Article 17(8) of the Traffic Tax Act

2. The plaintiff's remaining claims are dismissed.

3. 3/4 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

A. The Plaintiff is a oil refining company that imports, manufactures, stores, transports, sells, exports, etc. of oil and received refund of traffic tax and education tax (hereinafter referred to as "traffic tax, etc.") already paid on the oil in transit from January 9, 2003 to October 27, 2004 (hereinafter referred to as "oil in this case") on the ground that the Plaintiff took them out to a foreign navigational ship through tarn corporation, ○○ Energy Co., Ltd., ○○, and ○○○ Energy Co., Ltd., Ltd. (hereinafter referred to as "combined ○○○, etc.") for the reason that the Plaintiff took them out to a foreign navigational ship through tarn corporation, a ship oil supplier, from January 9, 2003 to October 27, 204.

B. On March 20, 206, the Defendant illegally removed the oil of this case from land intermediate wholesalers, etc. without supplying the oil to overseas navigation ship, by forging documents as if the above ○○ Mar. 20, 2006, on the ground that the oil of this case was not actually used for the overseas navigation ship, and does not fall under the requirements for refund under Article 17 of the Traffic Tax Act (amended by Act No. 7576 of Jul. 8, 2004, hereinafter referred to as the "Traffic Tax Act"). On March 20, 206, the Defendant corrected and notified the Plaintiff of the following: (a) the total traffic tax of KRW 8,677,121,820 (including additional tax); (b) education tax of KRW 1,00,862,030 (including additional tax); and (c) value-added tax of KRW 960,55,010 (including additional tax).

C. The Plaintiff filed an appeal against the instant disposition, but the National Tax Tribunal dismissed the said appeal on August 20, 2007.

[Ground of recognition] Facts without dispute, Gap evidence 4, Gap evidence 5-1 to 26, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserted that the defendant's disposition of this case was unlawful for the following reasons.

(1) Claim of defective tax payment notice

In rendering the instant disposition related to traffic tax, etc., the Defendant did not state Article 17 of the Traffic Tax Act, which is the provision on the refund of tax base laws, and erroneously states it under Article 15 of the Traffic Tax Act, which is the provision on conditional exemption, so the instant disposition is unlawful.

(2) Defect assertion by the imposing authority of the instant disposition

According to the latter part of Article 24(5) of the Enforcement Decree of the Traffic Tax Act, in the case of petroleum used for overseas navigation ships, traffic tax is imposed by the head of the customs office, and the disposition of this case is unlawful.

(3) Claim to meet the request for refund of traffic tax

(A) According to the provisions related to the Traffic Tax Act, when the goods for which traffic tax has already been paid are used in an overseas navigation vessel, the submission of the certificate of loading goods for refund (hereinafter referred to as the “certificate of loading”) issued by the head of the competent customs office responsible for verifying it satisfies the requirements for traffic tax refund. Thus, the Plaintiff satisfies all the requirements for traffic tax refund, etc. of this case by submitting to the Defendant the valid certificate of loading confirmed by the head of the competent

(B) In addition, even if the instant oil is not actually carried into an overseas ship, and there is a defect in the procedures for issuing the relevant loading confirmation, the duty of confirmation is imposed on the Defendant, including the customs collector, and even if 00 ○ Marin, etc. reported false contents and applied for the issuance thereof, if the competent customs collector issued a loading confirmation in lawful procedures, the relevant loading confirmation is valid. Thus, the Plaintiff may be entitled to refund the instant traffic tax, etc. via the said loading confirmation.

(C) According to Article 17(8) of the Traffic Tax Act and Article 24(5) of the Enforcement Decree of the same Act, the collection of refunded tax amount shall be collected from a person who does not use the pertinent goods for the prescribed purpose. The person who does not use the pertinent goods for the prescribed purpose here refers to ○○ Marin, etc. or the owner of an overseas ship, which is a ship oil supplier who committed a direct misconduct. Thus, the Defendant is obliged to collect the traffic tax, etc. refunded against ○○ Marin, etc. or the owner, but it is unlawful for the Defendant to impose the traffic tax, etc. of this case on the Plaintiff who did not know that the Defendant did not have any authority or duty to manage and supervise the supply of oil and did not know that

(D) The traffic tax Act and subordinate statutes stipulate that the head of the competent customs office may directly verify whether the pertinent goods are loaded on an overseas navigation vessel, and that when submitting a loading permit, the person liable for duty payment shall be exempted from taxation or refund, and the person liable for duty payment shall be fully responsible to the head of the competent customs office, since the fact that the pertinent customs office issued a loading confirmation without taking an actual loading confirmation procedure through a change in a public notice with no external binding force, and that

