Whether the instant tax invoice constitutes a false tax invoice

In purchasing oil from the customer of this case, it is insufficient to find that the Plaintiff did not know that the tax invoice issued by the customer of this case was a false tax invoice, and that there was no negligence on the part of the Plaintiff, and there is no other evidence to acknowledge

Article 17 of the Value-Added Tax Act

2014Guhap2946 Revocation of Disposition of Imposing Additional Tax;

AA

BB Director of the Tax Office

December 11, 2015

January 15, 2016

1. The plaintiff's lawsuit shall be dismissed.

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

1. Details of the disposition;

A. From October 15, 2010, the Plaintiff is a business operator operating a gas station under the trade name of “CC gas station” from 854-3, Gyeyang-gu, Incheon, Gyeyang-gu.

B. The Plaintiff received 1 copy of the purchase tax invoice of KRW 346,218,181 (Evidence 11-1), 381,318,181 (Evidence 11-2), 1 copy of the purchase tax invoice (Evidence 11-2), 65,345,452 (Evidence 11-3), respectively, from the purchase tax invoice of KRW 26,45,545 from the purchase price of KRW 26,45 in the second taxable period of value-added tax in 2011, and the Plaintiff received 26,45,545 (Evidence 12-1), 3,209, 209, 209, 209, 201, 3,000,000 from the purchase price of KRW 26,54,545 in the second taxable period of value-added tax.

C. After deducting the input tax amount under each of the instant tax invoices, the Plaintiff filed a separate tax return and paid each of the value-added tax on the second term portion in 2010, the first term portion in 2011, and the second term portion in 2011 to the Defendant. However, the Defendant denied the Plaintiff’s tax deduction on the grounds that each of the instant tax invoices constitutes false tax invoices, and imposed each of the instant tax invoices on the Plaintiff KRW 24,329,280 for the second term in 2010, value-added tax on the second term in 2010, and KRW 4,528,750 for the first term in 201, and value-added tax on the second term in 2011 for the second term in 2011 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on April 3, 2013, but the Tax Tribunal decided to dismiss the appeal on September 18, 2014.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 11 and 12 (including each number), the purpose of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

① Since the Plaintiff was actually supplied with oil by each of the instant transaction parties and received each of the instant tax invoices accordingly, each of the instant tax invoices does not constitute a false tax invoice, and ② even if not, the Plaintiff was supplied oil without knowing that each of the instant transaction parties was a disguised business operator, even though it performed its duty of care as a transaction party by confirming the business registration certificate, petroleum sales registration certificate, copy of bank account, etc. of each of the instant transaction parties at the time of the purchase of oil, and thus constitutes a transaction party with good faith and negligence, and thus, the instant disposition based on a different premise is unlawful.

B. Relevant statutes

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

C. Determination

1) Whether each of the tax invoices of this case is different from the facts

A) Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 2011; hereinafter the same) provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the fact. It means that the entries of a tax invoice are different from the fact. In light of the purport of Article 14(1) of the Framework Act on National Taxes, which provides that where the ownership of income, profit, calculation, act or transaction, which is the object of taxation, is merely nominal, and there is a separate person to whom they actually belong, the person to whom they actually belong shall be liable as a taxpayer and the person to whom the tax invoice actually supplies the goods or service and the person to whom the tax invoice actually supplies the goods or service regardless of the formal entries of the contract, etc. prepared between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 1996).

B) In light of the above legal principles, the Plaintiff’s 16, 18, 14, and 2 were listed on the Plaintiff’s 5-year supply of the 2-year supply of the 2-year supply of the 5-year supply of the 5-year supply of the 5-year supply of the 5-year supply of the 5-year supply of the 5-year supply of the 5-year supply of the 1st supply of the 5-year supply of the 5-year supply of the 1st supply of the 5-year supply of the 5-year supply of the 1st supply of the 6-year supply of the 1st supply of the 6-year supply of the 1st supply of the 6-year supply of the 1st supply of the 4th purchase of the 4th purchase of the 6-year supply of the 4th purchase of the 6-year supply of the 4th purchase of the 6-year supply of the 1st purchase of the 4th purchase of the D.

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

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 recipient was unaware of the fact that he/she was unaware of the nominal name of the tax invoice, and that there was no negligence on the part of the supplier due to his/her failure to know of the disguised name as above (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). In this case, the actual supplier should be proven as to whether the details of the issuance and issuance of the tax invoice, the scale and market price of the goods or services supplied, the specific route in which the goods or services were supplied, and the transaction practices in the relevant industry, etc. of the supplier. In a case where there was a circumstance that the recipient could be doubtful of whether the goods or services are not in the name of the supplier in the name of the tax invoice, the beneficiary did not actually verify the place of business of the supplier, the business facilities, or the distribution route of the goods or services supplied, and the supplier’s business registration certificate, etc.

