Seoul Administrative Court 201Guhap30724 (20 April 2012)

Cho High Court Decision 2010Du3857 (Law No. 13, 2011)

When the oil supplier receives a tax invoice different from the fact, the plaintiff's good faith and negligence should not be recognized.

In light of the fact that the plaintiff operated a gas station for about three years, that the supplier did not confirm the business facilities, that the form of the shipment slip received and the items to be entered are different from the normal shipment slips, etc., the plaintiff's good faith and without fault should not be recognized when receiving a different tax invoice from the fact.

Article 17 of the Value-Added Tax Act

2012Nu14172. Revocation of Disposition of Value-Added Tax and Income Tax Imposition

XX Kim

Head of Song District Tax Office and one other

Seoul Administrative Court Decision 2011Guhap30724 decided April 20, 2012

November 7, 2012

December 5, 2012

1. The plaintiff's claim against the defendant Kang Dong Tax Office is dismissed.

2. The plaintiff's appeal against the chief of the Songpa District Tax Office is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The decision of the court of first instance is revoked. The disposition of imposition of KRW 000,000, value-added tax for the first term of September 1, 2009 by the head of Songpa District Tax Office on September 1, 201 and the disposition of imposition of KRW 000,000,000,000,000,000,000,000,000,000,000,000 won for the second term of January 13, 201 by the head of Songpa District Tax Office on January 13, 201 (the plaintiff, with regard to the cancellation of the detailed global income and disposition, sought the cancellation against the head of Songpa District Tax Office, but the appellate court filed an application

1. Details of the disposition;

A. From January 1, 2006, the Plaintiff engaged in a gas station business with the trade name of ' XX 34-69' in Songpa-gu Seoul, Songpa-gu, Seoul, as from 34-69, and closed the business on October 31, 2010.

B. The Plaintiff received the purchase tax invoice from the OP Co., Ltd. (hereinafter “OP”) as follows, and reported it as the input tax return for the first and second returns of the value-added tax in 2009 and deducted. The Plaintiff reported it as the input tax amount and included it in the necessary expenses at the global income tax return return in 2009.

C. After September 1, 2010, the head of Songdong Tax Office decided and notified the Plaintiff of each decision on the correction and notification of the amount of value-added tax (including additional tax) for the first term portion of the year 2009 and the amount of value-added tax for the second term portion of the year 2009, on the ground that the instant tax invoice issued by the Plaintiff constitutes data that issued a tax invoice without real transaction, and that it is a false tax invoice. Furthermore, on January 13, 2011, the head of Jungdong Tax Office did not recognize the tax invoice different from the above fact as legitimate necessary expenses, and decided and notified the Plaintiff of the evidence non-taxation additional tax on global income tax for the year 2009 (hereinafter collectively referred to as the “each disposition of each case”).

D. On November 15, 2010 and February 14, 2011, the Plaintiff appealed to each of the instant dispositions, and filed an appeal with the Tax Tribunal. However, the Tax Tribunal rendered a decision to dismiss all of the appeals on July 13, 201 and July 14, 201.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 3 (including branch numbers; hereinafter the same shall apply), Eul evidence 1, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Since the Plaintiff actually purchased oil from OP and received the instant tax invoice, it cannot be deemed that the instant tax invoice constitutes a false tax invoice. Even if the instant tax invoice constitutes a false tax invoice, the Plaintiff confirmed the Plaintiff’s business registration certificate, petroleum retail business registration certificate, etc., and remitted the transaction price to an account under the name of O PP, and as long as necessary confirmation and evidence are completed at the time of the transaction, such as the receipt of the tax invoice, detailed statement, and shipment slip, it is reasonable to deem that the Plaintiff constitutes a bona fide transaction party. Therefore, each of the instant dispositions by the Defendants is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) Details of the survey on data of the Central Regional Tax Office with respect to O PPa

A) On January 8, 2009, the O-Paint was an oil wholesaler that started with the place of business of Seocheon-gu, Seocheon-gu, Y46-1 YYD 303, the following facts were confirmed as a result of the regional tax office’s tax investigation on O-Paint.

(1) Even though the OP is an oil wholesaler, the oil storage facility and oil transport vehicle were not owned at all, and the workplace did not keep the account books of oil transactions or the data on drivers, etc.

(2) The place of destination, including the Plaintiff, etc., should receive the shipment slips issued by four similar oil refining stations, because there is no oil storage facility in the OP and the oil can be immediately moved from the oil reservoir in the purchasing place to the oil station in the Plaintiff, etc. In other words, OP did not deliver the shipment slips issued by four similar oil refining stations to the gas station in its sales place, and recovered each time when it is delivered. OPR, instead of OP, issued the shipment slips in its name to the gas station in the sales place, but the weight, density, card number, pre-number, shipper, etc. were all disturbed, and the shipment slips issued by four similar oil refinings did not coincide with each other.

(3) The GGOil Co., Ltd., EE, and HH Energy Co., Ltd., a purchaser of OPR, were confirmed to be a so-called “data” that falsely issued a tax invoice without a real transaction.

(4) The oil price that was transferred from the gas station to the OP station was immediately transferred to the data supplier, and the total amount of the oil price was fully withdrawn in cash.

B) Based on the above facts, the director of the Central Regional Tax Office confirmed that the O PP has falsely issued and received a tax invoice without real transaction, and concluded that all sales and purchase transactions from January 1, 2009 to March 31, 2010 were processed transactions, and filed a complaint against O PP and OP to the prosecutor's office on suspicion of violating the Punishment of Tax Evaders Act, and then ordered OP to close down the business ex officio.

