The legitimacy of the assertion that there was an actual transaction on a processed tax invoice that does not carry out a real transaction

If a tax invoice has been prepared in a fraudulent manner without a real transaction, it is necessary to prove that the amount paid under the tax invoice of this case has been actually paid by the defendant.

Article 17 of the Value-Added Tax Act

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

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

Cheong-gu Office

The Defendant’s imposition of global income tax of KRW 29,216,630, value-added tax of KRW 9,720,510 against the Plaintiff on October 6, 2005 is revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each of the evidence Nos. 1, 1, 2, 3-1, 3-2, and evidence No. 1 through 3.

A. In filing a return of the value-added tax for the second term of 2004 and the global income tax for the year 2004, the Plaintiff, who operates the ○○ Gas Co., Ltd. (hereinafter “non-party Co., Ltd.”). On December 30, 2004 on the date of preparation, he deducted the input tax amount from the output tax amount by using two copies of the purchase tax invoice indicating the total supply value as KRW 76,636,362 (hereinafter “the instant tax invoice”), and included the supply value in deductible expenses.

B. After that, on October 6, 2005, the Defendant issued a revised notice of KRW 9,720,510 of the value-added tax for the second term of 2004 and KRW 29,216,630 of the global income tax for the year 2004 on the ground that the instant tax invoice is a tax invoice for processing no real transaction (hereinafter “instant disposition”).

2. Whether the disposition is lawful;

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful in light of the above disposition reasons and related Acts and subordinate statutes, and the plaintiff received the tax invoice of this case from the non-party company through ○○, a business employee of the non-party company. Thus, the tax invoice of this case is not false, and thus the disposition of this case is unlawful, and even if the tax invoice of this case is different from the facts, the plaintiff paid oil to the non-party company, not the non-party company, but the non-party company, and even if the tax invoice of this case is not true, the plaintiff paid oil to the plaintiff to the non-party company, the amount of supply should be deducted

B. Determination

(1) Fact finding

The following facts may be acknowledged in light of the purport of the whole pleadings in each statement of evidence Nos. 2-2 through 7, Eul evidence Nos. 3, 4-1, 2, and 6.

(A) On the other hand, the transaction list in the name of the non-party company stated that the non-party company supplied 14,581,818 won via the 30th day of the same month to the Plaintiff each of 14,545,454 won while the non-party company entered the supply price of the 62,000 liter via the 62,000 liter on December 6, 2004; the supply price of 14,509,000 won via the 24th day of the same month; the supply price of 20,000 liters via the 30th day of the same month; and the transaction list in the name of the non-party company provides the non-party company to the Plaintiff with the supply price of 47,034,000 won through the 60th day of December 6, 2004; the supply price of 14,436,000 won through the same month; the supply price of 30,0000 liter per month.

In addition, the shipment slips in the name of the non-party company stated that the non-party company supplied the plaintiff with 20,000 liters via November 18, 2004, 12,000 liters via the 26th day of the same month, 20,000 liters via the 26th day of the same month, and 22,000 liters via the 14th day of the same month, 20,000 liters via the 20,000 liters on the 21st day of the same month, and 20,000 liters via the 24th day of the same month, and 20,000 liters via the 24th day of the same month, and the plaintiff's goods receipt and payment register are written as follows.

(B) The Plaintiff, in addition to the instant tax invoice, holds one sheet of tax invoice prepared on January 31, 2005 in the name of the non-party company. The Plaintiff stated that the non-party company supplied 20,000 liters via January 4, 2005 to the Plaintiff for supply price of KRW 15,545,454, and KRW 12,000 via January 17, 200, respectively, for supply price of KRW 9,218,181.

(C) The Plaintiff wired 147,610,000 won in total over 13 times between November 12, 2004 and December 28, 2004, and ○○○ transferred 154,596,000 won in total to the account in the name of Nonparty Company and the account in the name of ○○○○○○, the representative director of the Nonparty Company, over 15 times during the same period. The ○○○ wired 106,100,000 won in total from November 25 to December 31 of the same year to ○○○○.

(D) The non-party company registered incorporation on October 26, 2004 and registered its business on December 22, 2004, but did not have any specific place of business and did not have oil storage facilities.

(E) Meanwhile, the Plaintiff asserted that ○○ Energy Co., Ltd. purchased oil and received the instant tax invoice in the name of the non-party company at the time of submitting explanatory materials as to the Defendant’s pre-announcement of taxation, but the Plaintiff reversed the previous argument at the time of raising an objection and requesting a trial against the disposition of this case, and claimed that the Plaintiff purchased oil from the non-party company as alleged in the instant lawsuit.

(2) Determination

In an administrative litigation seeking revocation of a taxation disposition on the grounds of illegality, the tax authority bears the burden of proving the legality of the taxation disposition and the existence of the taxation requirement fact. Thus, the tax authority should also bear the burden of proving necessary expenses which are the basis of the determination of taxable income. However, in a case where a tax invoice on some of the expenses reported by a taxpayer was prepared in falsity without a real transaction, it is proved to a considerable extent by the tax authority, and where special circumstances exist, such as the purpose of the cost claimed by the taxpayer and the case where it is proved to the extent that the other party to the payment was false, it is easy for the taxpayer to present data, such as books and evidence, regarding that such expenses have been actually paid (see Supreme Court Decision 2005Du16406, Apr. 14, 2006).

In light of the above legal principles, the above facts are as follows: ① each supply value of the tax invoice of this case and the supply value on the transaction statement in the name of the non-party company is different. The supply date, supply amount, etc. on the tax invoice of this case and the above transaction statement are different respectively from those of the non-party company's shipping prior to shipment in the name of the non-party company, and the plaintiff's injury to the non-party company; ② total amount of 147,610,000 won or more (including value-added tax; hereinafter the same shall apply) is 84,30,000 won in total, and the preparation date of the tax invoice in the name of the non-party company was difficult to prove that the non-party company's payment was legitimate by adding the amount of 27,240,000 won on January 31, 205 to the non-party company's transfer money to the non-party company's non-party company's non-party company's non-party company.

3. Conclusion

Therefore, all of the claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.