Daegu District Court 201Guhap220 ( October 24, 2011)

early 2010Gu2939 ( October 27, 2010)

Inasmuch as entries in the shipment slip are omitted and the supplier's facilities are not confirmed, it shall not be deemed good faith or negligence.

It is difficult to understand that the supplier engaged in oil transactions without checking whether he/she is equipped with oil storage facilities, transportation vehicles, etc., even though he/she purchases a higher supply price than normal supply price through a person who has omitted entry in the shipment slip and has no ordinary kind of oil purchase transaction, and it is difficult to recognize it as good faith and without fault.

Article 17 (Payable Tax Amount)

2011Nu2379 Revocation of Disposition of Value-Added Tax

XX

Head of the Gu Tax Office

Daegu District Court Decision 201Guhap220 Decided August 24, 2011

November 25, 2011

December 16, 2011

1. The plaintiff's appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance is revoked. The defendant's disposition of imposition of value-added tax for the second period of 2008 against the plaintiff on August 1, 2010 and the first period of 2009 value-added tax of 5,597,720 won, and value-added tax of 5,586,620 won is revoked.

1. Circumstances of dispositions;

A. From May 1, 1997, the Plaintiff, while operating the Gu-si 900-1 located in the Si-U.S. Si-S., the Plaintiff reported the value-added tax for the first term portion in 271 minutes in 2008 and 2009, issued by ○○○ Oil Group (hereinafter “○○○ Oil Group”) on December 31, 2008 (the supply price of KRW 41,272,72,727, the tax amount of KRW 4,127,273), and the purchase tax invoice on January 31, 209 (the supply price of KRW 21,090,90, KRW 2109,09, KRW 2,109,091), and the tax invoice on May 31, 2009 (the purchase price of KRW 181,281,281,281, etc.).

B. The director of Busan Regional Tax Office confirmed that the above company processed and traded the total sales and purchase amount, and all of the instant tax invoices were processed tax invoices, and then filed a complaint with the investigation agency, and notified the Defendant of the pertinent tax data.

C. Accordingly, the Defendant received a non-adopted decision on June 29, 201, on the ground that the Plaintiff filed a pre-assessment request with the Defendant on June 21, 2010, on the following grounds: (a) the Plaintiff received a pre-assessment request on the grounds that the Plaintiff was not entitled to the pre-assessment request for a pre-assessment review, but the Plaintiff’s assertion against the Defendant on July 21, 201.

D. On August 1, 2010, the Defendant issued a corrective disposition imposing the Plaintiff value-added tax of KRW 5,597,720 for the second term portion of KRW 5,586,620 for the second term portion of KRW 208 and value-added tax of KRW 5,586,620 for the first term portion of KRW 209 (hereinafter “instant disposition”).

E. On September 1, 2010, the Plaintiff dissatisfied with the request, but was dismissed by the Tax Tribunal on October 27, 2010.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 9, 11, Eul evidence 1, Eul evidence 1 (including provisional number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition for the following reasons must be revoked in an unlawful manner (the Plaintiff’s assertion is as follows).

(1) Although the supplier is not a supplier of ○○, △△, and △△, it was actually supplied with oil, and then deposited the price into the account of the above company. Thus, all of the instant tax invoices do not constitute a false tax invoice.

(2) At the time of being supplied with oil, the Plaintiff is a party to a transaction, with the duty of care as a party to the transaction, including the instant tax invoice, the specifications of transaction, the number of transport vehicles, the shipment slips entered by the transporter and the consignee, and the confirmation of the fact of transaction, but the said company did not know that it was the data and paid the price in trust that it was actually supplied with oil from the above company.

