Cho Jae-chul2010 Before 1131 (Law No. 13, 2010)

A gas station operator who was issued a false tax invoice;

Since the tax invoice delivered to an entrepreneur operating a gas station constitutes a false tax invoice, and it is not sufficient to recognize that the Plaintiff is a bona fide and no fault, the non-deductible disposition of input tax is legitimate.

2010Guhap3925 Revocation of Disposition of Imposition of Value-Added Tax

XX Kim

O Head of tax office

January 12, 2011

February 23, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 16,480,840 on January 4, 2010 on the second quarter value-added tax for the year 2008 against the Plaintiff and KRW 13,202,660 on the first quarter value-added tax for the year 2009 is revoked.

1. Details of the disposition;

A. From April 1, 1994, the Plaintiff operated a gas station under the trade name of EE XX-Gu 000-0, the Plaintiff received the purchase tax invoice of KRW 20,272,727 from the O's branch in the 2008 Value-Added Tax period, and the purchase tax invoice of KRW 20,272,727 from the O's branch in the 2008 Value-Added Tax period, and the supply price of KRW 85,272,00 from the O Energy BB branch in the 1st Value-Added Tax period (hereinafter collectively referred to as the "O Energy BB branch and AA branch") during the 209 Value-Added Tax period, respectively, and filed and paid the value-added tax on the Defendant by deducting the purchase tax invoice of KRW 85,272,00 (hereinafter referred to as the "instant tax invoice").

B. Meanwhile, on June 2009, the head of the DongA Tax Office and the BB Tax Office conducted a survey on the data on the above O-Energy, and confirmed the O-Energy as data issued by false tax invoices without a real transaction, and notified the Defendant of the taxation data.

C. Accordingly, on January 4, 2010, the Defendant: (a) deemed the instant tax invoice that the Plaintiff received from O Energy as a false tax invoice; and (b) deducted the input tax amount of value-added tax for the second period portion of the value-added tax for the year 2008; and (c) imposed the Plaintiff KRW 13,202,660 for the first period portion of the value-added tax for the year 2009 (hereinafter “instant disposition”).

D. On March 31, 2010, the Plaintiff filed an appeal seeking the revocation of the instant disposition with the Tax Tribunal. However, on July 13, 2010, the said appeal was dismissed.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Eul evidence 1 (including each number), Eul evidence 2-1, Eul evidence 2-1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff operated the above XX gas station jointly with the plaintiff Kim-A, and KimA introduced Han-B, the president of the gas station near the usual friendship, to verify his name, copy of the business registration certificate, petroleum sales registration certificate, etc. The plaintiff started transactions after confirming the transactions with the plaintiff. The plaintiff's duty of care as a good manager in the course of oil transactions, in light of the fact that the maximum D and Guns, which are oil vehicle carriers, verified the transactions with the plaintiff, and KimA had a set in which the amount of oil storage, sales amount, etc. were recorded, although the plaintiff was negligent in not knowing the fact of false name, the plaintiff asserted that the disposition of this case was unlawful because the defendant did not deduct the input tax amount related to the tax invoice of this case.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The process of confirmation of O-Energy data

(A) The OE had been established on May 16, 2008 by thisG, a real operator, with the name of Nonparty LF as its representative. On September 30, 2008, the OE closed the business. On the registration of the petroleum selling business, three oil storage places, such as the Seocho Metropolitan City (Lessee Co., Ltd.), AA Si (LH), and DD Si (Lessor), and three oil-transport vehicles were reported. However, during the business period, there was no fact that the said oil storage was used once during the said business period.

(나) OO에너지에 대한 세무조사결과, OO에너지 AA지점은 전부 자료상으로 판명되어 고발된 ●●석유, ■■에너지, 주식회사 ◆◆석유 EE지점으로부터 위 AA지점의 전체 매입의 96.5% 상당액을 매입하였다고 부가가치세를 신고하였고, OO에너지 BB지점도 마찬가지로 위 ●●석유, 주식회사 ◆◆석유 EE지점으로부터 위 BB지점의 전체 매입의 90.8% 상당액을 매입하였다고 부가가치세를 신고한 바 있으며, OO에너지는 위 가공매입처의 예금계좌로 유류대금 명목으로 금원을 송금하였으나 대부분 그 즉시 현금으로 인출된 것으로 조사되었다.

