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

The following facts can be found by taking into account the overall descriptions and arguments of Gap evidence 1-3, Eul evidence 1 through 11, Eul evidence 3, Eul evidence 5-1 through 14, Eul evidence 1-3, Eul evidence 2-1 through 11, Eul evidence 3-4, Eul evidence 4-5, and 7, and Eul evidence 11 and evidence 12-1 through 14, respectively:

A. The Plaintiff, from May 2010 to March 14, 2010, sold approximately 200, and approximately 200,000, and approximately 1,000,000, and one storage place was outside the building, and refined petroleum products were stored in an external fuel tank, stored in the storage place inside the building, and similar petroleum products were manufactured and stored in the storage place in the building, and sold at the above BB Energy from May 2010 to March 14, 201, and without registering petroleum retail business, at the court of 200,00 gasoline and 1,00,000, and 20,000, and 1,00,00,000, and 1,000,000, and 20,000,00,000,00,00,000,00,000,00 won and 20,00,00.

B. After rendering the judgment of the court of first instance, the defendant's above similar petroleum from the Busan National Tax Service.

제조 ・ 판매수량 등에 관한 과세자료를 통보받고 원고가 석유판매업 등록을 하지 아니 하고 판매한 정상적인 석유제품의 판매수량을 휘발유 200，000L，，경유 200，000L，， 등유 1，000，000L，로， 원고의 유사 석유 제조 ・ 판매수량을 3，215，800L，로 산정하여 이를 과세 표준으로 삼아 2011. 11. 1. 원고에게 별지 1 목록 기재와 같이 2010년 제1기부터 2011년 제1기까지의 부가가치세와 그에 대한 가산세， 교통 • 에너지 ・ 환경세(이하 '교 통세' 라 한다)와 교육세 및 그에 대한 가산세를 경정하여 부과하였고，2012. 11. 22. 위 2011. 11. 1.자 위 부가가치세 등의 경정 ・ 부과처분 중 가산세에 대한 부분을 직권 취소한 다음， 2013. 1. 7. 가산세를 별지 1 목록 기재와 같이 부과하였다[이하 2011. 1. 11.자 부가가치세， 교통세， 교육세 경정 • 부과처분(가산세 부분은 모두 제외) 및 2013. 1. 7.자 가산세 부과처분을 합쳐 '이 사건 처분' 이라 한다.

C. On December 27, 2011, the Plaintiff filed an appeal against the Defendant’s taxation disposition as of November 1, 2011, and filed an appeal with the Tax Tribunal, but the Tax Tribunal dismissed the Plaintiff’s claim on March 30, 2012.

2. Whether the disposition in this case is legitimate

(a) Relevant statutes;

Attached Form 2 shall be as listed in attached Table 2.

B. The Plaintiff’s assertion that it does not constitute a taxpayer of value-added tax and traffic tax

1) The plaintiff's assertion

The Plaintiff, who is employed by KimCCC and was engaged in the manufacture and supply of the similar petroleum of this case to KimCCC, and who actually manufactures and sells the similar petroleum of this case, is KimCCC. Therefore, it is difficult to see that the Plaintiff is a person who supplies goods independently under the Value-Added Tax Act or a person who manufactures and carries out taxable goods under the Traffic, Energy and Environment Tax Act (hereinafter referred to as the "Traffic Tax Act"), and it is not a person liable to pay the value-added tax and traffic tax.

2) Determination

Article 2 (1) of the Value-Added Tax Act provides that "The plaintiff is obligated to pay value-added tax independently to non-party 1 regardless of whether it is profit-making or not, and that "the plaintiff is obligated to pay traffic tax" under Article 2 (1) 2 of the former Traffic Tax Act (amended by Act No. 1123, Dec. 31, 201; hereinafter the same shall apply) and Article 3 (1) 1 of the same Act provides that "the person who manufactures and ships light oil and substitute oil similar thereto shall be liable to pay traffic tax" shall be deemed to be 0. The plaintiff's own provision of "non-party 1" and "non-party 1" under Article 2 (1) 2 of the same Act, and subparagraph 7 of the same Article, and subparagraph 7 of the same Article, and similar provision of "non-party 2" to non-party 1, 2010, and that it is difficult for the plaintiff to independently supply similar petroleum products to non-party 1.

