(a) Of the imposition disposition of KRW 14,967,130 (including additional taxes), KRW 9,676,60 among the imposition disposition of KRW 17,40 (including additional taxes), KRW 11,64,903 among the imposition disposition of KRW 17,40,280 (including additional taxes), KRW 11,664,90 among the imposition disposition of KRW 16,664,910 (including additional taxes), KRW 11,593,60, KRW 166,590 among the imposition disposition of KRW 12,057,296, KRW 16,016, KRW 16,00 for the first year of 2014, KRW 16,012, KRW 730 for the second year of value-added tax, KRW 12,526, KRW 200 for the second year of 2013, KRW 16,2014, KRW 2615, KRW 2965 (including additional taxes);

B. Of the imposition of KRW 7,071,850 (including additional taxes) in 2,250,097 and the imposition of KRW 7,897,360 (including additional taxes) in 2012,853,650, and the imposition of KRW 7,835,160 (including additional taxes) in 2013,853,563, and 2,853,563 of the imposition of global income tax in 2014.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

1. The Defendant reported to the Plaintiff on September 1, 2016

(a) Each disposition of imposition of the value-added tax of KRW 14,967,130, value-added tax of KRW 17,400,280, KRW 164,910, KRW 1664,910, KRW 2013, KRW 1666, KRW 166,590, KRW 16,00, KRW 16,014, KRW 16,012, KRW 730, and KRW 15,691,080 (including additional tax) of KRW 2,014, KRW 2014;

(b) Each disposition of global income tax of KRW 7,071,850 in 2012, global income tax of KRW 7,897,360 in 2013, global income tax of KRW 7,835,160 in 2014 (including respective penalty tax) shall be revoked.

A. The plaintiff's status

1) On March 1, 200, the Plaintiff registered its business by setting its trade name at the OOO-O-O-type 'O-type 'O-type 'O-type 'O-type cafeteria' and 'm-type cafeteria'.

2) A cafeteria operated by the Plaintiff (hereinafter referred to as “instant cafeteria”) is an operator restaurant designated by the OCO Co., Ltd. (hereinafter referred to as “OCO”).

B. Imposition of value-added tax by the defendant

1) The Plaintiff did not file a value-added tax and comprehensive income tax on KRW 693,250,409 in total on the supply value of meal services provided to bus drivers by filing a report on value-added tax and global income tax with the Defendant from 2012 to 2014.

2) From July 26, 2016 to August 1 of the next year, the Defendant confirmed the site of the instant restaurant, and determined that the Plaintiff omitted the return and payment of value-added tax and global income tax, even though the Plaintiff provided meal services to bus drivers.

3) Accordingly, on September 1, 2016, the Defendant issued a revised and notified the Plaintiff on September 1, 2016, the sum of value-added tax totaling KRW 97,402,720, and global income tax totaling KRW 22,804,370 (including additional tax) (hereinafter “instant disposition”).

(c) Procedures of the previous trial;

On October 24, 2016, the Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on October 24, 2016, but the appeal was dismissed on November 16, 2017. The fact that there is no dispute with recognition, and the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) The Plaintiff is not a person who has supplied meals independently for business, and is not obligated to pay value-added taxes. Comprehensively taking account of the following circumstances, the Plaintiff is not obligated to pay value-added taxes pursuant to Article 106(1)2 of the Restriction of Special Taxation

A) On January 14, 1990, prior to the implementation of the joint bus allocation system for OO-si buses (hereinafter referred to as the “joint bus allocation system”), one bus company was in exclusive charge of a specific bus route and returned to that bus company’s garage, and thus, the bus company was able to directly operate the restaurant on its garage.

However, since the joint bus allocation system has been implemented, it is difficult for a specific bus company to directly operate the cafeteria at one garage because many bus companies share a specific bus route.

Accordingly, anO union established pursuant to Article 53 of the Passenger Transport Service Act (hereinafter referred to as the "passenger Transport Service Act") designates various restaurants in each garage, including the instant restaurant, as a driver restaurant, and operates it as a cafeteria in fact as before.

