Review Division 2009-0104 (2010.05.04)

Whether a processing tax invoice without real transaction related to oil purchase has been received

In full view of the fact that the business partner did not distribute the actual oil, the actual oil is deemed to have been purchased from a third party when considering the fact that the transaction partner filed a complaint with the tax authority and the conviction was finalized, and the details of issuance of the shipment slip

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 91,083,90 on June 15, 2009 against the Plaintiff on June 15, 2009 is revoked.

1. Details of the disposition;

The following facts are either disputed between the parties, or acknowledged by comprehensively taking account of the following facts: Gap evidence No. 1, Gap evidence No. 2, Gap evidence No. 6, Gap evidence No. 10, Gap evidence No. 12, Gap evidence No. 18, Eul evidence No. 18, and Eul evidence No. 1 through No. 4 and the whole purport of pleadings:

A. On June 14, 2005, the Plaintiff was a corporation established for the purpose of wholesale and retail business, gas station business, etc., and operated 'FF gas station' in Daejeon EEdong from December 13, 2007, and closed on March 31, 2010. From January 13, 2008 to March 31, 2008, the Plaintiff received a tax invoice of KRW 537,527,272 (hereinafter referred to as "the tax invoice of this case") equivalent to the total supply price of Chapter 19 from D Energy Co., Ltd. (hereinafter referred to as "D Energy") during the period of the first value-added tax (hereinafter referred to as "the tax invoice of this case") and received the tax invoice of KRW 537,527,272 from the output tax amount of the above taxable period after deducting the amount equivalent to the input tax amount of the said tax invoice from the output tax amount of the above taxable period.

B. On May 15, 2008, the director of the Busan Regional Tax Office conducted an investigation of tracking the distribution process of the above DD Energy, and notified the Defendant of the taxation data on the Plaintiff by deeming DD Energy as data that issued a tax invoice without real transaction. Accordingly, the Defendant: (a) purchased the supply price of KRW 456,90,09,09 in the instant tax invoice; and (b) purchased KRW 80,618,182 in the form of a false purchase; (c) although the supplier was a disguised purchase, the said tax invoice is deemed to be harmful to a false tax invoice on the ground that the supplier was a false purchase; (d) determined that the relevant input tax amount was deducted pursuant to Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 9286, Dec. 26, 2008) and imposed KRW 91,083,90 for the Plaintiff on June 15, 2009 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed a request for examination with the National Tax Service on July 15, 2009, but the said request for examination was dismissed on May 4, 2010.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff actually received oil from DD Energy, and therefore, the tax invoice of this case cannot be deemed to be a false tax invoice, and even if it is a tax invoice different from the fact of domestic affairs, the plaintiff was not aware of DD Energy's name, and was a bona fide transaction party who did not know that it was not negligent. Thus, the plaintiff asserted that the disposition of this case, which the defendant denied input tax deduction related to the tax invoice, was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are either disputed between the parties, or acknowledged by comprehensively taking account of the whole purport of Gap evidence 1 through Gap evidence 9 (excluding evidence 5-1 of Gap evidence 5), Eul evidence 17, Eul evidence 5 through Eul evidence 10 (including each number), and the whole purport of the pleadings, and contrary thereto, each statement of evidence 5-1, evidence 11, and evidence 15-14 of Gap evidence 5-1, and evidence 13-17 (including each number excluding evidence 14 of evidence 15-14) is insufficient to obtain the above recognition.

(1) After completing the registration of petroleum retail business on June 19, 2007, D Energy was registered as an oil wholesale business and completed the business registration on July 1, 2007, and closed on April 24, 2008. During the above business period, D Energy was also a business operator who operated the business on April 24, 2008, and there was no shipping of oil in the name of D Energy in any of the above business periods. However, even though it concluded a lease contract for oil storage facilities and vehicles for petroleum retail business registration, there was no use of oil reservoir and vehicles, etc.

(2) The head of H, who is the actual business operator of the aforementioned DD Energy, intended to receive or deliver a false tax invoice without a real transaction, and used the so-called “GGG” name by opening the DD Energy. From July 2007, H, as an agent of the former DD Energy, issued the sales tax invoice in the name of the gas station without a real transaction and traded without a certain fee to the gas station, and made a transaction in the data for which the sales tax invoice in the name of the gas station was paid to the gas station. In order to secure the gas station for such transaction, H made it difficult to contact with the oil distributor, etc. of non-data-free oil, so that the oil free material is delivered to the gas station.

