Cho High 2010 Gwangju 1025 (Law No. 26, 2010)

A gas station operator who has been issued a false tax invoice;

As a gas station operator, a oil supplier was issued a tax invoice different from the fact that the oil supplier was falsely entered, and the Plaintiff is not deemed to have been bona fide and unfaithed, so the non-deduction of the input tax amount is legitimate.

2010Guhap2842 Revocation of Disposition of Imposition of Value-Added Tax

XX Kim

O Head of tax office

May 17, 2011

June 21, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of rectification of KRW 31,320,630 on September 2, 2009 against the Plaintiff on September 2, 2009 shall be revoked.

1. Details of the disposition;

A. From October 1, 2004, the Plaintiff is operating a gas station under the trade name of the head of XX4 from Jeonju-si to 99-25 from Jeonju-si. (hereinafter “instant gas station”).

B. The Plaintiff received seven copies of the tax invoice (hereinafter “instant tax invoice”) in which the sum of the supplied values from the Daejeon Branch of Co., Ltd. (hereinafter “O Energy”) during the period from August 10, 2007 to August 31, 2007, which is the taxable period of the value-added tax for the second term of 2007, and notified the Defendant of the tax invoice 22,765,45 won with the input tax amount related to the instant tax invoice at the output tax amount of 22,765,45 won after filing the tax invoice for the second term of 207. The head office of Busan District Tax Office issued the tax invoice from April 2008 to June 2, 2008 and notified the Defendant of the tax invoice 1162-9, OB4, located in Busan District Co., Ltd., Ltd. at the head office and the Incheon District Tax Tribunal No. 1360-A430, Dong-dong, Incheon High-A23613, Dong.

D. Accordingly, the Defendant deducted the pertinent input tax amount of the instant tax invoice from the Plaintiff on September 2, 2009 on the ground that the instant tax invoice was issued in falsity without real transaction according to the above notice, and corrected the value-added tax for the second period of 2007 at KRW 31,320,630 (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an objection on November 12, 2009, and filed an appeal with the Tax Tribunal on March 8, 2010. However, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on July 26, 2010.

Facts that have not been used as a basis for recognition, Gap evidence 1, 2, 11 (each number Nos. 1, 11), Eul evidence 1 through 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) argument that transactions withO energy are true;

Pursuant to the Plaintiff’s provision of oil to the head of the O-Energy Business Director, and the payment of oil payments, the O-Energy of the Plaintiff purchased oil from the Non-Party, △△ Energy Storage Center (hereinafter “△△△△”) and delivered oil to the instant gas station through KimB through the transportation engineer KimB, it is not a false transaction.

2) The allegation that the instant tax invoice was legitimate under the Value-Added Tax Act, etc.

Article 6 (5) of the Value-Added Tax Act and Article 58 (1) of the Enforcement Decree of the same Act provide preferential clauses so that a trustee or agent may issue a tax invoice in his/her name if the other party to the transaction is unable to identify the truster or the principal.

In this case, the O Energy supplied oil to the Plaintiff as an agent or a trustee of △△ Energy, in accordance with the contract relationship with the △△ Energy as an agent or a trustee, and the Plaintiff trusted that the oil was supplied from O Energy and received the instant tax invoice without knowledge about the principal or the truster, and on the ground that the Special Provision on Issuance of Tax Invoice under Article 58(5) of the Enforcement Decree of the Value-Added Tax Act applies, the instant tax invoice issued in the name of O Energy, an agent or trustee, is legitimate.

3) The plaintiff's assertion that he is the opposite contractual party to good faith and without negligence

Even if the O Energy is so called so-called ‘O Energy' and the tax invoice of this case constitutes a disguised transaction or processing transaction, the plaintiff was not aware of the disguised transaction or processing transaction, and was not negligent in not knowing such fact.

(b) Related statutes;

As shown in the attached Form.

(c) Fact of recognition;

1) On May 21, 2007, the headCC established the O Energy (the representative shall be EE, the nominal owner), and completed the registration of petroleum retail business on June 19, 2007, and the business registration on July 1, 2007, with the name of "FF" located in Incheon and Daejeon, for the purpose of using the so-called data, and closed the business with the OF's direct e-mail of O Energy.

