Cho High Court Decision 2010Na3417 ( October 07, 2011)

Since the entries were neglected to confirm despite the receipt of the defective shipment mark, it shall not be recognized as good faith or negligence.

The Plaintiff’s failure to confirm the contents of the shipment slip, such as the time of issuance is written on a daily basis, and the temperature, weight, and density are most vacants, and it is not recognized as good faith and without negligence, since it was neglected to confirm even though the contents of the list were very poor compared to the general shipment slips.

Article 17 (Payable Tax Amount)

2011. Revocation of revocation of the imposition of value-added tax

XX

Head of Hongsung Tax Office

November 2, 2011

December 7, 2011

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 93,746,310 against the Plaintiff on July 13, 2010 shall be revoked.

1. Details of the disposition;

A. From October 1, 2009, the Plaintiff is a business operator operating a gas station (hereinafter “instant gas station”) with the trade name of 100-11, Hongsung-gun, Hongsung-gun, Hongsung-gun, Hongsung-gun, Pu (hereinafter “Ssi”) from 100-11.

B. In 209, the Plaintiff received each tax invoice for the second taxable period of value-added tax (hereinafter referred to as the “instant taxable period”) from ○00 days Co., Ltd. (hereinafter referred to as “○00 days”), which included the total supply value of KRW 476,818,184, and the total supply value of KRW 91,927,00,000 and the total supply value of KRW 568,745,184 (hereinafter referred to as “individual tax invoice”) from the total supply value of KRW 91,927,00,000, and filed and paid value-added tax by deducting the input tax amount from the output tax amount.

C. From May 13, 2010 to May 25, 2010, the Defendant conducted a tax investigation with respect to the gas station in the instant case, and thereafter, on July 5, 2010, deducted the input tax amount on the ground that each of the instant tax invoices was false, and notified the Plaintiff of KRW 93,746,310 of the value-added tax for the second period of value-added tax in 2009 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed a request for pre-assessment review to the Defendant, but was dismissed on July 2, 201, and on October 6, 2010, the Plaintiff filed a tax appeal with the Tax Tribunal, but was dismissed on February 7, 2011.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 6, Eul evidence 1 and 6 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) As the Plaintiff was actually supplied oil from ○○○○○ Day and ▽▽▽△ Plux (hereinafter collectively referred to as the “instant transaction entity”) and was normally traded by remitting the oil purchase price to the account in their names, each of the instant tax invoices is not a different tax invoice from the fact.

2) The Plaintiff confirmed the instant trader’s business registration certificate, petroleum sales registration certificate, corporate passbook, etc. by facsimile. Since both the instant trader and the Plaintiff verified the shipment slips, remittance of oil payments, transaction statement, and issuance of tax invoice were conducted normally, even if each of the instant tax invoices was false, the Plaintiff did not know such circumstances and did not commit any negligence.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On June 2, 2008, 000 ○○○○ Ship was a legal entity that started business. The results of the Daejeon Regional Tax Office’s tax investigation verify that the total amount of approximately 94% of the report on sale and the total amount of purchase were processed transactions. The Daejeon Seo-dong Office’s business registration and the Daejeon Seo-dong Office’s corporate register No. 00-14, 500-2, which is the seat of the Daejeon Seo-gu Office, did not scam the actual business. According to the tracking numbers, the office was established in the name of the 3rd-gu Office, 100-10 adult PC, and the office was prepared in the name of the 3rd Director of the Daejeon District Tax Office to prepare a separate tax invoice for sale and purchase and the total amount of 30% of the report on sale and the 3rd-gu Office’s account deposit was made in the name of the 3rd-gu Office, 1000-1, 3000 Y-10 Y.

2) A corporation that started business on January 8, 2009, as a corporation, the total amount reported on sales and the total amount reported on purchase was confirmed as a processing transaction as a result of the investigation by the Central Tax Office, and was confirmed to have no oil storage facilities, oil vehicles, etc., and the fact that there was no record of the fact that there was no record of oil transport, etc., but false tax invoices, statements of transaction, and shipment slips, etc. according to the instructions given by superior data, and if the oil was deposited from the gas station supplied with the oil to the account in the name of ▽▽▽ Pol-ro, the fact that the remaining amount was immediately deducted, and then the fact that the remaining amount was transferred to the higher data account was revealed

3) The Plaintiff was issued the name of the instant trading company from the SSH and Kim JW, which introduced the Plaintiff as the employee of the instant trading company, and commenced oil trading with the instant trading company, which presented a lower price than any other similar static. On about 23 occasions, the Plaintiff issued an order by directly phone call to the instant trading company and ordered the oil, and paid the oil to the account in the name of the instant trading company. On October 13, 2009, the Plaintiff was supplied with the oil after depositing the oil into the account in the name of the instant trading company. On October 13, 2009, the Plaintiff did not receive the shipment slip from the oil transport company.

