Early High Court Decision 2010Du4064 (Law No. 111, 03.09)

The instant tax invoice constitutes a tax invoice entered differently from the supplier.

The tax invoice of this case constitutes a tax invoice entered differently from the fact by the supplier, and it is reasonable to view that the plaintiff knew or was negligent in not knowing that the person entered as the supplier at the time of receipt of the tax invoice of this case was not the supplier.

Article 17 of the Value-Added Tax Act

2011Guhap2754 Disposition to revoke the imposition of value-added tax

XX

the director of the tax office of Western

May 3, 2012

May 17, 2012

1. The plaintiff's claim is dismissed.

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

The imposition of value-added tax of 000 won for the second term portion of 2008 against the Plaintiff on May 17, 2010 shall be revoked.

1. Details of the disposition;

A. From April 30, 2005, the Plaintiff, from 526-4 to 526-4 of the Seo-gu Incheon Western-dong, engaged in oil wholesale/retailing business, and closed on January 20, 2010.

B. In 2008, the Plaintiff received a tax invoice of KRW 70,79,99 (hereinafter “instant tax invoice”) equivalent to the total value of supply from the headquarters branch of a corporation (hereinafter “OO”) in the 2nd VAT taxable period, and filed a return on the value-added tax for the second period of time in 2008 with the Defendant, while filing a return on the value-added tax for the second period of time in 2008, the Plaintiff reported the value-added tax including the input

(c) As a result of conducting a tax investigation on the OO office, the head of the Dong-ju District Tax Office confirmed that the OO was a so-called material that issued a tax invoice without a real transaction, and notified the Defendant of such findings.

D. Accordingly, on May 17, 2010, the Defendant confirmed that the headquarters headquarters was data, and it was confirmed that the Plaintiff’s report of value-added tax for the second period of 2008 was not possible to deduct the input tax amount as the input tax amount after reviewing the Plaintiff’s report of value-added tax for the second period of 2008 based on the survey data, and notified the Plaintiff of the correction and notification of KRW 000 for the second period of 2008 (hereinafter “instant disposition”).

E. On July 29, 2010, the Plaintiff filed an objection with the Tax Tribunal on November 29, 2010, but was dismissed on March 8, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, 5 evidence, Eul evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The assertion that transactions with theO are true

The Plaintiff was actually supplied with oil from the O Cheongju Branch, and subsequently traded normally by remitting the purchase price, and thus, the instant tax invoice is not a false tax invoice.

(2) The plaintiff's assertion that he is the opposite contractual party of good faith and negligence

Even if an oil supplier supplied to the Plaintiff is not an O agency but an O agency listed as a supplier under the instant tax invoice, and the instant tax invoice constitutes a false tax invoice, the Plaintiff did not know that the oil was supplied by another company, not an O agency, but an O agency, and was not aware of the fact that the Plaintiff was in trade with the O agency and confirmed that the oil was issued with the shipment slip, the business registration certificate, and the petroleum retail business registration certificate, etc., and did not commit any negligence.

(3) The assertion that there is no identity of the reasons for the disposition

The original reason for the instant disposition was that the instant tax invoice was received without a real transaction, and the real transaction was conducted, but the actual supplier’s difference from the entry of the instant tax invoice is not recognized as identical to the original reason for disposition. Therefore, the Defendant cannot assert it as a new reason for disposition.