Therefore, the bus service provider is a bus company belonging to the OO association, and the plaintiff is only a person who provided a meal service.

B) In particular, an OO union directly determined all important matters concerning meal services, such as the price (sale right) of meals supplied at the instant restaurant, time of provision, quality, cook’s uniforms, clean condition, and maintenance of cooling and heating facilities. Only the Plaintiff determined only the extent of the purchase of food materials, employment and management of employees.

Therefore, the plaintiff only performed the act of providing meals to drivers under the management and supervision of the OO association, and does not provide meals to OO unions or bus drivers as an independent business entity.

C) The food fee that the Plaintiff received does not include value-added tax. In other words, the food fee that the O association paid to the restaurant operators including the Plaintiff around September 2016 is merely an average OO won per food ticket. However, if the value-added tax is included therein, the actual food supply price is merely an average OO cost, and it does not exceed half of the total food cost, which is the average food cost, out of the consumer price index at the time of OO on September 2016.

D) The Plaintiff operated a restaurant in the same manner in the same place from before the introduction of the OO bus joint allocation system. Moreover, the Defendant did not have any record of imposing value-added tax on the Plaintiff.

2) Of the instant dispositions, the imposition of additional tax must be revoked at least. The Tax Tribunal already rendered an adjudication decision on the fact that there is no value-added tax liability for those who run a restaurant as the Plaintiff, like the Plaintiff, on several occasions.

Therefore, whether the Plaintiff is obligated to pay value-added tax on the supply of meal services while operating the instant restaurant shall be deemed to have a conflict of opinion on the interpretation of the tax law beyond a simple legal construction site or misunderstanding.

Therefore, the plaintiff has justifiable reasons for failure to pay the value-added tax and the general income tax.

B. Relevant statutes

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

(c) Fact of recognition;

In full view of each of the above evidence, Gap evidence Nos. 1 through 13, Eul evidence Nos. 1 through 5 (including each of the above numbers) and the whole purport of the pleadings, the following facts are recognized:

1) From the first period (from January 1 to June 30) of 2012 to the second period (from July 1 to December 31, 2014) of 2014, the details of the proceeds from supply, the reported amount of sales, etc. received by the Plaintiff while operating the instant restaurant are as follows (attached 3).

2) According to the collective agreement in 2015 concluded between the OO association and the O-city bus trade union (referring to a trade union consisting of bus drivers operated at OO; hereinafter referred to as “trade union”), the O-trade union shall provide the members of the trade union with daily meal services free of charge in purely welfare terms, and (2) in any case with meal services provided free of charge, and (3) actively endeavor to improve the quality of meals and to supervise the restaurant management and supervision of the designated driver’s restaurant.

3) There is no separate contract between the Plaintiff and the OCO on the supply of meal services. Moreover, there is no fact that there was no labor contract between the Plaintiff and the OO association or between the Plaintiff and each bus company. The Plaintiff prepared and delivered each of the following contents to the OO association and operated the instant restaurant.

4) The distribution system of transportation revenues under Section 2 (b) of the city bus at which the OO market is in force is as follows:

[Afforestation] A system for allocating transportation revenues under a system of completion management, namely, ① a city bus transportation business entity shall jointly manage transportation revenues by entering into a joint transportation agreement between the business entities; ② a joint management of such revenues shall be conducted by the council of revenue joint management business entities within the OO association; ③ the above council shall allocate transportation revenues to the transportation business entity according to the settlement results of the standard transportation cost approved by the OOO; ④ when a shortage of transportation revenues occurs, the OO market shall be paid at the request of the transportation business entity.

5) The procedures for the settlement and payment of meal costs to an operator restaurant designated by the Organization, including the instant restaurant, are as follows.

A) Each bus company shall provide its bus drivers with the right of meals (the route and the name of its bus company) according to operating hours.

2) The completion management system refers to a system that provides financial support to trucking business operators for shortage of transport earnings in order to provide stable and improved services, such as free transfer and rapid adjustment of service routes, in the form of a mixture of public and private sector systems of urban buses.

