Early High Court Decision 2009Du3608 ( October 14, 2010)

The operator of the gas station who received a false tax invoice and does not constitute a bona fide transaction party.

Since it cannot be viewed as good faith and negligence on the part of the Plaintiff that the supplier received a tax invoice different from the fact and the Plaintiff believed that the tax invoice was properly entered, the disposition that the supplier was not allowed to deduct the input tax amount and imposed is legitimate.

2010Guhap4401 Disposition of revocation of Disposition of Imposition of Value-Added Tax

XX

O Head of tax office

June 30, 2011

August 18, 2011

1. The plaintiff's claim is dismissed.

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

The imposition of the global income tax of KRW 5,417,810 on July 5, 2009, which the Defendant imposed on the Plaintiff on July 5, 2006, KRW 130,806, KRW 600, and KRW 25,070,940 on the global income tax of KRW 206 shall be revoked.

1. Details of the disposition;

A. From May 1, 2005 to November 16, 2006, the Plaintiff operated the gas station (hereinafter referred to as the “gas station of this case”) under the trade name of the Incheon XX-Gu from 254-27 to 254-27 to 2006.

B. From September 30, 2006 to November 30, 2006, the Plaintiff received a tax invoice that received oil equivalent to the total supply value of KRW 891,296,360 from the O Energy Co., Ltd. (hereinafter “OO”) and deducted the input tax amount, and then reported and paid the value-added tax.

C. On July 10, 2009, the Defendant supplied the Plaintiff with oil equivalent to KRW 35,578,000 of the total supply value to △△ Energy Co., Ltd. (hereinafter “△△△△△△”) located in OO-dong 596-6 OE from March 8, 2006 to 9 of the same month, and on the ground that the Plaintiff did not report it to the Defendant, the sales amount constituted non-data sales, the Defendant issued revised and notified KRW 25,070,940 of the global income tax for 1, 2006 and KRW 25,070,940 of the global income tax for 206, on the ground that the Plaintiff did not deduct the input tax amount for the reason that the tax invoice was proved to have been different from the fact.

D. The Plaintiff appealed and filed an administrative appeal with the Tax Tribunal on October 1, 2009, but the Tax Tribunal dismissed it on July 15, 2010.

[Reasons for Recognition] Facts without dispute, entry of Eul evidence 1 (including branch numbers, if any; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff is a bona fide trading party who did not know that the O energy was in material form, and there is no fact that the Plaintiff supplied oil to △△ Energy. The Defendant was in violation of the instant disposition on the sole basis of the circumstance that the O energy was in material form and the unilateral statement of △△△ Energy.

B. Relevant statutes

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

C. Facts of recognition

1) The process of confirmation of O-Energy data

A) After registering the business on June 28, 2006, the O Energy was closed ex officio on December 28, 2006, and the registration of the petroleum selling business was made, but there was no record on August 31, 2006 that the automobile maintenance expenses and transportation expenses were paid after August 31, 2006 on the account book. Since late January 2006, the rental contract was terminated on January 2007 and the above place was not used as a workplace.

B) As a result of the investigation of the Incheon Tax Office’s tax investigation, the O Energy did not purchase petroleum after September 2006. From July 1, 2006 to March 31, 2007, the head of the Incheon Tax Office received a tax invoice of KRW 99,219,052,00 for the supply price from Choil Energy, OO Energy Main Points Branch, and Maio Fladon Co., Ltd. without real transactions, and unjustly deducted the input tax amount. The tax invoice of KRW 95,99,216,00 for the 85 companies, other than ○○ Energy Co., Ltd., without real transactions, was investigated to issue a tax invoice of KRW 95,99,216,00 for the O Energy, and the head of the Incheon Tax Office confirmed the O Energy as data (However, the O Energy did not be included in the above 85 sales offices because it did not report a transaction with the Plaintiff as a sales).

2) The details of the transaction between the Plaintiff and the O-Energy

A) From February 2006, the Plaintiff: (a) delegated the overall authority over the operation of gas stations to ChoA; (b) operated the gas station in this case; and (c) started transactions with O energy after hearing the horses that the operator of the O-Energy room would supply oil at KRW 20-5 million per vehicle over other places; and (d) he would supply oil at KRW 20-5 million per vehicle.

B) The Plaintiff ordered oil to the O Energy and traded oil to the O Energy Corporation account by means of remitting the oil price to the O Energy Corporation account or cash payment. At the time of the oil storage, the transporter brought the shipment slips entered in the place of destination as another company and confirmed it to the ChoA, and the ChoA again received the shipment slips entered in the place of destination from the O Energy after payment of the oil price.