2) From July 2007, the O Energy issued sales tax invoices to the nationwide gas stations without real transactions, and traded data on which commission was paid. During that process, the O Energy supplied oil free of material to the relevant gas stations in connection with ChoG, etc., a non-data oil distributor.

3)O energy was initially secured by loading oil storage facilities and transportation vehicles to meet the registration requirements at the time of registering petroleum retail business operators, but the contract was terminated by failing to pay the oil storage facilities and the transportation vehicles once. In addition, there was no record of shipping oil under one’s own name at a nationwide oil reservoir during the project period.

4) On the pretext of O-Energy, the main oil purchaser did not receive shipment slips, unlike normal transactions, with respect to the oil that was supplied to △△ but was supplied, but at the end of each month. However, a purchase invoice was issued in a lump sum in accordance with the details of the oil that was shipped through YG at the end of the end of each month, and thereafter, △△ Energy and △△ Energy were accused of all of the materials and subsequently dismissed ex officio.

5) In a normal distribution route, when oil is delivered to a gas station, one of Chapter IV among the table of shipment issued at the time of shipment (the date of shipment, the name of the business partner, the arrival, arrival, destination, transportation equipment, volume of the shipment, potteries, weight, etc.) at the oil reservoir, etc. at the oil reservoir, etc. at the oil reservoir, one of the orderer, one of which is kept at the oil reservoir, one of which is delivered by the oil reservoir, and one of which is delivered by the driver of the vehicle in question, and one of which the other is kept at the oil station, and one of which is delivered by the signature of the customer oil station at the time of shipment. Since there are increase or decrease in the volume of the petroleum products after the temperature of the petroleum products, the normal bill of shipment has to be stated at the time of shipment, the potter at the time of shipment, etc.

6) On the other hand, the O Energy did not issue the shipment slips to the oil carrier on the date of shipment, and instead did not issue the O Energy shipment slips to the oil station in question. However, after the oil was delivered, the O Energy staff prepared a tax invoice in accordance with the oil details shipped at the same time with the computer and twitter, and then sent the said shipment slips and tax invoices to the oil station in question by mail or on a selective basis.

7) As a result of the investigation of the head of the Busan Regional Tax Office’s O Energy Tax Office’s O-Energy, the entire amount reported from O-Energy was proved to be processed and charged to an investigation agency as data. The Incheon District Prosecutors’ Office indicted the headCC, etc. on March 31, 2009 under the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance, etc. of False Tax Invoice) to the Incheon District Court. The appellate court, which was the appellate court, declared that the transaction of actual oil was conducted between the owner of non-taxable oil and the relevant gas station, and the head of the Incheon District Tax Office declared that the transaction was conducted between the owner of the same real oil and the relevant gas station, and that it constituted a person who issued and received the processed tax invoice or the delivery of the tax invoice, etc. on March 25, 2010. The appellate court, which was the appellate court, affirmed the judgment of the appellate court, which became final and conclusive, 200.

8) From October 1, 2004, H, the Plaintiff’s husband, who was operating the instant gas station from around October 1, 2004, began trading with the O-Energy after soliciting from elfrA, using the O-energy’s office, that it may supply the O-Energy transit at a price below 20 to 30 won per liters during the market.

9) The Plaintiff ordered oil to the O Energy and supplied oil as listed in the instant tax invoice through Kim KK, but did not receive the shipment slips issued at the oil reservoir from KimB at that time, and each shipment slips issued at the time of the issuance by OG last mail, which the Plaintiff received from O Energy, was not indicated in the temperature and density of petroleum products at the time of shipment, and the supplier’s trade name was also indicated as an entity other than O energy.

10) Meanwhile, according to the result of the monitoring of the oil distribution process of the head of the Busan Regional Tax Office’s O-Energy, △△△ Energy was supplied to the gas station in the instant case by ordering the instant gas to the oil station by the head of △△△△ (hereinafter “Gun oil reservoir”). As such, △△△ Energy was confirmed to be a business entity that supplied non-data oil to the gas stations that are customers, like O-Energy, engaged in a transaction on data that issues the shipment slips and tax invoices without real transactions, while supplying non-data.

Facts that there is no dispute over the basis of recognition, Gap evidence 2-1, 2, Gap evidence 10, Eul evidence 3 through 6, the witness testimony and the purport of the whole pleadings.

