National Tax Service Review Division 201-0098 ( October 27, 2011)

When oil suppliers receive different tax invoices from the fact, the plaintiff's good faith and negligence should not be recognized.

In light of the fact that the Plaintiff has operated the gas station for a long time, purchased oil more than the ordinary price, the number of the ticket on the shipment slip is identical, the shipment price listed in the shipment slip is insufficient, and the Plaintiff is the housing price, etc., no good faith and negligence may be recognized when the Plaintiff receives a false tax invoice from the supplier.

Article 17 of the Value-Added Tax Act

2011. Revocation of revocation of the imposition of value-added tax;

Kim XX et al.

Head of Yeongdeungpo Tax Office and one other

September 21, 2012

October 24, 2012

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The imposition of KRW 000 of the value-added tax for the second term of March 3, 201 by the Head of Young-gu Tax Office against Plaintiff Kim Yong-A on March 3, 201, and the imposition of KRW 000 of the value-added tax for the second term of March 5, 2009 against Plaintiff HeB on March 5, 201, and the imposition of KRW 000 of the value-added tax for the first term of December 10, 201 by the Head of Young-gu Tax Office against Plaintiff YellowCC on December 10, 209, respectively is revoked.

1. Details of the disposition;

A. From Jun. 1, 2004 to Jun. 1, 2004, Plaintiff Kim Young-gun operated 'Y oil station' in XXL 174, Plaintiff Lee Young-gun. From Dec. 20, 2005 to Dec. 20, 2005, Plaintiff Lee Young-gun operated 'OO oil station' in Yaeng-gun, Kim Young-gu, Seoul. From Apr. 1, 2008 to Jun. 22, 2010, Plaintiff Yellow-gu operated YY YY 658 'Y station'. Plaintiff Kim Young-gu, Kim Young-gu, e.g., Plaintiff Kim Young-do, e., YB, a stock company (hereinafter referred to as 'Seong-gu'), Plaintiff Jung-gu, who received a purchase tax invoice from each of the following companies (hereinafter referred to as 'Seong-gu's petroleum tax invoice and its purchase tax invoice.

(1) The Plaintiff KimA received the tax invoice (the supply price of KRW 00, the input tax amount of KRW 000, the supply price of KRW 000), the tax invoice on November 6, 2009 (the supply price of KRW 000, the input tax amount of KRW 000), the tax invoice on November 10, 2009 (the supply price of KRW 00, the supply price of KRW 000, the total input tax amount of KRW 000, the total input tax amount of KRW 00), while purchasing oil from △, and the total input tax amount was deducted from the output tax amount upon filing a report on the tax base for value-added tax for the first year of 2010.

(2) In purchasing oil from △△, the Plaintiff BaB received the tax invoice (the supply price of KRW 000, the input tax amount of KRW 000) on November 9, 2009. Upon filing a tax base return for value-added tax for the first period of January 2010, the said input tax amount was deducted from the output tax amount.

(3) The Plaintiff YellowCC, upon purchasing oil from △△, received a tax invoice on January 20, 2009 (the supply price of KRW 000, the input tax amount of KRW 000, the supply price of KRW 000, the input tax amount of KRW 000) and the tax invoice on June 4, 2009 (the supply price of KRW 00, the input tax amount of KRW 000, the input tax amount of KRW 000, the total supply price of KRW 00, the input tax amount of KRW 00, the total supply price of KRW 00, the input tax amount of KRW 00, the total supply price of KRW 00), and deducted the aggregate of the above input tax amount from the output tax amount upon reporting the tax base for value-added tax for the second period of February 2009.

B. The Defendants, on the grounds that the tax invoices of this case are not actually supplied with oil, did not deduct the above input tax amount from the output tax amount, and imposed a revised value-added tax on the Plaintiffs as follows (hereinafter collectively referred to as the “instant disposition”).

On March 3, 2011, the head of the Defendant Young-gu Tax Office revised and imposed 000 won of the value-added tax for 2009 on Plaintiff Kim Young-A, and on March 5, 201, imposed 000 won of the value-added tax for 2009 on Plaintiff Lee Young-B. On December 10, 201, the head of the Defendant Young-gu Tax Office corrected and imposed 000 won of the value-added tax for Plaintiff Yellow-CC on December 10, 201.

