Cho High Court Decision 2009J 2088 (Law No. 19, 2010)

A gas station operator who has received a false tax invoice from the supplier;

It is reasonable to deem that a business operator operating a gas station has been issued a tax invoice different from the fact, and that the supplier was negligent in failing to conduct an investigation despite the necessity of investigating who is the actual other party. Therefore, the disposition imposing value-added tax and corporate tax is legitimate.

2010Guhap2543 Disposition of revocation of imposition, including value-added tax

○○ Co., Ltd.

○ Head of tax office

April 12, 201

June 7, 2011

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

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

① The Defendant’s disposition of imposition of KRW 15,269,040 for the second term portion of 2006 imposed on the Plaintiff on August 1, 2008, KRW 33,750,10 for the second term portion of 2007, KRW 9,750,160 for the corporate tax for the year 2008, ② the Plaintiff on September 1, 2009, KRW 83,895,250 for the first term portion of 2008, KRW 11,148,840 for the corporate tax for the year 2007, KRW 87,234,60 for the second term portion of value-added tax for the year 207 for the Plaintiff on February 1, 201.

1. Details of the disposition;

A. From June 5, 2003 to ○○○○○○○-ri 772-2, the Plaintiff is a corporation that engages in retail business of petroleum products.

B. The Plaintiff received a tax invoice of KRW 487,50,09,091 in total from △△△ in the taxable period of February 2006 and January 2007, and filed a value-added tax return including the total value of supply from △△△△ Energy Co., Ltd. (hereinafter referred to as “△△△△”) and the total value of supply from △△△△ Energy Co., Ltd. (hereinafter referred to as “△△ Energy”) during the taxable period of the value-added tax, February 2, 2007, the Plaintiff filed a tax invoice of KRW 917,010,089 in total, and the value-added tax return was filed, including the value-added tax invoice of KRW 487,509,09,091 in total among the taxable periods of the value-added tax for the first taxable period of the value-added tax (hereinafter referred to as “the tax invoice of this case”).

C. The Defendant, who traded oil with the Plaintiff, issued false sales and purchase tax invoices without real transaction. The instant tax invoice issued by the Plaintiff from each of the above companies also constitutes a false tax invoice. The Defendant denied the Plaintiff’s input tax deduction pursuant to the instant tax invoice, imposed each value-added tax on the Plaintiff as stated in the purport of the claim (hereinafter “instant disposition imposing the value-added tax”), and imposed each corporate tax on the Plaintiff on the grounds that the Plaintiff did not keep the tax invoice, which is a document evidencing the transaction (hereinafter “instant disposition imposing each corporate tax”), and imposed each corporate tax on the purport of the claim on the grounds that the Plaintiff did not keep the tax invoice, which is a document evidencing the transaction (hereinafter “instant disposition imposing each corporate tax”).

D. On May 1, 2009 and May 12, 2010, the Plaintiff filed a suit of this case with each of the Tax Tribunal upon receiving a request for a trial on each of the dispositions of this case. The Plaintiff filed the suit of this case upon receiving a request for a trial from each of the Tax Tribunal.

[Ground of recognition] Facts without dispute, Gap 1 through 4, 35, 36 evidence, Eul l through 4 (including each number, if any), the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

Since the Plaintiff purchased oil from △△△ Energy, △△△ Energy, and △△ Energy and received a tax invoice, each of the above tax invoices received by the Plaintiff cannot be deemed to constitute a false tax invoice. In addition, in that sense, the Plaintiff was unaware of the fact that each of the above companies was a disguised business operator, and was negligent in not knowing the fact, and thus, the disposition imposing the value-added

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether the disposition of value-added tax of this case is legitimate

A) Whether the instant tax invoice constitutes a disguised transaction or processing transaction

In light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that if the entries of a tax invoice under the Value-Added Tax Act are nominal, and there is another person to whom such entries belong, the person to whom such entries belong shall be liable to pay taxes, the phrase “if the necessary entries of the tax invoice do not coincide with those of the person to whom the goods or services are actually supplied or supplied, and the price and time of the goods or services, regardless of the formal entries of the transaction contract, etc. prepared between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 1996).

In full view of the following facts, each tax invoice received from △△ Energy, △△ Energy, and △△ Energy shall be deemed to constitute a different tax invoice from the actual supplier of the oil through a disguised transaction without actual transaction, taking into account the following facts, which can be acknowledged by comprehensively taking into account the descriptions of evidence Nos. 6 through 23 (including the number of each branch number, if any) and the testimony of YA as a witness:

① Since September 2004, △△△△△△△△ Group leased and used an oil storage tank (1,000 principal) from △△△△ Group, Inc., Ltd., and there was no fact that oil was stored and released after around September 2006.

