2. The plaintiff's remaining main claims and conjunctive claims are all dismissed.

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

The imposition of both separate consumption taxes, education taxes, and additional taxes shall be revoked.

Preliminary Claim: 'A list of Additional Disposition No. 2010, which the defendant made against the plaintiff on June 22, 2015.'

The amount of money stated in the column of the "reasonable Tax Amount for the plaintiff" in the same list of the imposition of each penalty tax stated in the column;

All exceeding parts shall be revoked.

A. The plaintiff's status

From December 1, 2005, the Plaintiff is a corporation that runs the business of filling and selling liquefied petroleum gas (LPG) for vehicles in the trade name of 000 ○○○○○○○○○○.

B. As a result of the investigation into the Plaintiff by the director of the ○○○ Regional Tax Office and the investigation into the distribution tracking process of fake products against the Plaintiff from November 1, 2012 to November 20, 2012, the director of the ○○○○○○ Regional Tax Office confirmed the fact that the Plaintiff purchased a professional board of 1,294,378 kilograms from the Plaintiff, and sold it to consumers by mixing it with carbon and consumers separately purchased from the above professional wholesalers and E1, and notified the Defendant of the fact that the Plaintiff’s act constitutes an act of manufacturing taxable goods, considering that the Plaintiff’s act constitutes an act of manufacturing the individual consumption tax.

In the course of tax investigation with respect to the plaintiff, the professional wholesalers submitted the monthly sales status of the plaintiff, such as the detailed statement of transactions by each wholesale company in attached Form 3, to the plaintiff (hereinafter referred to as "the sales status of this case").

C. Imposition of individual consumption tax, etc. by the defendant against the plaintiff

Accordingly, on March 1, 2013, the Defendant imposed individual consumption tax, education tax, and additional tax on the Plaintiff as stated in the separate sheet of Disposition No. 1 attached hereto (hereinafter referred to as “principal tax imposition disposition” and “additional tax imposition disposition” and “additional tax amount”). The procedure of the previous trial is as follows.

On May 31, 2013, the Plaintiff filed an objection with the director of ○○ Regional Tax Office, but the director of ○○ Regional Tax Office dismissed the said objection on June 26, 2013.

Accordingly, on September 27, 2013, the Plaintiff filed an appeal with the Tax Tribunal, and the Tax Tribunal dismissed the Plaintiff’s appeal on March 25, 2014.

E. The defendant's second imposition of additional tax

피고는 이 사건 소송 도중 이 사건 1차 가산세 부과처분을 직권으로 취소하고, 2015. 6. 22. 별지2 추가 처분 목록 중 '가산세'란 기재와 같이 각 가산세를 다시 부과하였다(이하 '이 사건 2차 가산세 부과처분'이라 한다). 바. 액화석유가스 품질기준 및 원고에 대한 품질조사 결과 액화석유가스의 품질기준과 검사방법・검사수수료 및 검사 소요경비 지원방법 등에 관한 고시(지식경제부 고시)에 따른 액화석유가스 품질기준 중 이 사건과 관련 있는 부분은 아래 표와 같고, C₃탄화수소는 프로판에, C4탄화수소는 부탄에 해당한다. 섭씨 15도 1기압에서 부탄 1㎏은 부피가 1.7125ℓ이고, 프로판 1㎏은 부피가 1.7984ℓ인데, 이 사건 부과처분 대상 과세기간 동안 ㎏ 당 가격은 부탄은 1,200원에서 1,600원정도이고, 프로판은 910원 정도에서 1,290원 정도로 부탄이 프로판보다 ㎏ 당 약 300원 정도 비싸다. 한편 원고는 한국가스안전공사가 이 사건 부과처분기간 동안 실시한 액화석유가스 품질검사에서 2회 부적합 판정을 받았다.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 and 3 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

1) The main claim part

A) The part on the imposition of additional tax in this case

For the following reasons, the imposition of the first penalty tax in this case should be revoked as it is unlawful.

(1) reflects on the tax balance;

When conducting an investigation to trace the distribution process of fake petroleum products suspected of illegal circulation, the Defendant imposed penalty tax only on the Plaintiff, and paid penalty tax to the rest of the business operators after filing a voluntary report, which goes against the equity in taxation.

(2) Although the Defendant is erroneous in the calculation method of the additional tax, it is necessary to impose the additional tax on the amount calculated by deducting the already paid amount from the calculated tax amount according to the tax base, and then deducted the amount of the additional tax and calculated the additional tax by an erroneous method.

B) The main tax imposition disposition of this case

For the following reasons, the imposition of principal tax of this case should be revoked because it is unlawful.

