Early High Court Decision 201J 1448 ( October 28, 2011)

The plaintiff's good faith and negligence should not be recognized that the supplier of oil has received a false tax invoice.

The tax invoice of this case is bound to be deemed to be the tax invoice entered falsely by the oil supplier, and it is reasonable to deem that the Plaintiff could have sufficiently known that the tax invoice of this case was prepared in falsity if he knew that the tax invoice of this case was false or paid attention to it.

Article 17 of the Value-Added Tax Act

2011Guhap1533 Revocation of Disposition of Imposition of Value-Added Tax

Park XX

The Director of Incheon Tax Office

April 27, 2012

June 8, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of the value-added tax for the second term portion of 2008 against the Plaintiff on January 3, 2011 (referred to as “the date stated in the complaint” in January 6, 201) is revoked each disposition of KRW 000, value-added tax for the first term portion of 2009, value-added tax for the first term portion of 2009, and value-added tax for the second term of 2009.

1. Details of the disposition;

A. The Plaintiff, from around February 2, 2005, operated a gas station in Ansan-si from around 466-5, whose total supply value was 000 won (hereinafter referred to as “the instant tax invoice”) from the supply value of the company XX, Co., Ltd., Ltd., OO Energy, △△△△, Inc., and △△△ (which changed from J Energy Co., Ltd. on October 13, 2009), Co., Ltd., Ltd., and △△△△ (hereinafter referred to as “the instant tax invoice”) as stated in the tax invoice receipt details from July 2, 2008 to December 2, 2009. The Plaintiff received a tax invoice for purchase of 100 won (hereinafter referred to as “the instant tax invoice”), and filed a return for value-added tax for the pertinent taxable period by deducting each tax amount to be

B. However, on January 3, 2011, the Defendant issued a false tax invoice without actual transaction, and on the grounds that the instant tax invoice that the Plaintiff received from XX, etc. is also a false tax invoice, etc., the Defendant issued a revised and notified the Plaintiff of KRW 000 of value-added tax for the second period of 2008, value-added tax 000 for the first period of 2009, value-added tax 000 for the second period of 2009, and value-added tax 000 for the second period of 2009 (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 28, 201, but the said claim was dismissed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, 10, 14, 18, 22, 26, Eul evidence No. 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① Since the Plaintiff was supplied with actual oil from XX, etc. and received the instant tax invoice accordingly, the said tax invoice does not constitute a false tax invoice, and ② even if not, the Plaintiff was supplied with oil without knowing that he was a disguised business operator even though he fulfilled his duty of care as a party to a transaction at the time of the purchase of oil, and thus constitutes a transaction party with good faith and negligence, and thus, the instant disposition by the Defendant on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the Plaintiff’s first argument

(A) Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 915, Jan. 1, 2010) provides that input tax shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the facts. It means that the entries of a tax invoice are different from the facts. In light of the purport of Article 14(1) of the Framework Act on National Taxes stipulating that if there is a person to whom they actually belong, the person to whom they actually belong shall be liable for tax payment and the tax law shall apply if there is another person to whom they actually belong, the necessary entries of a tax invoice are inconsistent with those of the person to whom the goods or services are actually supplied or supplied, regardless of the formal descriptions of the transaction contract, etc. prepared between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

(B) Based on the above legal principles, each of the following circumstances acknowledged as a whole by comprehensively considering the purport of the entire pleadings as to this case’s health class, Gap evidence Nos. 2, Eul evidence Nos. 2, and Eul evidence Nos. 4 through 11 (including paper numbers), namely, ① as a result of a tax authority’s on-site investigation, most of the tax invoices received in the instant tax invoice as oil supplier were verified as a processed transaction, etc., for the purpose of issuing a false tax invoice without any actual transaction, such as verifying that most of the tax invoices received in the course of oil transaction were processed transaction. ② The Plaintiff’s assertion that: (i) as an oil agent, the Plaintiff did not own any necessary oil storage tank, oil transport vehicle, etc.; (ii) some of the purchasing agencies temporarily leased oil storage facilities but did not temporarily store and store oil at the above facilities; and (iii) there was no fact that they actually purchased oil from other customers; and (ii) the Plaintiff cannot be deemed as a false tax invoice that the Plaintiff actually supplied a large volume of oil as stated in the instant tax invoice.

(2) As to the second argument of the Plaintiff

(A) Unless there is any special circumstance that the actual supplier and the supplier on a tax invoice are unaware of the fact that the supplier did not know of the fact that the other tax invoice was entered in the name of the supplier, and the supplier cannot deduct or refund the input tax amount unless there is any negligence on the part of the supplier, and that the supplier was not negligent in not knowing the fact that the name was entered in the name of the supplier, the person claiming the deduction or refund of the input tax amount should prove (see, e.g., Supreme Court Decision 2002Du22

Furthermore, in cases where there are sufficient circumstances to suspect who is the actual supplier in light of the details of the issuance and issuance of a tax invoice, the price of the goods or services supplied, the specific route and process of the supply of the relevant goods or services, and whether a nominal supplier of a tax invoice is a disguised supplier, the recipient’s confirmation of the supplier’s business registration certificate, etc. without actually verifying the location of the place of business, business facilities, etc. of the nominal supplier is difficult to deem that the recipient was negligent in not knowing the actual name of the supplier.

(B) Based on the above legal principles, as to whether or not the Plaintiff was unaware of, and was unaware of, the name of the tax invoice of this case, and whether or not there was any negligence on the part of the Plaintiff, each of the entries in Gap, Gap, 7, 9 through 11, 13 through 15, 17 through 19, 21 through 23, 25 through 32 (including household numbers), Gap, 5, 6, 8, 12, 12, 16, 20, 24 (including household numbers), and some of the testimonys in the witness AA and B are insufficient to recognize them, and there is no other evidence to prove them otherwise.

Rather, the following circumstances acknowledged by Gap evidence 2 and Eul evidence 2, Gap evidence 2 and 3, each part of Gap evidence 5, 6, 8, 12, 16, 20, and 24 (including paper numbers), witness A and LeeB's testimony and arguments as a whole: ① the plaintiff operated a gas station for not less than 10 years, and seems to have been well aware of the normal structure and distribution route of the oil supply, the general form and method of the oil industry, the data transaction, and the situation of the material transaction; ② The shipment slip issued at the time of the oil storage was transacted through normal distribution process; ② the Plaintiff did not have been aware that the time of the issuance was only one day, or that the Plaintiff did not have been aware of at least the temperature or weight of the oil trading, and the Plaintiff did not have been provided with the cargo supply certificate, such as the cargo delivery slip that was not made with the Plaintiff's place of business with different location, and ③ it was difficult to view that the Plaintiff was provided with the above cargo storage facility.

(3) Therefore, the Defendant’s disposition that corrected the increase in value-added tax against the Plaintiff is legitimate by denying the deduction of the pertinent input tax amount on the ground that the instant tax invoice is a false tax invoice.

3. Conclusion

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