(4) Claim for the zero tax rate of value-added tax

The Plaintiff was subject to the zero tax rate with the trust of the head of the competent customs office’s loading confirmation, and ○○ Marin, etc. supplied the instant oil to an overseas navigation vessel without unfairly discharging it in the Republic of Korea. Therefore, the disposition of imposition of value-added tax

(5) Illegal assertion about the imposition of penalty tax

Even if the Plaintiff is liable to pay the principal tax during the instant disposition, the Plaintiff is not obligated to pay the principal tax to the Plaintiff, but did not know that the instant oil was illegally distributed without having been carried in an overseas navigation vessel, and the Plaintiff was paid the traffic tax, etc. based on the belief that the loading certificate confirmed by the head of the competent customs office was stated. Therefore, it is unlawful to impose the penalty tax on the Plaintiff on the ground that there

(b) Related statutes;

Article 24(5) of the Enforcement Decree of the Traffic Tax Act

Article 17(8) of the Traffic Tax Act

(c) Fact of recognition;

(1) In general oil shipping flow for overseas navigation vessels, when the owner of an overseas navigation vessel requests a ship's agency to supply oil to the ship's agent, the ship's agent entrusts a oil supplier with an oil supply contract with the oil refineries, and the ship's oil supplier and the oil supplier order the oil supplier to determine the oil unit price, etc., the oil oil supplier shall request the oil supplier to supply oil to the oil supplier, and the oil supplier shall take the oil out through the oil supplier. Meanwhile, the Plaintiff entered into an overseas navigation service contract with the oil supplier to supply oil to the overseas navigation vessel. However, the Plaintiff entered into an overseas navigation service contract with the oil supplier, etc. after receiving the oil supplier's oil tanker's oil supply contract with the oil supplier. However, the Plaintiff entered into an overseas navigation service contract with the oil supplier's oil supplier's oil supplier's oil supplier's oil supply contract with the oil supplier's oil supplier's oil supplier's oil supply.

(2) In the case of general application for refund, the traffic tax, etc. paid shall be refunded by preparing a oil supply certificate signed jointly by the head of the competent customs office, and by submitting it to the head of the competent tax office, the representative of oil refining company that the said oil was normally loaded in an overseas navigation ship after receiving oil from the overseas navigation ship.

(3) With respect to the instant oil, the Plaintiff paid the traffic tax, etc. at the time of shipping oil from the manufacturing place to the oil reservoir. From January 9, 2003 to October 27, 2004, the Plaintiff carried out the instant oil to the overseas navigation ship through t radar-violation training, etc., and was refunded the traffic tax, etc. from the Defendant.

(4) However, from January 9, 2003 to October 27, 2004, 00: (a) in collusion with the captain of an overseas ship during the period from January 2003 to October 27, 2004, ○○○○○, an overseas navigation ship, prepared a false order for ordering 118,574 liters as if it were ordered by the captain of an overseas navigation ship; (b) and (c) in a case where the oil is unique to the Plaintiff through another ○○○○, by acquiring 23,901,978 liters of unique sulfur transit from the Plaintiff by deceiving 23,574 liters, and then, (d) sold the oil of this case to the land intermediate wholesalers in Busan port; and (e) forged the oil supply confirmation certificate, etc. as the oil supply confirmation certificate, and submitted to the Plaintiff upon confirmation by the head of the competent customs office.

[Ground of recognition] Evidence Nos. 1 and 2, Evidence Nos. 6-1, 2, 3, and 2, 3, and 6-1, and the purport of the whole pleadings

D. Determination

(1) Determination of the defective tax payment notice

According to Gap evidence Nos. 5-1 through 22, the defendant's notice of this case's disposition related to traffic tax to the plaintiff can be acknowledged that the plaintiff's appeal is based on the premise that Article 17 of the Traffic Tax Act is applied to the case where the defendant's notice of this case's disposition related to traffic tax, etc. is based on the "informendendum" under Article 3 of the Traffic Tax Act and Article 15 (Conditional Exemption Provisions) of the Traffic Tax Act. Meanwhile, according to the above evidence and each statement of evidence Nos. 3 and 4, the above notice of tax payment is legally stated both the taxable year, tax item and tax amount except for the provisions of Article 15 of the Traffic Tax Act as pointed out by the plaintiff, and the basis for calculation and payment of the above tax amount and the place of tax payment are not specified in the above provision of the Traffic Tax Act.

