Daegu District Court 2012Guhap363 (24 May 2013)

Cho High-depth2012Gu1437 (2012.08)

A disposition imposing tax on the issue tax invoice by regarding it as a false tax invoice is legitimate.

A person entered as a supplier in the issue tax invoice is not a trading party which can conduct a normal oil transaction, but it is difficult to deem that the claimant has fulfilled his duty of care as a good manager

2013Nu926 Revocation of Disposition of Imposition of Value-Added Tax

Gangwon A

Head of Ansan Tax Office

Daegu District Court Decision 2012Guhap3363 Decided May 24, 2013

October 18, 2013

November 1, 2013

1. The plaintiff's appeal is dismissed.

2. A port consumption shall be borne by the Plaintiff.

The judgment of the first instance court is revoked. The defendant's second-value added tax for the plaintiff on October 6, 201, the first-value added tax for the second-value added tax for the plaintiff on 2009, the first-value added tax for the first-value added tax for the year 2010, and the second-value added tax for the plaintiff on 1 December 2012 for the second-value added tax for the plaintiff on 2009 and the first-value added tax for the first-value added tax for the year 2010 are revoked.

1. Details of the disposition;

A. From April 15, 1997, the Plaintiff operated 'BB gas station' from OO-O-O-O-O-O-O-O-O-O-O-O-O-O, 'BB gas station'.

B. The Plaintiff: (a) deducted each input tax amount listed in the purchase tax invoice (hereinafter referred to as “the instant tax invoice”) issued by the Defendant on the grounds that the Plaintiff was supplied with the CC Co., Ltd. (hereinafter referred to as “CC”) and DD Energy Co., Ltd. (hereinafter referred to as “EE Energy”), and EE Energy Co., Ltd. (hereinafter referred to as “EE Energy”); (b) deducted each input tax amount listed in the following purchase tax invoices issued by the CC Co., Ltd. (hereinafter referred to as “CC Co., Ltd.”) from the output tax amount; and (c) filed the second and second returns of value-added tax for

No.

Taxation Period

Issuance Date

Sales Office

Purchase Agency

Value of supply (unit: Won)

1

Second Period, 2009

August 31, 2009

CCA

OOO

2

September 30, 2009

OOO

3

October 31, 2009

OOO

4

November 30, 2009

OOO

5

December 31, 2009

OOO

Sub-committees

OOO

6

1, 2010

January 31, 2010

DEnergy

OOO

7

February 19, 2010

OOO

8

March 12, 2010

OOO

9

April 19, 2010

OOO

10

May 12, 2010

OOO

Sub-committees

OOO

11

1, 2010

May 31, 2010

EE Energy

OOO

12

June 3, 2010

OOO

13

June 16, 2010

OOO

Sub-committees

OOO

The First System of 2010

OOO

C. On October 6, 2011, the Defendant issued a disposition to correct and notify each of the input tax amount for the second time value-added tax 2009, and the first time value-added tax OOOOO in 2010 on the ground that the Plaintiff constitutes data that “CC companies, D Energy, and EE Energy constitute data that issued tax invoices without real transactions, and that the instant tax invoices are not actual oil suppliers.”

D. On March 14, 2012, the Plaintiff, who was dissatisfied with the first disposition, filed a request for a trial with the Tax Tribunal, but was dismissed on June 8 of that year.

E. On December 1, 2012, the Defendant revoked each part of the second half-year VAT, and the first half-year VAT, 2010, and issued a disposition imposing penalty tax at the same amount by specifying the type of penalty tax and the calculation basis of the amount of penalty tax (hereinafter referred to as "second-year disposition"), and the first-year disposition, including the part excluding penalty tax, and the second-year disposition, referred to as "the instant disposition").

[Ground of recognition] The non-speed facts, Gap evidence 1, 2, 18, 19, and Eul evidence 1, 2, and 3 (including each 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

Since the Plaintiff was actually supplied with oil from theCC companies, DD Energy, and EE Energy, the instant tax invoices were not false. Even if the instant tax invoices fall under the false tax invoices, the Plaintiff did not commit any negligence on the part of the parties to the instant transaction because the Plaintiff fulfilled its duty of care as a party who trades oil, taking into account various circumstances, such as the fact that the instant tax invoices fall under the false tax invoices, and that the Plaintiff was actually supplied with oil in the name of theCC companies, D Energy, and EE Energy, and that the Plaintiff deposited oil in the account of the said companies, and that the oil was verified by being provided with a trader’s registration certificate, D Energy, and EE Energy, and that the Plaintiff was provided with a copy of the petroleum sales registration certificate, etc.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

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

Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter the same) provides that input tax amounts shall not be deducted from the amount of sales if the entries of a tax invoice are different from the facts. The phrase “ differently from the facts” refers to cases where the requisite entries of a tax invoice do not coincide with those of the persons who actually supplied or are supplied with the goods or services, notwithstanding the formal descriptions of a transaction contract, etc. prepared between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

The tax invoices of this case delivered by the plaintiff, the plaintiff, and the EE Energy, in full view of the overall purport of the arguments in Eul and Eul evidence 3, and 8, and only the so-called data issuing the processed tax invoice, and it can be recognized that the plaintiff did not supply oil to the plaintiff, and the tax invoices of this case delivered by the plaintiff, the CC, DD energy, and EE Energy are different from the facts and the contents are different from the facts.

Therefore, this part of the plaintiff's assertion is without merit.

