early 2010 Heavy164 ( November 23, 2010)

Unless the supplier receives the cargo distribution slip of the oil reservoir, the supplier was negligent in not knowing that the supplier is different from the fact.

The Plaintiff was negligent in not knowing that the tax invoice is different from the fact, in light of the fact that the Plaintiff did not receive the oil oil shipment ticket from the first transaction company to the place of arrival, by comparing the estimated transport time from the place of shipment to the place of arrival with the actual transport time, etc., based on the date and time of shipment indicated in the shipment slip.

Article 17 of the Value-Added Tax Act

2011Revocation of revocation of the imposition of value-added tax

XX

the director of the tax office of Western

August 11, 2011

September 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 imposing value-added tax of KRW 13,366,240 on the Plaintiff on February 8, 2010 shall be revoked.

1. Details of the disposition;

A. From August 20, 2007, the Plaintiff operated a gas station under the trade name, i.e., Incheon Seo-dong 000-0 from Seo-gu, Seo-gu, Incheon.

B. In 2007, the Plaintiff received four tax invoices equivalent to 94,036,364 won in total from the O Energy Co., Ltd. (hereinafter “OO”) during the two taxable periods of the value-added tax, and sentenced and paid value-added tax to the Defendant, including the input tax amount subject to the deduction.

C. On February 8, 2010, the Defendant deducted the input tax amount of value-added tax on the grounds that the instant tax invoice was written differently from the fact, and imposed KRW 13,366,240 for the second half of 207 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on March 30, 2010, but the Tax Tribunal dismissed the appeal on November 23, 2010.

[Reasons for Recognition] Gap evidence Nos. 1, 2, 7, 19 (including branch numbers), Eul evidence No. 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was actually supplied with oil from the O-Energy and traded the purchase price in normal terms, and thus, the instant tax invoice is not different from the private tax invoice. Even if the Plaintiff was a false tax invoice, the Plaintiff was engaged in a transaction after confirming the petroleum sales business registration certificate, the business registration certificate, the corporate passbook, and the Plaintiff was provided with oil, and all measures were taken to confirm whether the O-energy was actually supplied with oil, such as remitting the price via the corporate passbook and receiving a written confirmation of transaction, and thus, the Plaintiff constitutes a bona fide transaction party, and thus, the instant disposition made on a different premise is unlawful.

B. Relevant statutes

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

C. Determination

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

The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries in the tax invoice are inconsistent with those in the transaction contract, etc. prepared between the parties to the goods or services, notwithstanding the formal entries in the transaction contract, etc. made between the parties to the goods or services.

In full view of the following facts, it is reasonable to view that the instant tax invoice delivered by the Plaintiff from O Energy constitutes a different tax invoice from the fact that the actual supplier of the oil was prepared by a disguised transaction without a real transaction, taking into account the following facts, which can be acknowledged by comprehensively taking into account the respective descriptions of the evidence Nos. 1, 2, and 3 (including each number, if any).

① As a result of the tax investigation conducted by the director of the Central District Tax Office on the O Energy, the O Energy reported that he purchased oil of KRW 35,779,842,00 during the taxable period of the value-added tax on September 4, 2007, the OO Energy reported that he purchased oil of KRW 35,79,842,00 during the taxable period of the value-added tax, which was 9.7%, 35,711,715,000,000, which was 250 won, from the members of the △△-dong Seoul Central District Tax Office on the lease of the oil storage tank for KRW 20,00,000, but the oil was actually shipped from the above storage tank, and there was no fact that the O Energy owned the oil or leased the transportation equipment, and it was also found that he purchased the real energy tax invoice without the data received from the OO and the real owner of the goods.

② KK, an actual operator of O energy, submitted a list of total tax invoices as if the company was supplied with goods or services even though it had not actually received or supplied such goods or services from January 2007 to July 2008, and was sentenced to the judgment of conviction in the Daejeon District Court on the charge of issuing false sales tax invoices as if it was supplied with goods or services, and falsely prepared and submitted false sales tax invoices as if it were supplied, and the judgment became final and conclusive.

③ In light of the fact that the Plaintiff was unable to submit a shipment slip for the issuance of oil oil on the instant tax invoice, and that there was almost no oil purchased by the OE during the two-year VAT taxable periods, it cannot be deemed that the OE actually supplied its oil to the Plaintiff.

(2) Whether the Plaintiff is bona fide and without fault or not

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 supplier was unaware of the fact that the supplier was unaware of the fact that the supplier was unaware of the name of the tax invoice, and that the supplier was not negligent in not knowing the fact that the purchaser was unaware of the said name, the person who asserts the deduction or refund of the input tax amount must prove (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

In full view of the purport of the entire pleadings as to whether the Plaintiff was unaware of the name of the instant tax invoice and did not know the fact that the Plaintiff was negligent, the Plaintiff could be recognized as having received the sales business registration certificate, the business registration certificate, the corporate account book, and the receipt of the instant tax invoice from the OE and remitted money to the said company after the receipt of the instant tax invoice. However, the mere fact of the recognition alone is insufficient to deem that the Plaintiff was unaware of the name of the instant tax invoice and was not negligent, and there was no other evidence to prove otherwise.

Rather, in full view of the following circumstances, the Plaintiff was at fault, even though he knew or was unaware of the fact that the O-Energy was not the actual supplier of oil under the instant tax invoice.

① The oil reservoir shall issue three copies prior to the issuance of the oil reservoir stating “the date of shipment,” “the date of shipment,” “the place of arrival,” etc. At the time of the shipment of oil. One copy shall be kept, and the remaining two copies shall be given to the article transporting the oil so that it may be submitted with the confirmation of the destination company, and the transportation expenses shall be paid accordingly. Accordingly, the oil station, etc. that receives the oil shall confirm whether the oil is refined by comparing the scheduled time of shipment from the place of shipment to the place of arrival to the place of destination, based on the “the date of shipment listed in the shipping slip” and “the place of shipment” with the actual time of shipment. Accordingly, the oil reservoir’s shipment slip is an important document that is indispensable for the oil transaction.

② In the instant tax invoice, the Plaintiff appears to have not received the shipment slip of oil reservoir when trading oil under the instant tax invoice. However, in light of the fact that the Plaintiff initially traded with the OE and that the shipment slip of oil was an important document in the oil transaction, the Plaintiff was negligent in not knowing that the OE was not a person who actually supplies oil under the instant tax invoice.

③ The Plaintiff was supplied with oil at a price lower than 20-30 won per liter than the arm’s length price. Considering the reality of the oil industry with a large sales change in the price per liter price, there were sufficient circumstances to suspect that the Plaintiff, as the Plaintiff, is not an actual supplier.

(3) Therefore, the instant tax invoice constitutes a false tax invoice, and it is insufficient to recognize the circumstances that the Plaintiff is bona fide and without fault in believing that the said tax invoice was properly received. Therefore, the instant disposition is lawful.

3. Conclusion

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