early 2011 Mine0452 ( October 15, 2011)

It is not recognized as good faith or negligence because it receives the shipment slips with the same weight and density.

The plaintiff cannot be recognized as a bona fide or without fault on the ground that the shipment slips presented after being received by mail entered the same weight and density and it appears that the confirmation was neglected, and there is no evidence to visit the oil storage facilities of the customer or verify the actual business status.

Article 17 (Payable Tax Amount)

2011Revocation of disposition imposing value-added tax, 1870

XX

Head of the North Mine District Tax Office

November 24, 2011

December 8, 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 value-added tax of KRW 2,345,450 for the first term portion in 2008, KRW 16,259,040 for the second term portion, and KRW 8,49,110 for the first term portion in 2009 shall be revoked.

1. Details of the disposition;

O The plaintiff is a business operator who runs oil retail business from March 6, 2003 to the trade name of 00-3 of the Mayang-dong, Mayang-gu, Mayang-gu, Manyang-gu, Manyang-gu.

In 208, the Plaintiff received 6 copies of purchase tax invoices equivalent to KRW 116,072,727, and 9 copies of purchase tax invoices equivalent to the total value of KRW 49,927,273 (hereinafter referred to as “instant tax invoices”) from the main place of ○ Energy, Co., Ltd. during the period of 1 to 2008, from the main place of Cheong○ Energy during the 1st taxable period of 2009, and paid the value-added tax by deducting the input tax amount from the total value of KRW 49,927,273 (hereinafter referred to as “instant tax invoices”).

O) On July 1, 2010, the Defendant: (a) deducted the input tax amount of value-added tax from the fact that the instant tax invoice was written differently; and (b) issued the instant disposition imposing the Plaintiff the input tax amount of KRW 2,345,450 for the first period of 2008, the second period of 2008, and KRW 16,259,040 for the second period of 208, and the first period of 2009, the first period of 8,49,110 for

O The Plaintiff appealed and filed a petition for review with the Tax Tribunal on January 13, 201 through an objection on September 29, 2010, but the Tax Tribunal dismissed the petition on March 15, 201. The Plaintiff filed the instant lawsuit on May 27, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, 4 through 7, 9, Eul evidence 1 (which include each number; hereinafter the same shall apply)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the Plaintiff asserts that the instant disposition imposing value-added tax is unlawful by deducting the input tax amount from ○ Energy.

① The Plaintiff received the actual oil from the ○○ Energy (Cheongju Branch and Jeonju Branch) and received the tax invoice after normal transactions, and thus, received the tax invoice. Therefore, the instant tax invoice cannot be deemed as a false tax invoice prepared differently from the fact.

② Even if ○○○ Energy (Cheongju and Jeonju Branch) is a nominal master, the Plaintiff is a bona fide trading party, with the intent to trade with the belief that Kim KN, who introduced ○○ Energy, would be liable if there is a problem with ○○ Energy, thereby verifying the business registration certificate, and taking measures to verify whether ○○ Energy actually supplies oil, such as receiving the instant tax invoice based on oil trading, and paying the price thereof, etc., thereby constituting a bona fide trading party.

B. Relevant statutes

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

(c) Fact of recognition;

(1) The process of establishing the so-called “○ Energy” on the data

① AD, an actual operator of ○○ Energy, was a person who had no experience in oil sales business prior to the acquisition of ○ Energy on May 2008, listed maximum ○ Energy as a nominal representative director, and then established Cheongju Branch and Jeonju Branch, respectively, and registered himself as a representative director on November 2008.

② At the time of the tax investigation on ○○ Energy, the lessor of the lease contract entered into between the ○○ Energy and the Ulsan, Cheongju, and Cheongsan on the oil storage facilities. However, it was confirmed that the ○○ Energy entered into the lease contract on the ○○ Energy and the oil storage facilities, and that the ○○ Energy did not actually use the oil storage facilities. At the time of the tax investigation on the Cheongju-si, the Cheongju-si, the Cheongju-si, the Cheongju-si, the Cheongju-si, the Cheongju-si, the Cheongju-si, the Cheongju-si, the 2700-9 Masan-9, all of which were the Cheongju-si, the Cheongju-si, the Cheongju-si, the Cheong

