Suwon District Court 2010Guhap2543 (201.06.07)

Cho High Court Decision 2009J 2088 (Law No. 19, 2010)

No petroleum agency that does not use storage facilities and transportation equipment shall be deemed a real supplier.

The registration of a petroleum agency under the Petroleum Business Act is equipped with both storage facilities and transportation equipment. As such, a petroleum retailer generally supplies oil using his/her own storage facilities and transportation equipment in accordance with the purport of this Act, and rather than using other companies’ facilities and equipment, the use of such facilities and equipment cannot be deemed as an actual supplier.

Article 17 (Payable Tax Amount)

2011Nu2270 Revocation of Disposition of Imposing Value-Added Tax, etc.

XX Energy Co., Ltd.

Head of the Office of Government

Suwon District Court Decision 2010Guhap2543 Decided June 7, 2011

November 15, 2011

January 17, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant revoked the disposition of imposition of KRW 15,269,040, value-added tax for the second term of August 1, 2006, value-added tax for the second term of 2007, value-added tax for the first term of 2007, and KRW 33,750,100, and ② corporate tax for the first term of 2008, September 1, 2009, KRW 9,750,160, value-added tax for the first term of 2008, value-added tax for the first term of 83,895,250, and KRW 11,148,840, and KRW 87,234,60, and value-added tax for the second term of 207, respectively.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: (a) the first instance court’s first instance court’s first instance court’s first instance court’s first instance court’s first instance court’s first instance court’s second instance court’s first instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’

2. Parts in height:

In light of the following circumstances, the witness evidence No. 23 and witness testimony of the court of first instance, which can be seen in addition to the overall purport of the pleadings, i.e., (i) the supply structure of the oil industry complex and the frequent transaction of non-taxable materials using free oil. As such, it is necessary to pay special attention to whether the oil supplier is the actual supplier, and (ii) the Plaintiff has run petroleum retail business since June 5, 2003. Thus, the Plaintiff appears to have been aware of the normal structure and distribution route of the oil supply, the general form and method of the industry, and the actual situation and risk of the spread of materials to the distribution industry, and (iii) if the Plaintiff asked 20 years from the date of the issuance of the tax invoice of this case and each of the shipment list, it is difficult to view that the Plaintiff did not have been aware of the fact that the Plaintiff had been aware of the actual situation and location of the oil, and that the Plaintiff did not have been negligent in supplying the oil within 00 years from the date of delivery or delivery of the oil to 200 years from the Plaintiff.

3. Additional determination

A. The plaintiff's assertion

In light of the fact that oil is not necessarily stored in the oil storage tank and it is not necessary to deliver the oil to the final supplier, and that the kind of oil wholesale is the general sale of the oil to the final supplier immediately at the oil storage tank, that it is more economical to request an oil transport business entity to transport the oil rather than to directly install the oil transport equipment, and that there is no legal obligation to directly possess the oil transport equipment, etc., it is difficult to conclude that the Plaintiff is not a supplier under the instant tax invoice on the sole ground that ○○ Energy, etc. asserted by the Plaintiff that he was supplied with the oil listed in the instant tax invoice, did not use the oil storage tank, or did not possess or lease the oil transport equipment. Thus, the instant disposition otherwise reported is unlawful.

B. Determination

A business operator who receives a tax invoice from a business operator who provides goods or services pursuant to the Value-Added Tax Act or issues a tax invoice to the business operator who is supplied with the goods or services, and the person liable to pay the value-added tax shall be deemed not a business operator who forms a nominal legal relationship with the business operator who actually receives goods or services or a person who actually trades the goods or services from the business operator (see, e.g., Supreme Court Decisions 2002Do4520, Jan. 10, 2003; 2007Do10502, Jan. 28, 2010).

According to the above legal principles, ○○ Energy, etc. was revealed to be a processed transaction. In the absence of oil purchased or sold, it is difficult to view that ○○ Energy, etc. actually supplied oil to the Plaintiff. ② Under Article 10(4) of the Petroleum and Petroleum Substitute Fuel Business Act, and Article 15(1) [Attachment 2] 1 of the Enforcement Decree of the same Act, in order to register a general agency such as petroleum retail business, particularly ○○ Energy, etc., an entrepreneur is equipped with a specific storage facility and transportation equipment. Thus, a retailer’s supply of oil using his own storage facility and transportation equipment according to the purport of the law requiring these facilities can be deemed to be an exceptional case. ③ Since ○○ Energy, etc. purchased oil from without material sale and sold it to the Plaintiff, the Plaintiff’s assertion that ○○○ Energy, etc. was suitable for the Plaintiff, but it is difficult to view the Plaintiff’s purchase of the instant tax invoice as an objective material for sale of the oil.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.