Review Division 2009-0188 ( December 21, 2009)

Whether a processing tax invoice without real transaction related to oil purchase has been received

In addition, the customer who purchased oil at any oil reservoir throughout the country has not received the shipment of oil, and the customer who received the registration as a petroleum seller has not entirely used the oil storage facilities or transport vehicles, etc. reported, and it is deemed that he received the processed tax invoice which is not a real transaction.

The contents of the decision shall be the same as attached.

1. The Defendant’s disposition of imposition of value-added tax amounting to KRW 18,002,544 for the first period of 2008 against the Plaintiff on November 1, 2009 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 50% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

Main Paragraph 1 and the Defendant’s disposition of imposition of value-added tax for the second period of 2007 against the Plaintiff on November 1, 2009 shall be revoked.

1. Details of the disposition;

A. From August 25, 2006, the Plaintiff operated ○○○○○○, 188-592, ○○○○○○○○, ○○○○○, and filed a value-added tax return by deducting the input tax amount, etc. according to the tax invoices prepared by ○○, ○○○, 188-592, as follows, and by deducting △△ Energy Co., Ltd. via the following transit (hereinafter referred to as “○○○ Energy”) and △△△

B. On November 1, 2009, the head of the Busan Regional Tax Office and the head of the Yangyang District Tax Office conducted an investigation into △△ Energy and △△ Energy, and determined that the said tax invoice was prepared only on data, and notified the Defendant of such fact. On November 1, 2009, the Defendant notified the Plaintiff of the rectification of KRW 4,160,159, and KRW 18,002,544 for the second year value-added tax for the year 2007, which was calculated by not deducting the said input tax amount from the said input tax amount.

[Reasons for Recognition] The purport of the whole pleadings in the evidence Nos. 1 and 8 with no dispute

2. The assertion and judgment

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) Since the above tax invoices were prepared in receipt of light oil from △△ Energy and △△ Energy, they cannot be viewed as false tax invoices.

(2) Even if the above tax invoice is a tax invoice different from the fact, it is unreasonable for the Plaintiff to not deduct the above input tax amount, since it was the fact that the Plaintiff was believed to have been supplied via △△ Energy and △△ Energy, and that it was supplied via the supply.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Determination on the tax invoice issued and received by △△ Energy

(A) Article 17(2)1 of the Value-Added Tax Act provides that input tax amount in a case where the entries of a tax invoice are different from the facts shall not be deducted from the output tax amount. In this case, the meaning that it is different from the facts is stipulated that if the ownership of income, profit, calculation, act or transaction, which is the object of taxation, is nominal, and there is another person to whom it actually belongs, the person to whom it actually belongs, shall be liable for tax payment and the relevant tax law shall apply. 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 person to whom the goods or service is actually supplied or supplied, regardless of the formal descriptions of the transaction contract, etc. prepared between the parties to the goods or service (see Supreme Court Decision 96Nu617, Dec.