D. Determination

1) As to the assertion that the instant transaction was true or that the instant tax invoice was legitimate

As the Plaintiff actually purchased the instant oil, there is no dispute between the parties. However, it is the key issue of the instant case to determine whether the purchaser was an O energy agent or a truster of △△ Energy sold the instant oil to the Plaintiff, or whether the actual supplier is △△△ Energy, as alleged by the Defendant, and whether the data merchant OO Energy was prepared as if the data merchant supplied the instant oil.

In this regard, there is no evidence to acknowledge the fact that the O-Energy purchased the instant oil from △△ Energy and supplied it to the Plaintiff (the Plaintiff’s assertion) or that the O-Energy supplied it to the Plaintiff based on the agency sales contract or consignment sales contract with △△△ Energy (the Plaintiff’s assertion). Rather, the following circumstances revealed in the foregoing facts are as follows: ① O-Energy was established for only a false tax invoice transaction without a real transaction from the beginning; ② O-energy was established for the purpose of a false tax invoice transaction without a real transaction from the beginning, and only a tax invoice was issued or received by the tax authorities, and the headCC, the actual operator, was accused of the fact that the tax invoice was issued or received without any real transaction.

In full view of the fact that he was convicted on the ground that he received and delivered an invoice, and the judgment became final and conclusive, ② O Energy did not have received oil in any of the whole oil reservoirs across the country during the taxable period of the instant case, and there was no container using oil storage facilities or transportation vehicles, etc. reported after being registered as a petroleum sales business operator, ③ O Energy received a processed purchase tax invoice and let an oil distribution business operator supply without material fuel, and there was no actual purchase of oil, so it cannot be deemed that the O Energy actually supplied its oil to other gas stations such as the Plaintiff, etc. under the circumstances without the purchased oil. ④ △△△△△△ also issued the processed sales invoice against the gas stations and supplied non-taxable oil without material, etc., the Plaintiff is deemed to have played a role of mediating the transaction of the instant oil from O Energy, as well as having been supplied with the oil by △△△△△△△△, etc., and the Plaintiff and the Plaintiff were supplied with real energy.

Ultimately, the Plaintiff is recognized to have purchased the instant oil from △△ Energy, a non-taxable petroleum supplier of other third parties, instead of the data merchant. Therefore, the instant tax invoice is a tax invoice written by the supplier in falsity.

2) As to the Plaintiff’s assertion that the Plaintiff is a bona fide and bad faith-free transaction partner

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 supplier, who was unaware of the fact that the supplier was unaware of the name of the tax invoice, and the person who was provided with the tax invoice shall prove that there was no negligence on the part of the supplier on the part of the purchaser, who was not aware of the fact that the purchase tax amount was nominal (see, e.g., Supreme Court Decision 2002Du2277,

B) First, as to whether the Plaintiff was unaware of the name of the instant tax invoice, and whether there was no negligence on the part of the Plaintiff’s unaware of the name of the tax invoice, each of the entries in the evidence Nos. 4 through 9 (including each number), and the witness AA and L testimony is insufficient to recognize it, and there is no other evidence to acknowledge it.

C) Rather, the following circumstances acknowledged by Gap evidence Nos. 2, 7, and 12, Eul evidence Nos. 4, and Eul evidence Nos. 4 through 6, and the purport of testimony and arguments by the head of the witness AA. i.e., the plaintiff and his husband He had been operating the gas station of this case from October 2004. Thus, through a variety of long experience, the plaintiff could have been well aware of the normal structure and distribution route of oil supply, the general forms of transactions in the industry, and the actual situation of transactions in the oil industry, and the risks of supplying the oil. ② The plaintiff did not directly receive the oil oil delivery mark from the transportation engineer at the time of receiving the oil, but later did not receive the oil delivery mark at the time of receiving the oil, and ③ each oil distribution slip delivered by the O-energy on the basis of the fact that the plaintiff did not know of whether the oil supply of the oil was done by the supplier at the time of receiving the oil, but did not know of whether the oil supply of the oil was conducted by the supplier at the time of the oil supply of the oil.

(iii)Indivates

Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and the Plaintiff’s person who received the instant tax invoice is not recognized to be a good faith and negligence. Thus, the Defendant’s disposition that did not deduct the input tax amount equivalent to the instant tax invoice is lawful.

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.