Suwon District Court 2013Guhap2359 ( October 26, 2014)

The tax invoice of this case is a false tax invoice which is entered falsely by the supplier.

The tax invoice of this case issued by the Plaintiff is a false tax invoice which is different from the fact that the supplier has entered false matters, and the good faith and negligence should not be recognized.

Seoul High Court 2014Nu4929 Disposition Revocation of Value-Added Tax Imposition

KimA

BB Director of the Tax Office

Suwon District Court Decision 2013Guhap2359 Decided March 26, 2014

September 3, 2014

October 22, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's imposition of value-added tax for the second period of 2010 against the plaintiff on May 2, 2012 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows, except for the addition of the judgment on the Plaintiff’s assertion that the Plaintiff emphasizes in particular in this court, and thus, it is identical to the reasoning of the judgment of the court of first instance. Thus, it is acceptable to accept it as it is in accordance with Article 8(2) of the Administrative Litigation

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

1) The assertion thatCC energy is a genuine supplier

Since it is confirmed thatCC Energy has remitted oil prices to its actual large oil refinings at the time of the transaction with the Plaintiff, and it is also confirmed that it has remitted freight to a transport engineer, the transaction ofCC Energy with the Plaintiff regardless of the relationship betweenCC Energy and KK should be deemed as having its substance and it does not constitute a processing transaction.

2) The assertion that it is bona fide and without fault

Even if the Plaintiff actually supplied oil to the Plaintiff, the Plaintiff is a bona fide trading party with the duty of care necessary for the transaction, such as confirming the business registration certificate, petroleum sales certificate, corporate passbook, etc. ofCC energy, and issuing a shipment slips issued by statics. Thus, the instant disposition is unlawful.

B. Determination

1) The assertion thatCC energy is a real supplier

In full view of the evidence adopted in the reasoning of the judgment of the court of first instance as cited by this judgment, comprehensively considering the results of each fact-finding conducted on the Z Bank, YY Energy Co., Ltd., and the overall purport of the pleadings, it is deemed that there are sufficient circumstances to suspect that the tax invoice in this case is false, and on the contrary, it is insufficient to deem that the CC energy was proven to be the true supplier of the oil in this case.

In other words, the Plaintiff purchased oil at a higher price than directly purchasing oil in staticly through the JJ of the business employees for a few years from the second taxable period of the value-added tax in 2007. Even though the Plaintiff had been through the same business employee, the name of the business partner has been changed to GG energy, HH solution, Y Energy, OOTT, andCC energy.

②CC energy is a company that operates a representative W mixed without employees, and there was no actual use of the oil tank, such as oil tank necessary for petroleum retail business. Moreover, at the time of the police investigation, it stated to the effect that, upon receiving orders from the relevant company, such as the Plaintiff’s gas station through its employees, it was ordered by telephone to the president of KK KimL, and that, on the other hand, it was directly supplied to the customer.

③ CC에너지의 2009년 제2기부터 2010년 제1기 세금계산서 수취내역에 의할 때 99% 이상의 물량을 매입한 매입처는 주식회사 KKK이다. 그런데 KKK은 실물거래 없이 가공세금계산서를 발행하고 수취한 100% 자료상으로 확인되었고, KKK 대표자 김LL은 경찰 조사 당시 자신은 명의만 대여하였고, KKK은 실제 운영자 최QQ이 무자료 유류를 유통시키는 데 이용하는 회사인 것으로 알고 있다고 진술하였다.

④ Meanwhile, in light of the details of the transaction of theCC energy, there are some details that appear to have been deposited in the large oil refinery before and after the time of the transaction with the Plaintiff’s gas station, and the details of the deposit to the transport engineer. However, in light of the above circumstances, it is difficult to view the above deposit alone as the principal agent to purchase and supply oil from the oil oil refinery, and there is no other evidence to acknowledge this.

⑤ It is true that the Plaintiff was convicted of a non-prosecution disposition in a criminal case against the violation of the Punishment of Tax Evaders Act relating to the instant case. However, the administrative trial or civil trial is not bound by the non-prosecution, but can sufficiently recognize the facts opposed to the non-prosecution disposition based on evidence (see, e.g., Supreme Court Decision 87Nu493, Oct. 26, 1987). The reason for non-prosecution disposition is that, considering the details remitted by the Plaintiff, it is difficult to deem that the Plaintiff, only a retail company, was suspected of committing a crime in violation of the Punishment of Tax Evaders Act, and thus, it cannot be deemed that the content of the instant tax invoice is consistent with the facts

Ultimately, the Plaintiff’s assertion with a different purport is rejected.

2) Good faith and without fault

On the other hand, the following circumstances, which are acknowledged by adding to the whole purport of the arguments adopted on the grounds of the judgment of the court of first instance as cited in this judgment, are as follows: (i) the Plaintiff has been operating a gas station for a long time; (ii) the Plaintiff seems to have been actually doing business with the businessJ, and (iii) the Plaintiff seems to have been able to have been engaged in the transaction with the business personnelJ; (iv) even though there were various doubtful circumstances, such as the fact that the oil price is considerably less than purchasing directly oil, and the name of the company doing the transaction through the same business operator has been continuously changed, it is not easy to readily understand that it is a oil traded through the normal distribution process; (iii) furthermore, there are various doubtful points, such as whether the Plaintiff received the shipment prior to the shipment prior to the shipment prior to the shipment prior to the arrival of the destination, and whether the destination has been a different gas station, and thus, it is difficult to view that the Plaintiff continued to engage in the transaction without any objective doubt in light of whether it was a good faith party.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and it is so decided as per Disposition.