B) The price per meal ticket is determined by an agreement between the bus company and the trade union. The OO recognizes the use amount of food tickets based on the agreement between the unions and the city bus in accordance with the Guidelines for Calculation and Settlement of the Standard Cost of Transport Cost of the city bus and supported the finances accordingly (the unit price for food tickets shall be applied differently according to the number of vehicles used to maintain equity among drivers and restaurants).

C) A bus driver shall be provided with meals by submitting a ticket at a restaurant at the end point or the end point of the bus route during the bus operation.

D) The cafeteria operators, including the Plaintiff, submit food rights received from bus drivers to the OO association twice a month, and the OO association shall pay the meal costs in proportion to the amount of meal rights used by the cafeteria operators once a month.

E) Pursuant to the "OO-type bus transport agreement", the O-type bus companies determined the meal cost for each bus company based on the degree of use by bus drivers belonging to each bus company, etc. ② issue a tax invoice after deducting the amount from the standard transport cost to be paid to each bus company. ③ Each bus company processed the amount to be paid to each bus company as the account for personnel expenses, welfare expenses, etc.

6) Specific facilities, use, etc. of the instant restaurant are as follows.

A) The instant restaurant is located within the place of business (it shall be used as a terminal for five city bus routes) of the DD Bus Co., Ltd. (hereinafter referred to as “DD Bus”).

B) The building and site of the instant restaurant are owned by all DD buses.

C) The Plaintiff provided meals to seven bus drivers belonging to the instant restaurant, including DD buses, EE Transport, FF Transport, GG Buses Co., Ltd., HH Transport, II Transport, JW Passenger Co., Ltd.

D) The instant restaurant is an OOO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O

E) The signboard of the instant restaurant is indicated as an engineer restaurant (tobacco sale) and the appearance of the restaurant is not indicated with a me new plate or a separate trade name. The inside of the restaurant is provided with 6 mebbles on a size of 10 square meters.

F) At the instant restaurant, one employee, other than the Plaintiff, has been employed in the main restaurant. The Plaintiff paid daily wages to his employees since 2012, and reported the details of withholding to the Defendant.

G) In the instant restaurant, tobacco is sold, and other cash purchases such as alcoholic beverages and beverages are not confirmed in addition to tobacco. The outside of the restaurant is a beverage and coffee plate.

H) The OCO sent detailed operational guidelines on the quality, sanitary conditions, etc. of meals to the Plaintiff several times as follows.

7) An OO union asked the OO branch office of the OO of the Korea Employment and Labor Agency about whether the operator of the restaurant is an employee under its jurisdiction, and the main contents of the response are as follows.

○○O association and meal facility operator did not directly conclude a labor contract, and only prepared and entrusted the operation of the ○○○○○○ Association with the operation of the cafeteria, which did not set working hours, but also did not directly and specifically instruct the operation of the cafeteria. The fee for the operation of ○○ meal facility is more characteristics than the wage prescribed in the Labor Standards Act, such as the O association does not pay fixed work hours, and all income generated by the O association exists.In full view of ○○ above, it is reasonable to regard the OO association and the o’s meal facility operator as the relationship in which the o’s business is independently conducted under the consignment contract rather than the relationship in which the o’s association provides labor and receive wages. Accordingly, it is deemed difficult to regard the o’s meal facility operator as a worker prescribed in the Labor Standards Act, and in the case of not an employee, the provisions of the Labor Standards Act do

(d) Whether the imposition of value-added tax and its additional tax is legitimate;

1) As to the imposition of value-added tax

A) Relevant legal principles

According to Article 2 subparagraph 3 of the Value-Added Tax Act, the term "business operator" means a person who supplies goods or services independently for business regardless of whether the business purpose is profit-making or non-profit. The term "independent" means the supply of goods or services with the form of business to an extent that it may create a value-added and with continuous and repeated intent.

