Review Division 2009-0030 (Law No. 21, 2009)

Whether a processed tax invoice related to oil purchase has been received;

The purchaser shall be deemed to have purchased oil from a third party on the basis of the fact that he/she was accused of the fact that he/she was found guilty on the data issued only a tax invoice without a real transaction, and that no oil storage facility or transportation vehicle was used at all, etc.

The contents of the decision shall be the same as attached.

○ Kim

Daejeon director of the tax office

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s imposition of value-added tax of KRW 60,139,340 on December 5, 2008 against the Plaintiff on December 5, 2008 shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged by Gap evidence 1, Gap evidence 2, Eul evidence 1 to Eul evidence 11 (including each number), and the whole purport of the pleadings.

A. From May 1, 2006, the Plaintiff runs a retail business for petroleum products in the name of ○○○○○-dong 385 ○○○○○-dong 385 (hereinafter “instant gas station”).

B. For the period from July 27, 2007 to November 17, 2007, the second taxable period of value-added tax in 2007, the Plaintiff received 16 copies of the tax invoice stating the total value of 354,909,089 won (hereinafter “instant tax invoice”) as stated in the purchase tax invoice list in the attached sheet from ○○○○ Branch, Inc. (hereinafter “△△△ Energy”), and filed a return and payment by deducting 35,490,911 won related to the instant tax invoice from the output tax amount on January 24, 2008 when the Plaintiff reported the second taxable period of value-added tax to the Defendant on January 24, 2008.

C. From April 2008 to June 2008, the head office of △△△△△-dong 1162-9, 1002, △△△-dong 1162-9, △△△-dong 1002, △△△△-dong 432-5, △△-dong 103 Dong-dong 103 Dong-dong 106, △△△△-dong 103 Dong, △△-dong 106, conducted an investigation on shipment slips and tax invoices issued at each shipment point and tax invoice issued at △△△△△△-dong 604-2, △△△△△△△-dong 411, △△△△△△△-dong △△△-dong 103 Dong, and notified the Defendant of such an investigation results.

D. Accordingly, on December 5, 2008, the Defendant deducted the input tax amount stated in the instant tax invoice from the Plaintiff on the ground that the instant tax invoice was issued in falsity without actual transactions, and issued a notice of correction and notification of the value-added tax for the second period of 2007 as KRW 60,139,340 (hereinafter “instant disposition”).

E. On March 3, 2009, the Plaintiff filed a request for examination against the instant disposition with the Commissioner of the National Tax Service, but the Commissioner of the National Tax Service rendered a decision to dismiss the Plaintiff’s request on May 21, 2009.

2. Determination as to the legitimacy of the instant disposition

A. The plaintiff's assertion

The Plaintiff actually received oil from △△ Energy and received the instant tax invoice, and thus, the instant tax invoice cannot be deemed to be a false tax invoice, and even if the instant tax invoice is false, the Plaintiff is a bona fide trading party who was unaware of the name of △△ Energy and was not negligent in not knowing the fact. The instant disposition that the Defendant denied the input tax deduction related to the instant tax invoice was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Facts recognized

The following facts may be recognized by comprehensively taking account of each of the evidence, evidence, evidence, evidence, evidence, evidence, evidence, evidence, evidence, evidence, evidence, No. 3 to 5, evidence, evidence No. 13 to 21, evidence No. 14, and evidence No. 16 (including each number), witness leA, leB, and rightCC’s testimony and the whole purport of the arguments.

(1) After completing the registration of petroleum selling business on June 19, 2007, ○○ Energy is a business operator who registered the business of July 1, 2007 by making the type of business as oil wholesale business and closed on April 24, 2008. △△ Energy has not received oil in the name of △△ Energy even at any oil reservoir across the nation during the business period, and it has concluded a lease contract on the oil reservoir, transportation vehicle, etc., which is the storage facilities of △△ tank Terminal Terminal Terminal Terminal for the registration of petroleum selling business, but there was no shortage of oil using the oil reservoir, transportation vehicle, etc. during the above period.