C. The assertion that the value-added tax should be deducted from the tax base of value-added tax

1) The plaintiff's assertion

A) General Rule 13-48-7 of the Value-Added Tax Act provides that "if goods manufactured or processed are supplied or services are provided using raw materials delivered by the other party to the transaction, the value of the relevant raw materials shall not be included in the tax base."

B) The Plaintiff received oil from KimCC, the other party to the instant similar petroleum, as its raw material, and then produced the instant similar petroleum, and then supplied it to KimCCC, and in light of the language and text of the aforementioned basic provisions, the Plaintiff’s oil supplied from KimCCC constitutes a raw material that the Plaintiff received from the other party to the transaction. Therefore, even though the value should be deducted from the tax base of the instant value-added tax, the instant disposition that calculated the tax base without deducting it is unlawful.

2) Determination

In the interpretation of Article 13 of the Value-Added Tax Act and Article 48 of the Enforcement Decree of the same Act, where the raw materials delivered by the other party to the transaction are used and the goods manufactured and processed are supplied, the value of the relevant raw materials shall not be included in the tax base of value-added tax (Supreme Court Decision 89Nu2332 Decided December 12, 1989). However, the above legal principle applies to cases where the manufacture, processing, or processing is performed only after being entrusted with the manufacture, processing, etc., and the fees are collected and the products manufactured and processed are supplied as a seller (if the manufactured and processed products are sold as such, the amount equivalent to the value-added tax on the raw materials purchased or supplied by the seller according to the input tax deduction system according to the tax invoice may be deducted). Accordingly, with respect to this case where the plaintiff independently manufactured and sold the similar petroleum of this case, it cannot be calculated after deducting the value of the above oil from the sales value of the similar petroleum of this case, and therefore, the plaintiff's tax base of this part is without merit.

D. The assertion that the input tax amount, such as oil, etc. should be deducted among the value-added tax amount

1) The plaintiff's assertion

The Plaintiff was supplied with oil, which is the raw material of the similar petroleum from KimCCC, manufactured it, supplied it to KimCCC, and deducted the amount of tax (purchase tax) on the oil supplied by KimCCC from the amount of tax (sale tax) on the similar petroleum of this case pursuant to Article 17 (1) of the Value-Added Tax Act, and did not deduct the amount of tax on the supply of the similar petroleum of this case, but the disposition of this case was unlawful.

2) Determination

Article 17(2)2 of the Value-Added Tax Act provides that input tax shall not be deducted from the output tax amount unless a tax invoice is issued under Article 16(1) and (2), and Article 17(4)5 of the same Act. Article 16(1) of the same Act provides that input tax shall not be deducted from the output tax amount. Article 16(2)2 of the same Act provides that input tax shall include the subject of issuance of the tax invoice, the timing of issuance, and the matters to be entered in the tax invoice. In other words, there is no evidence to acknowledge that the Plaintiff was issued the tax invoice under Article 17(2)2 of the Value-Added Tax Act with respect to oil supplied by KimCC. Rather, there is no evidence to acknowledge that the Plaintiff was issued the tax invoice under Article 17(2)2 of the Value-Added Tax Act with respect to oil supplied by KimCC.

