Review Division 2009-0124 ( October 27, 2009)

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

It is difficult to see that the customer was engaged in the business as an enterprise engaging in real transactions, and it is merely a person who issued a false tax invoice, etc. separate from the actual supply route of goods and services by linking the transaction with the Plaintiff with a non-data and oil distributor.

1. The part concerning the claim for revocation of imposition of global income tax among the instant lawsuit is dismissed.

2. The plaintiff's remaining claims are dismissed.

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

The Defendant’s disposition of imposition of global income tax of KRW 61,352,510 on August 1, 2009 and KRW 7,364,360 on global income tax of KRW 21,398,080 on January 1, 2008 against the Plaintiff on August 1, 2009 is revoked.

1. Details of the disposition;

A. The Plaintiff operated a gas station under the trade name of “BB gas station” in the Seo-gu Incheon AAdong 178-265, the Plaintiff returned the purchase tax invoice received from the Plaintiff during the period of February 2007, the value-added tax for the first period of January 2008, and the total income tax for the year of 2007 from August 21, 2007 to March 31, 2008 (hereinafter “CC”) as the input tax amount, and then deducted the total amount of KRW 368,218,182 from the total supply value of the purchase tax invoice received from the Plaintiff Energy (hereinafter “CC”) as the necessary expenses.

B. From April 24, 2008 to June 30, 2008, the commissioner of the EE Regional Tax Office confirmed that the above corporation was a data that issued only false tax invoices without any actual operation of the business. On July 29, 2008, he filed a complaint with the EE District Public Prosecutor’s Office, and at the same time notified the Defendant and the head of EMapo Tax Office, etc. of taxation data on the transaction partners ofCC including the Plaintiff.

C. After conducting on-site verification with the Plaintiff, the Defendant determined that the instant tax invoice was a false tax invoice written differently from the fact by the supplier. On August 1, 2009, the amount equivalent to the supply value stated in the instant tax invoice was recognized as necessary expenses, but the input tax amount was not deducted, and the Defendant corrected and notified the value-added tax stated in the purport

D. On the other hand, on August 1, 2009, the head of Mapo District Tax Office issued the Plaintiff a revised and notified the comprehensive income tax as stated in the purport of the claim.

E. The Plaintiff, who was dissatisfied with the Defendant’s imposition of value-added tax, requested an examination to the Commissioner of the National Tax Service on August 27, 2009, but was dismissed on October 27 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on the global income tax portion

Although the Plaintiff seeks revocation of the imposition of global income tax against the Defendant, the imposition authority of global income tax is the head of Mapo Tax Office, and the Defendant is not the Defendant, and the administrative litigation seeking revocation of the imposition of global income tax is not only the Defendant, but also the Defendant is not the Defendant-qualified. Unlike the discretionary transfer principle of administrative appeals applied to the general administrative litigation, the administrative litigation seeking revocation of the imposition of global income tax must undergo a prior trial procedure as prescribed by the Framework Act on National Taxes, and any administrative litigation instituted without going through such legitimate prior trial procedure is illegal. According to the above, even though the Plaintiff is deemed to have duly undergone a request for examination against the Commissioner of the National Tax Service with regard to the imposition of global income tax, there is no evidence to acknowledge that the disposition of imposition of global income tax was subject to the said prior trial procedure. The imposition of value-added tax and the imposition of global income tax cannot affect the imposition of global income tax as separate dispositions, and thus, they do not constitute a case where the request for examination only subject to the imposition of global income tax is not subject to the imposition of global income tax (see Supreme Court Decision 2004Du283

3. Determination on part of value-added tax

A. The plaintiff's assertion

The Plaintiff purchased fuel fromCC energy, and received the fuel shipment slip issued byCC energy, and remitted fuel price toCC energy through a bank. The instant tax invoice cannot be deemed to have been based on a processed transaction or disguised transaction. Even if the actual transaction partner is notCC energy, the Plaintiff constitutes a bona fide transaction partner who tradesCC energy with the knowledge of it as a actual supplier, and thus, the instant disposition is unlawful.

(b) Related statutes;

The entries in the attached Table-related statutes shall be as follows.

(c) Fact of recognition;

(1) From August 2007 to March 2008, the Plaintiff was supplied with 460,000 L via DD in the position of business head of theCC Energy Incheon Branch, and the corresponding fuel payment was deposited into theCC energy integration.

(2) TheCC Energy was charged with the EE District Prosecutors’ Office by determining that the total purchase amount of KRW 35,092,000,000 and the total purchase amount of KRW 34,900,000 for the second period of February 2, 2007 and January 2008 were in full processed transaction data, and was charged with the crime of issuing a false tax invoice for all transactions including transactions with the Plaintiff during the above period. The final judgment of conviction was rendered.