(2) Determination as to the assertion of defects by the disposition subject

Article 24 (5) of the former Enforcement Decree of the Traffic Tax Act (amended by Presidential Decree No. 18941 of Jul. 8, 2005, hereinafter referred to as the "Enforcement Decree of the Traffic Tax Act") provides that the head of the competent customs office shall collect the oil used in an overseas ship or deep sea fishing ship from the person who does not use the goods for the prescribed purpose. In light of the circumstances examined below (3), the above provision is established in order to clarify the subject of traffic tax collection in case the oil legally brought into an overseas ship is not used for the prescribed purpose in the overseas ship but still remains in an overseas ship.

Therefore, as in the case of this case, where the oil of this case is used for other purposes without being carried in an overseas navigation vessel and by ○○ Marin, etc., the defendant, the head of the competent tax office, pursuant to Article 24(5) of the Enforcement Decree of the Traffic Tax Act, is the subject of national tax collection.

(3) Determination on the assertion that the instant traffic tax refund requirements were met

(A) Requirements for refunding traffic tax, etc.

Article 17 (2) 4 of the Traffic Tax Act provides that where taxable goods for which traffic tax is already paid are used in an overseas navigation ship, the amount of traffic tax already paid shall be refunded. Article 17 (8) of the same Act provides that where it is confirmed that the goods are not used in an overseas navigation ship, the traffic tax shall be collected. Article 24 (5) of the Enforcement Decree of the same Act provides that where the goods concerned are under Article 17 (8) of the same Act, the traffic tax shall be collected from the person who does not use the goods concerned for the prescribed purpose from the head of the competent tax office. The latter part of the same Article provides that where the goods concerned brought into an overseas navigation ship are not used for the prescribed purpose in the overseas navigation ship, the traffic tax shall be collected from the head of the competent customs office. In addition, Article 3 (3) of the former Education Tax Act (amended by Act No. 7578 of Jul. 13, 2005) provides that the person liable to pay traffic tax under the Traffic Tax Act shall apply mutatis mutandis to the refund of education tax.

According to the provisions and purport of the above related laws, in order to refund traffic tax, etc. again after the person who paid traffic tax, etc. on taxable goods has been used in the overseas navigation ship, it is necessary to prove that the goods should be used in the overseas navigation ship.

(b) Persons subject to traffic tax;

Article 17 (8) of the Traffic Tax Act provides that traffic tax shall be collected in cases where it is confirmed that the relevant goods are not used for a foreign navigation ship as above, and the main sentence of Article 24 (5) of the Enforcement Decree of the same Act provides that the relevant traffic tax shall be collected from the person who does not use the relevant goods for the prescribed purpose in cases where they fall under Article 17 (8) of the same Act, while the latter part of Article 17 (8) of the same Act newly established by Presidential Decree No. 18180 of December 30, 2003 provides that traffic tax shall be collected from the relevant foreign navigation ship in cases where the relevant goods are not used for the prescribed purpose in the foreign navigation ship.

Meanwhile, Article 15(2) of the Traffic Tax Act provides that a person subject to collection who does not prove that oil carried in to an overseas navigation ship is not used for tax-free purposes after the tax exemption for oil brought in to the overseas navigation ship shall be subject to collection of traffic tax from the shipper or the importer, if it is found that such oil was not used for tax-free purposes after being carried in from the shipper or the importer. As such, Article 15(2) of the Traffic Tax Act provides that a conditional tax exemption provision of Article 15(1) of the same Act is first granted traffic tax exemption for oil brought in to an overseas navigation ship and Article 17(1) of the same Act provides that where the traffic tax exemption is granted for oil brought in to the overseas navigation ship and the traffic tax exemption provision of Article 15(2) of the same Act provides that the above two provisions vary from the time of tax exemption or deduction, and it does not appear that the traffic tax exemption provision of Article 15(2) of the same Act does not apply to the person subject to collection for the same purpose as the traffic tax exemption provision of Article 8(2).3).

Therefore, in order to be refunded traffic tax, etc. paid by the shipper or importer on the ground that the oil was used in the overseas navigation ship, the shipper or importer must prove that the oil was carried in to the overseas navigation ship which is the place where the oil was carried in. If the oil was not carried in to the overseas navigation ship but used for other purposes, the shipper or importer who was refunded traffic tax will be the person subject to traffic tax, etc.

(C) Determination

In this case, in order for the Plaintiff to receive traffic tax, etc. on the oil of this case, the Plaintiff must prove that the oil of this case was normally carried in to the overseas navigation vessel as stated in the loading permit, and there is no evidence to support this point. Rather, according to the facts acknowledged earlier, the oil of this case was normally carried out from the Plaintiff, and was distributed to the overseas navigation vessel after being supplied to the overseas navigation vessel, and did not meet the requirements for traffic tax refund, etc., even though the oil of this case was illegally distributed before being supplied to the overseas navigation vessel, the Plaintiff was paid traffic tax, etc., and until the oil of this case satisfies the requirements for refund because it was normally supplied to the overseas navigation vessel.

