early trial 2014 Mine2768 (2014.30)

The instant disposition does not conflict with the underlying taxation and substance over form due to the sales day of the business partner, the statement of the business partner's employees, the instant tea division, etc.

The credibility of the statement of the PPP that served as the basis for the instant disposition, the instant tea division, and the sales log of KK can be recognized. Therefore, it is lawful for the Defendant to take the instant disposition on the grounds of the PP’s statement, the instant tea division, and the sales log of KK.

Articles 14 (Real Taxation) and 16 (Ground Taxation) of the Framework Act on National Taxes, Article 13 (Tax Base) of the former Value-Added Tax Act (Amended by Act No. 11873, Jun. 7, 2013); Article 50 (Standards for Market Price) of the former Enforcement Decree of the Value-Added Tax Act (Amended by Presidential Decree No. 24638, Jun. 28, 2013)

2014Guhap12246, revocation of disposition, such as value-added tax

AA

000 director of the tax office

June 18, 2015

July 9, 2015

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

The Defendant’s disposition of correction and notification of KRW 91,239,660 for the second year value-added tax for the year 2012 against the Plaintiff on October 1, 2013 is revoked. The Defendant’s disposition of correction and notification of KRW 185,69,620 for the second year value-added tax for the year 2013, KRW 14,265,480 for the first year value-added tax for the year 201

1. Basic facts

A. The plaintiff's status

원고는 2012. 9. 5. 여수시장에게 상호를 @@@ **주유소(이하 '이 사건 주유소'라 한다)로, 소재지를 여수시 화치동 ****으로 하여 하여 석유판매업 등록을 마친 법인이다.

B. Transfer of management right of the gas station of this case

원고의 대표자인 ###은 자신이 보유하던 원고의 주식을 양도하는 방법으로이 사건 주유소의 경영권을 BBB에게 양도하기로 약정하였고, BBB은 위 약정에 따라 2012. 9. 초순경부터 이 사건 주유소의 경영권을 양수하여 운영하였다.

C. The process and result of the tax investigation on the plaintiff

1) On February 27, 2013 through July 5, 2013, the Director of the Daegu Regional Tax Office confirmed the fact that KK purchased oil equivalent to KRW 2,859,609,091 without a tax invoice and sold it at retail.

The director of the Daegu Regional Tax Office confirmed that the oil oil 817,508 liters were shipped from the oil refinery to KK, but there was no details of the oil shipped from the sale on the KK on the Incheon 86A6** (hereinafter referred to as the "motor vehicle") and the Incheon 83ba96* the oil of the tank 83ba96*, the oil of the oil transporting vehicle of the KK and the oil shipped from the oil refinery to KK.

2) The director of the Daegu Regional Tax Office secured the tea department from October 5, 2012 to November 23, 201 of the same year (hereinafter “the tea department of this case”) in the course of tracking distribution channels of the 817,508 liter CCC 86* from October 5, 2012, and investigated the PP, an employee of KCC, as the wife of KCC, on June 3, 2013 and June 11 of the same year.

3) Based on the statement, etc. of the instant tea department and PPP, the head of Daegu Regional Tax Office conducted a tax investigation with respect to the Plaintiff from June 24, 2013 to August 9, 2013. During the said tax investigation, the Daegu Regional Tax Office confirmed that BB did not keep documents, such as the daily sales day report, the director of the transaction office, and the director of the transaction office, and the details of oil inflow, to be prepared by the Plaintiff while operating the instant gas station.

4) As a result of the tax investigation conducted against the Plaintiff, the commissioner of Daegu Regional Tax Office purchased light oil from KK without receiving a tax invoice from October 2012 to January 2013 without any data with no tax invoice, and determined that the Plaintiff omitted a return even after selling it to KK, and notified the Defendant of the taxation data on the Plaintiff on August 26, 2013.

D. Defendant’s disposition of imposition

C. On October 1, 2013, the Defendant notified of the taxation data referred to in paragraph (4) and on October 1, 2013, the Plaintiff purchased 785,058 litere oil equivalent to the total supply price of 839,592,987 won from KK without receiving a tax invoice through R&D over 27 times from October 4, 2012 to January 30, 2013, and purchased 785,058 litere equivalent to the total supply price of 1,163,07,266 won to K, on the ground that the Plaintiff omitted the report even after selling 1,163,05,620 won, value-added tax for the second period of value-added tax (185,695,620 won, value-added tax for the year 14,265,480 won, corporate tax for the business year 2013, 2012.

