early 209 Heavy3993 (2010.06)

Petroleum retailers who have been issued a false tax invoice without a real transaction

Since the defendant proved that some amount of the tax invoice was falsely prepared without real transaction, it is necessary for the plaintiff to prove that there was a real transaction. However, since the evidence submitted by the plaintiff alone is insufficient to recognize that there was an real transaction, the disposition imposed by non-necessary expenses is legitimate.

2010Guhap3959 global income and revocation of disposition

AAA

○ Head of tax office

April 12, 201

May 31, 201

1. The plaintiff's claim is dismissed.

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

The defendant revoked the disposition of imposition of KRW 13,633,780 on global income for the year 2006 against the plaintiff on October 1, 2008 (the date of the disposition entered in the complaint seems to be erroneous on July 1, 2009).

1. Details of the disposition;

A. From July 18, 2006 to November 3, 2006, the Plaintiff served as the representative director of ○○ Energy Co., Ltd. (the former ○○ Industries Co., Ltd.; hereinafter referred to as “○○ Energy”).

B. The ○○ Energy received two copies of purchase tax invoices (total supply value of KRW 158,709,091, total input tax amount of KRW 15,870,90,90, and KRW 15,870,909; hereinafter “instant tax invoice”) from △△ Energy Co., Ltd. during the business year of 2006 (hereinafter “△△△ Energy”), respectively, and deducted the said input tax amount when filing a return on the establishment of the 2nd value-added tax in 2006, and included the said supply value in the deductible expenses at the time of filing a corporate tax return for

C. Meanwhile, the director of the Central Regional Tax Office made a tax investigation on △△ Energy, and confirmed △△△ Energy as data that issued false tax invoices without real transactions, and notified the Defendant of the taxation data.

D. Accordingly, on April 1, 2008, the Defendant: (a) deducted the above input tax amount from the input tax amount in 2006 on the basis of the processing tax invoice received without a real transaction; (b) imposed the secondary value-added tax in 2006; and (c) imposed the corporate tax for 2006 business year by not including the above supply value; (d) disposed of the said non-deductible amount as a bonus to the Plaintiff who is the representative director; and (b) imposed the global income tax on the Plaintiff in 2006, on October 1, 2008.

E. The Plaintiff filed an objection on July 16, 2008. Accordingly, on July 1, 2009, the Defendant: (a) recognized the fact of real transaction as necessary expenses; and (b) deemed the remainder of KRW 74,580,000 as bonus and imposed a total income tax of KRW 13,63,780 on the Plaintiff in the year 2006 (hereinafter “the disposition in this case”).

F. On September 21, 2009, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s above claim on July 6, 2010.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 and 2, entry of Eul evidence 1-1 to 3, purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the tax invoice of this case is a tax invoice that ○○ Energy receives from △△ Energy an oil equivalent to the value of supply, the total amount of the consideration for supply shall be included in the necessary expenses.

B. Relevant statutes

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

(c) Fact of recognition;

(1) The △△ Energy was established on March 9, 2004, and used the oil storage tank (1,000 Dus) from the △ business office located in △△△△△, Inc., a 1,00 Dus and used it from September 3, 2004, but there was no fact that the representative director was changed to the largest AA on July 3, 2006.

(2) As a result of the tax investigation of △△ Energy, △△ Energy opened a borrowed account with ten banks in the second taxable period of value-added tax in 2006, and transferred the transaction amount from the seller to Baltweal Energy Co., Ltd., a processing purchaser, to the Si in cash or to Baltweal Energy, which is the processing purchaser, and forged the oil distribution slips using the twitter, etc., and thereby, the gross sales amounting to KRW 32,683,00,000 during the said taxable period of value-added tax was confirmed to have been approximately KRW 9.5% of the gross sales amounting to KRW 32,518,00,000, not normal transactions, and thus accused the

(3) On July 25, 2008, 2008, the head of △△△ Energy’s office at the Goyang branch office of the government office of the Goyang branch office of the government branch office of the government branch office of △△△△△, “The △△△△ Energy received information, such as the name of the gas station, the quantity, unit price, etc., which is the actual representative of △△△ Energy, from the oil intermediate on the oil intermediate wholesale market, which is KimD, the actual representative of △△△△△△△. He confirmed that the transaction amount was deposited from the customer to the deposit account of △△△△ Energy, and then he returned the deposit amount to the account of BY Energy from each oil company to the account of △△△△, and then returned the funds deposited in the name account of Ka branch office of the government branch office of the government branch office of the government branch office of the government branch office of the government branch office of the government branch office of the government branch office, and thereafter, he made a statement to the effect that the oil purchaser was made using the shipment number.

(4) At the time of the instant transaction proceeds, the ○○ Energy transferred the proceeds of supply to the bank account in the name of △△ Energy at the time of the instant transaction. The most of the above amounts were re-transfered to the bank account in the name of AAA Energy and BBO stock company. As a result of the tax investigation on the said company, AA Energy was confirmed as a purchaser of △△ Energy during the 2006 Value-Added Tax period, and was charged to the judicial institution on data as a result of a processed purchase, but BBO was confirmed as a purchaser of △△△ Energy during the 2006 Value-Added Value-Added Tax period, which was 90,909,000,000 won (the supply price was 100,000,000 won).

[Ground of recognition] Evidence Nos. 2, Evidence Nos. 13-1, 2, Gap evidence Nos. 16, 17, Eul evidence Nos. 2 and 3, and the purport of the whole pleadings

D. Determination

In the administrative litigation seeking the revocation of taxation on the grounds of illegality of taxation, in principle, the tax authority bears the burden of proving the legality of the taxation disposition and the existence of the taxation requirement. Therefore, in principle, the tax authority bears the burden of proving necessary expenses which are the basis of the determination of taxable income. However, since the tax authority is not only favorable to the taxpayer, but most of the facts constituting the basis of necessary expenses are located within the control area of the taxpayer, and thus, it is difficult for the tax authority to prove the taxpayer. Therefore, if it is reasonable to prove the taxpayer in consideration of difficulty of proof or equity between the parties, it should be returned to the taxpayer. Therefore, if it is proved that the tax invoice on some of the expenses reported by the taxpayer was falsely prepared without real transactions by the defendant who is the tax authority, and it is proved that the taxpayer's party to the payment was false, the tax authority should prove the purpose of the cost claimed by the taxpayer and the other party to the payment of the tax amount. Thus, if such expenses are proved to the extent that they were actually paid, it is difficult for the taxpayer to present all the documents such as account books and evidence (see, etc.

Therefore, in light of the following facts revealed as to this case, during the second taxable period of the value-added tax in 2006, △△△ Energy did not use oil storage tanks at all, △△ Energy was accused of the tax authorities, and at the time of the prosecutor’s investigation, △△△B’s investigation acknowledged that the head of △△△ Energy had issued a false tax invoice as data. Retransfer of KRW 100,580,000 out of the proceeds from the instant supply of ○○ Energy was 74,580,000 to the AA Energy as confirmed by the processing purchasing agency, but the remainder of KRW 74,580,00 was retransfered to the AA Energy, which was confirmed by the Plaintiff as the processing purchasing agency. As such, the Defendant had proved that there was considerable lack of evidence to prove that the Plaintiff’s actual transaction had been conducted without actual transactions. Accordingly, the Plaintiff’s aforementioned evidence was insufficient to prove that there was a lack of evidence to acknowledge that the Plaintiff’s actual transaction had been conducted.

Therefore, the plaintiff's above assertion is without merit, and the defendant's disposition of this case is legitimate.

3. Conclusion

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