(2) The headD, who is the actual business operator of △△ Energy, had the intention to receive or deliver a false tax invoice without real transactions, and used the so-called “EE” name in the former position by opening △△ Energy. From July 2007, 2007, he issued sales tax invoices in the name of △△△ Energy to the gas stations without real transactions and traded to receive certain fees, and made it difficult to secure the gas stations to deliver non-tax-free oil to the gas stations.

(3) On the other hand, when oil is delivered through the normal distribution route to the gas station, one of the orderer out of Chapter 4 of the shipment table (the date and time of shipment, the name of the customer, the place of arrival, the place of arrival, transportation equipment, items and the volume of the shipment, the potteries, and the weight of the shipment) issued at the time of shipment at the oil reservoir, etc. at the oil reservoir, etc. of the oil reservoir, and one of the two of the two of them is delivered to the oil station, and one of the two of them is delivered to the oil station, and the other one is delivered to the oil station. Since the normal distribution schedule increases or decreases after the temperature of petroleum products, the date and time of shipment, temperature at the time of shipment, etc. are written.

(4) On the other hand, △△ Energy did not issue the shipment slips to the delivery driver on the date of shipment, and instead did not issue the shipment slips to the relevant gas station. However, after the oil was delivered, △△△ Energy employee prepared a tax invoice in accordance with the oil details shipped by using the computer and twitter, and sent the aforementioned shipment slips and tax invoices to the relevant gas station by mail or on a selective basis. The aforementioned shipment slips did not state the temperature of petroleum products at the time of shipment, and the name of the oil station was also mistakenly stated as ○○○○○ Blue-dong, rather than dopco○○○○○○○○ branch office located in the △○○○-dong, and the time of shipment was written voluntarily by employees of △△△ Energy.

(5) The director of the △△△ Regional Tax Office found the △△ District Tax Office not guilty on the ground that △△ Energy supplied a false tax invoice to the investigating authority on the basis of the material material that actually delivered the oil without supplying the oil. The △△ District Public Prosecutor's Office was prosecuted on March 31, 2009 on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance, etc. of False Tax Invoice) on the Aggravated Punishment, etc. of Specific Crimes. On September 17, 2009, the △△ District Court rendered a judgment not guilty on the ground that there is room to deem that △△△△ Energy supplied some oil to the gas station, which is the actual businessman of △△△ Energy, through the airport petroleum, etc., but the Seoul High Court, which was the appellate court, reversed the judgment of the Supreme Court on March 25, 2010 on the ground that the transaction of oil in question was non-taxable or processed between the person who actually possessed oil, etc. and the person who was found guilty.

(6) From May 1, 2006, the Plaintiff operated the gas station of this case. The FF, the Plaintiff’s husband, worked in Hyundai My Bank Co., Ltd. from around 1988 to 2002. The FF, upon the recommendation of the competentCC, which had been a business employee at the time it works as the head of the company’s main office.

In addition to the instant gas station, the FF had operated several gas stations in addition to the instant gas station.

(7) At the time, the rightCC received orders from the business partners secured by the Plaintiff, including the Plaintiff, and contacted DuD with DuD, it contacted DuD-free oil distributors without data so that DuD-free oil can be delivered to the Plaintiff. At the time of supply of oil, the Plaintiff was supplied with oil to the tank glass vehicle that was not marked at the oil station, did not receive the oil shipment slip issued at the oil station from the oil transport article, and received the shipment slip issued in the name of △△ Energy from 2-3 days after the tax invoice along with the tax invoice.

(8) In the process of the instant disposition, the date of shipment indicated in 16 pages 16 of the shipment table for △△ energy preparation submitted by the Plaintiff, the number of each oil reservoir and each oil reservoir, and the oil in the attached sheet Nos. 2, 4, 5, 6, 13, 15, and 16 of the purchase tax invoice Nos. 2, 4, 6, 13, 15, and 16 were shipped at the relevant time. However, as seen below, at the time of the instant disposition, the place of departure, etc. was the place irrelevant to the oil station operated by △△△ Energy or the Plaintiff.