Therefore, the Plaintiff failed to meet the requirements for refund of the instant oil traffic tax, etc. and the Plaintiff is a person subject to collection of traffic tax. Accordingly, the Plaintiff’s assertion that the Plaintiff did not meet all the requirements for refund of the instant traffic tax, etc. by submitting to the Defendant, and the Plaintiff’s assertion that the Plaintiff was not a person subject to collection of the instant traffic tax, etc. through the loading confirmation issued by the head of the competent customs office. However, the Plaintiff’s assertion that the Plaintiff was not liable for refund of the instant traffic tax, etc., but the Plaintiff’s submission of the order to obtain confirmation of the Plaintiff’s purchase of the oil from the Plaintiff’s captain and the Plaintiff’s agent’s purchase of the oil to obtain confirmation of the amount of traffic tax under the former Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (amended by Act No. 8233, Jan. 31, 2007) is not subject to the Plaintiff’s submission of the aforementioned confirmation to the head of the competent customs office’s approval or its submission.

(4) Determination of the zero-value tax rate assertion

In order to obtain value-added tax rate, the Plaintiff’s goods supplied to a foreign country under Article 11(1)4 of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006; hereinafter “Value-Added Tax Act”) and Article 26(1)3 of the Enforcement Decree of the same Act must be applicable to the goods supplied to a foreign country. However, the application of zero-rate tax under the Value-Added Tax Act is, in principle, applicable only to exports, but it is limited to exports for domestic consumption, and it is limited only to exceptional cases that conforms to the national policy purpose of encouraging foreign exchange within the extent that does not undermine foreign exchange management and order in collecting value-added tax. Thus, even in the case of Article 11(1)4 of the Value-Added Tax Act and Article 26(1)3 of the Enforcement Decree of the same Act, it is reasonable to deem that the above Act and subordinate statutes strictly stipulate that zero-rate tax rate should apply only where actual foreign exchange earnings have been earned.

(5) Determination on the illegality of imposition of penalty tax

Under the tax law, in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, a taxpayer’s intention or negligence is an administrative sanction imposed as prescribed by the individual tax law, and the taxpayer’s failure or negligence is not considered. Such stay cannot be imposed if there is a justifiable reason not to cause the failure of the taxpayer to perform his/her duty, such as when it is unreasonable for the taxpayer to be unaware of his/her duty or when it is unreasonable to expect the party to fulfill his/her duty.

According to the above facts, even if the Plaintiff is responsible for the issuance procedure of the loading certificate of this case or its entries, the captain of ○○ Marin, etc. and the captain of an overseas navigation vessel conspired with each other to supply the oil of this case normally to an overseas navigation vessel, forged the oil supply certificate, etc., and submitted a false application for confirmation of loading goods subject to refund to the Plaintiff after obtaining confirmation from the head of the competent customs office, and submitted it to the Plaintiff. The Plaintiff was entitled to traffic tax, etc., which was submitted to the Defendant who is the head of the competent customs office, based on the belief of the loading certificate issued by the head of the competent customs office and based thereon. The Plaintiff did not conspired to or participated in the act of acquiring the oil of this case, such as ○○○ Marin, etc., and it seems unreasonable for the Plaintiff to expect the performance of the obligation to pay the traffic tax, education tax, or value-added tax, and there are justifiable

Therefore, among the dispositions in this case, the imposition of additional tax should be revoked because the part of the disposition in this case is illegal, and according to subparagraph 7-1 to 22, subparagraph 8-1 to subparagraph 8-4, the part of the additional tax related to the disposition in this case is identical to the stated amount in attached Table 3. The "additional tax related to the disposition in this case" in the attached Table 3. The amount of the additional tax related to the disposition in this case is identical to the stated amount after cancellation of this part, and the amount of the legitimate imposition of the traffic tax, education tax, and value-added tax after cancellation of this part is less the "amount of the non-permanent amount of the non-permanent amount of the tax" after adding the "amount of the

3. Conclusion

Therefore, the plaintiff's claim of this case seeking revocation of the disposition of this case is justified within the scope of seeking revocation of the part exceeding 719,379,65,65,830,90 won among the disposition of imposition of traffic tax of KRW 6,065,830,90, education tax of KRW 2,000,862,030, and value-added tax of KRW 909,874,570, 570, and value-added tax of KRW 960,55,010 as stated in the disposition of imposition of traffic tax of KRW 8,677,121,820, and it is so decided as per Disposition. The remaining claim is dismissed as per Disposition.