(3) TheCC energy commenced its business from June 19, 2007, and as a result of the tax investigation, there was no fact that it leased or used the oil reservoir terminal registered in the petroleum retail business register, and there was no fact that the buildings listed in the place of business were leased.

(4) The money deposited by the person receiving the tax invoice from theCC Energy was immediately withdrawn in cash and deposited into other accounts, and was withdrawn again. The account holder was also unaware of the details of the aforementioned funding and the withdrawal.

(5) TheCC energy operates its business through sea-ddr, and received payment from the customer, and sent it to the customer by mail or door-to-door sales by issuing a shipment slip, tax invoice, and transaction statement in the name of theCC energy at once.

(6) At the time of the tax investigation, the Plaintiff submitted the shipment slips for the issuance of oil companies in addition to the shipment slips for the date of the tax investigation. In light of each shipment slips issued on November 15, 2007 and December 21, 2007, the customer entered the same petroleum company and the FF company, respectively. As a result of the investigation, the company supplied oil supplied to the same company on the GGM date, and GGM was found to have supplied to the Yang Tourism Co., Ltd. and the NN station again.

[인정근거] 다툼 없는 사실, 갑 제4 내지 15호증, 을 제4 내지 16호증의 각 기재, 이 법원의 PPPPP 주식회사, KKKK 주식회사, HH화학 주식회사, MMMMMM 주식회사, QQQQQ 주식회사에 대한 각 사실조회결과, 변론 전체의 취지

D. Determination

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

(A) A tax invoice shall be issued from an entrepreneur who supplies under the Value-Added Tax Act, and a person liable to pay value-added tax shall be deemed to be a person who actually received goods or services or who actually provided goods or services to a supplier rather than a nominal legal relationship with an entrepreneur who provides or is supplied (see, e.g., Supreme Court Decision 2002Do4520, Jan. 10, 2003). A tax invoice entered as a supplier by a person who merely provided and mediated real transactions shall be deemed to be a false tax invoice different from the fact.

(B) On the other hand, in light of the fact that the Plaintiff received oil fromCC energy by paying the actual oil price, and the sales transaction with the Plaintiff became final and conclusive as a result of the tax investigation, it is acknowledged that there was a real transaction equivalent to the entries in the tax invoice in this case. However, the following circumstances revealed as a whole, including (1) the relevant tax invoice was finalized as a result of the tax investigation intoCC energy, and (2) the Plaintiff’s actual supplier of the oil, which is the basis for determining whether the tax invoice in this case was a false tax invoice, and (3) the Plaintiff’s actual supplier of the goods and services could not be seen as having distributed it to other accounts, and it is difficult to view the Plaintiff’s actual supplier of the goods and services separately from the actual supplier of the goods and services, and (4) the Plaintiff’s actual supplier of the goods and services supplied the goods and services differently from the actual supplier’s actual goods and services supplied to the Plaintiff, in light of the fact that the tax invoice in this case was falsely issued.

(2) Whether the Plaintiff is bona fide or without fault or not

(A) Unless there are special circumstances, the actual supplier and the supplier on a tax invoice may not deduct or refund the input tax amount, unless there is any negligence on the part of the supplier, who was unaware of the fact that the supplier was unaware of the name of the tax invoice, and the person who was provided with the tax invoice was unaware of the fact that the supplier was not aware of the fact that the supplier was unaware of the name of the tax invoice, the person who claimed the deduction or refund of the input tax amount must prove that the supplier was not negligent (see, e.g., Supreme Court Decision

(B) However, the evidence submitted by the Plaintiff alone is insufficient to recognize that the Plaintiff was unaware of the fact thatCC energy, the issuer of the tax invoice of this case, was engaged in the act of data and that there was no negligence. Rather, there was no other evidence to acknowledge it. Rather, the aforementioned facts and witness witness witness witness witness witness testimony were considered as a whole. ① At that time, data trading was widely spread in the oil industry, and the Plaintiff had been well aware of the actual conditions and risks of such data trading. The Plaintiff had actively taken measures to verify the authenticity of the transaction parties in order to prevent damage caused by purchase of oil without oil before commencement of oil trading. However, the Plaintiff did not have been aware of the credibility of the business registration prior to trading withCC energy, which was the new producer, and the Plaintiff did not have been aware of the fact that the Plaintiff did not actually have been aware of the fact that the Plaintiff had been engaged in data shipping, or that the Plaintiff did not have been aware of the fact that the Plaintiff had been engaged in data shipping, and the Plaintiff did not have been aware of the fact that the Plaintiff had been engaged in data shipping in the remaining one-month trading.

4. Conclusion

Therefore, the part of the claim for revocation of the disposition imposing global income tax among the lawsuit in this case is unlawful, and it is dismissed as the remaining claims of the plaintiff are without merit. It is so decided as per Disposition.