Cho High Court Decision 2009Hu4316 (Law No. 1031, 2010)

An operator of a gas station who has been issued a tax invoice stating different facts by the supplier;

A business operator operating a gas station who has received a tax invoice written differently from the fact, and the supplier's failure to know such fact is insufficient to recognize it as a good faith or negligence, so the disposition on which the value-added tax is imposed is legitimate by deducting the input tax amount.

2010Guhap2710 Revocation of Disposition of Imposition of Value-Added Tax

XX

O Head of tax office

April 14, 201

May 12, 201

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax of KRW 15,597,220 on September 1, 2009 and value-added tax of KRW 19,049,060 on September 8, 2009 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. From September 25, 2001, the Plaintiff operated a gas station in the name of Cheongju-si from Cheongju-si 503-3 to 503-3. The Plaintiff received the purchase tax invoice from the Daejeon-si 22,563,636 won and the purchase tax invoice of 23,527,273 won from the Daejeon-si 2007, and 36,551,818 won and 23,254,545 won from the supply price of △△△ Petroleum (hereinafter referred to as “△△△ Petroleum”) during the 2007, and deducted the purchase tax invoice from the Defendant for each taxable period.

B. The director of the Busan Regional Tax Office and the director of the Seo-gu Daejeon District Tax Office conducted a tax investigation on the shipment slips and tax invoices issued by ○○ Energy and △△ Petroleum, and as a result, the instant tax invoice issued by ○○ Energy and △△ Petroleum to the Plaintiff was issued to the Plaintiff without a real transaction, and notified the Defendant of such investigation results.

C. Accordingly, the Defendant, on the ground that the instant tax invoice was issued in falsity without real transactions, did not deduct input tax amount stated in the instant tax invoice from the Plaintiff. On September 1, 2009, the amount of value-added tax for the second period of September 1, 2007 was 15,597,220 won, and on September 8, 2009, issued a correction and notice of the value-added tax for the first period of September 2008 as KRW 19,049,060, respectively (hereinafter “instant disposition”).

D. On December 8, 2009, the Plaintiff filed an appeal seeking revocation of the instant disposition with the Tax Tribunal. However, on August 31, 2010, the said appeal was dismissed.

Facts that there is no dispute over the basis of recognition, Gap evidence 1, Eul evidence 4, Eul evidence 1, Eul evidence 2, Eul evidence 5, Eul evidence 6, each entry and the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

As the Plaintiff actually received oil from ○○ Energy and △△ Petroleum, the instant tax invoice cannot be deemed to be a false tax invoice. Even if the instant tax invoice is a false tax invoice, the Plaintiff is a party to a transaction in an fashion with no negligence due to the Plaintiff’s failure to know and failure to know the fact that the instant tax invoice was held in the name of ○○ Energy and △△ Petroleum. Therefore, the instant disposition that the Defendant denied the input tax deduction related to the instant tax invoice was unlawful.

B. Relevant statutes

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

C. Facts recognized

The following facts may be acknowledged by comprehensively taking account of the following evidence, evidence No. 2, evidence No. 3, evidence No. 5, evidence No. 13, evidence No. 3, evidence No. 4, evidence No. 7, and evidence No. 11 (including each number), evidence No. 7, and evidence No. 11.

(1) Normal oil transactions;

When oil is delivered to a gas station through normal distribution channels, one orderer shall keep the oil station, and one copy shall keep the oil station, and one copy shall be delivered to the gas station, and one copy shall be delivered to the gas station, while one other is delivered to the gas station, and the other one is delivered to the gas station, because there are increase or decrease in the volume of oil after the temperature of petroleum products, the date of shipment, temperature at the time of shipment, etc. are stated.

(2) Trading, etc. of ○ Energy

(A) After completing the registration of petroleum retail business on June 19, 2007, ○ Energy was registered as a petroleum wholesale business and registered as a business operator on July 1, 2007, and closed on April 24, 2008. The business period of ○ Energy was a business operator with no oil shipment under the name of ○○ Energy even at any of the above nationwide oil storage stations. In addition, even though ○ Energy concluded a lease agreement on the oil reservoir and the oil transmission vehicles, etc., which are storage facilities of △ Terminal Terminal for the registration of petroleum retail business, but there was no shortage of oil storage and transportation during the above period.