③ As a result of the tax investigation on ○○ Energy: (a) DoD, an actual operator of ○○ Energy, was a person with no experience in selling oil; (b) established MaDY on the recommendation of MaDY; and (c) established a lease agreement on the oil storage facilities; (d) but did not have an employee managing the above facilities or a fuel transport vehicle. In addition, DoW, in the course of the tax investigation, in charge of ○○ Energy’s financing management, deposited the oil, immediately withdrawn the payment in cash and returned the payment in cash to a third party’s account; and (c) returned the payment in cash again due to the lack of actual supply of oil; (d) DoD’s receipt of the tax invoice in return for the issuance of the tax invoice was 3% of the relevant value-added tax invoice; and (e) DoD’s ex post facto statement was made in the name of ○○○ Energy, without the fact that the oil supplied in the gas station was actually shipped out on the shipment slip.

④ As a result of the above tax investigation, 1) for ○○ Energy Cheongju Branch, 2008, 20.3 billion won out of 21.3 billion won out of the amount of oil bought during the first or second taxable periods, 2008, was confirmed as the processed purchase tax invoice, and 20.8 billion won out of the amount of oil sold 21.4 billion won was included in the processed sales, and 2) for ○ Energy Jeonju Branch during the first taxable period from 2008 to 2009, 13.6 billion won out of the amount of oil bought during the first taxable period from 2008 to 1.4.6 billion won of the amount of oil bought was confirmed as the processed purchase tax invoice, and the said processed sales included the instant tax invoice.

⑤ Accordingly, around June 2009, the former head of the tax office, etc. confirmed ○○ Energy as data that issued a false tax invoice without actual transactions, and accused the former head of the tax office of the former head of the tax office, etc. of the tax office, under suspicion of violating the

(2) The progress of the transaction before and after the Plaintiff’s ○ Energy Trading

① 원고는 2007년 제1기~2008년 제1기 과세기간 중 중부지방국세청장의 세무조사 결과 자료상으로 고발된 주식회사 ☆☆뱅크 익산지점과 거래한 적이 있었다가 위 고발이 있은 이후에 위 익산지점과의 거래를 중단하였다.

② The Plaintiff started transactions with ○○ Energy after hearing the statement that ○○ Energy from Kim KN would be liable if the problem arises even if it is harsh, and was supplied with oil from ○ Energy at a price below KRW 10-20 per liters, which can be said to be the normal purchase price. Meanwhile, 8 copies of the shipment slip, which the Plaintiff offered as offered by mail, are the same as 826.0.0.

③ After conducting the tax investigation on ○○ Energy, the Plaintiff filed a complaint with the police against Kim KN on charges of fraud. On June 30, 2011, the Gwangju District Prosecutors’ Office rendered a disposition suspending prosecution against Kim KN on the grounds of unknown whereabouts.

[Ground of recognition] Facts without dispute, Gap evidence 5, 10 evidence, Eul evidence 2 to 9, and the purport of the body before oral argument

D. Determination

(1) Whether the instant tax invoice constitutes a false tax invoice

(A) Article 17(2)2 of the Value-Added Tax Act 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 facts. In this case, the meaning that it is different from the facts is stipulated that if the ownership of income, profit, calculation, act or transaction, which is the object of taxation, is only nominal and there is a separate person to whom such income, profit, or transaction belongs, the person to whom such income, profit, or transaction belongs shall be liable for tax payment in accordance with the purport of Article 14(1) of the Framework Act on National Taxes stipulating that the necessary entries of a tax invoice are inconsistent with those of the person to whom the goods or service is actually supplied or received, regardless of the formal entries of a transaction contract, etc. made between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu

In addition, in the administrative litigation seeking the revocation of taxation on the grounds of illegality of taxation, the tax authority bears the burden of proving the legality of taxation and the existence of taxation requirements. The burden of proving necessary expenses, which are the basis of the determination of taxable income, should also be borne by the tax authority. However, insofar as tax invoices on some of the expenses reported by the taxpayer have been proved to be false without real transactions and have been disputed as to whether they are real expenses, and the taxpayer's assertion and the other party to the payment have been proved to be much false, there is a need to prove that it is easy for the taxpayer to present data, such as books and evidence, regarding the fact that such expenses have been actually paid (see, e.g., Supreme Court Decision 2005Du16406, Apr. 14, 206); and the taxpayer should also be deemed to have been delivered tax invoices to the supplier of goods or services under the Value-Added Tax Act, and the taxpayer should also be deemed to have formed legal relations with the supplier or the supplied entrepreneur, and the taxpayer should also be deemed to have been a person who actually supplied goods or services.

