영업장면적 40평 이하인 유흥주점이 특별소비세과세대상인지여부[국승]
The propriety of a disposition rejecting a request for correction for a refund of the special consumption tax reported and paid to king, not subject to the special consumption tax in accordance with the guidelines of the National Tax Service, for entertainment taverns with the area of business of 40 or less square meters.
As for the contents of the judgment of the first instance court, the plan to promote the normalness of entertainment tavern taxation is only an internal guidelines, and the special consumption tax provides that the special consumption tax shall be imposed on entertainment and eating at a specific place. Thus, whether it is subject to the special consumption tax shall be determined according to the size of the place of business, not depending on whether it has been engaged in entertainment and eating, and as long as there is no dispute over the fact that entertainment and eating have
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The defendant's rejection of each claim for correction of KRW 11,717,702 in total and KRW 3,515,304 in total and KRW 7,895,816 in total and KRW 2,368,737 in total and KRW 2,37 in total and KRW 3,515,304 in total and KRW 3,515,304 in total and KRW 2,368,737 in each education tax on entertainment tavern from January to December 12, 2004 for the plaintiff on November 9, 2005.
1. The reasoning for this court's explanation is as follows: Article 2 (1) 11 of the Enforcement Decree of the Special Consumption Tax Act is the same as the judgment of the first instance except for the dismissal as follows. Thus, it shall be accepted as it is in accordance with Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act.
〝특별소비세법 시행령(2007. 2. 28. 대통령령 제19895호로 개정되기전의 것)
Article 2 (Definitions)
(1) The definitions of terms used in the Act or this Decree shall be as follows:
11. "유흥음식요금"이라 함은 음식료·연주료 기타 명목 여하에 불구하고 과세유흥장소의 경영자가 유흥음식행위를 하는 자로부터 영수하는 금액을 말한다. 다만, 그 영수하는 금액 중 종업원(자유직업소득자를 포함한다)의 봉사료가 포함되어 있는 경우에 「부가가치세법」의 규정에 의한 세금계산서·영수증·신용카드매출전표 또는 직불카드영수증에 이를 구분하여 기재한 때에는 그 봉사료는 유흥음식요금에 포함하지 아니하되, 과세유흥장소의 경영자가 그 봉사료를 자기의 수입금액에 계상하는 경우에는 이를 포함하는 것으로 한다.〞
2. If so, the judgment of the first instance is just, and the plaintiff's appeal is dismissed as it is without merit.