early 209 Heavy3978 ( December 29, 2010)

A false tax invoice entered differently from the fact that the supplier does not constitute good faith and negligence;

In light of the fact that most of the companies confirmed and accused as data and reported by the customer to the purchaser are identified as data, and the details of purchase are processed transactions, it is reasonable to see that the supplier is a false tax invoice, and there is no evidence to prove that there was no negligence on the part of the supplier.

2011Revocation of disposition of imposing value-added tax

South AA. 1 other

Deputy Director of the Tax Office

December 29, 2011

February 16, 2012

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s imposition of KRW 34,130,130, value-added tax for the first year of 2007, which was on August 7, 2009, is revoked. The imposition of KRW 342,449,150, value-added tax for the second year of 2007, value-added tax for the second year of 2007, and value-added tax for the first year of 2008, which was on October 5, 2009, is revoked.

1. Details of the disposition;

A. From May 29, 2006, the Plaintiffs are joint entrepreneurs who operated a gas station under the trade name "CC gas station" (hereinafter "the gas station of this case") from 000-0, Bupyeong-gu O-gu, Busan (O2006 to 00-0) and closed on December 31, 2007.

B. In operating the gas station of this case, the Plaintiffs received supply price of KRW 2,250,81,821 from D Energy Co., Ltd. (hereinafter referred to as “DD Energy”) during the first taxable period of the value-added tax in 2007, from the supply price of KRW 1,385,40,001, and the supply price of KRW 198,827,273, total 3,835,109,095 (hereinafter referred to as “EE Petroleum”) during the second taxable period of the value-added tax in 2007, the Plaintiffs deducted the supply price from the supply price of KRW 1,385,40,00 during the second taxable period of the value-added tax in 207, and reported the value-added tax for the pertinent taxable period to the Defendant by deducting the input tax amount from the output tax amount.

C. The Defendant deemed that the instant tax invoice was written differently from the fact, and deducted the input tax amount. On August 7, 2009, the Defendant imposed 342,449,150 won of value-added tax for the first year of 2007, and 203,127,340 won of value-added tax for the second year of 2007, and imposed 34,130 won of value-added tax for the first year of 2008 (hereinafter “instant disposition”).

D. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on November 4, 2009, but the Tax Tribunal dismissed the Plaintiffs’ claims on December 29, 2010.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 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 plaintiffs' assertion

The Plaintiffs were actually supplied with oil from DD Energy EE Petroleum (hereinafter referred to as the “Dispute Transaction Agency”) and paid the price for real transactions. Thus, the instant tax invoice cannot be deemed to have been written differently from the facts. Even if the instant tax invoice was written differently from the facts, the Plaintiffs were to have been verified by obtaining a business registration certificate, petroleum sales certificate, corporate registry certificate, and the representative director’s seal impression, etc. while engaging in transactions with the disputed Trading Agency, and directly obtained oil at the oil reservoir by using the transport vehicle designated by the Plaintiffs, and thus, the instant tax invoice constitutes a bona fide trading party who did not know the falsity thereof.

B. Relevant statutes

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

C. Facts of recognition

(1) Oil transactions with DD energy

(A) DD Energy was registered as a petroleum retail business operator on October 20, 2005, and the place of business relocated on August 16, 2007, the Seoul Metropolitan Government OOO-dong 00-00 FFF 0000 square meters, which is about 30 square meters in size. Since 2007, it did not have regular employees other than the representative director.

(B) The director of the Central Regional Tax Office of China found that the tax invoice amounting to 75.5% (29,913,000,000 won out of the sales declaration amount of 39,593,000,000 won) of the sales tax invoice issued from October 20, 2005 to June 30, 2007, issued as a result of the tax investigation on D Energy (subject period: October 20, 2005 to June 30, 2007) by the director of the Regional Tax Office of China was issued as a result of the tax investigation on D Energy.

(C) In addition, as a result of the tax investigation conducted by the Director of the Central Regional Tax Office on January 1, 2007 and June 30, 2007, DD Energy reported to purchase oil of KRW 1,051,00,000 from KK Energy Co., Ltd., and KRW 9,582,000,000 from JJ Petroleum, and KRW 10,63,000,000 (90.8% of the total purchase amount during the same period) from JJ Petroleum, the above purchase amount was received as a result of the purchase tax account for processing without a full transaction, and KK Energy Co., Ltd. was confirmed to have been closed ex officio on June 30, 207, respectively.

(D) As a result of the director of the Seoul Regional Tax Office conducted a tax investigation on D Energy (the target period: July 1, 2007. - June 30, 2008.) with respect to D Energy, it is clearly stated that D Energy amounting to 97.3% of the sales tax invoice issued from July 1, 2007 to June 30, 2008 (the sales declaration amount is KRW 6,155,000,000 among KRW 6,321,000,000, and the tax invoice of KRW 1,385,40,000 issued to the Plaintiff during the second period of 207.3% (the purchase declaration amount is KRW 6,267,00,000 among the purchase declaration amount, KRW 6,102,000,000) of the purchase tax invoice issued during the same period without the actual processing tax invoice.

(2) Transaction with EE oil

As a result of the director of the Central Tax Office of China conducted a tax investigation on EE petroleum (the period subject to investigation: November 16, 2007 - September 30, 2008), it was found that the tax invoice amounting to 100% (total sales amount of KRW 9,301,000,000) of the sales tax invoice issued by EE petroleum during the 2nd taxable period of the value-added tax was issued as a result of the actual transaction without any actual transaction, and 9.9% of the purchase tax invoice reported during the same period (total purchase amount of KRW 9,270,000,000) of the tax invoice amount of KRW 9.9% (total purchase amount of KRW 9,270,000,000) of the total purchase amount of KRW 9,264,000,000.