E. The assertion that the instant similar petroleum is not subject to traffic tax

1) The plaintiff's assertion

The instant similar petroleum does not fall under gasoline or light oil provided for in Article 2(1) and (2) of the Traffic Tax Act, and Article 3 subparags. 1 and 2 of the Enforcement Decree of the same Act, as it is not manufactured for the purpose of using them as fuel for vehicles and machinery, nor does it be used as fuel for vehicles and machinery. Accordingly, the instant disposition based on the premise that the instant similar petroleum is subject to taxation prescribed in the same Act is not illegal because it is merely a liability for the outcome that the instant similar petroleum is used as a similar oil after being supplied to KimCC.

2) Determination

Article 2(1)2 of the former Traffic Tax Act provides that the goods subject to traffic tax are light oil and alternative oil similar thereto, and Article 3 subparag. 2(b) of the former Enforcement Decree of the Traffic Tax Act (amended by Presidential Decree No. 24362, Feb. 15, 2013; hereinafter the same shall apply) provides that the above substitute oil includes similar petroleum products to light oil and alternative fuel business (amended by Act No. 11234, Jan. 26, 2012) under Article 2 subparag. 10 of the former Petroleum and Petroleum Substitute Fuel Business Act, and Article 2 subparag. 10 of the former Petroleum and Petroleum Substitute Fuel Business Act provides that the Plaintiff would be deemed to have used the above alternative petroleum products for the purpose of using them as alternative petroleum for the purpose of Article 2 subparag. 2(b) of the former Enforcement Decree of the Traffic Tax Act, and that the Plaintiff would not be deemed to have used the same petroleum products for the purpose of using them as alternative petroleum products for the purpose of Article 2G (1).

F. Part on the assertion that the amount of individual consumption tax, such as traffic tax, should be deducted

1) The plaintiff's assertion

Since the similar petroleum of this case had already been processed by using the oil that paid the individual consumption tax as its raw material, and the amount of the traffic tax imposed on the similar petroleum of this case under Article 17 (9) of the Traffic Tax Act, which provides for deduction and refund of the amount of the individual consumption tax imposed on the raw material, should be deducted from the amount of the traffic tax imposed on the similar petroleum of this case. Nevertheless, the defendant

2) Determination

Article 17 (9) of the former Traffic Tax Act provides that "if the taxable goods subject to the individual consumption tax are used as raw materials for traffic, energy, and environment tax, the individual consumption tax may be deducted or refunded from the traffic, energy, and environment tax to be paid or purified, or the amount of the traffic, energy, and environment tax to be refunded, in accordance with the provisions of paragraphs (1) through (7) (referring to the provision on the refund of traffic tax already paid or payable for raw materials), and Article 17 (5) of the same Act provides that any person who intends to obtain the above deduction or refund shall submit a report under Article 7 along with the documents prescribed by the Presidential Decree within six months from the date on which the relevant cause arises, along with the report under the provisions of Article 7.

G. The part of the assertion that the instant disposition is unlawful by violating the basic ideology of the Constitution and infringing the Plaintiff’s property right

1) The plaintiff's assertion

The disposition of this case where the Plaintiff imposed traffic tax on a monthly more than the profits from the manufacture and sale of similar petroleum in this case is unlawful as it violates the basic ideology of the Constitution and infringes on the Plaintiff’s property right.

2) Determination

A) Article 23(1) of the Constitution of the Republic of Korea provides that "All citizens shall be guaranteed property rights. The contents and limitations of property rights shall be determined by Act," thereby guaranteeing property rights as fundamental rights under the Constitution and restricting property rights as prescribed by Act, and Article 38 of the Constitution provides that "All citizens shall have the duty to pay taxes under the conditions as prescribed by Act," so it is reasonable to view that the property rights of the citizens are recognized only in the part other than the portion of tax payment pursuant to the tax liability under the Act. In this case, it is reasonable to view that the similar petroleum of this case manufactured and sold by the Plaintiff constitutes traffic tax under the former Traffic Tax Act, and the Defendant considers the similar petroleum of this case manufactured and sold by the Plaintiff as the tax base, and the calculation of the traffic tax of this case by applying the corresponding tax rate to it is legitimate in the imposition of the traffic tax of this case, and as long as there are no errors in the imposition and collection procedure of the above tax amount and the corresponding tax amount, the disposition of this case is legitimate, even if the Plaintiff’s exercise of the basic traffic tax on this case’s profits by reason is unreasonable.