(1) The Plaintiff is not a taxpayer.

The Plaintiff purchased but ordered the mixture of butane and propane from BB energy, and stored in the Plaintiff’s charging tank storage tank in the same tank with the same tank. However, the gas manufacturing is not merely a mixture of gas with facilities or equipment, but a mere act of injecting a certain amount of propane gas into the tank crori vehicle. The act of manufacturing and removing taxable goods such as injecting and mixing the propane into and carrying out of the tank crori vehicle, which was transported into the tank crori vehicle, was conducted through its own responsibility at its place of business. Since their business places equipped with the above facilities fall under the manufacturing place, the Plaintiff is not a person who directly manufactures liquefied petroleum gas, but can not be deemed a person who manufactures but a mixture of propane and propane for the purpose of sale at a place other than a manufacturing place.

(2) Violation of the entry method of the corrective grounds

The Defendant stated the correction of the individual consumption tax against the Plaintiff only as the correction by the tracking survey on the distribution process of petroleum products. The above facts alone do not reveal the basis and standard of the correction. Therefore, the instant principal tax imposition disposition violated the method of stating the correction grounds.

(3) Article 18 of the Enforcement Decree of the Individual Consumption Tax Act, which violates the tax base estimation method, limits certain methods of estimation when estimating the tax base. The Defendant did not comply with such estimation method, but imposed the principal tax of this case.

(4) The sales status of this case is insufficient to provide evidence for lack of evidence of the current sales status. ① The producer and the Plaintiff’s interest conflict with each other, ② the transaction details between the Plaintiff and the BB energy from January 2010 to March 2010, although the transaction was conducted between March 2010, it seems obviously false because the balance carried forward for the transaction from March 201 to March 2010 was clearly recorded as zero won; ③ the total sales volume of the Plaintiff by the professional wholesaler exceeds the Plaintiff’s purchase volume stated in the fact-finding reply to the Korea LPG Industry Association of this Court; ④ the professional wholesaler appears to have prepared the transaction status based on the tax invoice stating only the transaction volume without distinguishing the transaction volume. Thus, the disposition imposing the principal tax of this case cannot be considered as the basis for imposing the principal tax of this case.

2) The ancillary claim part

As the Plaintiff reported the individual consumption tax during the taxable period of the instant principal tax imposition, and reported the tax base by reporting the quantity and value of butane and propane subject to taxation, 10% of the under-reported additional tax rate, which is not 20% of the non-reported additional tax rate, should be imposed.

Therefore, the second imposition of penalty tax in this case, which imposes penalty tax by applying 20% of the non-declaration penalty tax rate, is illegal. Therefore, the part exceeding the amount indicated in the plaintiff's legitimate tax amount column in the attached Form 2 should be revoked.

3. Determination prior to the merits

ex officio, we examine the legitimacy of the part of the lawsuit of this case seeking revocation of the imposition of the first penalty tax.

If an administrative disposition is revoked, such disposition is invalidated and no longer exists, and a revocation lawsuit against non-existent administrative disposition is deemed unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2004Du5317, Sept. 28, 2006). The fact that the Defendant revoked ex officio the imposition of the first penalty tax in this case is as seen earlier. As such, among the lawsuit in this case, the main claim seeking the revocation of the imposition of the first penalty tax in this case is a non-existent disposition, and thus, there is no benefit of lawsuit.

4. Judgment on the merits

A. Whether the imposition of principal tax of this case is lawful (the main claim)

1) Comprehensively taking account of the following circumstances, the Plaintiff’s act of mixing propane and butane for sales purposes at a place other than a manufacturing place, the Plaintiff constitutes a taxpayer pursuant to Articles 3 and 5(1)(c) of the Individual Consumption Tax Act.

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Therefore, the plaintiff's above assertion is without merit.

A) Since liquefied petroleum gas manufacturing place refers to the place of business of a liquefied petroleum gas manufacturer, the mixture of propane and butane at a manufacturing place refers to the mixture of propane and butane at its own place of business by a manufacturer. Therefore, if a person, other than a manufacturer, mix propane and butane, it is not a manufacturing place, but a mixture of propane and but a propane at a place which is not a manufacturing place. If the Plaintiff mixing propane and but a propane at the place of business of a propane wholesale company is not a liquefied petroleum gas manufacturer, it is an act of mixing propane and but a propane for the purpose of sale at a place other than a manufacturing place.