(3) On the other hand, when oil is delivered through normal distribution channels to the gas station, one of the orderer out of Chapter 4 of the shipment slips issued at the time of shipment at the oil reservoir, etc. (the date and time of shipment, the name of the customer, the arrival of the arrival, the place of arrival, the transportation equipment, items and the volume of the shipment, temperature and weight, etc.) is kept, one of the two copies is delivered to the oil station, and one of the two copies is delivered to the oil station upon receipt of the signature of the customer oil station in which the oil is delivered to the driver of the relevant oil carrier, and the other one is delivered to the oil station. The plaintiff did not receive the shipment slips normally issued at the oil station as above in relation to the instant tax invoice of this case (the remaining shipment slips except for three pre-delivery slips of March 19, 2009 are prepared and issued by the passenger oil station). Dr's voluntary purchase of the oil invoice and the cargo temperature to be kept by the cargo station, etc. by means of the following large-scale type of the oil market.

(4) The director of the Busan Regional Tax Office: (a) filed an accusation with the investigating authority by deeming DD Energy as having issued a false tax invoice without actually supplying oil; and (b) on March 25, 2010, HH issued a false sales tax invoice of KRW 21,090,909 to each gas station including the Plaintiff at Seoul High Court (Seoul High Court 2009No2687), and (c) received a false purchase tax invoice of KRW 33,813,257,915, on the ground that the value was issued to each gas station, including the Plaintiff, and received a false purchase tax invoice of KRW 33,813,257,915, he/she was sentenced to imprisonment of KRW 1 and six months and fine of KRW 7,000,000,000, and the above judgment was dismissed by the Supreme Court and

(5) On June 3, 2008, the Plaintiff received the instant tax invoice from D Energy, 100,00,500,1090,500,500,100,500,2,880,5000, 2,880,500, and 83,320,50,500,888,000,000, through the Plaintiff’s deposit account in another KR bank on the same day, and on June 4, 2008, remitted 10,50,000,000,584,000,00,000,50,000,50,000,000,000,000,18,860,50,50,50,50,50,000 won through the said M account through the Plaintiff’s account.

(6) The Plaintiff’s actual operator, at the time of the investigation by the tax authority, claimed that the Plaintiff purchased fuel in the amount of KRW 500 million from the DCC (hereinafter “CC”) as security with respect to the details of the remittance as above, and the Plaintiff’s purchase of fuel in the amount of KRW 500 million from DCC as security. From January 2008, the Plaintiff claimed that the Plaintiff transferred the oil to DD in cash as above. However, the agreement that the Plaintiff entered into with D Energy on December 30, 2007 (Evidence No. 3-1 of Evidence No. 3), stating that the emergency head of the CC (the total assets of the above company as of December 31, 2007 were 2,374,697,54 won, total amount of capital stock was 1,213,516,299 won, and that the Plaintiff’s actual owner’s stock holding on the date of the above D was 60% of DB’s capital stock holding on the date.

(7) In the process of the instant disposition, the shipping slips in the name of DD Energy submitted by the Plaintiff did not sign and seal the oil temperature and the consignee at the time of shipment. However, on March 19, 2008, the three sheets of DD Energy Daejeon Oil Distribution Center published normally on March 19, 2008, but the above shipping slips indicated that oil was shipped to the airport oil company at the above logistics center without entering the DD energy. The Plaintiff was supplied with oil with the oil using the tank lorries without being marked as the oil at the time of being supplied with the oil, and the vehicle number on the shipment slip received from DD Energy was identified as a vehicle number that did not exist as the result of the Defendant’s secondary inquiry.

(8) The Plaintiff entered that the oil equivalent to the instant tax invoice was purchased from D Energy in 2008, and after receiving the tax investigation from the Defendant, the Plaintiff heard that the amount of the said tax invoice should be paid if the corporate tax was to be included in the calculation of losses, and the Defendant deducted the amount of KRW 456,909,090 from the product purchase amount from the product purchase amount on December 31, 2008, and there is no original market book, which was mechanically prepared at that time at the time at the pre-establishment stage of the Customer Director-General.

(9) Accordingly, the Defendant determined that the tax invoice of KRW 80,618,182 as of March 21, 2008, among the instant tax invoice received from DD Energy, was a real transaction by deeming that the Plaintiff received 60,000 liters from Airport Petroleum on March 19, 2008, and that there was no actual transaction, and determined that the remaining tax invoice of KRW 456,909,090 was a processed tax invoice issued without any actual transaction.

D. Determination

(1) Whether the instant tax invoice is different from the fact

(A) The meaning that the entries of the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries of the tax invoice refer to cases where the contents of the tax invoice do not coincide with those of the person who actually supplied or is supplied with the goods or services, regardless of the formal entries of the transaction contract, etc. made between the parties to the goods or services.