(e) Procedures of the previous trial;

On January 16, 2014, the Plaintiff appealed against the instant disposition and filed an appeal with the Tax Tribunal on May 8, 2014, and the Tax Tribunal dismissed the Plaintiff’s appeal on October 10 of the same year.

(f) Confirmation of relevant criminal judgments, etc.

BB was prosecuted on September 15, 2012 to July 3, 2013 by mixing petroleum products with other petroleum products at the rate of 6:2:00 mix and selling petroleum products on seven occasions in the course of operating the instant gas station (hereinafter referred to as “related criminal judgment”) and was sentenced to a suspended sentence of two years, etc. on September 24, 2013 by Changwon District Court 2013Da2147, as a result of the fact that he/she manufactured and sold fake petroleum products of 470,000 mar in total by mixing them with other petroleum products. The above judgment became final and conclusive on October 2, 2013 because both parties did not appeal (hereinafter referred to as “related criminal judgment”).

BB from October 5, 2012 to November 23, 2012, BB and the Plaintiff supplied KK with light oil equivalent to a total of 419,508 square meters for 14 occasions, such as the attached Table 2, 3, 4, 5, 7, 10, 11, 12, 13, 14, 16, 18, 19, 20, and the above summary order became final and conclusive on May 7, 2014, each of which was charged with summary order of KRW 10 million (hereinafter referred to as "a summary order"), on the grounds that KK did not receive or issue a tax invoice even after supplying the same quantity of light oil.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, 9, 10 evidence (including each number, hereinafter the same shall apply), Eul evidence 1 to 14, the purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons, and thus should be revoked.

1) Violation of the underlying taxation principle

BB stated in the relevant criminal judgment that only 240,00 liter’s 240,000 liter’s biter’s biter’s biter’s biter’s biter’s biter’s biter’s biter’s biter’s biter’s trade volume and biter’s biter’s biter’s biter’s biter’s biter’s biter’s biter’s biter’s biter’s stock holding capacity much more than the Plaintiff’s available petroleum quantity and stock holding capacity. As to part of the transaction listed in the above attached Table 1’s transaction list, it is not included in the relevant summary order even though the head of Daegu Regional Tax Office

2) Violation of the substance over form principle

BB consistently stated in the investigation agency that it received 48 million won per time through 8 times as a settlement amount for the difference between the fact and fact of dealing with non-data and the value of light oil. Considering that the Defendant stated that the transaction price of light oil and light oil calculated by the Defendant was in violation of the substance over form principle by applying the transaction price of third party, etc. to the Plaintiff.

(b) Related statutes;

Attached Form 2 shall be as stated in the relevant statutes.

3. Determination

A. Whether the underlying taxation principle has been violated

In full view of the evidence and factual relations as seen earlier, the following facts and circumstances revealed by adding the purport of the entire pleadings are revealed. The credibility of the statement of PPPP, the tea department of this case, and the sales day of KK, etc. Accordingly, it is lawful for the Defendant to take the instant disposition based on the PP’s statement, the tea department of this case, and the sales day of KK. Therefore, the Plaintiff’s above assertion is without merit.

1) The fact that a summary order of KRW 10 million has been finalized due to the fact that the Plaintiff was supplied by KK over 14 times, such as the No. 2, 3, 4, 5, 7, 10, 11, 12, 13, 14, 16, 18, 19, 19, and 20 in the separate sheet No. 2, 3, 4, 7, 10, 11, 12, 13, 16, 18, 19, 19, and 419,50,000 won due to the criminal fact that the Plaintiff supplied via the same quantity to K and did not receive or issue a tax invoice, is the same as the above, and as long as the criminal judgment has become final and conclusive in the administrative litigation, it is not recognized that it is in violation of the above summary order (see Supreme Court Decision 98Du10424, Nov. 26, 1999).

2) We examine the credibility of the PP’s statements.

가) PPP은 이 사건과 관련하여 2차례에 걸쳐 조사를 받으면서, "① 이 사건 차계부는 본인이나 다른 운전기사가 직접 작성한 것으로 사실대로 작성되어 있다. ②CCC가 연락을 하면 KKK 사무실로 갔다. CCC가 1천만 원 정도를 주면, OOO코리아, LL석유, NN에너지에 가서 KKK가 주문한 등유를 싣고 여수산업단지로 갔다. 그 곳에서 강모씨(이름은 정확히 모름)를 만나 위 현금을 전달하였다. 그 후 여수에 있는 무폴 셀프주유소에 가서 등유를 내리고 경유를 실어 왔다. 그 주유소에 경유가 없는 경우에는 NC오일 저유소 등에 가서 경유를 받아오기도 하였는데, %%오일 저유소에서 KKK의 이름으로 가져온 것은 아니다. ③ 그 무폴 셀프주유소의 정확한 이름은기억나지 않으나 주유소 건물 2층 유리에 '@@@(주)'라고 적혀있었다. ④ 여수에 갈때는 통상 등유 30,000ℓ를 싣고 가서 동일한 경유 30,000ℓ를 싣고 왔으며, 올 때와 갈때 용량를 달리하거나 빈차로 가서 여수에서 경유를 싣고 온 적은 없다."고 진술하였다.