(9) It was confirmed that the driver of the vehicle listed in 16 sheets 16 on the shipment slip prepared at will by △△△ Energy delivered oil shipped at that time to the Plaintiff’s gas station. The Plaintiff transferred KRW 369,980,000 to the account of △△△ Energy from July 27, 2007 to November 30, 207, which was the period for receiving the instant tax invoice from △△ Energy, to November 30, 2007, and that the said remittance was not returned to the Plaintiff again.

D. Determination

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

(A) The meaning that the entries of the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries of the tax invoice refer to the cases where the contents of the tax invoice are inconsistent with those of the person who actually supplied or is supplied with the goods or services, regardless of the formal entries of the transaction contract, etc. made between the parties to the goods or services.

(B) Comprehensively taking account of the above facts, each of the items and quantity column in the separate sheet on the date and time of issuance of the tax invoice of this case on the purchase tax invoice of this case was supplied to the oil station operated by the Plaintiff, and the Plaintiff appears to have paid the oil price to △△ Energy.

(C) However, the following circumstances revealed in the above facts, i.e., △△ Energy was established only for the purpose of trading false oil without any actual transaction from the beginning, and the tax authorities filed a complaint with only the tax invoice issued or received without any actual transaction, and the judgment became final and conclusive upon conviction on the ground that △△△D, the actual operator, received and issued false tax invoices for purchase and sale. ② △△△ Energy did not have received oil in any oil reservoir across the country during the pertinent taxable period, nor did it use all the oil storage facilities, vehicles, etc. reported after receiving the registration of petroleum sales business operator, and ③ △△△ Energy received the processing tax invoice and let the non-data distributor supply non-material oil in physical form, and did not have actually purchased the oil, and under the circumstances where no oil was purchased, it cannot be deemed that △△△△ Energy actually supplied the real oil to other gas stations, including the Plaintiff, and the Plaintiff did not directly purchase the oil from the above third party, and it appears that it did not constitute a disguised purchase between the Plaintiff and the third party.

(D) Therefore, we cannot accept the argument that the Plaintiff purchased oil listed in the instant tax invoice from △△ Energy, and therefore, it is reasonable to view the instant tax invoice as a supplier’s false tax invoice.

(2) Whether the Plaintiff constitutes a bona fide trader

(A) Unless there are special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount unless there is any negligence on the part of the supplier, who was unaware of the fact that the supplier was unaware of the name of the tax invoice, and the person who was provided with the tax invoice shall prove that there was no negligence on the part of the supplier, who was unaware of the fact that he was unaware of the name of the tax invoice (see, e.g., Supreme Court Decision 2002Du2277, Jun. 2

(B) First, 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’s failure to know, each of the entries in Gap evidence Nos. 6 through 12 (including each number), and the witness rightCC’s testimony is insufficient to recognize it, and there is no other evidence to acknowledge it.

(C) In full view of the following circumstances revealed in the facts acknowledged earlier, even if the Plaintiff knew or did not know that the Plaintiff was not a person who supplied the instant oil, it is reasonable to deem that there was negligence.

In other words, the plaintiff operated a gas station from May 1, 2006. The plaintiff operated the gas station from around 1988 to the plaintiff, and this FF, which operated the plaintiff's gas station, operated the gas station in a place other than the plaintiff's gas station, so it seems to have been aware of the normal structure and distribution route of oil supply, the general form and method of trade in the industry, and the actual situation of transactions in the oil industry through diverse experiences, and the risk of spread in the oil industry. ② The plaintiff started the transaction after hearing the statement that there was low-value oil from the rightCC, which was an employee of ○○ Energy, and the plaintiff did not know of the fact that the plaintiff did not know of the fact that the plaintiff did not receive the oil station's oil delivery mark directly from the driver of the oil station at the time of taking over the oil, but did not receive the oil station's oil delivery mark at issue, and even if the supplier did not know of the fact that the plaintiff did not actually receive the oil delivery slip in the name of this case.

(3) Sub-decisions

Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and it is not sufficient to recognize the fact that the Plaintiff is bona fide and without fault. Therefore, the Defendant’s disposition that did not deduct input tax amount equivalent to the instant tax invoice is lawful.

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.