Cho High Court Decision 2012Da2486 (2012.08)

The tax invoice of this case is a tax invoice entered falsely by the supplier, and cannot be accepted as the plaintiff's good faith and negligence.

The instant tax invoice constitutes a false tax invoice by a oil supplier; in light of the fact that the Plaintiff operated the gas station for a long time to know the actual state of transactions in data and the risk of transactions, there were sufficient circumstances to suspect the carrier and the transporter as the same person despite replacing the customer; and that the issuance of the shipment slip was done normally, the Plaintiff’s good faith and without fault should not be recognized.

Article 17 of the Value-Added Tax Act

2012 disposition of revocation of the imposition of value-added tax

The two AA

Kim Jong-soo

February 28, 2013

March 21, 2013

1. All of the claims for revocation of each global income tax (including resident tax) in the instant lawsuit shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

The Defendant’s imposition of the global income tax (including resident tax) 000 won, global income tax (including resident tax) 000 won, global income tax (including resident tax) 000 won, and global income tax (including resident tax) 000 won against the Plaintiff on March 3, 2012 shall be revoked.

1. Details of the disposition;

A. The Plaintiff was supplied oil from DD Energy Co., Ltd. (hereinafter “DD Energy”) and EE Energy Co., Ltd. (hereinafter “EE Energy”), and filed a value-added tax return by deducting the corresponding input tax amount from the output tax amount, on the basis of the total tax invoice nine copies, from the output tax invoice.

B. As a result of the head of Busan Regional Tax Office conducted a tax investigation on DD Energy and EE Energy, both the two companies sold to the Plaintiff and notified the Defendant of the investigation. Accordingly, the Defendant: (a) conducted an investigation on the part of value-added tax on the Plaintiff; (b) determined that the Plaintiff was a bona fide trader who performed the Plaintiff’s duty of care with respect to the tax invoice received from DD Energy; and (c) determined that the tax invoice of KRW 000 on the supply price for the second term portion received from EE Energy (hereinafter “instant tax invoice”) was different from the other facts between the issuer and the supplier of the goods, and notified the Plaintiff of the input tax amount of KRW 00 on March 3, 2012, without deducting the input tax amount for the instant tax invoice from the output tax amount, and the Plaintiff received it on April 4, 2012 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed a request with the Tax Tribunal on May 16, 2012, but was dismissed on August 8, 2012.

[Grounds for Recognition] The non-speed facts, Gap evidence 1, Eul evidence 9-1, Eul evidence 1-3, Eul evidence 2-1 to 3, Eul evidence 3-2, Eul evidence 4, Eul evidence 1, 2, and Eul evidence 6, and the whole purport of the arguments

2. Determination on each request for revocation of global income tax (including resident tax)

A. The defendant's main defense

Among the lawsuits in this case, each of the application for revocation of global income tax (including resident tax) is unlawful because there is no eligibility for the defendant or it does not go through the procedure.

B. Determination

1) In the case of imposition of global income tax on the largestB, resident tax, and resident tax against the plaintiff, the defendant is not the tax authority (the defendant in an appeal appeal seeking the revocation of the disposition of resident tax is the head of the relevant Si/Gun/Gu having jurisdiction over the place of tax payment (see, e.g., Supreme Court Decision 2004Du11459, Feb. 25, 2005). Moreover, the plaintiff cannot be deemed to have any direct and specific interest in the law seeking the revocation of the disposition against the largestB, and each lawsuit seeking the revocation of this part against the defendant against the defendant is unlawful as it is against the non-standing person or against the non-qualified person.

2) We examine the part seeking revocation of a disposition imposing global income tax on the Plaintiff. Unlike the voluntary transfer principle of administrative appeals applied to general administrative litigation, administrative litigation seeking revocation of a disposition imposing global income tax is unlawful. Administrative litigation filed without going through such legitimate prior trial procedure is illegal. There is no evidence to prove that the Plaintiff was undergoing the aforementioned prior trial procedure, and the disposition imposing value-added tax and global income tax cannot affect the disposition imposing global income tax on the Plaintiff as a separate disposition separate from each other, and it does not constitute a case where it is not necessary to go through the prior trial procedure in particular, so this part of the lawsuit is also unlawful.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff actually purchased oil equivalent to the tax invoice of this case from EE Energy, received transaction specifications and shipping slips, and received tax invoices, and thus, the tax invoice of this case cannot be deemed to be a false tax invoice. Even if the tax invoice of this case is false, it cannot be deemed to be a false tax invoice. Since the plaintiff visited the place of business ofCC energy, confirmed the petroleum sales registration certificate and the business registration certificate, confirmed the oil storage and found the oil storage directly, it is a bona fide transaction party with the duty of care, and the disposition of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

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

A) Article 17(2)1 of the Value-Added Tax Act provides that input tax amounts in cases where the entries of a tax invoice are different from the facts, shall not be deducted from the output tax amount. In such cases, the meaning that the ownership of income, profit, calculation, act or transaction, which is the object of taxation, is nominal, and where there is another person to whom such tax invoice is in fact belongs, it refers to cases where the contents of the requisite entries of the tax invoice are inconsistent with those of the person who actually supplies or is supplied with the goods or service, regardless of the formal entries of the transaction contract, etc. made between the parties to the transaction with respect to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

B) Based on the above legal doctrine, it is reasonable to see that the Plaintiff’s actual supply of oil to the Plaintiff is a third party other thanCC energy listed in the instant tax invoice, and that the instant tax invoice delivered by the Plaintiff is a false tax invoice, i.e., the supplier’s false tax invoice, in light of the following circumstances, which is recognized by comprehensively considering the health stand, Eul’s 3-1 and 2, Eul’s 4-1, Eul’s 5-1, and Eul’s 12-1, and Eul’s 2, and the overall purport of the pleadings. Therefore, this part of the Plaintiff’s assertion is without merit.

