Cho High Court Decision 2012 Deputy 4168 ( December 04, 2012)

The plaintiff's good faith or negligence that the oil supplier received a tax invoice different from the fact may not be recognized.

In light of the fact that the Plaintiff has handled oil from December 2008, bought oil at low cost, the oil shipment slip was poorly recorded, and the transaction situation should be electronically submitted and reported to the Korea National Oil Corporation every 15th day of each month in accordance with the relevant Acts and subordinate statutes, etc., the Plaintiff cannot be recognized as the Plaintiff’s negligence of duty of good faith, which received different tax invoices from the fact by the supplier.

Article 17 of the Value-Added Tax Act

2013 disposition of revocation of imposition of value-added tax

AAA

BB Director of the Tax Office

July 16, 2013

August 20, 2013

1. The plaintiff's claim is dismissed.

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

The imposition of the value-added tax for the first term of July 2, 2011 imposed on the Plaintiff on July 2, 2012 by the Defendant shall be revoked.

1. Details of the disposition;

The following facts may be admitted by each entry in Gap evidence 1, Eul evidence 2, Eul evidence 3, and Eul evidence 1, and Eul evidence 3-1.

A. From October 2008, the Plaintiff: (a) from OO on December 10, 2008 to OO, operated the gas station under the trade name of “CC oil station” in 5948; and (b) filed a value-added tax return for the oil supply transaction received from the DD Energy Co., Ltd. (hereinafter “DD Energy”); and (c) on the basis of five copies of the tax invoice for the total supply value of the OOO of the total supply value for the oil supply transaction received from the DD Energy Co., Ltd. (hereinafter “D Energy”), filed a value-added tax return after deducting the corresponding input tax amount from the output tax amount.

B. As a result of the director of the regional tax office conducted a tax investigation on DD energy, he determined that the oil transaction sold by the company to the Plaintiff was all processed transactions, and notified the Defendant thereof. Accordingly, on July 2, 2012, the Defendant determined that the instant tax invoice was different from the actual facts between the issuer and the goods supplier, and determined that the Plaintiff did not deduct the input tax amount of the instant tax invoice from the output tax amount, and issued a correction and notice of KRW OO of value-added tax for the period of one year in 2011 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed a request with the Tax Tribunal on September 20, 2012, but was dismissed on December 4, 2012.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff actually purchased oil equivalent to the instant tax invoice from D Energy, remitted the price to the deposit account in the name of D Energy, and the instant tax invoice cannot be deemed as a false tax invoice.

2) Even if the instant tax invoice is different from the fact, the Plaintiff confirmed whether the oil supplier and the issuer of the tax invoice are the same person, and the D Energy Business Registration Certificate, and thus, the Plaintiff constitutes a party with good faith and without fault.

3) The tax authority issued a business registration certificate without verifying whether D Energy is a real oil supplier when it issues a business registration certificate for D Energy. The tax authority issued the business registration certificate without verifying whether D Energy is a real oil supplier. Since the Defendant, which is the tax authority, transferred its duty to the Plaintiff, a party to the D Energy transaction, is in violation of the good faith principle and the disposition in this case constitutes an abuse of the right to taxation.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) First, we examine whether the instant tax invoice is false or not.

Article 17(2)1 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) 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. In such cases, the meaning that it is different from the fact is that the ownership of the income, profit, calculation, act or transaction subject to taxation is nominal, and where there is another person to whom it actually belongs, the person to whom it actually belongs is liable to pay taxes in light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that where the necessary entries in a tax invoice do not coincide with the amount and time of the transaction contract, etc. prepared between the parties to the transaction concerning the goods or service, notwithstanding the formal entries in the transaction contract, etc. made between them (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

Considering the health stand, Eul evidence No. 1, Eul evidence No. 3, Eul evidence No. 1, Eul evidence No. 5-2, and Eul evidence No. 6, the whole purport of the pleadings as a whole: ① DNA energy investigation conducted by the Director of the OOO of the Korea National Tax Office, based on the long-term waste of the storage facility, there are no oil entry in the oil storage, and there are no actual results of transactions in the Korea National Oil Corporation, and the representative director KimE appears to be the representative in the name of the owner of the business without knowledge, it is determined that the total sales amount of 171 minutes of the DNA energy in 201 was a processed transaction without actual trade, and ② the Director of the OOO Director of the Korea National Tax Office accused related persons such as DD Energy and the above representative director KimE of the Korean National Tax Office on Nov. 30, 201, and it is reasonable to deem that the plaintiff supplied the above tax invoice to the prosecutor, and therefore, it is not reasonable to deem the plaintiff's tax invoice to have been issued.

2) Next, we examine whether the Plaintiff is bona fide or without fault.

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 name of the tax invoice, and that the person who received the tax invoice was not negligent in not knowing the above fact of the name of the invoice, the person who claims the deduction or refund of the input tax amount must prove that the supplier was not negligent (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002)

In this case, according to the statements in Gap's 6-1 through 3, Eul's 7-1 through 4, Eul's 8, 9, and 10-2, and Eul's 2-2, and witness testimony in part of Eul's 2-2, the plaintiff transferred the oil price to a DNA energy account after being issued with the D Energy, and the fact that the D Energy was a business operator whose business registration was completed, but it is not sufficient to find that the plaintiff was not aware of the fact that the tax invoice issued by the D Energy was different from the fact that the plaintiff purchased the oil and was not negligent, and there is no other evidence to prove it otherwise.

Rather, Eul evidence 2, Eul evidence 6, Eul evidence 6, Eul evidence 7-1, and Eul evidence 7-2, and witness F testimony, are considered as follows. ① The purchase unit price of oil purchased from DD energy is less than 10 won per liter than 10 won per liter, such as modern daily banks, etc. In this case, the plaintiff must be confirmed closely as to whether the seller is an actual supplier of oil sales business, such as agency registration and existence of oil reservoir, etc. In addition, even though the plaintiff did not undergo such verification procedures, it is reasonable to see that the plaintiff was not aware of the serial number recorded in the case of petroleum sales, and that it was not 20 days of delivery and arrival, and that it was not 10 days of delivery and arrival, but 20 days of delivery, and that it was difficult to say that the plaintiff was not able to know that it was 1,000 won of the domestic oil market, and that it was 20 days of delivery and arrival, and that it was not 1,000.

3) We examine the violation of the good faith principle and the abuse of taxation rights.

Business registration under the Value-Added Tax Act is the legislative intent of having the tax authority identify the taxpayer of value-added tax and secure the taxation data, and it is established by filing a business registration application with the head of the tax office having jurisdiction, and the issuance of a business registration certificate is merely an act of issuing a certificate proving such registration (see Supreme Court Decision 90Nu2972, Mar. 12, 1991). However, if deemed necessary by Article 7(3) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013) where the Commissioner of the National Tax Service deems it necessary, even if the tax authority can issue a business registration certificate based on the fact that it can verify the facility or business status of the business applicant for business registration before issuing the business registration certificate, and it is difficult to view that the tax authority violated the duty of protecting taxpayers or the duty of cooking merely by issuing the business registration certificate without confirming the business registration certificate. Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

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