Additional 2010-0185 ( November 22, 2010)

Oil sellers who have received a false tax invoice from suppliers;

The imposition disposition is legitimate because the oil seller was issued a false tax invoice, and the supplier was unaware of or was unaware of the disguised transaction, and it cannot be deemed that there was no negligence, and the disposition of imposition is not in violation of the principle of tax equality.

2010Guhap4245 Disposition to revoke the imposition of value-added tax

Gyeong Kim

○ Head of tax office

May 12, 2011

June 9, 2011

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 9,882,580 in 2008 against the Plaintiff on August 5, 2010 and value-added tax of KRW 4,643,720 in 208 shall be revoked.

1. Details of the disposition;

A. From October 1, 2005 to April 17, 2009, the Plaintiff operated a gas station under the trade name called “DD petroleum” from 253-3 of CC-dong at Changwon-si.

B. The Plaintiff received each purchase tax invoice of KRW 54,818,00 from EE (hereinafter referred to as EEEE) for the first taxable period of value-added tax in 2008 from FFF (hereinafter referred to as FFF) during the second taxable period of value-added tax in 2008, and filed a revised tax invoice of KRW 26,572,000 (hereinafter referred to as the “instant tax invoice”) with the Defendant for the first and second taxable periods of value-added tax, after deducting the input tax amount related to the instant tax invoice from the output tax amount in 2008; and (c) the Defendant received a notice from the head of GG and HH head of HH that it processed as data, and the Plaintiff rejected the instant tax invoice of KRW 280,572,00 on August 20, 208 for the reason that the instant tax invoice of KRW 208,000 for the first taxable period of value-added tax, but was issued for 200,8408.

[Ground of recognition] Facts without dispute, Gap 3, 4, 13 evidence, Eul 1, 2 and 4 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① The Plaintiff received the instant tax invoice through the EE and FFF through the LK, a member of the petroleum company, who was engaged in the transaction at the time of the Plaintiff’s operation of a gas station. As such, the instant tax invoice cannot be deemed to be a false tax invoice. ② Even if it was based on family EE and FFFF’s data, the Plaintiff was unaware of such fact, and the Plaintiff was a bona fide trading party who was not negligent on the part of the Plaintiff, and ③ the Defendant adopted a decision on the claim for pre-assessment review filed on January 7, 2010 on the same ground as the Plaintiff, which was subject to the imposition of value-added tax on the grounds that the instant disposition was contrary to the principle of tax equality, and thus, the instant disposition was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The Plaintiff, upon receipt of a copy of the EEE’s business registration certificate, petroleum sales registration certificate, and certificate of personal seal impression, etc., was conducted with the EEE and had the horses transferred to the FFF, was traded with the FFF after obtaining the FF’s business registration certificate and certificate of petroleum sales.

(2) The shipment slips issued by the Plaintiff to the EEE that the Plaintiff was supplied with oil from the EE are indicated as follows, and the shipment slips issued by the FF were not submitted.

“(3) The location of storage facilities on the petroleum retail business registration certificate of MMM shall be (main) NNNNN, Ulsan City PP-dong 484-11, PP-dong 484-11.

Transport equipment shall consist of 81 Seoul 81 Doz. 1976 (20km)

(4) The Plaintiff wired the EE account of April 15, 2008, KRW 19,373,650 on April 16, 2008, and KRW 29,540 on April 23, 2008, remitted KRW 29,540,70 on August 27, 2008, and remitted KRW 29,230,000 on August 27, 2008 to the FFF account. The Plaintiff’s books describe the entry, shipment and inventory amount of oil supplied by EEEE and FFF.

(5) From September 10, 2007, MM was discontinued ex officio on March 31, 2008, and was accused of the data on the portion 271 in 2007 on September 8, 2008 with respect to the data, and the portion 171 percent in 2008 was also indicated as a tax invoice with no real transaction, and the amount of 9.2 percent in 2008 was charged on May 28, 2009, and the FF amount was confirmed as a tax invoice with 73.6 percent in 2008, and 35.2 percent in purchase as a tax invoice with no real transaction.

