early 2010 Heavy1967 (Law No. 11, 2010)

The tax invoice of this case constitutes a false tax invoice, and it is not sufficient to recognize the plaintiff's good faith and negligence.

The instant tax invoice constitutes a tax invoice different from the facts, and it is insufficient to recognize the circumstance that the Plaintiff is bona fide and negligent in believing that the tax invoice received as such is a proper entry. Therefore, the Defendant’s disposition imposing the value-added tax on the Plaintiff is lawful.

Article 17 of the Value-Added Tax Act

2011Revocation of disposition of imposition of value-added tax, etc.

XX

the director of the tax office of Western

March 22, 2012

April 5, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 16,792,020 on January 1, 2010 against the Plaintiff, and KRW 11,077,190 on the second-term value-added tax for the year 2008, respectively, and the imposition of KRW 50,165,260 on May 3, 2010, and KRW 17,26,060 on the first-term value-added tax for the year 2009 and KRW 8,702,700 on the global income for the year 208, respectively, shall be revoked.

1. Details of the disposition;

A. From January 9, 2006, the Plaintiff engaged in the retail business of oil in the trade name of Gyeonggi-gu, Gyeonggi-do, XX, with the trade name of " XX," and changed the workplace from January 17, 2007 to "OOri 220-3, and changed the trade name into "OOri". On October 21, 2008, the Plaintiff again moved the workplace to Incheon AAdong 602-77, and changed the trade name to "Yririririririririririririririririri" to "Sriririririririririririri."

B. The Plaintiff received respectively a tax invoice of an amount equivalent to KRW 95,545,45, and KRW 65,072,728 from △△△ Energy Co., Ltd. (hereinafter “△△△△ Energy”), in the first taxable period of the value-added tax in 2008, the Plaintiff reported value-added tax including the input tax amount, and ② in the second taxable period of the value-added tax in 2008, seven tax invoices of an aggregate amount of KRW 290,090,909, and ③ in the first taxable period of the value-added tax in 2009, five tax invoices of an aggregate amount of value-added tax of KRW 103,081,819, and five tax invoices of KRW 109,000,000, total value-added tax amount were received from △△△△○ Energy Co., Ltd. (hereinafter “△△○”) in the first taxable period of the value-added tax in 2009.

C. The Defendant, on the ground that the Plaintiff purchased the actual oil, but the supplier of each of the above tax invoices (hereinafter “tax invoices”) and the actual oil supplier constitute a different tax invoice, was not allowed to deduct the input tax amount according to the instant tax invoices. On January 1, 2010, the Defendant, on the ground that the Plaintiff’s purchase of the actual oil constituted a different tax invoice, issued a revised and notified each of the input tax amount of KRW 16,792,020, value-added tax for the first period of January 1, 2008, value-added tax for the second period of 2008, KRW 11,077,190, value-added tax for the second period of 208, KRW 50,165,260, value-added tax for the second period of 208, value-added tax for 17,266,060 for the first period of 209 (hereinafter “tax imposition disposition”), and issued a revised and corrected disposition of KRW 208,70(hereinafter “the instant tax imposition disposition”).

D. The Plaintiff filed an objection on February 2, 2010 with the Tax Tribunal on May 11, 2010, but was dismissed on December 24, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1-1-2, Eul evidence 9-1-5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff is not a tax invoice different from the facts, since the instant tax invoice was actually supplied with oil from △△ Energy, △△ Energy, △△△○○○○, and △△△△△△△△△○ (hereinafter “the instant tax invoice”). Even if the instant tax invoice is a tax invoice different from the facts, the Plaintiff was issued and confirmed with △△△ Energy’s certificate of seal impression, business director’s name, business director’s certificate, business registration certificate, business registration certificate, and petroleum selling business registration certificate, etc. while trading with the instant purchaser. At the time of the instant transaction, the Plaintiff was not negligent in not knowing that the instant tax invoice was a tax invoice different from the facts, such as the Plaintiff’s receipt of the instant tax invoice from the instant purchaser’s account. Therefore, the value-added tax and income tax disposition was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the imposition of value-added tax of this case

(A) 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 the case where the necessary entries in the tax invoice are inconsistent with those in the actual supply of goods or services or the price and time of the supply, notwithstanding the formal entries in the transaction contract, etc. made between the parties to the goods or services.