Therefore, even if economic, financial, or organizational relations is somewhat bound by another business entity, it is reasonable to view that the supply of goods or services on its own responsibility or on its own account constitutes a "business entity" under the Value-Added Tax Act.

B) Determination on issues

In light of the above relevant legal principles, the plaintiff is a business operator under the Value-Added Tax Act because the plaintiff is not an employee of the OCO but an employee of the OCO for the following reasons.

Therefore, the imposition of value-added tax against the plaintiff is legitimate, and this part of the plaintiff's assertion is without merit.

(1) On February 28, 200, the Plaintiff applied for business registration to the Defendant and received a business registration certificate as a general taxable person of value-added tax. However, in order to operate a restaurant business which is a food service business, the Plaintiff’s business registration must be completed prior to the business license or the business report, and if the business registration is cancelled, the business report may also be cancelled (see, e.g., Article 37(7) of the Food Sanitation Act). Accordingly, once the Plaintiff registered his/her business with his/her own intent and operates the instant restaurant, it should be deemed that the Plaintiff expressed his/her intention to become the subject of various administrative responsibilities prescribed by the relevant laws and regulations, such as the Food Sanitation Act.

D. The Plaintiff, on its own responsibility or on its own account, purchased food materials and paid personnel expenses, and prepared or repaired internal facilities, fixtures, fixtures, and fixtures, etc. to which the Plaintiff directly intervene or decided differently from the Plaintiff’s intent. In the process, there is no evidence suggesting that the food materials would be directly involved or otherwise determined within the scope of the food rights price presented by the O association, and that the number of employees and personnel expenses would be increased and decreased, thereby regulating the operating income that the Plaintiff could acquire from the food rights price.

Article 22(1) of the former Food and Drug Association Act provides that a person who operates the instant restaurant shall be punished by imprisonment with labor or an apportionment of labor or an apportionment of labor or an apportionment of labor or an apportionment of labor or an apportionment of labor or an apportionment of labor or an apportionment of labor or an apportionment of labor or an apportionment of labor.

As examined earlier, there are specific circumstances that the Plaintiff is somewhat bound by the intent of the OO association in economic, financial, or organizational relations. However, the Plaintiff had been able to obtain stable revenues by continuously securing fixed customers compared to that of the general restaurant instead of accepting such structural succession. Moreover, if the Plaintiff accepts only the demand from the OO association, there was no need to make an investment in particular efforts or costs for inducing customers, namely, various matters that the operator of the external restaurant must naturally bear, namely, advertisements or public relations to attract customers, new mail New, development of new mail, and comparison of prices with the competitive business establishment.

(v) The Plaintiff asserts to the effect that he inevitably registered his business in order to sell tobacco. However, from the first to the second period of 2012, the Plaintiff reported and paid value-added tax to the Defendant, and the reported sales include some sales except tobacco sales. In addition, the Plaintiff made a registration of business and made it clear that the Plaintiff is not a “retail and tobacco” but a “nick and cafeteria” restaurant in the column of business. Therefore, it is difficult to believe the Plaintiff’s assertion as it is.

⑹ 원고와 OO조합 사이에 작성한 위 각서에 의하면, OO조합이 원고에게 식권대금을 결정하여 주고, 일정한 수준 이상의 식사 품질과 위생 청결 등을 요구하며, 그것이 지켜지지 않을 경우 식사대금 인하 및 지정식당 계약해지 등의 불이익을 줄 수 있다.

However, this is merely a matter of duty of due care as a good manager that can be seen commonly in the consignment contract for the operation of the restaurant, or a matter of duty that the truster may demand naturally to the trustee.

In addition, there is no other evidence to deem that the Plaintiff was subject to specific and individual command and supervision concerning the operation or business of the instant restaurant by the OCO.

⑺ 한편 원고는 식권대금에는 부가가치세가 포함되어 있지 않다는 취지로도 주장한다. 그러나 부가가치세법 제29조 제7항에 의하면, 사업자가 재화 또는 용역을 공급하고 그 대가로 받은 금액에 부가가치세가 포함되어 있는지가 분명하지 아니한 경우에는 그 대가로 받은 금액에 110분의 100을 곱한 금액을 공급가액으로 한다.

