Cho High Court Decision 201J 1571 (Law No. 1060, 2011)

The tax invoice of this case is a tax invoice entered falsely by the supplier, and the plaintiff's good faith and negligence should not be recognized.

In full view of the fact that the instant tax invoice constitutes a false tax invoice that is different from the fact that the supplier entered falsely, that the Plaintiff had operated the gas station for several years, that the temperature and share was not entirely stated in the shipment slips, and that the Plaintiff did not confirm the facilities of the business partner even after being supplied in a low quantity, the Plaintiff’s good faith and negligence should not be recognized.

Article 17 of the Value-Added Tax Act

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

KimA

The director of the tax office

August 10, 2012

September 7, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax of KRW 000 for the first period of February 9, 201 against the Plaintiff on February 9, 201 is revoked.

1. Details of the disposition;

A. From January 1, 2005, the Plaintiff operated a gas station in the name of “BB gas station” from 000 OOdong, Gwangju City, and received one sheet of purchase tax invoice from “CC Energy Co., Ltd. (hereinafter “CC Energy”) in the first VAT taxable period in 2009, and deducted the relevant input tax amount and filed a value-added tax base return with the Defendant.

B. However, the Defendant denied the Plaintiff’s input tax deduction on February 9, 201 on the ground that the instant tax invoice, which the Plaintiff received fromCC energy, constitutes a disguised business operator who issued a false tax invoice without a real transaction, is also a tax invoice different from the fact, and notified the Plaintiff of KRW 000 of the value-added tax for the first period of February 2009 (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on July 6, 201.

The above claim was dismissed.

[Grounds for Recognition] The non-contentious facts, Gap evidence 1 and 2 (including household numbers), Eul evidence 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① The Plaintiff supplied actual oil fromCC energy and received the instant tax invoice accordingly, and even if not, the said tax invoice does not constitute a false tax invoice, and even if not, the Plaintiff’s supply of oil without knowing that the Plaintiff was a disguised business entity, and the instant disposition by the Defendant on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the instant tax invoice is false or not

(A) Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 915, Jan. 1, 2010) provides that input tax shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the facts. The meaning that the entries of a tax invoice are different from the facts, and where there is a person to whom the entries of a tax invoice are attributed merely because they belong to the name of the income, profit, calculation, act or transaction subject to taxation, in light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that where there is another person to whom the entries of a tax invoice are in fact belong, the person to whom the tax invoice belongs shall be liable to pay taxes, and where the entries of a tax invoice are inconsistent with those of the person to whom the goods or service is actually supplied or provided, regardless of the formal entries of a transaction contract, etc. made between the parties to the goods or service (see, e.g., Supreme Court Decision 96Nu617

(B) Based on the above legal principles, the following circumstances acknowledged as a whole by considering the health stand in the instant case, Gap evidence 2, and Eul evidence 3 (including household numbers), and witness SeoG, and part of the testimony of this HH, i.e.,CC energy tax base return under the following circumstances: (CC energy purchase from II PP Co., Ltd. during the taxable period of value-added tax in 2009, and some of it were supplied to the Plaintiff to the gas station; (i) the tax invoice was issued by the tax authorities on the spot; and (ii) the sales tax invoice issued in the process of oil transactions was found to have been established as a disguised business operator for the purpose of issuing a false tax invoice, and (iii) the tax invoice was supplied to the Plaintiff without any actual tax invoice, and (ii) the energy was supplied to the Plaintiff, including those that were supplied with a false tax invoice, and that only the Plaintiff’s tax invoice and tax invoice were supplied with a false tax invoice for the purpose of issuing the tax invoice, and (ii) the remaining tax invoice and tax invoice were supplied for the Plaintiff’s.

(2) Whether the Plaintiff’s bona fide and without fault is recognized

(A) Unless there is any special reason that the actual supplier and the supplier on a tax invoice are unaware of the name of the supplier, and that there is no negligence on the part of the supplier, the actual supplier and the supplier are not entitled to deduct or refund the input tax amount, and that there is no negligence on the part of the supplier due to the supplier’s failure to know the above fact in the name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). Furthermore, in light of the developments leading up to the issuance and delivery of the tax invoice, the price of the goods or services being supplied, and the specific route and process in which the goods or services are supplied, it is difficult to view that the recipient was not aware of the fact that the actual supplier was not a disguised supplier, and that the recipient was not a nominal supplier’s place of business or business facilities, etc., and that the supplier’s business registration certificate, etc. was confirmed.

(B) Based on the above legal principles, whether the Plaintiff was unaware of the title of the tax invoice in this case and was unaware of it, and there is insufficient evidence to acknowledge it, and there is no other evidence to find it otherwise. Rather, the following circumstances recognized by Gap, Eul, Eul, and Eul (including each number), and Eul's partial testimony and arguments, are as follows: ① from January 1, 2005, the Plaintiff was aware of the normal structure and distribution route of the oil supply, and the general type or method of the oil industry, and the testimony of this H, and there is no other evidence to support it; ② the Plaintiff was not aware of the fact that the supply price of the oil in this case was less than that of the Plaintiff's normal distribution of the oil at the time of shipping of the oil at the low oil station, and the Plaintiff was not aware of the fact that the supply price of the oil in this case was less than that of the Plaintiff's final distribution of the oil in this case, but not more than that of the Plaintiff's final distribution of the oil at the time of shipping of the oil at the oil station.

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.