Early High Court Decision 2009Du1835 ( October 2010)

Oil distributors who have been issued a false tax invoice different from the facts entered by the supplier;

As a oil distributor, a tax invoice different from the facts entered in the false name was issued by the supplier, and it is insufficient to recognize that there was no negligence due to the failure to know the name of the supplier and the failure to know, so the disposition imposed by non-deduction of

2010Guhap15354 Revocation of Disposition of Imposition of Value-Added Tax

XX Kim

O Head of tax office

April 28, 2011

May 19, 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 48,968,150 against the Plaintiff on January 1, 2009 shall be revoked.

1. Details of the disposition;

A. From April 1, 2006 to May 31, 2008, the Plaintiff is an individual entrepreneur who has engaged in oil sales business under the trade name of "DD gas station" from 1079-1 to 'DD gas station'.

B. In 2007, the Plaintiff received oil through EE to intermediate oil in the second taxable period of the Value-Added Tax, and returned and paid the value-added tax to the Defendant by deducting the input tax amount after receiving the purchase tax invoice (hereinafter “the instant tax invoice”) from FF Energy Co., Ltd. (hereinafter “FF Energy”).

(C) On January 8, 2009, the Defendant issued false sales and purchase tax invoices without real transactions during the second taxable period of 2007, and the instant tax invoice was also dismissed on August 10, 2010, by denying the deduction of KRW 30,532,272, an input tax amount on the relevant tax invoice, which is an input tax amount under a disguised transaction by a supplier, and was corrected and notified as KRW 48,968,150 (including additional tax after deducting the tax amount already paid) for the second taxable period of 2007 (hereinafter referred to as the “instant disposition”). The Plaintiff appealed to the Tax Tribunal on March 6, 2009, but was dismissed on August 10, 2010.

[Ground of recognition] Evidence Nos. 1, 2-1, 2-2, and 1-1, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff was actually supplied with oil from the FF Energy, paid the price, and received the instant tax invoice. Thus, the said tax invoice cannot be deemed to be a false invoice. Even if otherwise, the Plaintiff was supplied with oil through EE that brokered the spot oil in good faith and without fault, and thus, the instant disposition that did not deduct the input tax amount of the said tax invoice was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Whether the instant tax invoice constitutes a false tax invoice

First of all, in light of the purport of the argument in each of the statements in Evidence Nos. 2, 6, and Eul evidence Nos. 2 through 6 (including each number), F Energy was reported to be leased and used for the oil storage tank of GGGGG at the time of the registration of petroleum sales business, but there was no entry of oil in relation to the FF energy in the above oil storage tank. The representative of JJ petroleum, the oil supplier of FJG oil, the JG oil supplier, was investigated on the data, and the LL and MM Energy Co.,, Ltd. were voluntarily closed on April 25, 2008. The fact that both the LLG and the MMF Energy Co., Ltd., the supplier of JJ petroleum, were accused of the investigation on the data, and that the FF energy supplier’s statement on all the oil distribution number, the vehicle number, the transporter, and the Plaintiff’s deposit in the name of the FFG account was found to be a false statement in the name of the Plaintiff’s account transfer.

According to the above facts, it is reasonable to view the FF Energy as the so-called “the data market that issues the processed tax invoice without actual oil transaction,” and it is reasonable to view that the actual source of supplying oil under the Plaintiff’s tax invoice is a third party, not FF Energy. Therefore, the instant tax invoice is deemed to be a false tax invoice which is different from the fact that the supplier makes a false statement.” Therefore, the Plaintiff’s assertion on this part is without merit, and 2) whether the Plaintiff

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, as to whether the Plaintiff did not know the name of the tax invoice of this case and did not commit negligence, some of the entries of No. 6-4 and No. 11 are insufficient to recognize it, and there is no other evidence to acknowledge it.

Rather, in full view of the following circumstances acknowledged by the aforementioned evidence, the Plaintiff appears to have been negligent in not knowing that the FF energy was not the supplier of the instant oil. In other words, the Plaintiff was engaged in the oil sales business from April 1, 2006, and such experience was likely to have been aware of the normal structure and route of the supply of the oil, the general forms and methods of the industry, and the circumstances of transactions in the oil industry widely spread to the oil industry and the risks of transactions. ② The Plaintiff sent the tax invoice to the customer at the end of the month at the end of 2007 by mail without receiving the tax invoice at the time of the purchase of the oil at the second time, but only received the tax invoice at the same time by dividing it into two. ③ The Plaintiff did not submit the invoice at the time of the delivery of the oil to the Plaintiff, including the Plaintiff’s 100 million won, and the Plaintiff did not submit the invoice at the time of the delivery of the oil to the Plaintiff and the Plaintiff’s 100 million won.

Therefore, we cannot accept this part of the plaintiff's assertion.

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.