3) Results of the investigation on △△ Energy

A) As a result of the investigation of △△△ Energy by the Central and Medium Regional Tax Office, the actual oil was supplied by retailers such as gas stations since 2006, and the purchase tax invoice was received from data companies, etc. and reported falsely. In 206, △△△△ Energy was investigated as a disguised transaction with approximately KRW 321,00,000 among the details reported to be purchased from △△ Energy Co., Ltd. during the first period of 206.

B) On March 8, 2006, 206, △△ Energy issued sales tax invoices by selling 35,578,000 won among the oils that received purchase tax invoices from △△ Energy Co., Ltd., and selling them to the 1st oil station, and on March 9, 2006, respectively.

C) On March 8, 2006, which is kept in K K K 1 oil station, the shipment slips of March 8, 2006 are written in the name of the company (shipper), AA oil company, shipping volume 20,00 liter, the place of delivery, the gas station of this case, and the carrier KimCC, and the rubber seal of K K 1 oil station in the consignee column. The shipment slips of March 9, 2006, which are kept in the FF oil station, are written in the name of the company (shipper), A oil company, shipping volume 8,00 liter, the place of delivery, and the carrier of this case, and are signed in the consignee column as FF/S.

D) Meanwhile, on March 8, 2006 and the 9th day of the same month, AAS Co., Ltd. sent oil from oil refineries in accordance with the Plaintiff’s order and supplied it through the transporter designated by the Plaintiff, and was found to have received the oil price normally from the Plaintiff.

[Reasons for Recognition] Unsatisfy, Entry of Evidence Nos. 2, 3, 4, 5, and 6, the purport of the whole pleadings

C. Determination

1) As to transactions with OE

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

The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts is the case where the necessary entries in the tax invoice are inconsistent with those in the actual supply of goods or services or the price and time of the supply, notwithstanding the formal entries in the transaction contract, etc. made between the parties to the goods or services.

We examine whether the transaction partner who supplied oil to the Plaintiff is an O energy supplier under the tax invoice. As seen earlier, it is revealed that the O energy did not purchase petroleum after September 2006, and the details of the reported purchase was a processed transaction, and it can be recognized that the Plaintiff did not use oil facilities or transport vehicles, etc. reported in the registration of the business of selling petroleum. In addition, in the absence of the O energy purchased oil, it cannot be deemed that the Plaintiff actually supplied its oil, it is called the so-called “data” that issued only the processed tax invoice without actual transaction, and the actual purchase place of oil under the tax invoice of this case should be deemed to be a third party, not an O energy. Accordingly, the above tax invoice constitutes a tax invoice different from the fact that the supplier is a tax invoice.

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

The actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not knowing the nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

As acknowledged earlier, the Plaintiff started transactions with O Energy on the ground that the price is low compared to other business partners. At the time of the supply of oil, only confirm abnormal shipment slips entered in the place of destination as other business entities, and then recognize the fact that the place of destination was received a shipment ticket entered in the oil station in this case from O Energy after paying the price. Moreover, OO Energy issued a large quantity of false tax invoices without actually using oil storage facilities and transport vehicles, and thus, it appears that the Plaintiff could have known that O Energy was not an actual supplier if he paid little attention. In full view of the fact that the Plaintiff could have known that O Energy was not an actual supplier, only each of the items of evidence Nos. 1 and 2 cannot be said to have been negligent in the Plaintiff’s failure to know or knew of the fact that the Plaintiff was an OO Energy owner at the time of the transaction.

2) As to the transaction with △△△ Energy

As acknowledged earlier, △△△ Energy received false purchase tax invoices from △△ Energy Co., Ltd. without any actual transaction, and on March 8, 2006, issued sales tax invoices with the sale of oil in K 1 K and Friju on the 9th day of the same month. On March 8, 2006, the Plaintiff can recognize the fact that the oil purchased from △△ Co., Ltd. on the 9th day of the same month was transported to K 1 K K K and Friju station on the 1st day of the same day (this case’s gas station asserted that, while transporting the oil, KK 1 and Friju station were mistakenly delivered the shipment slips, but in light of the content of the shipment slips and the signing and sealing of the shipment slips by △△△△△△△, it is unlikely that the Plaintiff purchased the Plaintiff’s oil gas station directly from the Plaintiff, the actual purchaser of the oil gas station, as the Plaintiff purchased the oil gas station.

3) Sub-determination

Therefore, the instant tax invoice constitutes a tax invoice different from the facts and cannot be deemed as a good faith and negligence in believing that the Plaintiff properly entered the said tax invoice, and the Plaintiff is deemed to have sold an oil equivalent to the total supply value of KRW 35,578,00 in △△ Energy, and thus, the Defendant’s disposition based thereon is lawful.

3.In conclusion

Thus, the plaintiff's claim of this case is dismissed as there is no ground.