Cho High Court Decision 201Do1260 (Law No. 1106.01)

It is reasonable to see that a false transaction partner is a tax invoice different from the facts of disguised transaction, and the plaintiff's good faith or negligence cannot be recognized.

In light of the fact that there was no negligence on the part of the Plaintiff when the Plaintiff was unaware of the disguised name of the tax invoice and that there was no negligence on the part of the Plaintiff, it appears that the shipment slip issued by the non-party company was not issued normally, and that the Plaintiff was supplied by the non-party company with oil to the extent of 10 won per liter, etc., the Plaintiff’s good faith or negligence cannot be recognized.

Article 17 of the Value-Added Tax Act

2011Guhap28561 Revocation of Disposition of Imposition of Value-Added Tax

XX

Head of Seodaemun Tax Office

December 21, 2011

January 11, 2012

1. All of the plaintiff's claims are dismissed.

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

The Defendant’s imposition of value-added tax of KRW 66,190,860 on January 3, 201 against the Plaintiff and KRW 88,680,830 on December 3, 2009, respectively, shall be revoked.

1. Details of the disposition;

A. The Plaintiff, from August 1, 2008, is operating the gas station under the trade name of " XX gas station". The Plaintiff received 10 copies of the purchase tax invoice (hereinafter referred to as "tax invoice of this case") in the aggregate of the supply value from the O-Energy Co., Ltd. (hereinafter referred to as "O-Energy") 897,254,545 won (the supply value of the first half of 2009, the supply value of KRW 376,490,909, and the second half of 2009, the supply value of KRW 520,763,636), and filed a value-added tax return after deducting the input tax amount from the output tax amount of the relevant taxable period from July 1, 2009 and January 20, 2010.

B. On November 3, 2010, the Defendant conducted a tax investigation with the Plaintiff, and conducted a tax investigation with respect to the Plaintiff, deemed the instant tax invoice received from the non-party company that was accused of the Plaintiff on oil materials as a false tax invoice, and deducted the relevant input tax amount. On January 3, 2011, the Defendant imposed KRW 88,680,830 of the value-added tax for the Plaintiff on January 1, 2009 and KRW 66.190.860 of the value-added tax for the Plaintiff in 2009 (hereinafter “instant disposition”).

C. On March 31, 201, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but was dismissed on June 1 of the same year.

[Ground for Recognition: Each entry of Gap evidence 1, 6-2, Gap evidence 2 through 5, 19, 20, Eul evidence 1-1, 2-2, Eul evidence 2-3, Eul evidence 4, and the purport of whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff actually supplied oil from the non-party company. Therefore, the tax invoice of this case is not a tax invoice that contains a false description, but is not a tax invoice that contains a false description, such as a supplier, even though the plaintiff did not know that the tax invoice of this case was issued differently from the fact without any negligence, and thus, the defendant's disposition

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) Transaction between the Plaintiff and the Nonparty Company

A) The details of the tax invoice of this case that the Plaintiff received from the non-party company for the purchase of the insignias, non-explosive insignias, low sulfur transits, etc. are as follows. The Plaintiff remitted to the non-party company bank account the total of KRW 76,940,00 on February 76, 2009, KRW 102,080 on March 102,080, KRW 23,600 on April 23, 2000, KRW 100,460 on May 10, KRW 72,50,000 on June 72, 500, KRW 00 on July 38,560, KRW 40,000 on August 40, 600, KRW 680,000 on September 130,000 on KRW 130,000 on August 30, 2008; and

B) Upon receiving oil related to the instant tax invoice, the Plaintiff received the shipment slips issued by the oil carrier and received them from the non-party company, and issued them to the non-party company, and issued the shipment slips, tax invoices, and transaction specifications issued by the non-party company, which entered the Plaintiff’s business place at the destination

C) The shipment slips issued by the non-party company are indicated as the place of arrival, while the non-party company is indicated as the publishing place, but the shipment slips issued by the non-party concerned, such as the Y Energy, are indicated as the place of destination as other business places rather than the Plaintiff

D) From the first period of 2009 to the second period of 2009, Nonparty Co., Ltd. received 9 copies of processed tax invoices consisting of 27,514,000,000 from △ Paint Co., Ltd. (hereinafter “Sa”) without real transaction during the second period of 2009, and filed a charge for issuing 420 copies of processed tax invoices consisting of 27,876,00,000,000 of supply value without real transaction, to the two gas stations, including the two gas stations, for the same period.

E) With respect to oil purchased from △△△△ Co., Ltd. (hereinafter “△△△△△”), the Plaintiff is keeping the shipment slips issued by the oil refinery. On the other hand, with respect to the oil related to the tax invoice of this case, the Plaintiff kept the shipment slips issued by the non-party company, not the oil oil oil oil refinery, and upon inquiry into the relevant date on the shipment slips issued by the non-party company and the transport vehicle, it appears that the Plaintiff’s place of business as the place of destination

2) Results of the investigation of the non-party company

A) From August 26, 2009 to January 15, 2010, and from August 10, 2010 to November 12, 201 of the same year, the director of the Central Regional Tax Office conducted an investigation on suspicions on the data of the non-party company (hereinafter referred to as the "tax investigation of this case"). At the time, the non-party company and the representative director Han-A-B in charge of accounting issued the shipment table, tax invoice, transaction statement, etc. while working for the non-party company, and the office did not have any facilities capable of real oil transactions, even though there was a book, computer, printer, telephone, small wave, etc.

B) On the business registration certificate of the non-party company established around October 2007, the location of the place of business of the non-party company was 000 'GG Dong 000-0 GGFra,' and the oil storage was '00 'Cheongju-gu AAdong 000' or the non-party company did not use the oil storage and has no oil transport vehicle in possession.

