Cho High Court Decision 2009Du3830 ( October 11, 2010)

Oil retailers who have been issued a false tax invoice;

As petroleum retailers were issued a tax invoice different from the fact, and the Plaintiff is insufficient to recognize that the supplier is bona fide and without fault, the disposition that was imposed after non-deduction of the input tax amount is legitimate.

2010Guhap2369 Disposition of revocation of the imposition of value-added tax

XX fixed oil, Inc.

O Head of tax office

April 12, 2011

June 28, 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 104,039,920 for 2008 against the Plaintiff on July 9, 2009 and KRW 586,257,50 for 2008 shall be revoked.

1. Details of the disposition;

A. From October 15, 2007, the Plaintiff, a corporation engaged in wholesale and retail business of petroleum in XX 000 Dong 000 Dong 000, and paid the purchase tax invoice of KRW 611,172,727, total value of supply in the first taxable period of the value-added tax in 2008 from the O Energy Co., Ltd. (hereinafter “O Energy”), the purchase tax invoice of KRW 2,419,734,545, total value of supply in the second taxable period of the value-added tax in 2008, and the purchase tax invoice of KRW 2,419,734,545, total value of supply in the second taxable period of the value-added tax in the second taxable period of the value-added tax in 208, after deducting the purchase tax invoice of KRW 1,139,597,273 (hereinafter “the above tax invoice”).

B. On July 9, 2009, the Defendant deducted input tax amount under the instant tax invoice from the Plaintiff on the ground that the instant tax invoice was issued without a real transaction, and corrected the amount of value-added tax of KRW 104.039.920 in 2008, value-added tax of KRW 586,257,50 in 2008, and notified the Plaintiff (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on October 1, 2009, but the said appeal was dismissed on March 11, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1-1 and Eul evidence 1-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff was actually supplied with oil from the O-Energy △△ Energy, it does not constitute a case where the entries of the instant tax invoice are different from the facts.

Even if the above transaction was revealed as a disguised transaction on the data of domesticOO energy and △△ Energy, the Plaintiff was unaware of the fact that the OO energy and △△ Energy were the nominal master business operator, and was not negligent.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

(c) Fact of recognition;

(1) (A) On July 25, 2007, the O Energy was established by the representative director of EA and YY-Gu YYY-dong YYY-dong 1302 YY-dong 000 YY-dong 000. This is merely a representative director in form, and the actual operator was KimB and thisCC.

(B) On August 25, 2008, △△ Energy was established on the second floor of DoD and the location of the main office of DoD and AAdong AAdong 000-00. The △△ Energy was merely a representative director in the form of DoD and the actual operator was KimB and thisCC.

(2) At the time of the application for the registration of oil business, the O-Energy did not actually use the oil tank during the business period with respect to the oil tank between BB BB BB 00-0 and 50,000 liters at the time of the application for the registration of oil business. There was no fact that the oil tank used the oil tank during the business period, and there was no fact that the oil tank used the oil tank during the business period.

(3) Business days, daily funds, and tax invoices, etc. in the name of OE and △△ Energy were prepared by KimB, UF, etc. The KimE, UF, at the time of investigation into the World District Prosecutors' Office in Daejeon District Public Prosecutor's Office, KimB was actually operated by OE and △△△ Energy, etc. The above companies were formed to issue a normal tax invoice to the purchaser of the free oil due to the failure of the purchaser of the free oil to issue the tax invoice. Business days, △△△ Energy, etc., prepared in 208. OE and △△△△△ Energy received the oil price from the oil source and paid the right-hand amount after subtracting KRW 300,000 from 30,000 won per each time after receiving the oil price from the oil source, and made a statement to the effect that the distribution invoice was made in the name of OE and △△△△△△, and that the purchaser made a statement to the effect that the purchaser was made in the name of the weak.

(4) The KimB, an actual operator of the O-Energy and △△ Energy, stated to the effect that at the time of the investigation at the Incheon District Prosecutors’ Office in Daejeon District Prosecutors’ Office, the Plaintiff was engaged in oil transactions with oil distributors and received only tax invoices from O-Energy and △△ Energy.

(5) As a result of a tax investigation conducted from September 18, 2008 to December 26, 2008 on the taxable period of the value-added tax for the first and second years from December 26, 2008, the Director of the Central Regional Tax Office determined that the total amount of O energy reported was KRW 148,670,000,000, equivalent to approximately 94.51% of the total amount of KRW 157,19,000,000, and the total amount of KRW 147,674,000,000, equivalent to approximately KRW 93.99% of the total amount of purchase reported, which was KRW 157,119,00,000,000, which was not accompanied by each real transaction, and then disposed of O energy ex officio on December 24, 2009, and accused it as data on the prosecution.

