Suwon District Court 201Guhap1024, 2011.07

early 2010 Heavy3104 ( November 18, 2010)

If oil is supplied through the Internet site, more attention should be paid because it is supplied by an anonymous supplier.

In the event that oil is supplied through the Internet site, it is necessary to pay more attention because it is supplied by an anonymous supplier with oil. Thus, it cannot be deemed that the Plaintiff performed the duty of care for the opposite contractual party on the ground that the Plaintiff trusted the website operator as an assistant to broker the transaction.

Article 17 of the Value-Added Tax Act

2011Nu35073 Revocation of Disposition of Imposition of Value-Added Tax

Park XX

Head of Suwon Tax Office

Suwon District Court Decision 201Guhap1024 Decided September 7, 2011

May 18, 2012

June 29, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The imposition of value-added tax of KRW 000 (including additional tax) imposed on the Plaintiff on June 1, 2010 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of disposition;

This part of the judgment is the same as the corresponding part of the judgment of the court of first instance, and thus, it is accepted by Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

The Plaintiff’s purchase of oil through XX, supplied oil from O energy, and received the instant tax invoice cannot be deemed to be different from the fact. Even if the instant tax invoice is different from the fact, the Plaintiff did not commit any negligence in light of the e-commerce process through the XX system with no knowledge of the fact that the Plaintiff was in the name of O energy. Accordingly, the instant disposition made on a different premise is unlawful.

2) The defendant's assertion

O Energy is a material that the Plaintiff cannot be deemed to have been actually supplied with oil from O Energy, and therefore, the instant tax invoice is different from the fact. Even if not, in light of the fact that the Plaintiff was able to easily verify the substance of O Energy, and did not confirm it, it cannot be said that the Plaintiff was unaware of, or was unaware of, the fact that the Plaintiff was engaged in reliance transaction only on the brokerage of X. Therefore, the instant disposition, which did not deduct the input tax amount, is lawful.

B. Relevant statutes

Since the judgment of the first instance is the same as the corresponding part of the judgment, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

(c) Fact of recognition;

The part of the first instance court's 6th and 13th and 6th and 13th, "the delivery was completed at the above Y reservoir" at the above Y reservoir on September 24, 2008, and on September 27, 2008, the part of the first instance court's judgment is the same as the corresponding part of the judgment, except that "the oil was shipped at the Incheon Port Oil reservoir and delivered to the Plaintiff's gas station". Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act, the main sentence of Article 420 of the Civil Procedure Act.

D. Determination

1) Whether the tax invoice of this case is false or not

A) The meaning that the entry in the tax invoice under the Value-Added Tax Act differs from the fact is that the necessary entry in the tax invoice is inconsistent with the actual supplier of goods or services or the price and timing of the goods or services, notwithstanding the formal entry in the transaction agreement, etc. made between the parties to the goods or services. Furthermore, the burden of proving that the entry in the tax invoice constitutes a tax invoice different from the fact is the principle that the tax authority bears the burden (see, e.g., Supreme Court Decision 2008Du9737, Dec. 11, 2008).

B) According to the above legal principles, even if it is acknowledged that the Plaintiff actually supplied oil to the Plaintiff, if the transaction partner who actually supplied the oil to the Plaintiff is not anO energy supplier under the instant tax invoice, the instant tax invoice constitutes a different tax invoice from the facts mentioned above, and thus, it is examined as to whether the Plaintiff supplied oil to the Plaintiff is an OO energy.

In full view of the following circumstances revealed through the above facts and evidence, i.e., ① O energy and U.S.A., the actual operator thereof filed a charge and received a final judgment of conviction; ② O energy storage facilities (13,00 KL, Pyeongtaek-si, P.A. 642), and transportation equipment (60 KL 3, Incheon 86,000, Incheon 86,000, Incheon 86,0000, Incheon 86,0000, 86,0000) are leased. However, considering that the above U.S. and accounting personnel’s total well-being statement that the Plaintiff did not use it once (3,6 evidence) were stated that the supplier of the oil actually supplied to the Plaintiff constitutes an O energy supplier, and thus, it appears that the Plaintiff’s statement was insufficient to accept the remaining portion of the Plaintiff’s tax invoice based on the above facts and circumstances, excluding the Plaintiff’s false gas supplier’s statement in this case.

2) Whether the plaintiff acted in good faith and without fault on the O energy's nominal violation

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 person who received the other tax invoice in the name of the supplier, and the person who asserts the deduction or refund of the input tax amount should prove that the person who received the tax amount was not negligent in not knowing the above fact in the name of the supplier (see, e.g., Supreme Court Decision 2009Du1808, Jun. 11, 2009).

B) Taking into account the following circumstances known by the facts and evidence of the above recognition:

In light of the fact that the Plaintiff was supplied with oil through the XX trading system, the Plaintiff’s entry of No. 7-1 through 5, and No. 8-1 through 3, and the fact-finding results on the Korea Gas station Association, which is an incorporated association of this court, is insufficient to acknowledge that the Plaintiff was not negligent in not knowing that the name of the supplier was disguised, and there is no other evidence to acknowledge that there was no other reason. Accordingly, the Plaintiff’s assertion on this part is also unacceptable.

(1) As the Plaintiff operated a gas station for more than three years, it seems that the Plaintiff could have known the normal structure and distribution channel of the oil supply, the general type or method of the oil industry, and the actual state and risk of the transaction in data.

(2) In the event that oil is supplied through the Internet site, such as the trading system in XX, it is necessary to pay more attention to whether a supplier is not a disguised supplier, or whether a normal oil is a disguised supplier, since the supplier is supplied with oil. However, since the XX serves as an assistant for mediating transactions, not a supplier who is a trading partner, the Plaintiff cannot be deemed to have fulfilled his/her duty of care to confirm the trading partner (where the Plaintiff is supplied with oil through the trading system in XX, the circumstance that the supplier becomes aware of the oil at the time of delivery may not be the reason why the supplier needs to check the transaction partner more carefully than the case where the supplier is supplied with the oil directly from the trading partner, but it cannot be said that the duty of care is exempted or mitigated for this reason).

(3) Although the electronic commerce specification (Evidence No. 2-1, 2, and 3) issued by XX indicates the shipment place as YY oil reservoir or Incheon Port oil reservoir, the shipment place is indicated as O energy in the table (Evidence No. 9-1, 2, and 3) received by the Plaintiff from the oil delivery supplier. In addition, the so-called horizontal transaction, which is the transaction between agencies at the time of the Plaintiff’s supply of oil, was stipulated as an act of undermining the distribution order prohibited by the Petroleum and Petroleum Substitute Fuel Business Act (amended by Act No. 9370 of Jan. 30, 2009). Accordingly, there is sufficient reason to suspect that OO energy is not an actual supplier.

3. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed due to the lack of reason. Since the judgment of the first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the first instance is revoked and the plaintiff's claim