Daejeon District Court 2013Guhap100964

It constitutes a false tax invoice and it is difficult to recognize the plaintiff's negligence without fault.

It is difficult to recognize the Plaintiff’s good faith solely on the ground that the supplier was in a tax invoice different from the fact and deposited into the account of the customer, but rather, it is difficult to verify the authenticity of the supplier and the shipment slip, etc.

Article 17 of the Value-Added Tax Act and Article 21 of the Value-Added Tax Act

2013Nu3571 Revocation of Disposition of Imposition of Value-Added Tax

LAA

The Director of the National Tax Service

Daejeon District Court Decision 2013Guhap100964 Decided December 4, 2013

April 3, 2014

May 1, 2014

1. The cancellation of the part of the judgment of the first instance concerning the following excessive portions shall be revoked, and the part concerning the claim for cancellation shall be dismissed:

On November 5, 2012, the part exceeding KRW 0, 00, 00, and ○○○, among the imposition of value-added tax for the first term of 2012 against the Plaintiff on November 5, 2012 by the Defendant.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 90% is borne by the Plaintiff, and 10% is borne by the Defendant, respectively.

The judgment of the first instance shall be revoked. The imposition of value-added tax of KRW 106,501,160 on November 5, 2012 against the Plaintiff on November 5, 2012 by the Defendant shall be revoked.

1. Details of the disposition;

A. From February 15, 2012 to ○○○○○○○○○○○, the Plaintiff is a business entity that runs a retail business of oil by leasing a trade name oil station from around February 15, 201 to ○○○○○○○○○.

B. In the first taxable period of the value-added tax in 2012, the Plaintiff received ****,***,** the tax invoice that causes the Plaintiff to deduct the input tax from the output tax amount, and filed and paid the first taxable year in 2012 after deducting the input tax amount from the output tax amount.

C. The director of ○○ Regional Tax Office confirmed that the tax invoice was so-called data that issued without real transactions and notified the Defendant of the fact.

라. 피고는 2012. 9. 13.부터 2012. 11. 5.까지 사이에 원고에 대한 세무조사를 실시한 후 2012. 11. 5. 원고에게 ① ☆☆에너지로부터 교부받은 이 사건 제1세금계산서가 사실과 다른 세금계산서라는 이유로 그 매입세액을 불공제하고, ② ☐☐주유소로부터 공급가액 합계 ***,***,***원의 세금계산서 2매(이하 "이 사건 제2세금계산서"라 한다)를 교부받았음에도 당해 과세기간 부가가치세 신고시 이를 누락한 것에 대하여 실물거래 없이 세금계산서를 교부받은 경우에 해당한다고 보아 2012년 제1기 부가가치세 ○○○,○○○,○○○원(이 사건 제1세금계산서 관련 부가가치세 및 가산세 ○○,○○○,○○○원 + 이 사건 제2세금계산서 관련 가산세 ○○,○○○,○○○원)을 각 경정ㆍ고지하였다(이하 이 사건 제1세금계산서에 관련된 과세처분을 "이 사건 제1처분"이라 하고, 이 사건 제2세금계산서에 관련된 과세처분을 "이 사건 제2처분"이라 하며, 이들 처분을 합하여 "이 사건 각 처분"이라 한다).

E. On February 12, 2013, the Plaintiff appealed to the Tax Tribunal, but was dismissed on May 9, 2013.

F. After that, on April 28, 2014, the Defendant issued a corrective disposition to revoke ex officio the instant disposition related to the second tax invoice of this case among each disposition of this case.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 and 2 (if there is a tentative number, a tentative number)

each entry, the purport of the whole pleading

2. Whether the part of the lawsuit against the revocation of the disposition No. 2 of this case is legitimate

ex officio, we examine the legitimacy of the lawsuit concerning the revocation claim against the second disposition of this case.

On the other hand, when an administrative disposition is revoked, the disposition becomes null and void, and no longer exists, and a lawsuit seeking revocation against a non-existent administrative disposition shall be deemed unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2009Du16879, Apr. 29, 2010).