B) Meanwhile, the Plaintiff’s above assertion can be seen as unconstitutional because the Traffic Tax Act infringes on property rights in violation of the excessive prohibition principle under Article 37(2) of the Constitution, and thus, it can be seen as unconstitutional.

(1) Traffic tax is for the purpose of securing financial resources necessary for the business to expand traffic facilities such as roads and urban railroads and to foster public transportation, the business related to energy and resources, and the business to preserve and improve the environment, and the Traffic Tax Act imposes liability to pay traffic tax on the business operator who manufactures and sells gasoline which serves as fuel of the vehicle, and light alternative oil similar thereto. Therefore, it is difficult to view that imposing traffic tax on the manufacture and sale of similar petroleum in this case for the purpose of raising financial resources necessary for traffic, energy, and environment business is justified in the legislative purpose, and whether the manufacture and sale of similar petroleum is defined in criminal law or not.

(2) Also, it is appropriate to impose tax on the same kind of similar oil as the instant similar oil illegally manufactured and sold through legitimate procedures in that it is used or scheduled to be used as fuel for a vehicle like other gasoline, light oil, and alternative oil manufactured and sold through legitimate procedures.

(3) Next, we examine whether the above traffic tax disposition is in compliance with the minimum principle of infringement. The purpose of the traffic tax imposition is to secure the proper quality of similar petroleum products and alternative petroleum fuel for the manufacture and sale of pseudo petroleum. The two are clearly distinguishable from the legislative purpose, and the two are clearly distinguishable from each other. Thus, it is necessary to separately determine whether the disadvantages arising from criminal punishment and traffic tax imposed are complied with the minimum principle of infringement. Furthermore, even if the supply price of similar petroleum is not ordinarily included in the traffic tax but is more traffic tax than the actual profits generated from the supply of similar petroleum, it is difficult to view that it is a unconstitutional issue of the traffic tax law that imposes traffic tax on similar petroleum without considering the traffic tax portion, and it is difficult to view that it is a unconstitutional issue of the traffic tax law itself that imposes traffic tax on similar petroleum. Therefore, it is difficult to see that bearing traffic tax exceeding the actual profits amount is a relation with the minimum principle of infringement.

(4) Lastly, considering the importance of the public interest, the reason why the applicant manufactures and sells the similar petroleum in this case, and the amount of similar petroleum manufactured and sold by the applicant, the applicant is not in violation of the requirements of balance of legal interests, since it is difficult to view that the applicant is capable of carrying on the disadvantage of the applicant by imposing and collecting traffic tax on the manufacturing and selling the similar petroleum in this case, or that the applicant is engaged in the business of unreasonable damage to the extent that the applicant is unable to fulfill the requirements of balance of legal interests.

(5) Therefore, it is difficult to view that the Traffic Tax Act violated the excessive prohibition principle under Article 37(2) of the Constitution and infringes on the property right. Therefore, the Plaintiff’s assertion on this part is without merit.

H. The part on the assertion that the instant disposition was unlawful in violation of the principle of prohibition of double punishment

1) The plaintiff's assertion

Although the Plaintiff was subject to criminal punishment for the actual crime of manufacturing and selling the similar petroleum of this case, the Defendant’s imposition of traffic tax on the manufacturing and selling of the similar petroleum of this case, which is the same offense, is in violation of the principle of prohibition of double punishment stipulated under Article 13(1) of the Constitution, and is illegal.