이 사건에 관하여 보건대 을 3, 5, 6, 9호증(가지번호 포함)의 각 기재에 변론 전체의 취지를 종합하면,① ◇◇에너지는 주식회사 ●●에너지, ▲▲에너지 주식회사, ◁◁에너지 주식회사로부터 유류를 구입한 것으로 되어 있으나, 실제로는 위 회사들은 물론 전국 어느 저유소로부터도 그의 명의로 유류를 출하 받은 적이 없을 뿐만 아니라 석유판매업등록을 위하여 ◆◆널 주식회사의 저장시설인 저유소와 수송차량 등에 대한 임대차계약을 체결하였으나 그 저유소와 수송 차량을 사용한 바도 없는 사실, ② ◇◇에너지의 실제 사업자인 장AA는 실물거래 없이 허위 세금계산서를 교부받거나 교부하면서 이익을 얻는 소위 자료상을 하기로 마음먹고 ◇◇에너지를 개업하여 '이BB'이라는 가명을 사용하면서 전무라는 직책으로 활동하였는데, 2007. 7.경부터 실물거래 없이 주유소들에 ◇◇에너지 명의의 세금계산서를 교부하고 일정 수수료를 지급받는 거래를 하였고, 이러한 거래를 할 주유소를 확보하는 것이 원활하지 않자 무자료 비과세 유류 유통업자 조진호 등과 연계하여 주유소에 무자료 유류가 배달되도록 한 사실,③ 한편, 정상적으로 유통경로를 거쳐서 유류가 주유소에 배달되는 때에는 정유사의 저유소 등에서 출하당시 발행된 출하전표(출하일시, 거래처명, 출하지, 도착지, 수송 장비, 품목 및 출하량, 온도, 비중 등이 기재됨) 4장 중 1장은 주문자가, 1장은 저 유소가 각 보관하며, 2장은 해당 유류 운반차량의 운전자에게 교부되어 유류가 배달된 거래처 주유소의 서명을 받아서 그 중 1장은 운전사가, 나머지 1장은 주유소에 교부되는데, 이와 같은 정상적인 출하전표에는 석유제품의 용도에 따라 이후 부피에 증감이 있기 때문에 출하일시, 출하당시의 용도 등이 반드시 기재되어 있는 사실,④ 반면, ◇◇에너지는 출하 당일 배달운전기사에게 출하전표를 발행하지 않아 해당 주유소에 ◇◇에너지의 출하전표가 교부되지 않았고, 다만 유류가 배달된 후 ◇◇에너지 직원이 컴퓨터와 도트프린터를 이용하여 출하전표를 작성함과 동시에 출하된 유류 내역에 맞추어 세금계산서를 작성한 다음 위 출하전표 및 세금계산서를 우편 또는 택배로 해당 주유소에 보내주었는데, 위 출하전표에는 출하 당시의 석유제품의 온도가 기재되어 있지 아니하거나, 저유소의 명칭이나 출하시각도 임의로 기재되어 있는 사실,⑤ 부산지방국세청장은 ◇◇에너지를 실제로 유류를 공급함이 없이 허위 세금계산서를 교부한 자료상으로 보아 수사당국에 고발하였고, 인천지방검찰청은 2009. 3. 31. 인천지방법원 2009고합199호로서 장AA 등을 특정범죄가중처벌등에관한법률위반(허위세금계산서교부 등) 혐의로 인천지방법원에 기소하였으며, 인천지방법원은 2009. 9. 17. ◇◇에너지의 실제사업자인 장AA에 대한 이 사건 세금계산서 부분을 포함한 허위 매출세금계산서 교부의 점에 관하여 ◇◇에너지가 ♧♧석유 등을 통하여 매출처인 주유소에 일부 유류를 공급하였다고 볼 여지가 있다는 이유로 무죄를 선고하였으나 항소심인 서울고등법원은 2010. 3. 25. 위 무죄부분에 대하여 실제의 유류 거래는 비과세 유류 등을 보유한 자와 해당 주유소 사이에서 이루어졌고 ◇◇에너지는 이와 같은 실물거래에 있어 세금계산서 등의 필요한 자료를 구비해주고 실물거래를 중개하는 역할을 한 것에 불과하므로 장AA는 가공의 세금계산서를 발행하여 교부하거나 이를 교부받은 자에 해당한다고 보아 원심판결을 파기하고 유죄를 선고하였으며(서울고등법원 2009노2687 판결), 상고심인 대법원은 상고기각 판결(대법원 2010도4068 판결)을 선고함으로써 확정된 사실,⑥ 이 사건 처분 과정에서 원고가 제출한 ◇◇에너지 작성의 출하전표에 기재된 출하일자, 차량번호에 의하여 각 정유사 및 각 저유소에 유류 출하내역을 조회한 결과 각 해당 시점에 해당 물량이 출하된 사실은 있으나 주문자나 도착지가 ◇◇에너지나 원고 운영의 주유소와 무관한 곳으로 되어 있었던 사실,⑦ ◇◇에너지가 임의로 작성한 출하전표에 기재된 차량의 운전기사들이 그 당시 출하된 유류를 원고의 주유소에 배달한 것으로 확인되었고 원고는 ◇◇에너지로부터 세금계산서를 수취한 기간 동안 ◇◇에너지의 계좌로 그 대금을 송금하였으며 위 송금액이 다시 원고에게 입금되지는 않은 사실을 인정할 수 있다.

Comprehensively taking account of the above facts of recognition, the oil listed in the tax invoice issued by △△ Energy was supplied to the gas station operated by the Plaintiff, and the Plaintiff seems to have paid the oil price to △△ Energy.