2) Details, etc. of transactions between the Plaintiff and the Opeta

A) The Plaintiff received oil from an O PP in the taxable period of the Value-Added Tax for the first and second taxable periods of the Value-Added Tax, and received tax invoices issued by O PPP, shipment slips, and transaction specifications, and transferred oil to an O PP account immediately after receiving the oil.

B) Although the shipment invoice issued by the Plaintiff is called “OOp”, the Plaintiff was supplied with oil released from the dopco oil reservoir operated by dopco.

C) Unlike the general shipment slips issued by the four major oil refining stations, the weight, weight, card number, tank number, column, etc. in the shipment slips issued by the Plaintiff is an official column.

D) In trading with OP, the Plaintiff confirmed the business registration certificate and the petroleum sales business registration certificate from OP, and the registration certificate for petroleum sales business states that the number of storage facilities is nine.

E) In 1 and 2 years of value-added tax, sales to the PP station was not confirmed on the sales log of the O PP in the taxable period of the value-added tax.

3) KimB, who is the general manager of the gas station at XX gas stations, was found at a low-fresh oil station, and the head of the nearby gas station, heard the phrase that the supplier of oil normally supplies petroleum from the president of the oil station and stated that he was supplied with petroleum at the low-priced price of 10 won to 20 won per liter after being introduced by the staff.

[Reasons for Recognition] Unsatisfy, Gap evidence 4 through 9, 12 through 15, Eul evidence 3 through 6, the purport of the whole pleadings

D. Determination

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

A) The meaning that the entries in the tax invoice under the Value-Added Tax Act are different from the facts is that the ownership of the income, profit, calculation, act or transaction subject to taxation is nominal, and if there is another person to whom such ownership belongs, the person to whom such ownership belongs shall be liable to pay taxes in light of the purport of Article 14(1) of the Framework Act on National Taxes, which provides that the necessary entries in the tax invoice refer to cases where the contents of the transaction invoice do not coincide with those of the person to whom the goods or service is actually supplied or the person to whom the goods or service is supplied, value and time of the transaction, etc., regardless of the formal entries in the transaction contract, etc. prepared between the parties to the goods or service (see, e.g.

B) We examine the instant case in light of the aforementioned legal principles. The following circumstances acknowledged by the evidence and the entire purport of the argument as seen earlier, i.e., (i) OP, revealed that it was based on the data that had been issued and received falsely without real transactions during the period from January 1, 2009 to March 31, 2010, and thus, KimA, an operator of OP or OP, accused the prosecution of violating the Punishment of Tax Evaders Act. (ii) If the Plaintiff purchased oil from OP during the first and second taxable periods of 2009, the Plaintiff was issued a tax invoice and declared, but the Plaintiff actually purchased the oil from OP or the Plaintiff did not hold the tax invoice as an oil storage facility for the first time, in light of the fact that the Plaintiff did not actually purchase the oil from OP or the fact that the Plaintiff did not actually purchase it as an oil storage facility for the first time.

2) Whether the Plaintiff constitutes good faith and negligence

A) An actual supplier and a supplier on a tax invoice may not deduct or refund an input tax amount unless there is any negligence on the part of the person who received the other tax invoice in the name of the supplier, and the fact that the person who received the tax invoice was not negligent in not knowing the above fact in the name of the supplier, barring any special circumstance that there was no negligence on the part of the supplier. In this case, the fact that there was no negligence on the part of the supplier that the supplier did not know the above fact in the name of the supplier. In light of the process of issuance and issuance of the tax invoice, the size and market price of the goods or services supplied, the specific route in which the goods or services were supplied, and the trade practice in the relevant industry, etc., the actual supplier is the actual supplier, and if there was a sufficient circumstance that the beneficiary might have doubt as to whether the nominal supplier is not the material, the beneficiary’s failure to verify the place of business, business facilities, or the distribution route of the goods or services supplied by the supplier and to verify the supplier’s business registration certificate, etc. is insufficient to deem that the actual name of the supplier.

B) We examine the instant case in light of the aforementioned legal principles. The Plaintiff received tax invoices, shipment slips, and trade specifications issued by O P PPT, respectively, while receiving oil two times from OP, the Plaintiff was supplied with oil and transferred the full amount of oil payment to the corporate account of OP, and the Plaintiff confirmed the registration certificate for OP and the registration certificate for petroleum sales business registration, etc. as seen earlier. However, it is insufficient to recognize that the Plaintiff did not know that the tax invoice issued by O PP is a false tax invoice, and there was no negligence in failing to know that the Plaintiff purchased oil from O PP, and there was no other evidence to acknowledge it.

Rather, the facts acknowledged earlier are as follows: (i) the Plaintiff opened a gas station on January 1, 2006 and operated a gas station for about three years before trading with POP; (ii) the Plaintiff is presumed to have been sufficiently aware of the normal structure and distribution route of the oil supply, the general trade type or method of the industry, and the actual situation of transactions in the oil industry and the danger of the spread of the data; (iii) the Plaintiff purchased and remitted the oil equivalent to approximately 28% of the total purchase quantity to OP without any doubt that the Plaintiff did not receive any more than 20% of the total purchase quantity from OBM because it did not know that there was no doubt that there was a need for the other party to purchase and sell the oil from OBM because it did not know that there was a difference in the actual purpose of the entry and pleading in the list of No. 12 and No. 17, No. 2009.

3. Conclusion

Therefore, the Plaintiff’s claim against the Defendants cannot be accepted as it is without merit. Of the judgment of the court of first instance, the part as to the chief of the tax office’s global income tax (the part concerning the detailed disposition of global income was withdrawn by the Defendant’s correction made in this court, which is the appellate court, and the judgment of the first instance became null and void). The Plaintiff’s appeal against the chief of the tax office and the claim against the chief