(3) Prior to the instant disposition, the Plaintiff received a decision to adopt the VAT prior to the instant disposition by deeming that it constitutes a party to a trade in good faith from the Defendant on December 17, 2009, in the pre-assessment review on the corrective disposition of value-added tax for the second period of 2007, which was imposed on the cases similar to the instant case. Therefore, even in the instant case, the non-taxable practice was established, or black is contrary to such a decision, and thus, the instant disposition by the Defendant, which was different from the instant case,

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) argument that it does not constitute a false tax invoice

(A) Article 17(2)1-2 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, and the meaning of "the entries of a tax invoice are different from the facts" refers to cases where the requisite entries of a tax invoice do not coincide with the subject, price, and time of the goods or services actually supplied or being supplied, notwithstanding the formal entries of a transaction contract, etc. made between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

(B) If Gap evidence No. 1, Eul evidence No. 2, and Eul evidence Nos. 2, and 3 show the overall purport of the pleadings, the energy from 00 and △△△ is so-called data that issues the processed tax invoice without real transactions, and can be recognized that the plaintiff did not actually supply oil, so the supplier listed in the tax invoice in this case is different from the fact.

(C) Therefore, this part of the Plaintiff’s assertion contrary thereto is without merit [this case’s disposition seems to be unlawful since the Plaintiff, even if the nominal owner and the actual supplier are different, has remitted money to the price after making the actual transaction. However, if the fact of actual transaction is recognized as a result of the Plaintiff’s assertion, as alleged by the Plaintiff, it may be recognized as losses in calculating the corporate tax base (see Supreme Court Decision 2004Du14168, Jun. 10, 2005). This assertion is difficult to accept as a assertion as to the disposition of this case, which is the disposition of value-added tax correction (However, if the Plaintiff did not know that it is different from the facts and was not negligent in failing to do so, the input tax amount can be deducted).

(2) The assertion that it constitutes a trading partner in good faith

(A) A tax invoice entered by a supplier who is not an actual supplier may not be deducted or refunded an input tax amount unless there is any special circumstance that the person who received the tax invoice was unaware of the name of the tax invoice and was not negligent in not knowing the fact that the person who received the tax invoice was not aware of the name of the tax invoice, and the fact that the person who received the tax was not aware of the fact that the person did not know of the name of the above fact should prove the tax invoice deduction or refund (see, e.g., Supreme Court Decisions 2009Du1808, Jun. 11, 2009; 2002Du2277, Jun. 28, 2

(B) If Gap evidence Nos. 2 through 8, evidence Nos. 10, 11, 13, and evidence Nos. 2 through 6 were included in the whole purport of the pleadings, the following facts can be acknowledged.

1) On May 1, 1997, the Plaintiff has been operating a gas station for not less than 10 years since its business registration.

2) The Plaintiff was supplied with oil on December 31, 2008 through the introduction of ○○ milk manufacturing business employees with no usual friendship, and was supplied with oil at a quantity of 30 won per liter than the normal supply price of oil refining company as follows, and then remitted the price to the deposit account of ○○ milk tank and △△ Energy.

[The following table omitted]

3) On February 24, 2009, the Plaintiff prepared a written confirmation of the details of receipt of the tax invoice on December 30, 2008, and stated that the Plaintiff received oil supply from ○○○ Oil Operator on December 30, 2008. However, the ○○ Oil Operator ParkN directly visited the relevant gas station and carried out the business, and the Plaintiff directly carried out the transit after ordering the oil.

4) The Plaintiff received the instant oil supply and received the shipment slips as follows.

[The following table omitted]

5) In general, the normal shipment slips generally indicate the time of publication as the volume of oil differs depending on the temperature and density in the case of oil, and the temperature and density are accurately indicated. However, the above shipment slips received by the Plaintiff are all written on a daily basis, and the temperature is in the air space.

6) On December 30, 2008, Daegu 31 Asia 9732, which was indicated in the shipment slips (00107736) as transportation vehicles, is the number of vehicles registered as 16 tons truck at the time, and thereafter registered as the oil tank number on November 13, 2009 (20,000 liters oil tank oil tank).