(3) Operation of gas stations by the plaintiffs

(A) On May 29, 2006, the Plaintiffs opened a gas station in this case with joint investment of 80% by Plaintiff EastK and 20% by Plaintiff South A, but closed business on December 31, 2007. The Plaintiffs, who actually was in charge of the operation of the gas station in this case, was LL, who is the warden, and the person in charge of accounting.

(B) Upon receiving a recommendation from the NN in charge of D Energy Business and the PE PP to supply oil at a price of approximately 30 won at a price lower than the market price, as the gas station warden of the instant case, it verified the registration certificate, the registration certificate, and the registration certificate, etc. of petroleum selling business of the key trading place, and traded with the said company.

(C) The MF made an order for the purchase of oil by telephone to DD energy, and when DD Energy designates a oil reservoir by telephone, it traded the oil by sending the oil transport vehicle to the oil reservoir and receiving it. At the time of the delivery of the oil, D Energy was recovered from the next day, and stored it by receiving the ‘sale and acceptance certificate of D Energy Issuance' in lieu of D Energy. Meanwhile, MF copied and stored part of the shipment slip of the oil reservoir before recovering D Energy, and both the business parties and places of destination listed in the above shipment slip are enterprises other than the gas station in this case.

(D) At the time of the investigation into D Energy, MM alleged that the amount of 3,456,840,000 won out of 3,99,910,000 won for D Energy was remitted to the original bank account of D Energy, and that the remaining 543,070,000 won was paid to D Energy in cash. At the time of the investigation into D Energy, it was confirmed that the oil amount remitted to D Energy was remitted to TT Energy, and that the two-use energy was returned again to JJJJ petroleum and was fully withdrawn in cash.

(E) While trading with EE petroleum, MF traded oil by telephone and sending oil-transporting vehicles by delivery. During that process, MF received and stored only the shipment slips issued by EE petroleum instead of the shipment slips issued by the oil reservoir.

[Reasons for Recognition] The facts without dispute, Gap evidence 3 through 17, 19, 20 evidence, Eul evidence 2 through 6, witness MM, handnN, and KimY's statements and the purport of the whole pleadings

D. Determination

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

(A) If a taxpayer liable to pay value-added tax proves that a false tax invoice submitted as a basis for input tax deduction was prepared without real transactions or that the entries in a tax invoice are different from the fact, and thus, the tax office’s determination 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 indicated in a tax invoice claimed by the taxpayer is considerably false, it is necessary to prove that it is easy for the taxpayer to present data, such as books and documents regarding the actual transaction with the supplier stated in the tax invoice (see, e.g., Supreme Court Decisions 94Nu3407, Jul. 14, 1995; 2007Du1439, Aug. 20, 2009); and a taxpayer liable to pay value-added tax should also be deemed to have been delivered a tax invoice to the supplier of goods or services; and a person liable to pay value-added tax should also be deemed to have been declared as one who actually supplied goods or services or services from an entrepreneur (see, 2000.

(B) Even if the plaintiffs actually purchased oil in the quantity stated in the tax invoice of this case, whether the transaction partner who supplied oil to the plaintiffs is identical to the supplier listed in the tax invoice of this case, the following circumstances revealed by the above fact, namely, ① all the key transaction parties are the companies determined and accused of the tax invoice issued or received without real transaction by the tax authorities, ② the companies reported to the major transaction partner were identified as the material part, and the purchase details reported are also revealed as the processed transaction. In the absence of oil purchased from these companies, the key transaction partner cannot be deemed to have actually supplied its oil to the plaintiffs. ③ Since the plaintiffs traded oil at a price below 30 won per 10 won compared to the key transaction office and the market price, there is little possibility that the oil transaction would have been traded by the supplier through other delivery places and the main transaction points, ④ As a result of the tax investigation into the main transaction points of this case, the plaintiffs did not appear to have made any direct assertion between the plaintiff and the third party parties as to the goods transaction of this case, and therefore, the plaintiffs did not appear to have any reason to be viewed that the actual transaction between the plaintiff and third party.

(2) Whether the plaintiffs are 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) In light of the following circumstances, the Plaintiffs were unaware of the difference between the suppliers and the actual suppliers stated in the instant tax invoice and whether there was no negligence due to their failure to know, and in light of the evidence and the purport of the entire pleadings as seen earlier, the evidence submitted by the Plaintiffs alone is insufficient to acknowledge it, and there is no other evidence to acknowledge it. The Plaintiffs’ assertion on this part is rejected.

① Since the supply structure of the oil industry becomes complicated and frequent, it is necessary to pay special attention to whether the oil supplier is a actual supplier if the oil supplier is an ordinary gas station operator. ② As seen earlier, the key trading office changed the shipping prior to the issuance of the oil reservoir that the Plaintiffs received, or issued only the shipping prior to the issuance of the EE petroleum from the beginning, and entered the shipping prior to the delivery of the oil reservoir that the Plaintiffs received, as well as the place of destination as other companies than the oil station in this case. The Plaintiffs did not take any measures to confirm the authenticity of the transaction parties and the distribution process of the oil, even though there was a difference between the normal oil transaction and the normal oil transaction. ③ In light of the fact that 30 won per M market was recommended to supply the oil at low price and the fact that e.g., the Plaintiff was the most controversial issue between the parties to the transaction and the parties to the transaction in this case, and the Plaintiff did not appear to have been aware of the fact that the Plaintiff had issued a false tax invoice or the actual oil supply business.

3. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit, and it is so decided as per Disposition.