(B) As to whether the Plaintiff was actually supplied with oil from D Energy, which is the supplier under the instant tax invoice, the following facts are acknowledged: (i) D Energy was established for the purpose of trading false oil without real trade from the beginning; (ii) it was finalized upon conviction on the ground that H (the actual operator) issued or received only a tax invoice without real trade; and (iii) D Energy was not shipped out from the country during the instant taxable period; and (iv) it was not timely used for oil storage facilities or transportation vehicles for which the Plaintiff was registered as petroleum sales business operators; and (iii) D Energy received the processed tax invoice and let the petroleum distributor supply without without real material; (iv) in the absence of actual purchase of oil; and (v) it cannot be seen that D Energy was actually supplied to the Plaintiff and others, such as the Plaintiff, etc., without real purchase of D Energy; and (v) it cannot be deemed that D Energy was actually supplied or otherwise purchased from 3rd suppliers.

(2) Determination on a tax invoice of KRW 456,909,090 for supply value

(A) While the Plaintiff asserted that the oil equivalent to the instant tax invoice was actually supplied from D Energy, it is difficult to believe that each of the items stated in Gap evidence 5-1, Gap evidence 11, and Gap evidence 15-14, which seems consistent with the Plaintiff’s assertion, is insufficient to recognize it, and there is no other evidence to prove it otherwise.

(B) Rather, the following circumstances revealed in the above facts, i.e., ① the Plaintiff, at the time of the transaction with DB, provided credit-based stocks as security at the time of the transaction with DB, and the Plaintiff appears to have agreed to pay fuel price on the date of the transaction with DB. It is difficult to easily understand that HH, who carried out the business on the data that was ex officio, did not directly engage in cash transactions and agreed to receive emergency stocks as security and make long-term transactions with the Plaintiff. ② The Plaintiff, even if it is difficult to assess the reasonable market price even if it was not related to DB's pre-sale and pre-sale transactions, it is difficult to exchange non-listed stocks that were difficult to exchange in cash, as security, from the date of the first transaction with DB's assets, to receive KRW 500,000,000,000,000,000,000,000,000 won from the date of the transaction with DB's assets.

(C) Therefore, the Plaintiff cannot be deemed to have actually purchased oil from D Energy as stated in the instant tax invoice, and thus, it is reasonable to deem the value of supply 456,909,090 won excluding the value of supply 80,618,182 won recognized by the Defendant as having actually received oil from Airport Petroleum as being processed. Therefore, the Plaintiff’s above assertion is without merit.

(2) Determination as to whether the Plaintiff is a bona fide trading party

(A) According to the above, since the tax invoice of KRW 456,909,09,090 for the supply price received from DD Energy is a tax invoice issued without real transactions, the Plaintiff’s assertion that this part is a bona fide trading party who was unaware of the fact of nominal violation is without merit.

(B) However, as to the remaining tax invoices of KRW 80,618,182, which are acknowledged as a nominal transaction, the actual supplier and the supplier on the tax invoice cannot deduct or refund the input tax amount unless there is any special circumstance that the actual supplier and the supplier were not aware of the fact that they were not aware of the fact that they were nominal, and that the person who received the tax invoice was not negligent in not knowing the fact that they were nominal, the person who claimed the deduction or refund of the input tax amount should prove that he was not negligent (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

(C) Therefore, as to whether the Plaintiff was unaware of the disguised fact in the name of the above tax invoice, and whether there was no negligence on the part of the Plaintiff, it is difficult to believe that each entry of Gap evidence 5-1, Gap evidence 11, and Gap evidence 15-14, which seems consistent with the Plaintiff’s argument, is not sufficient to recognize it by itself, and there is no other evidence to acknowledge it.

Rather, the following facts revealed in the facts acknowledged earlier: ① the Plaintiff appears to have neglected to verify the authenticity of DD energy and whether it is a real supplier even though abnormal transactions, such as receipt of DD energy shipping slips with the tax invoice after the Plaintiff’s receipt of oil at the time of receiving the oil; ② the Plaintiff was issued with DD energy shipping slips without entry of DD energy; ② the Plaintiff failed to review the details of the shipment slips; ③ the Plaintiff was supplied with oil with a tank lorri vehicle without any indication of DD; ③ the Plaintiff was supplied with oil as a result of inquiry; ③ the number of the oil transport vehicle on the shipment slip was a vehicle number which does not exist; and the Plaintiff did not pay due attention, such as deeming the Plaintiff to have compared the vehicle shipping number in abnormal oil transactions; and the transaction circumstances and circumstances as seen earlier, it is difficult to deem that the Plaintiff was not aware of the false name of the aforementioned tax invoice, and there was no negligence.

(3) Sub-decisions

Therefore, the instant tax invoice constitutes a false tax invoice, and it is insufficient to recognize the fact that the Plaintiff was a bona fide and negligent supplier. Therefore, the instant disposition that the Defendant did not deduct input tax amount equivalent to the instant tax invoice is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is without merit, and it is so decided as per Disposition by the court below.