However, among the lawsuits in this case, the part of the claim for revocation of the second disposition in this case is ex officio on April 28, 2014.

As the Plaintiff revoked the disposition No. 2 of this case, the Plaintiff’s lawsuit of this case No. 2

It is unlawful as there is no benefit to seek the cancellation of the disposition.

3. As to the revocation claim against the first disposition of this case

A. The plaintiff's assertion

1) The Plaintiff was actually supplied with oil from the energy of △△△ in fact and was normally traded by remitting the oil purchase price to its account in its name, and thus, the instant first tax invoice is not a false tax invoice.

2) Even if the first tax invoice of this case is false, the Plaintiff did not know the fact that the oil was supplied from other companies, not the energy of △△△△, and confirmed all the registration of the business operator and whether the petroleum products, such as the deposit passbook in the name of the legal entity, were stored in the name of the business operator while engaging in transactions with the energy of △△△△△, and thus,

3) Therefore, the instant disposition No. 1 should be revoked in an unlawful manner.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether a tax invoice is false

The meaning that entries in a tax invoice are different from the facts under the Value-Added Tax Act (amended by Act No. 11608, Jan. 1, 2013) refers to cases where the necessary entries in a tax invoice do not coincide with the actual subjects, values, and timing of the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 1996).

In full view of the overall purport of the statements and arguments as to this case, the energy from △△△ in Seoul Special Metropolitan City from July 201 to August 201, 201 was stored in an oil storage place in the name of △△ in Ulsan Special Metropolitan City, and then imported or purchased oil. The energy from △△ in Busan Special Metropolitan City is confirmed to have closed the business around November 201 at the place of business located in the Seocho-dong in Busan Special Metropolitan City, and it is confirmed that ○○ regional tax office has discontinued the business in its authority. Thus, it is difficult to view that △△ Special Metropolitan City actually supplied oil to the Plaintiff during the first taxable period in 2012. Thus, the first tax invoice of this case that the Plaintiff received from △ Special Metropolitan City is different from the facts provided by Article 16 (1) 1 of the Value-Added Tax Act, and the Plaintiff’s assertion that this part of the entry constitutes a case where necessary entry under Article 17 (2) 2 of the Value-Added Tax Act is not reasonable.

2) Whether the Plaintiff acted in good faith and without fault

An actual supplier and a supplier on a tax invoice may not deduct or refund an input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the fact of misrepresentation of the tax invoice, and that the supplier was not negligent in not knowing the fact of misrepresentation of the name, the person who asserts the deduction or refund of the input tax amount must prove that the supplier was not negligent (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009).

The plaintiff actually supplied oil and paid the price to the account in the name of the Do governor in order to ensure that it is difficult for the plaintiff to be negligent in not knowing that the first tax invoice in this case was false, and there is no other evidence to acknowledge it. Rather, according to the whole purport of the entries and pleadings in the evidence Nos. 5 and 6 (including the virtual serial number) and the following circumstances, ① according to the shipping slips delivered after the plaintiff was supplied with oil, other companies, other than the Do governor, entered the shipping company, and the place of destination, other than the Do governor, entered the shipping company as the shipping company, and the place of destination. The plaintiff, who received the different shipment slips, appears to have a sufficient reason to suspect that the Do governor was not the actual supplier, and ② in particular, in light of the fact that there was an omission of the signature of the transporter in the above shipment slips, the plaintiff did not know about the fact of the supplier's name in the process of receiving the first tax invoice in this case and being supplied with the oil.

4. Conclusion

Therefore, among the lawsuit of this case, the part concerning the claim for cancellation of the disposition of this case concerning the second disposition of this case is dismissed as it is unlawful, and the remaining claims of the plaintiff are dismissed as it is without merit. Since the part concerning the claim for cancellation of the disposition of this case among the judgment of the court of first instance concerning the claim for cancellation of the disposition of this case concerning the second disposition of this case is unfair in conclusion, the part concerning the claim for cancellation of the disposition of this case concerning the second disposition of this case is revoked and the remaining part of the claim (the part concerning the claim for cancellation of the disposition of this case concerning the first disposition