As a result of the tax investigation of △△△ Energy by the Central and Medium Regional Tax Office, from July 2006 to October 2006, 10 banks opened a borrowed account, and around 71,000,00,000 won out of 99.5% of the purchase tax invoice received amount was processed sales, and KRW 71,00,000,000,000, out of KRW 71,50,000,000, out of the value-added tax period between February 2, 2006 to 1, 2007, was made difficult to trace funds by immediately withdrawing in cash or remitting to the energy of △△△△△, a processing-purchase company, etc.

② As a result of the investigation by the director of the Gangseo-gu Tax Office on the △ Energy, without using the storage facilities and transportation equipment stated in the petroleum sales registration certificate for the reason that the △ Energy was processed and purchased KRW 96,92,000, approximately KRW 96,925,000, most of the amount of the amount of the oil sales tax invoice issued during the 1st taxable period of 2008, and approximately KRW 96,81,000,000 among the purchase tax invoice received KRW 96,81,00,000, most of the amount of the purchase tax invoice received KRW 96,828,00,000 were processed and purchased.

The purchase price of oil deposited into the deposit account of ○○ Energy was immediately deposited in the data merchant’s account and immediately withdrawn, or deposited into the account in the name of one BB account of △△△ Petroleum, a purchaser of energy, and withdrawn on that day. The data merchant’s energy was closed ex officio on March 31, 2008, and the registration of petroleum sales was revoked on April 3, 200.

③ 중부지방국세청장의 ◇◇에너지에 대한 세무조사결과, ◇◇에너지는 2006. 9. 4. 주식회사 ◆◆에너지로부터 ♧♧시 ♧♧구 ♧♧동 683-5 소재 유류저장탱크를 보증금 20,000,000원, 월 임료 250,000원에 임차하여 석유류 도매업 허가를 받았으나, 실제 위 저장탱크로부터 유류가 출하된 사실은 없고 ◇◇에너지가 유류 운송에 따른 수송장비를 보유하거나 수송장비를 임차한 사실도 없으며 실제로 유류를 운송한 사실도 없는 것으로 밝혀졌다. 또한, ◇◇에너지는 2007년 2기 부가가치세 과세기간 중 35,779,842,000원의 유류를 매입하였다고 신고하였으나, 그 중 99.8%인 35,711,715,000원은 ◇◇에너지와 같은 사무실을 사용하던 자료상인 주식회사 ♤♤에너지로부터 실물 거래 없이 매입세금계산서를 교부받은 것으로 밝혀졌다.

Meanwhile, the shipment slips issued by △△ Energy to the Plaintiff from July 2007 to December 2007 do not print the unique trade name of the oil company, and the shipment time, the vehicle card number, etc. are not indicated, but the oil temperature is 10.50∑C and the density is 828.5.5.

B) Determination on the Plaintiff’s good faith and negligence

An actual supplier and a supplier on a tax invoice shall not be allowed to deduct or refund an input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not knowing the fact that the purchaser was unaware of the nominal name (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002).

Therefore, in full view of the overall purport of the pleadings in the testimony for the cognition of witnesses as stated in the evidence evidence Nos. 5 through 34, 37 through 65 (including each number, if any), the Plaintiff received a tax invoice from the above △△△ Energy, △△ Energy, and △△△ Energy, and remitted the corresponding amount to each of the above companies, and the Plaintiff received oil corresponding to the oil and entered it in the inventory such as inventory assets. However, the fact that the Plaintiff received the said tax invoice and entered it in the inventory such as inventory assets can be acknowledged. However, the above fact that the Plaintiff was unaware of the name of each of the above companies, and was not negligent.

Rather, in full view of the statements in Eul evidence No. 23 and the overall purport of the pleadings in the witness testimony, each of the above companies recognized prior to the failure to verify the fact that each of the above companies stated different oil shipping places on the oil storage place and on the shipment slip in the above △△△ Energy, △△ Energy, and △△△ Energy, did not store and transport oil in the oil storage place, and each tax invoice delivered or issued by each of the above companies was revealed to be false, and the plaintiff returned to the three oil companies within the short period from February 2, 2006 to January 2008 during the taxable period of value-added tax, as mentioned above, it is reasonable to deem that the counterpart to the oil transaction was aware that the party to the transaction was not the above △△△ Energy, △△ Energy, and △△△ Energy, or that there was a need to investigate whether the other party to the transaction was the actual counterpart of the transaction.

2) Whether the disposition of the instant corporate tax was lawful

The fact that the disposition of imposition of corporate tax of this case was imposed on the ground that the plaintiff did not keep a tax invoice, which is a document evidencing the transaction, is identical to the above facts. In light of the overall purport of the pleadings, the plaintiff can be acknowledged as not keeping the above data. Thus, the disposition of imposition of corporate tax of this case is legitimate (the plaintiff did not assert that the disposition of imposition of corporate tax of this case

3. Conclusion

Therefore, each of the claims of the plaintiff in this case is dismissed as it is without merit, and it is so decided as per Disposition.