2) Determination

The principle of prohibition of double punishment under the Constitution (Article 13(1)) guarantees the fundamental rights of the people by preventing the State from repeatedly exercising its penal authority in relation to the same criminal act, so that "the punishment" refers to an excessive punishment as the exercise of the State's penal authority in relation to the crime, and all the sanctions or disadvantages imposed by the State are not included. Therefore, as to whether the disposition of imposition of traffic tax in this case constitutes "Punishment" under Article 13(1) of the Constitution, and as seen earlier, the similarity of petroleum in this case manufactured and sold by the Plaintiff is subject to Article 2(1)2 of the former Traffic Tax Act, and the traffic tax in this case is imposed on the Plaintiff based on the above legal provisions, so it is difficult to view the above state's exercise of its taxation authority as the same as "the punishment, which is the exercise of the State's penal authority." Therefore, this part of the Plaintiff's assertion is without merit.

I. The part of the allegation that the instant disposition violated the right to refuse to make a statement and is unlawful

1) The plaintiff's assertion

In order for the Plaintiff to pay traffic tax on the similar petroleum of this case, it is necessary to first report the manufacture and sale of similar petroleum to the Defendant, and this is unlawful by infringing the right to refuse to make statements, which is the right not to be forced to make a statement of any criminal disadvantageous to himself/herself, as guaranteed by Article 12(2) of the Constitution, because the Traffic Tax Act compels the Plaintiff to voluntarily surrenders and confession his/her criminal facts.

2) Determination

A) Relevant legal principles

Article 12(2) of the Constitution provides that “All citizens shall not be advisered, and shall not be forced to make a statement unfavorable to themselves,” thereby guaranteeing the fundamental rights of citizens to not be forced to make any unfavorable statement concerning criminal liability. Such right to refuse to make a statement is not guaranteed only in criminal proceedings, but also guaranteed as a fundamental right of citizens who are not forced to make a statement with an implied right in anywhere including administrative procedures or questions at the National Assembly, in a case where the statement is in a criminal unfavorable to themselves. Accordingly, the right to refuse to make a statement is guaranteed if the contents of the statement are related to criminal liability of those who are currently under investigation and trial as well as those who are likely to be a criminal suspect or a defendant, such as the plaintiff, etc. who manufactured and sold petroleum, and who are likely to be a criminal suspect or a defendant, as well as those who are currently under investigation and trial, such a right to refuse to make a statement is guaranteed. In addition, the right to refuse to make a statement means that not only coercion by adviser, etc., but also force any statement as a law (see Constitutional Court Order 8. 198 July 198, 1908.).

B) First, we examine whether the former Traffic Tax Act imposes an obligation to report the manufacture and sale of similar petroleum on the Plaintiff.

Article 7 (1) of the former Traffic Tax Act provides that "tax payers under Article 3 (1) shall submit to the head of the tax office having jurisdiction over the manufacturing place by the end of the following month a return stating the quantity and price of the goods taken out from the manufacturing place each month, calculated tax, exempted tax amount, deducted tax amount, refundable tax amount, and payable tax amount, etc.", and Article 8 (1) provides that "tax payers under Article 3 (1) shall pay traffic tax every month within the due date for the submission of a return under Article 7 (1)". The Framework Act on National Taxes provides that "tax payers under Article 3 (1) shall pay additional tax to those who violate the above return and tax liability under Article 3 (3). In light of the provision on imposition of the Traffic Tax Act and additional tax, it is reasonable to deem that the former Traffic Tax Act imposes on the plaintiff the duty to report

C) Next, whether Article 7 of the former Traffic Tax Act, which imposes the above sentence, infringes on the right not to be forced to make a statement to criminal himself/herself under Article 12(2) of the Constitution.