C. The Plaintiffs filed a request for review with the Commissioner of the National Tax Service, but Plaintiff KimA was dismissed on July 1, 201, Plaintiff Lee Dong-B on July 11, 2011, and Plaintiff YellowCC on August 31, 201.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1 through 2-3, Gap evidence No. 8-1 through 4, Gap evidence No. 14-1, 2, 17, Eul evidence No. 1-1 through 3, and the purport of the whole pleadings

2. The plaintiffs' assertion is as follows.

Since the Plaintiffs received the tax invoice after being supplied with oil from △△ and △△△△, the instant tax invoice is not a false tax invoice, even if it falls under a false tax invoice, the Plaintiffs did not know that they were the data, and actually deposited the proceeds into the accounts of the said companies, such as confirming the business registration certificate and the registration certificate for petroleum selling business of the said companies at the time of being supplied with oil. Therefore, the instant disposition was unlawful, on the grounds that there was no negligence by failing to know the fact of the use of the name

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Article 17(2)1-2 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the facts. However, the phrase “a tax invoice differs from the facts” refers to a case where the requisite entries of a tax invoice do not coincide with the subject, value, and timing of the actual supply or the supply of the goods or services, notwithstanding the formal entries of a transaction contract, etc. made between the parties with respect to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196).

Where a supplier and an actual supplier are different, an input tax amount pursuant to a tax invoice may not be deducted or refunded unless there is any special circumstance that the person who received the tax invoice was unaware of the fact that he/she was unaware of the nominal name of the tax invoice and that there was no negligence on the part of the person who received the tax invoice. Furthermore, the fact that the person was not aware of the fact that there was no negligence on the part of the person who received the tax invoice, must be attested by the party on which he/she asserts the deduction or refund of the input tax amount (see, e.g., Supreme Court Decisions 2009Du1808, Jun. 11, 2009;

B. In full view of each entry in the evidence Nos. 2-1 to 4-3 of the evidence Nos. 2-1 to 4-3, △△△△ and △△△△ may recognize the fact that only the so-called data issued a processed tax invoice and the fact that the oil was not supplied to the plaintiffs.

Considering the overall purport of the arguments in Gap evidence 3-4 and evidence 21-4-3, in light of the following circumstances, it is insufficient to recognize that the plaintiffs were actually supplied with oil, and that the price was deposited in the deposit account in the name of △△△△, but considering the overall purport of the arguments in Gap evidence 2-1 through 3, 7-1 through 3, 13-1, 2, 18, and Eul evidence 2-1 through 4-3, in light of the following circumstances, it is insufficient to recognize that the plaintiffs were not aware or was not aware of the facts alleged in the name of the supplier, so the plaintiffs' assertion is without merit.

(1) From June 1, 2004 to December 20, 2005, Plaintiff KimA traded with HH Co., Ltd. in the course of operating an OOB from June 1, 2004; Plaintiff KimA and Plaintiff EB were married; Plaintiff KimA and Plaintiff EB were engaged in oil transport business from July 10, 199 to December 31, 2007; and Plaintiff YellowCC operated “YY station” from April 1, 2008, in light of the experience of oil trade, the Plaintiffs were aware of the normal structure and route of oil supply, the general form or method of oil industry, and the circumstances and risk of the transaction on data.

(2) Through the introduction of KimA and LeeB, through the introduction of KimD, which did not have a usual friendship, the Plaintiff YCC purchased oil at KRW 10 to KRW 30,00 per g out of the ordinary supply price of oil refineries, from △△, a new customer, through the introduction of Kim Jong-E who did not have a usual friendship.

(3) The shipment slips issued at the time of supplying oil to the gas station are evidence to verify that the oil was traded through normal distribution channels. The electric ticket number is the unique number managing the oil source, and the electric ticket number of which the plaintiffs received at each time of release is the same as “000” (No. 7-1 to 3, and No. 13-2). Moreover, since the oil differs depending on temperature and density, the normal time of issuance is different, and the normal time of issuance is written and the temperature and density are accurately stated in the shipment slip issued at the time of issuance. Both the shipment slips issued by the plaintiffs are written on a daily basis, and the temperature and weight/groups are the official column.

(4) The "Ulsan Metropolitan City Jung-dong 271-30", which was entered in the shipment slip of the post-issuance of the △△ issued by the plaintiff KimA and the shipB, is the head office of △△, and it is not possible to permit the oil storage facility as the head office of △△, and KimD stated that the plaintiff Kim Dong was in Busan or Daejeon and that it was well known that the oil was shipped out by the president (the witness KimD's testimony).

The 'Y208-7', which is described as the entry on the shipment slips of △△ issued by the Plaintiff YellowCC, is not registered or reported as a storage facility. The shipment slips issued by △△△△ (former △△△ Co., Ltd.) issued by Plaintiff YellowCC are written only as the time of publication, and the shipment is written as the △△△ Co., Ltd. (No. 18).

5. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.