B) The combination of propane and but the combination of propane was conducted using the facilities of the propane wholesale company at the place of business of the propane wholesale company. However, the propane wholesaler used the gas injecting facility of the propane wholesale company to the vehicle and received the payment for it as ordered by the vehicle engineer employed by the Plaintiff. As such, although the Plaintiff used the gas injecting facility of the propane wholesale company, it should be deemed that the Plaintiff purchased materials and requested for the manufacture service only after the Plaintiff purchased them to others. (C) Since the butane filled in the tank glass vehicle belongs to the Plaintiff as purchased by the Plaintiff, and the butane manufactured by mixing the propane purchased from the propane wholesale company belongs to the Plaintiff. Thus, the propane wholesaler is merely a person who manufactures the manufactured goods using his gas in and not a person who manufactures the manufactured goods.

D) If the Plaintiff purchased and sold butane mixed with butane, the Plaintiff purchased a mixture of butane at the price included in the individual consumption tax for the manufacture at the time of purchase. Since the Plaintiff only paid a propane from a propane wholesaler and sold the propane to consumers with it, it seems reasonable to impose individual consumption tax on the Plaintiff who enjoy economic benefits. 2) The correction resolution as to whether the method stated in the correction reason is in violation of the internal approval of the administrative agency for the imposition of tax is merely a document for the imposition of tax, and thus, Article 9(1) of the National Tax Collection Act provides that "the head of a tax office shall issue a tax notice stating the period of taxation, items, tax amount, basis for calculation, deadline for payment, and place for payment of individual consumption tax to the Plaintiff." The Plaintiff's assertion that "the tax base of this case is without merit," and the Defendant is not obliged to impose individual consumption tax on the Plaintiff as the main tax of this case."

3) In addition to the purport of the entire argument in light of the above facts as to whether the tax base estimation method has been violated, the Defendant received the sales status from the Plaintiff’s professional wholesaler, who is the opposite party to the transaction, and received the disposition of imposition of the principal tax of this case based on it. Thus, the Defendant conducted a field investigation and received the disposition of imposition of the principal tax of this case. Thus, the Plaintiff’s above assertion based on the premise that the disposition of imposition of the principal

4) Whether the present sales status of the instant case is insufficient to provide evidence

A) Relevant legal principles

Article 16(1) of the Framework Act on National Taxes provides that “where a taxpayer has kept and recorded a book pursuant to tax-related Acts, the investigation and determination of the relevant national tax base shall be based on the book and relevant evidentiary materials.” According to Article 11(1) and the main sentence of Article 11(2) of the Individual Consumption Tax Act, where the tax base and amount of tax are corrected, it shall be based on account books and other evidentiary materials. As such, in general, it shall be based on account books or evidentiary materials in correction of the details of a taxpayer’s declaration due to an error or omission. However, if it is recognized that the details of the declaration are erroneous or incomplete based on other materials whose authenticity and content are reasonable and that on-site investigation is possible, it may be corrected based on other materials (see, e.g., Supreme Court Decision 2006Du16137, Oct. 26, 2007). If a tax authority has prepared a confirmation document confirming that a taxpayer has a certain transaction with the counterparty during a tax investigation, it is difficult to prove that the content of the document was drafted or denied.

B) Determination

Examining the following circumstances revealed in the above facts of recognition in addition to the purport of the entire pleadings in light of the aforementioned legal principles, the credibility of the present sales status can be recognized. Therefore, the Plaintiff’s above assertion is without merit.

(1) This case’s sales status constitutes “a confirmation letter that there was a certain transaction with the Plaintiff, which is the other party to the transaction,” and there is no evidence to acknowledge that the sales status of the instant case was forced against the will of the originator, or that the content thereof was incomplete. As seen earlier, it is difficult to view that the interest between the Plaintiff and the market wholesaler is in conflict. (3) Even if the sales status between the Plaintiff and the market wholesaler was written on January 1, 2010 on the basis of the sales status (Evidence No. 3) between the Plaintiff and the Peace Energy, this case’s sales status did not appear to have been written on the basis that the Plaintiff’s sales status was insufficient to verify whether the sales status of the instant case’s sales status and the market wholesaler’s sales status did not appear to have been written on the basis of the following facts: (i) the Plaintiff’s sales status of the instant case’s sales status, which was written on the basis of the monthly sales status of the Plaintiff’s sales order, and thus, it appears that the Plaintiff’s total sales value of the Plaintiff’s sales quantity was written on the basis.

5. Conclusion

Therefore, the plaintiff's primary claim among the lawsuit of this case is not proper to seek revocation of the imposition of the first penalty tax of this case. Thus, the remaining primary claim and the conjunctive claim are dismissed. It is so decided as per Disposition by the assent of all.