant input tax amount from the output tax amount on the grounds that the head office and branch tax invoice were written differently from the fact, and did not notify the Plaintiff’s head office of the correction and notification of the value-added tax amount for the second year of February 1, 2013, the value-added tax OOO for the second year of value-added tax (201), the first year of January 11, 2013, the first year of value-added tax OO for the first year of 201, the corporate tax amount OO for the second year of 2011, the second year of 201, and the first December 18, 2013 to the Plaintiff branch (hereinafter “each of the instant dispositions”).

D. The Plaintiff is dissatisfied with each of the instant dispositions and filed a request for examination with the Commissioner of the National Tax Service on July 29, 2013.

However, the claim related to the Plaintiff branch was dismissed on September 16, 2013, and the claim related to the Plaintiff’s head office was dismissed on October 24, 2013.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3 (including the number of each branch), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff was actually supplied with oil from BB and received the tax invoice from the head office and branch office, and each of the above tax invoices is not a false tax invoice.

2) Even if the actual supplier of the oil supplied by the Plaintiff was not BB, the Plaintiff confirmed the BB’s business registration certificate, the oil wholesale license certificate, the account copy, and the import declaration certificate prior to the transaction. The Plaintiff continued to engage in normal transactions, such as transferring the oil to the account of BB when the oil was supplied by ordering the oil to the account of BB. Thus, the Plaintiff fulfilled its duty of care as a bona fide trading party.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether a tax invoice is false

A) The phrase “tax invoice different from the fact” under Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) where the input tax deduction for the tax invoice received in the course of transaction is denied refers to a case where the requisite entries of the tax invoice do not coincide with those of the entity that actually supplies or is supplied with the goods or services, and the price and time of the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). Thus, even if a transaction of supplying the goods, etc. actually exists, the supplier constitutes a “tax invoice different from the fact that the issuer is a different from the fact.”

Meanwhile, in the event that a tax invoice submitted by a taxpayer for value-added tax as a basis for input tax deduction was prepared in a false way without a real transaction or that the entries in a tax invoice are different from the fact, it is disputed whether it is an actual purchase or the authenticity of the entries in a tax invoice. In the event that a transaction with a supplier stated in a tax invoice claimed by a taxpayer has been proved to a considerable extent, it is necessary to prove that it is easy for a taxpayer to present data, such as books and documentary evidence, regarding the actual transaction with a supplier listed in the tax invoice (see, e.g., Supreme Court Decision 2007Du1439, Aug. 20, 209)

B) Comprehensively taking account of the aforementioned evidence and the evidence in subparagraph 5 as well as the following circumstances, recognizing that the Plaintiff was actually supplied oil listed in the head office and branch tax invoice, it is reasonable to view that the business entity that supplied the Plaintiff as a supplier other than BB, who is the supplier specified in the tax invoice. Therefore, the head office and branch tax invoice constitutes a tax invoice different from the fact by the supplier. Accordingly, the Plaintiff’s allegation in this part is without merit.

(1) On October 28, 2010, BB was registered as a business operator under the name of DB. Around November 201, 201. As a result of a regional tax investigation, BB received a processed purchase tax invoice from the Plaintiff during the pertinent taxable period in the first and second years of 2012, when the Plaintiff received the tax invoice for the head office and branch office, and then confirmed that the sales tax invoice was issued. Furthermore, the regional tax office had acquired a variety of gas stations in its name following the fact that DD was acquired under the name of BB’s representative, even though there was no special income and property, after the FF transferred the corporation to BB. In light of the fact that GG and HH were found to have failed to meet the requirements for the Punishment of Tax Evaders Act at the time of transfer of the corporation to GB, the fact that GG and HG were stated to the effect that GG were actually suspected of having violated the Punishment of Tax Evaders Act, and that GG and HHG were accused of various material related to the operation thereof.

(2) As a result of a regional tax office’s tax investigation, 100% of the sales transaction between BB during the first and the first taxable period in 2012 was verified as a processing transaction.

(3) BB filed a report on sales and purchase of considerable amounts of oil during the second taxable period in 201, but from July 201 to August 201, 201, BB entered and stored 3,790 Dus through 3,790 by leasing one oil storage tank with capacity of 9,600 Dus from the third stock company during the second taxable period from July 201 to August 201, and there is no other oil except for the sale of the entire transit from August 1, 201 to September 2, 201. However, the Plaintiff’s head office and branch tax invoice was issued between October 31, 201 and March 11, 2012, and BB did not report the status of oil sales to the Korea National Oil Corporation (the seller is obligated to report the transaction status to the Korea National Oil Corporation), and therefore, it is difficult to deem that the Plaintiff was supplied with B during the second taxable period.

2) Whether a bona fide trading party has fulfilled its duty of care

A) 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 on the part of the person who received the other tax invoice in the name of the tax invoice, and the person who asserts the deduction or refund of the input tax amount shall prove that the person who received the tax amount was not negligent in not knowing the above fact of deception (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009).

B) The evidence presented by the Plaintiff alone is insufficient to recognize that the Plaintiff was unaware of the above facts and was not negligent in not knowing the above facts, and there is no other evidence to prove this otherwise. Rather, in full view of the overall purport of the arguments and the following circumstances, it is reasonable to deem that the Plaintiff was negligent in not knowing the above facts. Therefore, the Plaintiff’s assertion on this part is without merit.

(1) Since the supply structure of the oil industry is complicated and transactions without authentic documentation are frequent, it is necessary to pay particular attention to whether an oil supplier is an actual supplier if the oil supplier is an ordinary gas station operator, and the plaintiff has operated the gas station for a period of ten years, is deemed to have sufficiently known the normal method and route of the supply of oil, the general forms of transactions, and the actual conditions of transactions in the data.

(2) The shipment slips issued and delivered when oil is supplied is an important material to confirm that oil is traded through normal distribution channels. Even if there is no legal obligation to keep the shipment slips in custody to the Plaintiff, the Plaintiff is not obliged to present all objective evidentiary documents related to oil storage, such as the shipment slips issued by BB as well as the shipment slips received from BB, or account books.

(3) The Plaintiff is obligated to verify whether the other party has a legitimate qualification and is equipped with a human and physical facility that can supply oil according to the sales contract. However, even though having no fiduciary relationship with the BB, only the BB’s business registration certificate and the petroleum sales registration certificate have been verified, the Plaintiff did not go through the procedure of checking the oil storage facility, office, etc. during the trading period.

(4) The Plaintiff appears to have been supplied with oil less than the market price from BB. However, if the Plaintiff purchases oil through an ordinary agency or intermediary wholesaler, etc., it shall be deemed that there is a high possibility that the profit of the agent, etc. is included in the oil price, and thus, the possibility of collecting the oil price is not high than the case of directly purchasing oil from the oil refinery. Therefore, even if there is a difference between the domestic oil refinery and the import oil oil oil oil oil oil oil oil oil oil oil, as alleged by the Plaintiff, even if there is a difference between the domestic oil oil refinery and the import oil oil oil oil oil oil oil oil oil oil oil

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.