[Ground of recognition] Facts without dispute, Gap 1 through 7 evidence, 9 through 18 evidence, Eul 1 through 6 evidence, the purport of the whole pleadings

D. Determination

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

(A) Article 17 of the Value-Added Tax Act provides that an input tax amount in a case where the entries of a tax invoice are different from the fact shall not be deducted from the output tax amount. In this case, the meaning that it is different from the fact refers to a case where the ownership of income, profit, calculation, act or transaction subject to taxation is nominal, and where there is another person to whom such ownership belongs, the person to whom such ownership belongs shall be the person liable for tax payment, in light of the purport of Article 14(1) of the Framework Act on National Taxes stipulating that the necessary entries of a tax invoice refer to a case where the necessary entries of a transaction invoice are inconsistent with those of the person to whom the goods or service is actually supplied or supplied, regardless of the formal entries of the transaction contract, etc. made between the parties to the goods or service, regardless of the form of the transaction contract, etc.

(B) According to the above facts, the oil was supplied to the gas station operated by the Plaintiff at the time of each issuance of the instant tax invoice, and around that time, the amount equivalent to the oil price was deposited from the Plaintiff to the deposit account of EE and FFF.

However, the following facts revealed: ① EE and FF are stated in the so-called data that only the tax invoice was issued or received without real transactions; ② The Plaintiff alleged that EE and FF were supplied with oil through the least KK for business employees working in EE and FF, but it is unclear whether K is working in EE and FF; ③ When the oil is delivered to the gas station through normal distribution channels, the shipment slips issued at the oil station at the time of shipment (the date and time of shipment, the customer name, the arrival, the place of destination, the volume of the goods, the temperature, the weight of the goods, etc.) are difficult to be stated in the list; ② The Plaintiff alleged that the Plaintiff was supplied with oil through the EE and FF, but it is also unclear whether the Plaintiff was working in EE and FF; ③ The Plaintiff’s entry in the shipment list at the time of delivery at the oil station at the time of delivery at the oil station at the time of delivery at the time of e.g., the 2 EF list at the time of delivery at the time of the Plaintiff’s.

(2) Whether the Plaintiff is bona fide and without fault or not

(A) The actual supplier and the supplier on a tax invoice cannot deduct or refund the input tax amount unless there are special circumstances that the person who received the other tax invoice was not aware of the fact of misrepresentation of the name of the supplier, and that the person who received the tax invoice was not negligent in not knowing the aforementioned disguised fact (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). Furthermore, a person who asserts the deduction or refund of the input tax amount must prove that there was no negligence on the part of the supplier due to the supplier’s business registration certificate, business permit, sales statement, etc. without checking the location of the supplier’s place of business, business facility, etc. under the name of the supplier. In addition, in light of the process of issuance and delivery of the tax invoice, the price of the goods or service supplied, the specific route and process of the supply of the goods or service, etc., the actual supplier is the actual supplier, and the nominal supplier’s name of the tax invoice was not aware of the fact of misrepresentation of the name.

(B) The following circumstances acknowledged by the Plaintiff’s return to the instant case and the purport of the entire pleadings, namely, ① the Plaintiff operated a gas station from October 1, 2005, and the Plaintiff’s father KimJ and the Plaintiff operated a gas station for a long time through diverse experiences, the Plaintiff appears to have been aware of the normal structure and distribution route of the supply of oil, the general forms and methods of the industry, and the actual situation of transactions in material to the oil industry and the risks of transactions. ② Each of the instant shipment marks in this case is a lack of basic entry, and the Plaintiff did not know of the shipment slips issued by the oil company, but did not neglect to confirm whether the Plaintiff was the actual supplier of the said EE and FFF, ③ even if following the Plaintiff’s assertion, the Plaintiff did not appear to have been negligent in confirming whether the Plaintiff was the actual supplier of the EM and the Plaintiff’s 4th sale of the oil at the time of delivery, and the Plaintiff did not appear to have been aware of whether the Plaintiff was the actual supplier’s 10th sale of the oil in Busan.

(3) Whether the instant disposition violates the principle of tax equality

On the other hand, the evidence No. 8 alone is insufficient to recognize that the taxation on the plaintiff and the taxation on the plaintiff's omission KimL is related to the same factual relations, and there is no other evidence to acknowledge it. Even if the two factual relations are similar to each other, the principle of tax equality is a tax law expression of the principle of equality under the Constitution, and the State must treat all citizens equally in the interpretation and application of the tax legislation and tax laws and regulations, and it does not mean that the disposition agency separately determines the factual relations with respect to other similar matters and sanctions are immediately violated the principle of tax equality. Thus, even if the defendant decided to adopt the procedure of the plaintiff's request for the pre-assessment review on the plaintiff's omission KimL, such circumstance alone does not make any disposition violating the principle of tax equality.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.