7) On board repositories, which are entered by shipping prior to shipment on January 30, 2009, have little storage capacity (in transit 3,800 litress) and there is no business trace.

8) The Plaintiff’s work log as of December 31, 2008 is marked with 20,900 liters not exceeding 40,000 liters, and the amount preceding the work log as of May 29, 2009 is 20,000 liters. Meanwhile, the Plaintiff’s work log as of January 31, 200 and May 29 of the same year is different from each other.

(C) According to the above, it is difficult to view that the Plaintiff: (a) visited the Plaintiff’s 0-day supply of oil to 0-day supply facilities for the Plaintiff’s trading of 0-day supply of oil; (b) reported the Plaintiff’s trading of 0-day supply of oil to 0-day supply facilities; and (c) reported the Plaintiff’s trading of 0-day supply facilities for 0-day supply of oil to 0-day supply facilities; (c) reported the Plaintiff’s trading of 0-day supply of oil to 0-day supply facilities for 10-day supply facilities; and (d) reported the fact that the Plaintiff’s trading of 0-day supply facilities for 0-day supply of oil to 0-day supply facilities for 20-day supply of oil; and (e) reported the fact that the Plaintiff’s trading of 0-day supply facilities for 0-day supply of oil to 0-day supply facilities for 20-day supply of oil to 10-day supply facilities for 200-day.

(D) Therefore, the plaintiff's assertion of this part against this is without merit.

(3) Claim of violation of non-taxable practice and principle of trust protection.

(A) The non-taxable practice applies to an unspecified taxpayer who is not a specific taxpayer in cases where the interpretation or practice is accepted without objection. However, the good faith principle is judged individually in relation to a specific taxpayer even if the words and actions of the tax authority have generality.

In order for a non-taxable practice to be established, there exists an objective fact that the tax authority had not imposed taxes on certain matters over a long period of time, as well as the tax authority’s intent not to impose taxes on certain matters, and such intent is externally and implicitly expressed. In particular, the meaning that the interpretation of tax-related Acts or the practice in tax administration is generally accepted by taxpayers refers to the extent that it is recognized that it is not unreasonable for the general taxpayer, who is not a specific taxpayer, to have accepted such interpretation or practice without objection, and to have the taxpayer trusted such interpretation or practice (see, e.g., Supreme Court Decision 91Nu9893, May 25, 1993).

Furthermore, in order to apply the principle of trust and good faith to the acts of tax authorities in tax and legal relations, the tax authorities must issue a public opinion list that is the subject of trust to taxpayers, and the tax authorities should not be responsible for the taxpayer to believe that the name of the opinion list is justifiable, and the taxpayer must act in trust, and the tax authorities should impose a disposition contrary to the above opinion list, thereby infringing the taxpayer's interest (see, e.g., Supreme Court Decision 2007Du7741, Oct. 29, 2009).

(B) In this case, according to Gap evidence No. 12, when reporting the second half-yearly value-added tax on the gas station in 2007, the plaintiff filed a return on deducting the input tax amount stated in the purchase tax invoice (value 47,272,00 won) issued by △△△ enterprise Energy Co., Ltd. (hereinafter referred to as "△△△△ enterprise") from the output tax amount. The head of Seoul Regional Tax Office confirms that the sales and purchase amount were processed and traded as a result of the tax investigation conducted by △△ enterprise, and all of the above tax invoices were processed and processed tax invoices, and then the defendant notifies the defendant of the relevant taxation data. The defendant issued a notice of taxation prior notice that "the value-added tax shall be corrected by deducting the input tax amount stated in the above tax invoice from the plaintiff on Nov. 9, 2009." The plaintiff filed a request for pre-assessment review with the defendant on Nov. 12, 2007, the defendant did not accept the plaintiff's request without trust or good faith.

(C) Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Since the defendant's disposition of this case is legitimate, the judgment of the court of first instance that dismissed the plaintiff's claim is just, and the plaintiff's appeal is dismissed as it is without merit.