Therefore, as seen earlier, insofar as the Plaintiff is an entrepreneur prescribed in the Value-Added Tax Act, the Defendant’s imposition of an amount equivalent to 100/110 of the value paid to the Plaintiff as the value of supply shall be deemed to be unlawful.

2) As to the imposition of value-added tax

A) Relevant legal principles

Under the tax law, penalty taxes are administrative sanctions imposed, as prescribed by the Act, in cases where a taxpayer violates a duty to report and pay taxes, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim. Penalty taxes should be imposed for nonperformance of a duty under the tax law, unless there are justifiable grounds for not being able to cause a taxpayer to neglect his/her duty, such as where the taxpayer is reasonably deemed to have failed to know his/her duty, or where it is unreasonable to expect the relevant party to fulfill his/her duty. (See, e.g., Supreme Court Decision 2001Du8100, Feb. 14, 2003).

B) Determination on issues

In light of the above relevant legal principles, the Plaintiff was not aware of the liability to pay value-added tax for the following reasons. Therefore, this part of the Plaintiff’s assertion is reasonable.

(1) Since the implementation of the joint bus allocation system, the Plaintiff has been providing meals to drivers in a restaurant of DD buses. Moreover, after the implementation of the joint bus allocation system, the Plaintiff registered its business in line with the actual situation of bus operation, and supplied meals to drivers of various bus companies including DD buses in the instant restaurant.

In this process, the plaintiff seems to have been written only on a restaurant, as in the previous case, and the new business structure was conducted, which led to his/her failure to fully recognize the fact that he/she was a taxpayer under the Value-Added Tax Act.

However, the reorganization of such business structure is not carried out solely for the plaintiff's intention or maximizes personal interests, but inevitably caused by the implementation of the joint allocation system for O buses. Therefore, it is difficult to expect the plaintiff, other than the legal text, to report and pay the value-added tax according to the procedures prescribed by the Act, by thoroughly recognizing the technical and legal effects inevitably incurred thereby.

Luxembourg In the past, the Tax Tribunal revoked the disposition of value-added tax by the tax authority on the ground that the operator of the cafeteria whose business structure has been restructuring following the implementation of the bus joint bus allocation system, such as the instant cafeteria, does not constitute a business entity specified in the Value-Added Tax Act.

However, the case of the above decision is that the tax authority has ex officio registered a restaurant operator who has not registered the business and imposed value-added tax on the restaurant operator who has not registered the business, and there is a somewhat different difference from this case.

However, the above decision of adjudication seems to have served as an important precedent suggesting the direction of self-determination of whether a restaurant operator, such as the Plaintiff, is a taxpayer under the Value-Added Tax Act, and it is difficult to expect that he/she is a taxpayer of value-added tax, unlike the above decision of adjudication, by investigating specific facts and interpreting statutes.

Therefore, it would be unreasonable to expect the Plaintiff to pay the value-added tax accurately even in light of the review decision of the Tax Tribunal.

Article 12(1) of the former Food and Drug Protection Act (amended by Act No. 1010, Dec. 1, 2011) provides that “The head of the Si/Gun/Gu shall not impose any value-added tax on the Plaintiff or the head of the Si/Gun/Gu,” and “the head of the Si/Gun/Gu,” and “the head of the Si/Gun/Gu,” and “the head of the Gu, etc.

E. Whether the imposition of global income tax and its additional tax is lawful

1) As to the imposition of global income tax

A) Relevant legal principles

Business income stipulated under the Income Tax Act refers to income generated from a business that is a social activity that continues in and repeatedly in an independent position for profit-making purposes. Whether a certain income constitutes business income or other income that is a lump-sum income ought to be determined in accordance with social norms, taking into account the details, period, frequency, mode, and all other circumstances before and after the activities of a person liable to pay tax, in which such income was generated (see, e.g., Supreme Court Decisions 2000Du5210, Jun. 15, 2001; 2010Du8430, Sept. 9, 2010).