(b) Related statutes;

/ Value-Added Tax Act (amended by Act No. 9268 of Dec. 26, 2008)

Article 17 (Payable Tax Amount)

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as "paid tax amount") shall be the amount obtained by deducting the tax amount under the following subparagraphs (hereinafter referred to as "purchase tax amount") from the tax amount on the goods or services supplied by him (hereinafter referred to as "sales tax amount"):

(2) The following input taxes shall not be deducted from the output tax amount:

1. An input tax amount in case where the list of the total tax invoice by customer is not submitted under Article 20 (1) and (2), or the input tax amount on the portion not entered or entered differently from the fact, in case where the whole or part of the registration numbers or supply values by transaction parties in the submitted list of the total tax invoice by customer is not entered or entered differently from the fact, excluding the input tax amount in such

1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a “necessary entry item”) is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be excluded;

(c) Fact of recognition;

(1) In the case of normal oil transactions:

When oil is delivered to a gas station through normal distribution channels, one of the four Chapters 4 of the shipment slips issued at the time of shipment (the date and time of shipment, the name of the customer, the arrival, destination, transportation equipment, items and the volume of shipment, temperature ratio, etc.) at the oil reservoir, etc. at the oil reservoir, etc. at the same time of shipment shall be stated in the orderer, one of them shall be kept by the oil reservoir, one of them shall be collected by the driver, and one of them shall be delivered to the oil station by the client of the relevant oil transport vehicle after receiving the signature of the customer oil station at the time of delivery, one of them shall be delivered to the oil station, and the other one of them shall be delivered to the oil station. Since such normal shipment schedule increases or decreases after the temperature of petroleum products, the date and time of shipment at the time of shipment shall be stated.

(2) Oil transactions, etc. at O and Cheongju points

(A) On August 29, 2007, the OO is a business operator who reported the closure of business on June 5, 2009 after business registration was made, and the OO head office is a business operator who was ex officio closed by the head of the Dong head office on May 20, 2008 after business registration was made on May 20, 2008.

(B) The representative of the OO and the O office shall receive a false tax invoice or receive a false tax invoice without a real transaction, and completed the business registration after accepting the OO Busan headquarters. After doing so, the Cheongju and Jeonju had a branch office, and issued the sales tax invoice to the nationwide gas stations without a real transaction and traded data for which fees are collected.

(C) In order to meet the registration requirements at the time of the initial registration of a petroleum retail business operator, theO leased oil reservoir and a vehicle for transport, which is a storage facility, but theO actually used the oil reservoir or the vehicle for transport.

(D) The main oil purchaser at the name of the O Cheongju Branch is △△ Petroleum and △△ Petroleum Daejeon Branch. However, the O Cheongju Branch did not actually receive oil from these companies, but it received a processed purchase tax invoice as if they were supplied with the pertinent oil from these companies in order to meet the sales details on the processing tax invoice. △△ Petroleum and △△ Petroleum Daejeon Branch were charged with all of the materials and was closed ex officio.

(E) On April 2009, the result of the tax investigation conducted by Dong Cheongju Tax Office with respect to OO O O office, a tax invoice amounting to 96.4% of the sales tax invoice issued during the taxable period of value-added tax 271 in 2008 was confirmed as a processed tax invoice.

(3) From October 2008 to December 2008, the Plaintiff placed an order for the same kind of oil in the instant tax invoice to be supplied to the account in the name of OO. However, at the time of being supplied with oil, the Plaintiff did not receive the shipment slip issued at the oil reservoir from the oil carrier to the oil reservoir. After being supplied with the oil, the Plaintiff was delivered the shipment slip in the name of the OO station by mail.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 2 to 5, the purport of the whole pleadings

D. Determination

(1) Whether the instant tax invoice was written differently from the fact

(A) If a taxpayer of value-added tax proves that a tax invoice submitted as a basis for input tax deduction was prepared in a false way without a real transaction or that the entries in a tax invoice are different from the fact, and thus, the tax office’s substantial proof of whether it is an actual purchase or the authenticity of the entries in a tax invoice is disputed. In a case where it is proved that a transaction with a supplier stated in a tax invoice claimed by the taxpayer is considerably false, a taxpayer who is easy to present data, such as books and evidence, should prove that it actually traded with a supplier listed in the tax invoice (see, e.g., Supreme Court Decisions 94Nu3407, Jul. 14, 1995; 2007Du1439, Aug. 20, 2009).