In full view of the purport of the argument in the statement Nos. 2 through 8 of the instant case, the purchaser of the instant case was confirmed as the so-called “data” that only issues a processed tax invoice without actual oil transaction, such as purchasing and selling approximately KRW 99.5 through 9.9% of the total purchase and sale by processing, etc. ② △△ Energy and △△ Energy did not use leased oil storage facilities and transportation equipment once, and the registration certificate of the petroleum sales business in the △△△△△△day did not appear to hold 19 oil stations. However, in fact, the fact that the fact that the fact that the fact that the number of non-data distributors did not own oil storage facilities, such as the oil reservoir, was not in possession of the oil reservoir. ③ When the non-data distributors supply oil to the oil station, only the name of the tax invoice and the shipment slip, issued the oil station as the purchaser, and if the oil price is deposited into the corporate account in the name of the purchaser of the instant case, the fact that the remaining amount after deducting the fees for the tax invoice is remitted or withdrawn to the purchaser in cash.

In full view of the above facts, it is difficult to view that the Plaintiff actually supplied oil in the absence of oil purchased by the instant purchasing agencies, etc., the instant purchasing agencies only issued the processed tax invoice without actual oil transaction to the Plaintiff, and it is reasonable to deem that the actual purchasing place of oil in the Plaintiff’s tax invoice is a third party, not the instant purchasing place. Therefore, the instant tax invoice constitutes a different tax invoice from the fact that the supplier entered differently.

(B) 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).

As to whether the Plaintiff did not know the name of the tax invoice of this case and did not commit negligence, each of the items of evidence Nos. 2 through 9 (including each number) is insufficient to recognize it, and there is no other evidence to acknowledge it.

Rather, the following circumstances acknowledged by the evidence as above, i.e., (i) the Plaintiff has been engaged in retail and supply of petroleum from January 9, 2006. As such, the Plaintiff had been aware of the normal structure and route of the supply of oil, the general forms and methods of transactions in the industry, and the actual situation of transactions in the oil industry, and the risks of such transactions. (ii) The Plaintiff issued four copies of the oil filling prior to the shipment stating "the date of the shipment", "the date of the shipment", "the arrival", "the arrival", etc., and kept two copies and stored two copies and submitted them with the confirmation of the destination company. Accordingly, it is reasonable to view that the Plaintiff was not aware of the fact that the Plaintiff was not aware of the scheduled shipment date and time of the shipment of the petroleum products, and that the Plaintiff did not supply the oil packaging in the same manner as the Plaintiff did not supply the oil prior to the purchase thereof. (iii) The Plaintiff did not necessarily have to be aware of the fact that the Plaintiff did not know of the scheduled shipment at the time and time of the shipment.

(C) Sub-determination

Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and it is insufficient to recognize the fact that the Plaintiff is bona fide and negligent in believing that the tax invoice received as such is a proper entry. Therefore, the Defendant’s imposition of value-added tax against the Plaintiff is lawful.

(2) As to the imposition of income tax of this case

Article 81(4) of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2008; hereinafter the same) provides that where an entrepreneur supplies goods or services from another entrepreneur in connection with his/her business and fails to receive evidential documents falling under any of the subparagraphs of Article 160-2(2) of the same Act, an amount equivalent to 2/100 of the unpaid amount shall be added to the final tax amount. The purport of the provision is to enhance transparency in the expenditure content of the business and induce the other entrepreneur to foster the tax base of the other entrepreneur, and it is difficult to achieve such legislative purpose by itself to impose the obligation of bona fide return on the other entrepreneur subject to the training of tax base. Thus, it is a sanction to require the entrepreneur who is supplied with goods or services to receive evidentiary documents, such as expenses, and to additionally pay an amount equivalent to a certain percentage of the unpaid amount in addition to the unpaid amount.

As acknowledged earlier, the Plaintiff received a false tax invoice as if it were supplied from the purchaser of this case, and the actual supplier did not receive all documentary evidence, such as each tax invoice, although the Plaintiff was supplied oil under the tax invoice of this case from the third party, not from the purchaser of this case. Thus, it is legitimate that the Defendant corrected and notified the comprehensive income tax by applying the additional tax provision of Article 81 (4) of the former Income Tax Act on the ground that it was not legitimate.

3. Conclusion

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