(C) The actual actors at the O-Energy AA branch and BB branch are Park K, and Park K-K voluntarily recorded shipment numbers, etc. in the shipment slips to be delivered to the gas station, entered not only the actual place of shipment but also the oil storage, etc. using the oil storage, etc. to be withdrawn, and sent the shipment slips prepared falsely and poorly without stating the temperature or consignee at the time of shipment to the oil station by mail.

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

(A) As long as the Plaintiff’s subsidiaries used the O-Energy director’s name, the Plaintiff started trading with the O-Energy throughCC. The Plaintiff did not receive a shipment slip through a driver who supplies oil at the site of purchasing oil, and only stored only the pre-shipment pre-shipment table after trading.

(B) As above, the Plaintiff borrowed from oil carriers the shipment slips in the name of the original oil station, such as oil oil reservoir, etc., in which the Plaintiff did not immediately deliver the shipment slips to the Plaintiff, and then copied them, and then returned to the oil carrier. The place of destination was not specified as O energy in the shipment slips in the original name, and the delivery map was not indicated as the Plaintiff’s oil station.

[Reasons for Recognition] Facts without dispute, each of the evidence as seen earlier, Gap evidence No. 3, Gap evidence No. 4, Eul evidence No. 2-2, Eul evidence No. 3 (including each number), and the purport of the whole pleadings

D. Determination

(1) The meaning that the entries of the tax invoice under the Value-Added Tax Act are different from the facts is the case where the contents of the necessary provisional items do not coincide with those of the parties to the transaction contract, etc. prepared between the parties to the goods or services, such as the goods or services, and the actual goods or services are supplied or supplied, and as seen above, the O Energy was accused of the tax authorities by virtue of the data that had little fact that it did not have any actual distribution, and it is recognized that the O Energy was issued with false tax invoices, which is the actual operator of the OO Energy at the time of the tax investigation, and that the GG and YK was issued with false tax invoices, which are all used the oil storage facilities of the OO Energy at the time of the registration of the petroleum business operator, and the process of issuing the shipment slip of the O Energy at the time of the registration of the oil business operator, it is reasonable to view that the actual purchase place of the Plaintiff's oil of this case was purchased from other third parties, not the O energy.

(2) Furthermore, as to whether the Plaintiff was unaware of the disguised fact in the name of the instant tax invoice, and whether there was no negligence on the part of the Plaintiff, the actual supplier and the supplier on the tax invoice may not deduct or refund the input tax amount unless there are special circumstances that the supplier was unaware of the nominal fact in the name of the tax invoice, and that there was no negligence on the part of the supplier, and that the supplier did not know of the nominal fact in the name of the tax invoice, the person claiming the input tax deduction or refund should prove that the supplier was not negligent (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). Thus, it is insufficient to acknowledge the input tax amount solely on the respective entries in the evidence Nos. 5 through No. 9 (including each number), and there is no evidence to

(3) Rather, the following facts revealed in the above facts: (i) the Plaintiff was operating a gas station for a long time at the time of receiving the instant tax invoice; (ii) the Plaintiff was supplied with oil without receiving the shipment slip from O Energy although it was well aware that it was a general oil transaction method to verify the quality, source, etc. of oil from the oil delivery vehicle; (iii) the Plaintiff did not receive the shipment slip under the name of O Energy; (iv) temporarily lent and copied the shipment slip under the name of the driver; and (v) returned it to the driver; and (v) received the shipment slip under the name of O Energy; and (v) the Plaintiff did not have been aware of the fact that there was no information on the shipment slip under the name of OO or the Plaintiff; and (v) the Plaintiff did not have been aware of the fact that there was no information on the fact that there was any negligence on the Plaintiff at the time of the instant tax invoice.

(4) Therefore, the instant tax invoice constitutes a false tax invoice, and it is not sufficient to recognize that the Plaintiff was a bona fide and negligent supplier. Therefore, the Defendant’s disposition of this case, which was made without deducting the input tax amount equivalent to the instant tax invoice, is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is without merit, and it is so decided as per Disposition by the court below.