It is difficult to view that there is no negligence without knowledge.

In light of the above legal principles, the Plaintiff received a tax invoice and a shipment slip to the effect that the Plaintiff was supplied with oil from each of the transaction parties of this case, and the Plaintiff was supplied with oil to the account of the transaction party of this case, although the Plaintiff confirmed the Plaintiff’s business registration certificate of the transaction party of this case, the petroleum sales registration certificate of this case, and the mark of the passbook of the deposit account, etc., but it is not sufficient to recognize that the fact that the Plaintiff was not aware of the fact that the tax invoice issued by the transaction party of this case was not a tax invoice different from the fact that the Plaintiff purchased oil from the transaction party of this case and was not negligent in not knowing that the tax invoice issued by the transaction party of this case was a tax invoice different from the fact, and there is no other evidence to prove otherwise.

Rather, according to the following circumstances, it is reasonable to view that the Plaintiff was aware that the actual counterparty of the transaction was not a party to the transaction of this case, or was negligent in not knowing that the Plaintiff was not a party to the transaction of this case, based on the evidence Nos. 1, 2, and 3.

① Since complicated supply structure of the oil industry and non-material transactions using tax-free oil have emerged as a social problem since before the times, it is necessary for the oil supplier to pay special attention to whether the oil supplier is the actual supplier. Furthermore, the Plaintiff has experience in seaing from 1983, and has been engaged in the transit transport by using tank lorri vehicles before the opening of theCC oil station. Therefore, in light of the Plaintiff’s past experience, it seems that the Plaintiff was sufficiently aware of the normal structure and distribution route of oil supply, the general form and method of the industry, and the actual state and risk of widely spreading material transactions in the oil industry.

② The Plaintiff was supplied with oil at a price below 20 won to 30 won per liter than other supply places in the instant case. In case of purchasing oil through an intermediate wholesaler, etc. under generally accepted social norms, profit of the wholesaler, etc. should be added to the oil price. Therefore, the Plaintiff seems to doubt the distribution process of each of the instant transaction parties supplying oil at a price below the market price in light of the fact that it is not highly probable that the oil price would be lower than the purchase of oil directly from oil.

③ The shipment slips issued at the time of the shipment of oil in the oil reservoir are important data proving that the oil was transacted through normal distribution process. The Plaintiff’s receipt from each of the instant transaction parties is difficult to view it as the shipment slips issued and received in the normal distribution process because the temperature, weight, and conversion quantity of the oil that can be verified whether the oil was distributed in normal terms are not properly indicated.

④ Although the Plaintiff is obligated to verify whether the other party is legally qualified and actually capable of supplying oil pursuant to the sales contract, the Plaintiff has a duty to verify whether the Plaintiff was equipped with human and material facilities. However, D is difficult to easily understand the details of the transaction in that the Plaintiff engaged in a large amount of oil transaction with each of the business partners by one of the business partners J. However, even though the Plaintiff engaged in a large amount of oil transaction with each of the business partners, the Plaintiff did not confirm the actual business of the pertinent business, whether the oil storage place, etc. was made on the spot or by telephone. While entrusting the oil transport from each of the instant business partners, it was difficult to understand the shipment place from the business partners of each of the instant business partners without notifying the business partners of the shipment place.

⑤ The Plaintiff alleged that its assets constituted a transaction party with good faith and negligence since it confirmed the business registration certificate and the petroleum retail business registration certificate of each business party of this case, and remitted oil price to the corporate account. However, the business registration certificate is delivered to the head of the competent district tax office by requiring the business entity to apply for registration to the head of the competent district tax office in order to identify the person liable to pay value-added tax and secure taxation data, and it is not merely a certificate of simple business registration, but it does not prove that the copy of the passbook is merely a designated account (see, e.g., Supreme Court Decision 2003Do6934, Jul. 15, 2005). Even if the Plaintiff was actually supplied with oil and deposited the price into the account under the name of the business party of this case, it is merely a tool to disguised the normal transaction. Thus, it is difficult to recognize that each business party of this case, contrary to the contents of each tax invoice of this case, did not know the fact that each transaction party of this case was not a person supplying oil.

3. Conclusion

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