4) The forwarding slips received by the Plaintiff from the instant trading company are written on the shipping date on a daily basis, and the weight, density, etc. are not entirely indicated, and the shipment slips are not written on the shipping date on the 0000-day publication slip, and the shipment slips are written only on the temperature column 10-day, and the shipment slips are written only on the temperature column 10-day, without clearly stating the address not to be released on each shipment slip, and are written only on the “Pongbuk-do (State), ○○00 days or (State)” in Chungcheong-si, Chungcheongnam-do. On the other hand, in the same taxable period, the shipment slips issued by the Plaintiff from the EM Co., Ltd., the shipment date is written on the first unit, and the shipment date is written differently by each shipment date.

5) During the instant taxable period, among the Plaintiff’s total purchase declaration amount of KRW 774,517,00, the purchase declaration amount of KRW 568,745,184, and KRW 73% of the total purchase declaration amount of KRW 73%.

6) The Defendant accused the Plaintiff against the police in violation of the Punishment of Tax Evaders Act pursuant to Article 10(2) of the Act on the Punishment of Tax Evaders; however, on August 23, 201, the prosecutor of the Daejeon District Prosecutors’ Office issued by the Daejeon District Public Prosecutor’s Hong Branch Office issued a tax invoice by the Plaintiff on the ground that it is difficult to recognize the fact that the Plaintiff was issued a tax invoice despite the knowledge that the tax invoice issued by the instant trader was false, and there is insufficient evidence to acknowledge the suspected fact of the crime, and thus, did not impose

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3, 6, 7, Eul evidence Nos. 2 through 8, 12, and 13 (including each number), the witness Park K's testimony, and the purport of the whole pleadings

D. Determination

1) Whether each of the tax invoices of this case is false

A) The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts refers to cases where the necessary entries in the tax invoice do not coincide with the actual subjects, values, and timing of the supply or supply of the goods or services.

B) On the instant case, according to the evidence submitted by the Plaintiff, the Plaintiff is deemed to have been actually supplied with oil in the quantities listed in each of the instant tax invoices, but even so, if the transaction partner who supplied oil to the Plaintiff is not a ○○○○○ and another supplier, which is indicated as a supplier on the tax invoice, but a different supplier, each of the instant tax invoices becomes a different tax invoice from the fact. As such, whether the Plaintiff supplied oil constitutes a ▽▽▽△” or not is deemed to have been actually supplied to the Plaintiff.

In light of the following circumstances revealed by the facts acknowledged as above, i.e., that most of the purchase details of the instant transaction companies were processed transactions, and in the absence of such purchased oil, it cannot be deemed that the Plaintiff actually supplied oil to the Plaintiff. ② The instant transaction company reported that the Plaintiff had oil storage facilities and oil transport equipment in form while registering the petroleum sales business, but it seems that the Plaintiff could not actually use them at all, it is reasonable to deem that the oil supplier of the quantities listed in each of the instant tax invoices is a third party, not the instant transaction company. Accordingly, it is reasonable to deem that each of the instant tax invoices received by the Plaintiff constitutes a false tax invoice by the supplier. The Plaintiff’s allegation in this part is without merit.

2) Whether the Plaintiff acted in good faith and without fault

A) Furthermore, as to whether the Plaintiff was unaware of the difference between the supplier and the actual supplier as stated in each of the instant tax invoices, and whether there was no negligence on the part of the supplier and the actual supplier, the actual supplier and the supplier on the tax invoice cannot deduct or refund the input tax amount unless there are special circumstances that there was no negligence on the part of the supplier due to the failure of the supplier to know the fact of misrepresentation in the name of the tax invoice, and that the supplier was not negligent on the part of the supplier due to the failure to know the fact of misrepresentation in the name of the tax invoice, the person claiming the input tax deduction or refund of the input tax amount must prove it (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009); and there is no evidence to acknowledge it otherwise.

B) Rather, the following circumstances revealed by the facts acknowledged earlier, i.e., ① the Plaintiff started transactions with the instant trading company through the oil with its actual supplier, and there was a need to pay attention to the actual supplier of the oil. ② Although the temperature and density of oil changed and the temperature and density are relatively accurate, the Plaintiff’s entry in the pre-delivery list issued by the instant trading company is not only the first time but also the number and density of the cargo, but also it appears that the Plaintiff was very poor compared to the general pre-delivery list, such as the time of the issuance, the temperature, weight, and density of the oil supply. ③ Even if the Plaintiff did not know of the fact that the Plaintiff did not receive the Plaintiff’s purchase of the oil from the Plaintiff’s actual supplier during the pertinent taxable period, the Plaintiff did not have any material fact that the Plaintiff did not receive the Plaintiff’s demand for the supply of the oil from its actual supplier, including the date and time of the shipment, the name of its customer, the arrival, items, temperature, density, etc., the Plaintiff’s total quantity of the oil delivery of the oil to the destination.

3. Conclusion

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