① As a result of the investigation into the EE Energy conducted by the director of the Busan Regional Tax Office, the representative director of the EE Energy appears to be the representative in the name of the KimF or economic ability, and the contents of the business could not be known to the lessor of the oil storage, and after inquiring the lessor of the oil storage, only leased from the EE Energy, the owner of the oil storage did not release all of the oil business, and the establishment ofCC energy also confirmed that there was no fact that the storage facilities were inferior and used as the oil storage during the period of theCC energy business at the time of the tax investigation, and that there was no record of the record of the oil transaction situation of the Korea National Oil Corporation, the total amount of 2010CC energy was confirmed as a

② On November 29, 2011, the director of the Busan Regional Tax Office filed a complaint with the representative director of the EE Energy and the above company, and against the article to the prosecution for suspicion of issuance of false tax invoices, and the prosecution made a disposition of suspension of witness on February 16, 2012.

③ On October 2010, the Plaintiff asserted that the BaF, the first D Energy Oil Furgr, transferred to EE energy, and that it was engaged in transactions with EE energy. The Plaintiff appears not only to be the same enterprise in fact, but also the total sales amount of 2010 of DD energy, as a result of the tax investigation into DD energy, was determined as processed transactions.

2) Whether the Plaintiff is bona fide and without fault

A) Unless there is any special circumstance that the actual supplier and the supplier listed in the tax invoice are not negligent in not knowing the fact that the supplier was unaware of the name of the tax invoice, the input tax amount cannot be deducted or refunded, and the person who received the tax shall prove that the supplier was not negligent in not knowing the fact that the name of the tax invoice was entered (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

B) In the instant case, according to the evidence submitted by the Plaintiff, the Plaintiff was found to have received tax invoices, shipment slips, transaction specifications, etc. from EE Energy, and the Plaintiff filed a fraudulent complaint against ○○○ and knhee, etc., which are EE Energy-related persons, but it is insufficient to find that the Plaintiff was not aware of the fact that the tax invoice issued by EE Energy was false, and there is no other evidence to prove that there was no negligence on the part of the Plaintiff while purchasing oil from CC energy, and the Plaintiff did not know that the tax invoice issued by EE Energy was false, and there is no other evidence to prove that there was no other evidence to prove that Eul submitted 1, 2, and 3-1, 3-2, and 4-1, 7-1 through 9-3, and 10-1, 11-4, and 11-1 through 4-4, and that the Plaintiff was aware of the false tax invoice as well as that there was a reasonable ground to deem that the Plaintiff was a false tax invoice.

① The Plaintiff appears to have been well aware of the normal structure and distribution channel of the supply of the oil, the general form and method of the oil industry, and the actual conditions and risks of the transaction on the data, and the risks of the transaction (in light of the description of the authentic statement or accusation submitted by the Plaintiff, it is also stated in detail regarding the distribution organization of the oil, the flow of illegal oil, and the issuance of the tax invoice).

② On the ground that the Plaintiff received a false tax invoice from Nonparty KK Energy Co., Ltd. during the first period of 2006 at the time of operating the Gangseo-gu Busan Metropolitan City gas station, the head of the North Busan Metropolitan Tax Office filed a lawsuit seeking revocation of the disposition of imposition of value-added tax without deducting the above input tax amount, but the said judgment became final and conclusive after receiving a judgment against the Plaintiff on September 10, 2009.

③ Although the Plaintiff changed the customer from the DD Energy toCC energy, there were circumstances to suspect whether the transporter was the same person and the carrier was the same, and whether the EE Energy was not a normal customer, the Plaintiff did not undergo a strict verification on such circumstances.

④ Comparing the purchase price of the branch office Busan, the Plaintiff purchased oil at the same time as the time the Plaintiff purchased oil from the EE energy, the unit price of the EE energy was below approximately KRW 60-70,000 compared to the LLL corporation.

(5) When a oil is delivered after normal distribution routes to a gas station, it shall be delivered to the gas station by stating the date and time of shipment on the shipment slip, the name of the trade place, the arrival place, the transport equipment, the quantities of products and shipping, temperature, and weight in oil at oil stations, etc. in oil refineries, etc., and the shipment slips issued by EE Energy are abstractly stated in the shipment slip, and the arrival place is sounding, the whole-sea dust, etc., and it is difficult to view it as normal shipment marks due to the lack of all other indications, such as temperature, rain, etc. which are important elements in the decision on the price of the oil.

6. The plaintiff asserted that the business place of the EE energy and the oil storage was confirmed and traded directly, but it was confirmed that there was no oil in the oil storage place of the CC energy according to the results of the audit by the Director of the Regional Tax Office of Busan.

3) Sub-decisions

Therefore, the instant disposition is lawful.

4. Conclusion

Therefore, the part of the claim for revocation of global income tax (including resident tax) among the lawsuit in this case is both unlawful, and it is dismissed, and the remaining claim of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.