However, the following circumstances revealed in the above facts, i.e., △△ Energy was established for the purpose of trading false tax invoices from the beginning, and △△ Energy was accused of having either issued or received only tax invoices without any actual transaction, and the actual operator thereof was found guilty on the ground that it received and issued false tax invoices. ② △△△ Energy did not have received oil from any of the above oil stations across the country during the taxable period of this case, nor did it use any oil facilities or transportation vehicles reported after receiving the registration of petroleum sales business operator. ③ △△△ Energy received the processed purchase tax invoices and let the non-data distributor supply the non-material oil in physical form, and there was no actual purchase of the oil, and in view of the fact that △△△△ Energy did not have any purchase of the oil from the plaintiff et al., the plaintiff could not be deemed to have supplied the real oil to other gas stations, etc., and the plaintiff did not directly purchase the oil from the third party, and it appears that it did not constitute a false purchase of the real oil from the plaintiff and the third party.

Therefore, the Plaintiff’s argument that the Plaintiff was supplied with oil listed in the tax invoice issued and received by △△ Energy cannot be accepted. Accordingly, it is reasonable to view the said tax invoice as a false tax invoice by the supplier. The Plaintiff’s first argument is without merit.

(B) On the other hand, a supplier and a supplier on a tax invoice may not deduct or refund an input tax amount unless there is any special circumstance that the supplier and the supplier on a tax invoice are negligent in not knowing the fact that the supplier was unaware of the nominal name of the tax invoice, and the person claiming the deduction or refund of the input tax amount should prove that the supplier was not negligent in not knowing the fact that the nominal name was entered (see Supreme Court Decision 2002Du2277, Jun. 28, 2002).

With respect to this case, it is not sufficient to recognize only the statements of health team A, Gap 4 through 6, 8, and 9 (including each number), and the testimony of the MaximumCC as well as the testimony of the witness. There is no other evidence to acknowledge it.

Rather, the following circumstances revealed in the facts acknowledged earlier, i.e., ① the Plaintiff started to engage in transactions after hearing the horses that there are low-fresh oil from the employees of △△ Energy, and the Plaintiff did not receive and keep the original shipment ticket issued by the transportation vehicle directly from the operator at the time of receipt of the oil, but instead received it in the form of mail, etc., and subsequently made abnormal transactions, such as receiving the shipment slip in the name of △△ Energy from the transportation vehicle to receive the shipment slip in the name of the transportation vehicle. However, △△△ Energy neglected to confirm whether the actual supplier is a supplier. ② If △△△△ was asked of whether the oil was actually shipped out on the relevant date in the oil reservoir stated in the tax invoice received from △△ Energy, and whether the customer and destination were asked of the place of destination and destination, the Plaintiff could have easily known that it was not actually shipped out, but did not know at all, at the time of receipt of the tax invoice.

Therefore, the second argument of the plaintiff is without merit.

(2) Determination on the portion of the tax invoice issued and delivered from △ Energy

Comprehensively taking account of the overall purport of the arguments in the statement Nos. 7 and 9, the competent tax authority confirmed that the △ Energy was prepared on the basis of most processed transactions except for part of the tax invoices received and the tax invoices issued by the △ Energy for the first period of 2008, and that the tax invoices issued by the Plaintiff were also prepared on the basis of the processed transaction.

However, in light of the following: (a) △ Energy was actually dealt with the oil; (b) △△ Energy was shipped the oil of the company △△△ days to the carrier at the △ Storage Station on May 21, 2008 (the Defendant confirmed on May 21, 2008 that the carrier caused the oil to the △△ Oil Station; (c) the Plaintiff wired the money to the deposit account of △△ Energy immediately after receiving the oil to the Plaintiff; and (d) in light of the fact that the two tax invoices issued and delivered by △△△△△△△△△ was not sufficient to acknowledge that the goods were carried out without actual transactions; and (e) there was no evidence to acknowledge otherwise.

Therefore, the defendant's disposition based on the premise that the tax invoice for the issuance of △ Energy is false is unlawful.

(iii)In the case of a suit

The Defendant deducted the input tax amount of △△ Energy’s tax invoice, and imposed value-added tax of KRW 4,160,159 on the Plaintiff for the second period of 207. The Defendant imposed value-added tax of KRW 18,002,544 on the Plaintiff by not deducting the input tax amount for the second period of 2007. The Defendant imposed value-added tax of KRW 18,002,544 on the Plaintiff for the first period of 208. As seen earlier, it is unlawful to deduct the input tax amount for the first period of 208. As such, the Defendant’s disposition imposing value-added tax of KRW 18,02,544 on the Plaintiff

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.