(B) The headCC, an actual business operator of ○○ Energy, received or delivered a false tax invoice without a real transaction, and used the so-called “AAA” name with intent to gain profit by opening ○○ Energy. From July 2007 to July 2007, CC traded to issue the sales tax invoice under the name of ○ Energy to the gas stations and receive a certain amount of fee to the gas stations, and made it difficult to secure such transaction to deliver the oil without materials to the gas stations.

(C) Unlike the normal oil transaction as seen above, the ○○ Energy did not issue the shipment slips to the delivery driver on the date of shipment, and thus did not issue the shipment slips to the pertinent gas station. However, after the delivery of the oil, the ○○ Energy employee voluntarily entered the shipment points and the driver’s license using compliance and twitter in a false shipment slip, instead of the actual content, and entered a false shipment slip with the entries of the oil temperature, and at the same time, made a tax calculation statement in accordance with the details of the oil shipped, and sent the said shipment slips and tax invoices to the relevant gas station by mail or on-line.

(D) The director of the Busan Regional Tax Office: (a) deemed ○ Energy to be a material that actually delivered a false tax invoice without supplying oil; and (b) filed an accusation with the investigating authority in Incheon District Court on March 31, 2009 against the charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance of False Tax Invoice, etc.) on the Act on the Aggravated Punishment, etc. of the Specific Crimes (Delivery of False Tax Invoice, etc.). On September 17, 2009, the Incheon District Court rendered a judgment of not guilty on the ground that ○○ Energy supplied a part of the gas station’s gas lawsuit, including the instant tax invoice, to ○○ Energy, through an airport petroleum, etc.; (c) on the ground that the Seoul High Court, which was the appellate court, rendered a final judgment of not guilty on March 25, 2010, issued a tax invoice to 2009No2687, and rendered a final judgment of the Supreme Court on the grounds that the actual oil transaction constituted a real oil taxpayer, etc.

(3) Oil transactions, etc. of △△ Petroleum

(A) △△ Petroleum is a business operator who closed his business on November 16, 2007 and closed his business on September 30, 2008, and it did not use the oil storage facilities and transportation equipment of HH for the registration of petroleum retail business, but did not use them once.

(B) The Daejeon Branch of △△ Petroleum reported that it purchased the oil of KRW 1.467 billion in 2007, KRW 25.388 billion in 2008, KRW 25.3140,000 in 2008, and KRW 4.32,528 billion in 2008 in 2008. However, it was found that the ZZ Petroleum, Co., Ltd., and BB Energy in each entry area were proved to be material and accused, and that it was found that △△△△ Petroleum Co., Ltd. conducted financial transactions, such as withdrawal of the oil amount remitted by △△ Petroleum and re-deposit it into the account of △△ Petroleum. Moreover, the △△ Petroleum Daejeon Branch of △△△ Petroleum did not report the shipment amount of KRW 1.47,833 million in 207, KRW 25.49 billion in 2008, KRW 9010, KRW 232,3230,000.

(C) Accordingly, the head of Seo-gu Daejeon District Tax Office determined that the purchase amount of △△ Petroleum’s 31 billion won, 7.2.4 billion won, and 31.23 billion won out of the sales amount, were processed and accused of △△ Petroleum’s representative MaD and △△△ Petroleum on the data, and the former District Prosecutors’ Office suspended prosecution on the grounds that the whereabouts of MaD were unknown.

(4) Operation of gas stations by the Plaintiff

(A) From September 25, 2001, the Plaintiff operated the instant gas station. The Plaintiff’s husband, KimE, a husband of the Plaintiff, worked in the DOE Bank Co., Ltd., and ○○ Energy and △△△ Petroleum upon the recommendation of the GOEFF, which had been a business employee at the time of working in the said company.

(B) At the time, the KFF, upon receiving orders from the business partners secured by the Plaintiff including the Plaintiff, contacted with the KCC-free oil distributors, so that the KCC-free oil can be delivered to the Plaintiff by communicating with the oil distributors exempt from data. At the time of supply of oil, the Plaintiff did not receive the original shipment slip issued at the oil reservoir from the oil supplier, and received the shipment slip issued in the name of ○○ Energy and △△△ Petroleum, along with the tax invoice 2-3 later.