B) The above statement of the PPP is very specific and natural, and its content can be subject to criminal punishment for the PPP itself, and its credibility is very high in light of the fact that there is no reason to make a false statement by exaggeration between the CCC that led the instant transaction and the Cornam site.

3) The instant tea table and the sales log of KK, prepared by the PPP, did not pP, have any circumstance to suspect the formation of the petition, and this is a document stating the office work particulars continuously and mechanically entrusted to him/her at that time, and at that time, there is little room to intervene in falsity by itself, and even if the above statement of the PPP, its credibility can be acknowledged. Therefore, as alleged by the Plaintiff, it is insufficient to doubt the credibility of the driver’s column of the instant tea line merely because the entry of the driver’s column is either partly inconsistent with the PPP’s statement or does not contain some distance, operation hours, etc.

4) Although the details of KK’s daily compensation for oil input and the number of days of sales transit in the annexed sheet No. 1 does not coincide with those of the sales volume in the annexed sheet, the above oil entry and sale volume after the date of the purchase transaction, including the annexed sheet No. 1, and the first to second to the date of the sale, correspond to the sales volume and the replacement volume, and the PP stated in the above paragraph 4, the Plaintiff appears to have sold transit to K, as shown in the annexed sheet No. 1, as shown in the annexed sheet No. 1.

5) BB made a statement at an investigative agency to the effect that it was traded as KK only with a maximum of 240,000 litress via a 240,000 litress, but the above BB’s statement appears to be aimed at minimizing its criminal responsibility and it is difficult to believe it as it is.

6) The prosecutor’s failure to request a summary order with respect to part of the attached list Nos. 1 is deemed to exclude transactions not included in the instant secondary book in accordance with the major principles of criminal trials that there is no reasonable doubt, and the burden of proof between the prosecutor’s burden of proof and the tax authority’s burden of proof in the administrative litigation is different in criminal trial proceedings. Thus, it cannot be said that there is no ground for taxation solely on the basis that it

7) Although it appears that the quantity of stock, including non-data, reverted to the Plaintiff exceeds the sales volume of the Plaintiff and the ability to hold stocks, it is merely presumed on the premise that the instant gas station sold petroleum normally. BB did not appear to have operated the instant gas station in a normal manner in light of the facts and circumstances seen earlier. Therefore, such circumstance alone is insufficient to reject the credibility of the instant tea department, etc.

8) The Plaintiff’s assertion is not objectively supported because BB did not prepare and keep account books, etc., which serve as the basis for taxation data while operating the instant gas station.

B. Whether the substance over form principle was violated

In addition to the reasoning of the argument in the above evidence, the Plaintiff received the difference between the same amount of light oil and the same amount of light oil in selling it to KK. The Defendant, while rendering the disposition in this case, acknowledged the fact that the Plaintiff’s purchase price of light oil excluding the value-added tax among the purchase price of the corresponding light oil that KK purchased to supply to KK, and the Plaintiff’s light sale price of light oil excluding the value-added tax among the purchase price of the corresponding light that the Plaintiff purchased to supply to

According to the above facts of recognition, the Plaintiff received compensation in addition to money in transaction with oil and light oil as shown in the attached Table 1 transaction list, and in such a case, Article 13(1)2 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013) and Article 50(1)1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013) provide that “the price continuously traded between a person who is not a specially related person and a third party or the price generally transacted in a situation similar to the pertinent transaction.”

However, the above price calculated by the Defendant based on the value of supply of oil and transit to be included in the tax base while rendering the instant disposition constitutes a continuous transaction price in a situation similar to the pertinent transaction, namely, the transaction price listed in the separate sheet No. 1, and thus constitutes the market price as referred to in the above provision.

Therefore, it is lawful for the Defendant to calculate the supply value of oil and light oil as above while rendering the instant disposition, and there is no violation of the substance over form principle.

4. Conclusion

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