C) On January 2009, HanA stated that the non-party company was taken over from the HighCC, but did not have been engaged in the non-party company's business. The non-party company did not engage independently and actively in the purchase of oil even though its annual sales amount is at least 30 billion won, at the time of the investigation of the instant case, that the head of Y KimD, which was determined on the data, provided oil at the time of the investigation of the instant case, and provided 10-15 won per liter at the time of the supply of oil to the non-party company's representative director from January 2009, and that the non-party company was appointed as the representative director from January 26, 2009 (from August 26, 2009 to January 15, 2010). However, he stated that the non-party company was supplied with all of the oil at the time of the tax investigation (from August 10, 2010 to January 15, 2010).

D) Korea-AAA is a Cheong Plue-ro and a company △△△△○ Co., Ltd. (hereinafter referred to as the “▽▽m”).

The company purchased oil only from the Guide, which was a trading company that had been involved in the transaction before the company was appointed as the representative director, and the Cheong Pudong, which was the company that started the transaction after the company was appointed as the representative director, stated that the oil supplied from Cheong Pudong was supplied to 7-10 won per liter.

E) The non-party company, as a result of the financial tracking of the non-party company, received oil payment from the gas station on the ordinary day of transaction or 2-3 days after deducting the commission and the amount of expenses from 2%, and transferred the amount deposited into the △book account. The amount deposited into the △book account again was transferred to the gas bank account, which is a company without purchase, to the gas company, and most of it was deposited in cash.

F) As a result of the 4th oil shipping protocol, the oil supplied by the non-party company to the selling office is wholly shipped from the 4th oil refinery, and the delivery price on the shipment slip issued by the non-party company did not coincide with the delivery price on the shipment slip issued by the non-party company, as a result of considering the number of the transportation vehicle on the shipment slip issued by the non-party company and the shipment date on the shipment slip according to the statement of the Korea-AA, which is the oil actually shipped from the 4th oil refinery

3) Results of the audit on △ Paint

A) The director of the Central Regional Tax Office of China has investigated the suspicion of the material from August 10, 2010 to November 19, 2010, and the fact that he/she had no oil storage facility and oil transport vehicle at the time of the investigation. The head of the Central Tax Office of China closed the business on February 18, 2010 and had no place of business at the time of the investigation.

B) The △ Paint-ro was accused of both the l and 2-year purchase and sales of the l and 2-years in 2009 on the processed material, and at least 50% of the sales to the non-party company.

[Ground for Recognition: The absence of dispute, Gap evidence 2, 8, 22, 24, 25, Gap evidence 9 through 17, 21, 23-1 through 51, Eul evidence 18-1 through 3, Eul evidence 3-1 through 6, Eul evidence 4, 5, Eul evidence 6-1 through 4, Eul evidence 7-1, 2, Eul evidence 8-1 through 18, Eul evidence 8-1 through 18, Eul evidence 5-2, Eul evidence 1 through 5, and the purport of whole pleadings]

D. Determination

1) In principle, the burden of proving that a tax invoice received from a specific transaction constitutes a “unlawful tax invoice” under Article 17(2)1-2 of the Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) where the deduction of an input tax amount is denied on the grounds that such transaction is a nominal transaction for which no substantial delivery or transfer of goods is made (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008). Generally, in litigation seeking revocation of a tax imposition, the burden of proving the fact of taxation is the imposing authority. However, unless the other party proves that the other party is presumed to be eligible for the application of the empirical rule in light of the empirical rule, it cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that satisfies the taxation requirement (see, e.g., Supreme Court Decision 2009Du656868, Sept. 24, 2009).

In addition, 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 and the supplier on a tax invoice are not negligent in not knowing the fact of misrepresentation of the name of the tax invoice, and the person who asserts the deduction or refund of the input tax amount should prove that the supplier was not negligent in not knowing the fact of misrepresentation of the name (see Supreme Court Decision 2002Du2277, Jun. 28, 2002).

2) The following circumstances can be acknowledged by comprehensively taking account of the facts found in the instant case and the aforementioned facts. ① most of the tax invoices issued by the non-party company (the processing ratio 91.75%, 2009, and 98.7%) that the Plaintiff supplied oil to the Plaintiff was accused of the non-party company as material for the reason that the non-party company was a processed tax invoice issued without real transaction. ② The purchase and sale of the first and second purchase in 2009 also was accused of the non-party company as material, and the sales amount was more than 50% of the total sales amount for the non-party company. ③ The oil payment transferred to the account of the non-party company was only transferred to the Non-party company, the non-party company, the large-scale carbon company without purchase, and the non-party company, the non-party company issued the non-party company’s trading density after being entered in the non-party company’s trading schedule and the non-party company issued the non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s trading.

Therefore, the plaintiff must prove special circumstances that there was no negligence due to the plaintiff's failure to know the disguised fact in the name of the tax invoice of this case. In other words, since the plaintiff operated the gas station, it seems that it could be sufficiently known about the normal structure and distribution route of the oil supply, the general form or method of the oil industry, the situation of transaction in the data, and the risk of transaction, and if he paid little attention, he could be known that the shipment slip issued by the non-party company was not issued normally. In light of the fact that the plaintiff was supplied by the non-party company with oil 10 won per liter, the plaintiff was supplied with the non-party company with the oil 25, 27 through 34, evidence No. 26-1, 26-2, and evidence No. 35-1, 35-5, and part of witness E, there is no evidence to acknowledge it otherwise.

3) Therefore, the Defendant’s disposition based on the premise that the instant tax invoice is a tax invoice different from the fact is lawful, and the Plaintiff’s above assertion is therefore groundless.

3. Conclusion

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