(6) As a result of the tax investigation conducted from November 28, 2008 to January 23, 2009 on the second taxable period of value-added tax in 2008, the Director of the Daejeon Regional Tax Office determined that KRW 5.00,000, which is almost 100% of the total sales amount of △△△△ Energy, is a processed transaction that does not involve real transactions. Furthermore, the petroleum materials subject to the investigation, which received tax invoices from the first material and closed down only, and issued tax invoices to the subordinate material, made a false sales and purchase tax invoices by issuing tax invoices to the subordinate material on behalf of the second material distributors, and made a false tax invoice to receive false sales and purchase tax invoices from the intermediate merchants of △△△△△△△△△△△△, which was issued by the intermediate merchants of △△△△△△, and made a false tax invoice to the prosecutorial office that received false tax invoices from △△△△△△, etc.

(7) On June 18, 2009, the Daejeon District Court rendered a judgment of conviction of 4 years and fine, 161.4 billion won in imprisonment, and 76.8 billion won in imprisonment, and 2009. The Daejeon District Court rendered a judgment of conviction of 1.6 months and 7.8 billion won in fine, and the Daejeon High Court, which is the appellate court, found the defendant guilty of 2009No250, and found the defendant guilty of 3 years and 61.4 billion won in imprisonment with prison labor, and 1.6 billion won in fine, and 1.6 billion won in fine, and 1.6 billion won in the above judgment of 9.8 billion won in the case of 2008No226 in connection with the prosecution's indictments by the above tax authorities. However, with respect to KimB, the punishment of 3 years and 61.4 billion won in imprisonment with prison labor, and 1.6 billion won in the case of this case, 16.8 billion won in fine and 9.

[Reasons for Recognition] Eul evidence 2-1 to 3, Eul evidence 4, Eul evidence 5-1 to 6, Eul evidence 7-1, 2, Eul evidence 8 and 9-1 to 3, Eul evidence 10, 11-1 and 12-2, each of the statements, the purport of the whole pleadings

D. Determination

(1) The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts is the case where the necessary entries in the tax invoice are inconsistent with those in the transaction contract, etc. prepared between the parties to the goods or services, regardless of the formal entries in the transaction contract, etc., the parties to the transaction with respect to the goods or services. As seen earlier, OO energy and △△ Energy were accused of having never distributed the real goods, and the judgment of conviction was finalized on the ground that OE, KimB, the actual operator of △△△ Energy, and thisCC were issued a false tax invoice; the OE, the OE, the △△△△△ Energy reported at the time of the registration of the petroleum business operator; the fact that there was no room for using the OE, the person in charge of accounting management, the FOE, the OE, the △△△△ Energy, etc. were stated as those made by the suppliers to deliver the free oil to the purchaser of the goods or services, and thus, the plaintiff's actual purchase of the oil in this case constitutes a false tax invoice, not the supplier.

(2) Furthermore, as to whether the Plaintiff was unaware of the disguised fact in the name of the instant tax invoice, and whether there was no negligence on the part of the Plaintiff, the actual supplier and the supplier on the tax invoice may not be entitled to refund the input tax amount after deducting the input tax amount unless there is any negligence on the part of the person who was not aware of the fact in the name of the tax invoice, and the person who was provided with the tax invoice shall prove that there was no negligence on the part of the person who was not aware of the above fact in the name of the tax invoice (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). Thus, the Plaintiff’s assertion of the input tax amount deduction or refund must be proved (see, e.g., evidence Nos. 2-1 through 10, 3-1 through 3, evidence Nos. 4 and 5-1 through 3, 4, and 5, and the result of the Plaintiff’s personal examination by the Plaintiff’s representative.

(3) Rather, according to the fact that the Plaintiff was not aware of the fact that △△△△△ was the Plaintiff’s sales of the oil, △△△△△△, 7 Eul’s certificate 8, and 10 and 11, the Plaintiff’s representative director, at the time of the investigation, stated that the Plaintiff was not aware of the fact that △△△△△△△ was the Plaintiff’s sales of the oil, and that the Plaintiff was not aware of the fact that △△△△△△△△△ was the actual supplier’s sales of the oil at the time of the investigation, △△△△△△△△△△, and that the Plaintiff was not aware of the fact that △△△△△△△△△△△ was the actual supplier’s sales of the oil at the time of the investigation, and that the Plaintiff was not aware of the fact that △△△△△△△△△ was the actual supplier’s sales of the oil at the time of the investigation, and that the Plaintiff’s actual sales of the new and △△△ was confirmed.

(4) Therefore, the instant tax invoice constitutes a false tax invoice, and the Plaintiff is insufficient to recognize the fact that the Plaintiff was bona fide and without fault. Therefore, the instant disposition that the Defendant did not deduct the input tax amount equivalent to the instant tax invoice is lawful.

3. Conclusion

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