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

Unless there are special circumstances, where a supplier and an actual supplier are different, an input tax amount pursuant to a tax invoice may not be deducted or refundable, and the person who received the tax invoice shall prove that there was no negligence on the part of the supplier not knowing the above fact in the name of the supplier (see, e.g., Supreme Court Decisions 2002Du2277, Jun. 28, 2002; 2009Du1808, Jun. 11, 2009; 201Du22111, Dec. 27, 2011).

It is recognized that the plaintiff was actually supplied with oil, and that the plaintiff was deposited into the deposit account in the name ofCC companies, D energy, and EE Energy, taking into account the descriptions of Gap 3, 4, and 5, and Eul 5, and some testimonys of the witness standF of the court of first instance.

However, in light of the following circumstances, it is insufficient to find it difficult to find that the plaintiff was unaware of the name of the business operator, and that the plaintiff was unaware of the false name of the business operator, and that there was no other evidence to find that there was no negligence, and that there was no other evidence to find otherwise, that the plaintiff did not know about the false name of the business operator, and that there was no other evidence to support that there was no negligence on the part of the business operator, and that the plaintiff did not know about the false name of the business operator, and that the plaintiff did not know about the false name of the EE energy, and that part of the testimony of the witness F of the court of first instance, of the first instance, was taken into account by taking into account the following circumstances:

① From April 15, 1997, the Plaintiff opened a BB gas station and operated a gas station for about 12 years from August 31, 2009 to August 31, 2009. Thus, through the experience in oil transactions, the Plaintiff was fully aware of the normal structure and distribution channels of the oil supply, and the general forms and methods of the oil industry, and the actual conditions and risks of transactions in the oil industry.

② On April 15, 1997, the Plaintiff opened the BB oil station and supplied oil from a large oil company, such as GGG corporation (hereinafter referred to as “GGG”). From August 31, 2009, the Plaintiff started to be supplied with oil from the DoH, which had no usual friendly relationship, and continued to be provided with DD energy and EE energy in succession, and did not verify the location, location, and route, etc. of the oil distribution contract, even though the Plaintiff was supplied with oil to 30 to 60 won per liter than the normal supply price of the large oil company, such asCC, DD energy, and EE energy, and even after the DoH changed work place to CC, DD energy, and EE energy for a short period, the Plaintiff did not verify the actual fact that the oil contract was concluded, and the place, location, and route, etc. of the oil distribution, and did not properly verify the oil storage facilities.

③ The pre-delivery table issued at the time of supplying the oil to the oil station is an important material to confirm that the oil is transacted through normal distribution channels. The oil station shall issue four pre-issuance slips in which the oil is shipped out, the two boxes shall be kept, and the remaining two copies shall be given to the oil transport engineer upon confirmation by the arrival company, and the transportation expenses shall be paid accordingly. The oil station, etc. that receives the oil, as above, may verify whether the oil is refined by comparing the expected time of transportation from the shipment place to the arrival, and the actual transport time of the oil products vary depending on temperature and density, so the oil station shall record only the time of issuance (up to the beginning unit), the temperature and proportion of each group, as well as the accurate signature and seal of each group in the normal pre-issuance chart.

However, the plaintiff was issued a shipment mark indicating only the "CCC company", and the shipping price was not 's serial number, temperature, and density', and the shipping price was supplied from DD energy, and the shipping line was not indicated in the name of the transaction party, the arrival point, the shipper, the shipper, the shipper's confirmation, and the electric marking number, and the above shipping slips were stated differently from normal shipping slips.On the other hand, the plaintiff was supplied oil from CC company and DD energy, and the supplier was supplied with oil from PEG for the period of time when the oil was supplied, and the supplier was not identified in the date of shipment, and the shipping mark was stated in the first shipment number, the temperature and temperature, and the manufacturer was not identified in the list, and the plaintiff was not identified in the actual manufacturer or the manufacturer's name or manufacturer's name.

④ At all, the Plaintiff’s shipment slips, DD energy, and EE energy, are written only “CC companies, DD energy, and EE energy,” and only “OO-type 135-5 OO store registered as storage facilities, “O-type 135-5 O-type O store” is long-term wasteed and used for storage facilities, and “O-type 642 Co. II Co., Ltd., Ltd., Ltd., and the EE energy leased as storage facilities” did not have any actual oil taken out or taken out, and “O-type OOOO-dong 652-1 JJ oil station” used as storage facilities did not have any electronic equipment required for the preparation of shipment slips.

⑤ In ordinary oil transactions, the purchasing party paid the price, and receives the shipment slips on the date when the oil is supplied, and most of the settlement dates are earlier than the date of shipment on the shipment slip between the Plaintiff,CC, DD Energy, and EE Energy, and the Plaintiff paid the full amount of the oil, and the payment was made in advance on the following day after the payment was made, and there were cases where the shipment slips were issued after the payment was made, and the shipment dates on the shipment slip of the supplier and the shipment dates on the shipment slip are different. Nevertheless, the Plaintiff did not verify whether the Plaintiff, DD, and EE Energy actually supplied the oil.

6) Even if the Plaintiff was issued a copy of the business registration certificate, DD Energy, EE Energy, and Petroleum Sales Registration Certificate, and was actually supplied with oil and deposited the price into the accounts ofCC companies, DD Energy, and EE Energy, it is merely a tool to disguised normal transactions in so-called data transactions, and it is difficult to find that there was no negligence due to the Plaintiff’s failure to know the disguised fact of the instant tax invoice, solely on the basis of such circumstances.

Therefore, there is no reason for the plaintiff's assertion on this part.

3. Conclusion

Therefore, the judgment of the court of first instance which dismissed the plaintiff's claim of this case is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per