early 2010 Heavy1309 ( December 27, 2010)

No party can be recognized as a party to a transaction that was unaware of the actual supplier’s name.

The plaintiff as a gas station business operator seems to have failed to actually verify the location of the place of business or business facilities, etc. despite the fact that the actual supplier is who is the actual supplier, and that there were sufficient circumstances to suspect whether the nominal supplier of the tax invoice is not the material, and on the contrary, there is no other evidence to prove that the plaintiff was not negligent in not knowing the actual supplier's name, and thus the disposition which the plaintiff imposed after

2011Guhap2720 Revocation of Disposition of Imposition of Value-Added Tax

○○ Co., Ltd.

○ Head of tax office

June 30, 201

August 11, 201

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of value-added tax amounting to KRW 4,443,950 for the first period of 2008 against the Plaintiff on January 4, 2010 shall be revoked.

1. Details of the disposition;

A. From July 1, 2006, the Plaintiff is a business operator who is operating a gas station business under the trade name of ○○○-dong 1784-1 to ○○○○○.

B. In filing a return on the value-added tax for the first period of March 2008, the Plaintiff filed a return on the value-added tax by deducting the corresponding input tax amount from the output tax amount on the basis of the tax invoice dated March 31, 2008, stating that the Plaintiff was supplied 20,000 litres from the △△ Energy Co., Ltd. (hereinafter “△△△”) to KRW 27,800 (including value-added tax) on March 31, 2008.

C. On January 4, 2010, a mid-term regional tax office, which conducted a survey on data on △△ Energy, judged that the instant tax invoice was received without a real transaction, and notified the Defendant of such fact. The Defendant did not deduct the input tax amount corresponding to the instant tax invoice from the output tax amount, and subsequently corrected and notified the Plaintiff of KRW 4,443,950 for the first quarter of 2008 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on April 5, 2010, but the claim was dismissed on December 27, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, 2-1, Gap evidence 3-1, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff received the instant tax invoice after receiving the actual oil from △△ Energy, and even if the actual supplier of the oil did not receive △△ Energy, the Plaintiff received a copy of the △△ Energy’s business registration certificate and a copy of the passbook prior to the transaction, and confirmed the transaction amount, and remitted the transaction amount to the account of △△ Energy, so the Plaintiff fulfilled its duty of care as a bona fide transaction party. Therefore, the instant

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Determination

1) Article 17(2)1-2 of the Value-Added Tax Act provides that an input tax amount shall not be deducted from the output tax amount in a case where the entries of a tax invoice are different from the fact. In this case, the meaning that it differs from the actual tax amount is the name of income, profit, calculation, act or transaction subject to taxation, and if there is a separate person to whom it actually belongs, the person to whom it actually belongs shall be a tax obligor and the person to whom it actually belongs shall be a tax obligor. In light of the purport of Article 14(1) of the Framework Act on National Taxes, where the necessary entries of a tax invoice are inconsistent with those of the parties to the transaction contract, etc. prepared between the parties to the goods or service, notwithstanding the formal descriptions of the transaction contract, etc

2) According to the purport of Gap evidence 3-2, Gap evidence 4-1, 2, and 5-1 to 5-5 of Gap evidence 3-2, Gap evidence 4-2, Gap evidence 5-1, and the whole arguments, the plaintiff submitted the oil transfer of 20,000 liter through the oil tank to ○○○ station oil station on March 6, 2008, and entered them into the storage tank. The plaintiff transferred 28,700,000 won through the credit transfer account on March 7, 2008, which is the next day, to the plaintiff's remittance account, but it is stated as △△△△△△△△△△ (in light of the contents of other transfers recorded in the remittance account, the plaintiff was deemed to have received the above tax invoice from △△△ bank's account, and the plaintiff was deemed to have received the tax invoice from △△△△△, and the plaintiff was found to have received the above tax invoice from △△.

3) However, the following circumstances, which are acknowledged as comprehensively taking account of the overall purport of the arguments in the statement No. 2 and No. 2-1 of the evidence No. 2, namely, the oil storage facilities reported as leased by △△△△ Energy at the time of business registration as a result of the data survey by the Jungbu regional tax office, were found to have never been actually used and no oil storage facilities were used for the oil storage facilities other than the oil storage facilities located in △△△△△△ City. Furthermore, 94.51% of the output tax for the first and second half years reported by △△△△△△△ City was identified as a processing transaction. Such processing transaction was not included in the Plaintiff on the basis of the vehicle transport details by each seller on the relevant computerized account book. However, the above processing transaction of △△△△ Energy received a tax invoice from the Plaintiff and the Plaintiff issued the tax invoice at the request of △△△△△△△△△△△△△△△△△△△△△, and the Plaintiff appears to have been paid the instant tax invoice through the Plaintiff’s account.

Therefore, even though the third party supplied oil, the tax invoice of this case is a tax invoice stating the supplier as false energy in △△, and constitutes a tax invoice stating differently from the fact under Article 17 (2) 1-2 of the Value-Added Tax Act.

4) Furthermore, as in the instant tax invoice, the actual supplier and the supplier on the tax invoice are not entitled to deduct or refund the input tax amount unless there is any special circumstance that the supplier and the supplier on the tax invoice were unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not knowing the nominal name of the tax invoice (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28, 2002). As the Plaintiff’s own statement, the Plaintiff was supplied with oil entered in the instant tax invoice at least 30-40 won per liter, rather than where the oil was supplied by the oil company, and the Plaintiff was issued a copy of the △△△△ Energy’s business registration certificate from the BB, which was found to be a business director on the oil transaction prior to the instant tax invoice, but the Plaintiff did not appear to have any other evidence to prove that the actual supplier and the supplier did not have any doubt as to the material under the name of △△△△△, etc. in fact.

5) Therefore, the instant disposition, which issued a correction and notice of value-added tax, is lawful, without deducting the input tax amount from the output tax amount.

3. Conclusion

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