(B) In light of the above legal principles, we examine whether the customer who supplied oil to the Plaintiff is ○○ Energy, a supplier under the tax invoice of this case. ① The ○○ Energy does not actually use the oil storage facility under the lease agreement it entered or use oil transport vehicles, etc. ② as ○○ Energy can be known by ParkW’s statement in charge of fund management, it appears that the ○○ Energy would have received 3% of the value-added tax on the relevant tax invoice as the price for issuing the processed tax invoice without actually supplying oil. ③ Thus, in the case of the ○○ Energy Cheongju branch claiming that the Plaintiff is the customer to whom the oil was supplied, during the first or second taxable period of 2008, the Plaintiff’s assertion that the ○○ Energy Cheongju branch issued the processed sales tax invoice of this case including the instant tax invoice of this case during the first or second taxable period of 208 to 1st, 2009, on the ground that the Plaintiff did not have any reasonable evidence to acknowledge that the ○○ Energy 2000 did not actually supply the instant tax invoice.

(2) Whether the Plaintiff constitutes a bona fide trader

(A) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice are not aware of the disguised name of the tax invoice and that there is no negligence on the part of the person who received the tax invoice, the actual supplier and the supplier are not entitled to deduct or refund the input tax amount, and that there is no negligence on the part of the person who received the tax invoice not knowing the disguised name, the person who asserts the deduction or refund of the input tax amount must prove (see, e.g., Supreme Court Decision 2002Du2277, Jun

(나) 갑 제2, 3호증의 각 기재에 의하면, 원고가 ○○에너지로부터 이 사건 세금계산서를 교부받고 위 세금계산서에 기재된 금액을 ○○에너지에 송금한 사실은 인정되나, 한편 위 인정사실에 의하여 알 수 있는 다음의 사정들 즉, ① ○○에너지와 거래하기 전에 이미 자료상으로 고발된 주식회사 ☆☆뱅크 익산지점과 거래한 경험이 있는 원고로서는 ○○에너지가 실제로 유류를 공급하는 자인지 여부에 관하여 보다 정확한 확인을 할 의무가 있다고 할 수 있는 점, ② 더구나 원고가 ○○에너지가 혹시라도 문제가 있으면 김KN이 책임지겠다는 말에 따라 ○○에너지와 거래를 시작하였다는 점 및 정상적인 매입단가라 할 수 있는 정유사 평균가액보다 리터당 약 10-20원 저렴한 가격으로 ○○에너지로부터 유류를 공급받은 점에 비추어 보면, 원고로서는 ○○에너지가 자료상으로서 실제 공급업체가 아니라는 사실에 관하여 충분히 의심할 수 있었던 것으로 보이는 점, ③ 한편 원고가 우편으로 받았다면서 제시한 출하전표 8매는 '비중/밀도'의 수치가 모두 826.0으로 동일하였는데, 위 수치는 그 성격상 출하시기에 따라 다를 수밖에 없음에도 불구하고 원고는 이에 대하여 별다른 주의를 기울이지 아니한 채 확인을 소홀히 한 것으로 보이는 점, ④ 또한 원고가 거래처인 ○○에너지의 유류 저장시설을 방문하거나 영업실태를 제대로 확인하였다는 자료가 없는 점 등을 종합하면, 원고는 조금만 주의를 기울여 조사를 하였더라면 ○○에너지가 실제 공급업체가 아니라는 사실을 알 수 있었을 것으로 보이므로 이 사건 세금계산서에 공급자로 기재되어 있는 ○○에너지가 실제 공급자가 아니라는 사실을 알았거나 알지 못한 데 과실 이 있었다고 봄이 상당하다.

(C) Therefore, the Plaintiff’s remittance of the amount stated in the instant tax invoice to ○○ Energy is difficult to deem that the Plaintiff fulfilled its duty of care as a good manager at the time of trading with ○○ Energy. There is no evidence to deem otherwise that the Plaintiff was negligent in not knowing that ○ Energy, the nominal owner of the instant tax invoice, did not actually supply the instant oil. Therefore, the Plaintiff’s assertion on this part on a different premise is without merit.

3. Conclusion

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