Under the current tax law, taxpayers are obliged to report certain matters, such as taxable objects and tax bases, and whether the provision on imposition of such duty to report imposes unfavorable statements prohibited under Article 12(2) of the Constitution should be determined by whether the provision directly and generally carries out the acquisition, collection and use of materials for criminal liability. According to Articles 1 through 3 of the former Traffic Tax Act, the former Traffic Tax Act provides for taxpayers in order to secure financial resources necessary for projects for the expansion of traffic facilities, such as roads, urban railroads, and public transport facilities, and for the preservation and improvement of the environment, and the manufacture and improvement of gasoline and alternative oil similar thereto, and Article 7 provides that taxpayers shall be obliged to report matters, such as gasoline, which are objects of taxation, and that the above provision on imposition of duty to report shall not be deemed to have been effective and effective, and that the above provision on imposition of duty to report shall not be applied to each taxpayer under Article 7 of the former Traffic Tax Act because it is not feasible to determine the duty to report tax base, and thus, it shall not be deemed that the above provision on tax claim and duty to report should not be applied to each taxpayer.

(j) The part on the assertion that the instant disposition was unlawful by violating the substance over form principle

1) The plaintiff's assertion

Unlike the normal petroleum supplier’s supply of petroleum to the price that includes traffic tax, the Plaintiff supplied the similar petroleum in this case at a price that does not include traffic tax, and the net profit accrued by the Plaintiff from the supply of the similar petroleum in this case is 000 won or more, the Defendant imposed traffic tax of KRW 000, which is calculated on the basis of the manufacturing volume, not net profit, on the Plaintiff. The above amount of tax deviates significantly from the Plaintiff’s ability to bear the burden when considering the above profit accrued from the manufacture and sale of the similar petroleum in this case. Accordingly, the instant disposition was unlawful as it violates the principle of substantial taxation.

2) Determination

The substance over form principle refers to the principle that tax should be interpreted according to the substance and recognized the fact of taxation requirements, regardless of the legal form or appearance. Accordingly, the Framework Act on National Taxes provides that "if there is a person to whom the income, income, and property, and transaction, are nominal, and there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable to pay tax (Article 14 (1)), and "the provisions on the calculation of tax base in the tax law shall apply to the substance regardless of the name or form of income, income, property, and act or transaction, regardless of the name or form of the transaction." As seen above, the disposition in this case is health, and as seen above, the Plaintiff who actually manufactured and sold the similar petroleum in this case, and the Plaintiff can be deemed to be the actual owner of the transaction, by determining the quantity of similar petroleum manufactured and sold by the Plaintiff as the tax base, and as seen earlier, it conforms to the substance over form principle, even if the Plaintiff's own assertion that the tax amount imposed on the Plaintiff by reason of the similar oil in this case is no reason to the Plaintiff's claim.

(j) The part on the assertion that the instant disposition was unlawful in violation of the principle of tax equality

1) The plaintiff's assertion

The amount of traffic tax to be paid to tax authorities does not exceed the actual sales profit, because it is supplied at the price including traffic tax when it supplies normal petroleum products. However, unlike the business operators who supply normal petroleum products, the Plaintiff supplied the instant similar petroleum at the price that does not include traffic tax, and the Plaintiff group, which manufactured and supplied normal petroleum products, is in essence different from the Plaintiff group. Nevertheless, the Defendant uniformly treated both groups and imposed the same amount of traffic tax on the Plaintiff, thereby violating the principle of tax equality.

2) Determination

The principle of tax equality, while the imposition and collection of taxes are fair and equitable in accordance with the taxpayer's ability to pay taxes, and it is not allowed to discriminate against or treat a specific taxpayer unfavorably without reasonable grounds. Even according to the plaintiff's assertion, the plaintiff himself/herself decided not to include traffic tax in the supply price of similar petroleum in this case, and even if the traffic tax imposed by the defendant on the similar petroleum and manufacturing sales in this case exceeds the plaintiff's sales profit, it is difficult to see that the above taxation disposition was disadvantageously discriminated against the plaintiff compared to the supplier of normal petroleum products, and it is irrelevant to the defendant's traffic tax imposition and the violation of the above tax equality. Accordingly, this part of the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.