In addition, a tax invoice shall be issued from an entrepreneur who supplies goods or services pursuant to the Value-Added Tax Act, and a person liable to pay value-added tax shall be deemed to be a person who actually receives goods or services from an entrepreneur who does not form a nominal legal relationship with an entrepreneur who supplies goods or services, or who actually performs transactions of supplying goods or services to a supplier (see, e.g., Supreme Court Decision 2002Do4520, Jan. 10, 2003; 2007Do10502, Jan. 28, 2010).

(B) Even if the Plaintiff actually purchased oil in the quantity stated in the instant tax invoice, it can be seen that the customer who supplied oil to the Plaintiff is in accord with the supplier listed in the relevant tax invoice, i.e., the following circumstances known by the fact of the above recognition, i.e., (i) the head office of OO is a business entity confirmed and accused of the data issued by the tax authorities without real transaction; (ii) the entity that reported to the purchaser was identified as data and the details of the purchase reported are also identified as a processed transaction. In the absence of oil purchased from these companies, the head office of OO cannot be deemed as having actually supplied the Plaintiff’s oil; (iii) the Plaintiff was supplied with oil at a price below 10 through 15 won per liter; (iv) the Plaintiff’s tax investigation conducted a transaction with the entire amount of oil trading with the head office of OOO branch, and the Plaintiff’s assertion that the portion of the instant tax invoice was supplied to the Plaintiff and the third main office of OO branch merely did not appear to have been provided with the relevant tax invoice.

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

(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 person who received the other tax invoice in the name of the tax invoice, and the person who asserts the deduction or refund of the input tax amount shall prove that the person who received the tax amount was not negligent in not knowing the above fact of deception (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009).

(B) The Plaintiff’s failure to know that there was a difference between the supplier and the actual supplier as indicated in the instant tax invoice and the Plaintiff’s failure to know that there was no negligence, and the evidence presented by the Plaintiff alone is insufficient to acknowledge it, and there is no other evidence to acknowledge it

Rather, in full view of the reasoning of the aforementioned evidence, the following circumstances, namely, ① the supply structure of the oil industry becomes complicated and the frequent transaction of free data using free oil, etc., so it is necessary to pay attention to whether an oil supplier is a actual supplier, and further, the Plaintiff has been engaged in petroleum wholesale and retail business since April 30, 2005. As such, through experience, the Plaintiff was aware of the normal structure of the supply of oil, light oil distribution charges, the general form and method of the industry, and the actual situation and risk of widely spreading material transactions in the oil industry; ② OO office branch did not deliver the shipment slip to the Plaintiff without delivering the shipment slip to the Plaintiff; ② it is reasonable to deem that the Plaintiff did not actually supply any other material in light of the fact that the Plaintiff was not aware of the authenticity of the business partners and the market price of the oil, ③ the Plaintiff did not supply any false material goods to the Plaintiff at the time of the issuance of the oil invoice to the Plaintiff.

(3) We examine the Plaintiff’s assertion that the Defendant’s disposition ground for disposition is not permissible. In full view of the purport of the argument in the statement in Eul’s evidence No. 1, the Defendant may recognize the fact that the Defendant rendered the instant disposition on the ground that the Plaintiff’s input tax amount was not allowed to be deducted in relation to the value-added tax for the second period of February, 2008. In light of the above facts acknowledged, it is reasonable to view that the instant disposition ground for disposition is not the receipt of the instant tax invoice without real transaction as alleged by the Plaintiff, but the instant tax invoice is a tax invoice different from the fact. Although the instant tax invoice was received without real transaction, it is identical that the actual supplier is a tax invoice different from the fact, regardless of whether the instant tax invoice was received without real transaction, and thus, the Plaintiff’s assertion

(4) Therefore, the instant disposition, which issued a correction and notice of value-added tax, is lawful, without deducting the input tax amount from the output tax amount.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.