B) Determination on issues

In light of the relevant legal principles as seen earlier, as seen earlier D, the Plaintiff continuously and repeatedly earned income from operating the instant restaurant from an independent position for profit-making purposes, and thus, such income constitutes business income under the Income Tax Act. Therefore, the disposition imposing global income tax on the Plaintiff is lawful, and therefore, this part of the Plaintiff’s assertion is without merit.

2) As to the imposition of additional tax on global income

A) As seen earlier, the Plaintiff did not know that there was a value-added tax liability, and thus, there was a justifiable reason for the Plaintiff not knowing that the income earned by operating the instant restaurant constituted “business income” under the Income Tax Act.

B) However, even if so, it cannot be deemed that there was a justifiable reason even though the Plaintiff did not know that the Plaintiff should pay the income tax under the Income Tax Act because the Plaintiff falls under “ earned income” or “other income.”

In other words, even if there is a justifiable reason to believe that the plaintiff's income accrued from 2012 to 2014 is not "business income", such income is naturally " earned income" or "other income," and thus, it is merely a lot of law or misunderstanding that the plaintiff was unaware of the fact that there was such tax liability.

In fact, in this case, the Plaintiff asserts that he/she is an employee who belongs to an O association. Accordingly, even following such assertion, he/she should have paid income tax based on the earned income. Therefore, the circumstances alleged by the Plaintiff cannot be deemed as justifiable grounds for not knowing that he/she was liable to pay income tax based

C) Ultimately, the Plaintiff is not liable to pay penalty tax on the amount of income from business income, but at least is liable to pay penalty tax on the amount of income from earned income.

Therefore, in the imposition of global income tax on the Plaintiff, the amount equivalent to the difference between the income tax amount from the business income and the income tax amount from the earned income should be revoked.

However, in the instant case, in a case where the Plaintiff’s income earned from 2012 to 2014 is deemed as earned income, there is no evidence to calculate the income tax and additional tax to be paid accordingly. As such, when there is no evidence to calculate a legitimate tax amount, the entire tax assessment should be revoked (see, e.g., Supreme Court Decision 95Nu5400, Jun. 30, 1995). Therefore, the disposition imposing global income tax on the Plaintiff should be revoked in its entirety.

(f) Scope of revocation

따라서 이 사건 처분 중에서 ① ㉮ 2012년 제1기 부가가치세 14,967,130원(가산세포함) 부과처분 중 9,676,600원(= 14,967,130원 - 가산세 5,290,530원), ㉯ 2012년 제2기 부가가치세 17,400,280원(가산세 포함) 부과처분 중 11,664,903원(= 17,400,280원 -가산세 5,735,377원), ㉰ 2013년 제1기 부가가치세 16,664,910원(가산세 포함) 부과처분 중 11,593,607원(= 16,664,910원 - 가산세 5,071,303원), ㉱ 2013년 제2기 부가가치세 16,666,590원(가산세 포함) 부과처분 중 12,057,296원(= 16,666,590원 - 가산세4,609,294원), ㉲ 2014년 제1기 부가가치세 16,012,730원(가산세 포함) 부과처분 중 12,057,526원(= 16,012,730원 - 가산세 3,955,204원), ㉳ 2014년 제2기 부가가치세15,691,080원(가산세 포함) 부과처분 중 12,325,096원(= 15,691,080원 - 가산세3,365,984원)을 각 초과하는 부분과 ② ㉮ 2012년 종합소득세 7,071,850원(가산세 포함) 중 2,250,097원(= 7,071,850원 - 가산세 4,821,753원), ㉯ 2013년 종합소득세7,897,360원(가산세 포함) 중 2,853,650원(= 7,897,360원 - 가산세 5,043,710원), ㉰2014년 종합소득세 7,835,160원(가산세 포함) 중 2,853,563원(= 7,835,160원 - 가산세4,981,597원)을 각 초과하는 부분은 모두 취소되어야 한다.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as there is no reason. It is so decided as per Disposition.