(C) The Plaintiff written each of the shipment slips on October 26, 2007 and November 16, 2007, which was received from the ○○ Energy, as Ligue oil reservoir and Yancheon oil reservoir, and the shipper all of them is written as GG, and △△ Petroleum received from △△ Petroleum, and the Daegu oil reservoir and Yancheon oil reservoir, which were shipped on the shipment slips on December 21, 2007, respectively, and the shipper all of them are written as Y○○.

(D) The Plaintiff received oil listed in the shipment slips from ○○ Energy and △△ Petroleum, and remitted the oil price to the account of ○○ Energy and △△ Petroleum.

D. Determination

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

(A) The meaning that the entries of the tax invoice under the Value-Added Tax Act are different from the facts is that the necessary entries of the tax invoice refer to cases where the contents of the tax invoice do not coincide with those of the person who actually supplied or is supplied with the goods or services, regardless of the formal entries of the transaction contract, etc. made between the parties to the goods or services.

(B) Comprehensively taking account of the above facts, oil was supplied as oil stations in the Plaintiff’s operation at each date of issuance of the instant tax invoice, and the Plaintiff appears to have deposited oil prices into the account in the name of ○○ Energy and △△ Petroleum.

(C) However, the following circumstances revealed by the facts as seen earlier, i.e., (i) ○○ Petroleum was established solely for the purpose of trading false tax invoices without real transactions from the beginning; (ii) △△ Petroleum engaged in financial transactions in relation to oil supply transactions; (iii) ○○ Energy and △△ Petroleum were accused of having issued or received only tax invoices without real transactions; and (iii) △△△ Petroleum was found guilty on the grounds that the headCC, the actual operator of ○○ Energy, received and issued false tax invoices; and (iv) ○○ Energy and △△ Petroleum, were found to have been identified as materials and the purchase details reported by ○○ Petroleum and △△△ Petroleum were also deemed to have been a processed transaction. In full view of the fact that ○○○ Petroleum and △△△ Petroleum purchased oil from the Plaintiff and △△△△ Petroleum, the Plaintiff could not be deemed to have actually supplied its own oil to the Plaintiff; (iv) ○○ Petroleum and the Plaintiff did not directly purchase the real oil from the Plaintiff and △△△△ Petroleum that did not directly purchase the real oil supplier.

(D) Therefore, we cannot accept the argument that the Plaintiff purchased oil listed in the instant tax invoice from ○○ Energy and △△ Petroleum. Accordingly, it is reasonable to view the instant tax invoice as a false tax invoice by the supplier.

(2) Whether the Plaintiff constitutes a bona fide trader

(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 shall prove that there was no 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 (see, e.g., Supreme Court Decision 2002Du2277, Jun. 28

(B) First, as to whether the Plaintiff was unaware of the disguised fact in the name of the instant tax invoice, and whether there was no negligence on the part of the Plaintiff’s failure to know, each of the entries in the evidence of No. 2, No. 3, No. 6 through No. 8, and No. 14 (including the branch numbers), is insufficient to acknowledge it, and there is no other evidence to acknowledge it.

(C) Rather, the following circumstances revealed in the facts acknowledged earlier, namely, ① the Plaintiff operated a gas station from September 25, 2001, and KimE, operated with the Plaintiff, was in the oil-related business sector for a long time. As such, it seems that the Plaintiff had been aware of the normal structure and distribution route of oil supply, the general forms and methods of transactions in the industry, and the actual transaction of material spread to the oil industry through diverse experiences, and the risk of transactions in the oil industry. ② The Plaintiff started transactions after hearing the horses that were low-brut oil from ○○ Energy and △△△ Petroleum’s employees, and the Plaintiff did not directly receive the oil delivery slip from the operator of the transported vehicle at the time of the receipt of the oil, but did not know of whether the Plaintiff actually supplied the oil to ○○○ Energy and △△△△△△△△△△△△△△△△△, even though it did not know whether the oil supplier was actually supplying the oil at issue.

(3) Sub-decisions

Therefore, the instant tax invoice constitutes a tax invoice different from the facts, and it is not sufficient to recognize the fact that the Plaintiff is a bona fide and negligent person, so the Defendant’s disposition that did not deduct the input tax amount equivalent to the instant tax invoice is lawful.

3. Conclusion

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