Plaintiff (Law Firm Sejong, Attorneys Kim Tae-tae et al., Counsel for plaintiff-appellant)

Head of Jeju Tax Office

March 23, 2016

1. Of the instant lawsuits, the part of the claim for revocation of recommendations for the revised return on value-added tax No. 1, No. 2011, No. 1 and No. 2013, and No. 1, 2014 is dismissed.

2. The plaintiff's remaining claims are dismissed.

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

The Defendant’s imposition of KRW 1,572,58 on December 8, 2014, and KRW 3,695,542 on KRW 1,572 on KRW 1,572,58 on KRW 2012, and KRW 1,695,542 on KRW 201 on KRW 1, 2011, KRW 1, 2013, and KRW 1, 2014 on KRW 201, respectively, shall be revoked.

1. Details of the disposition;

A. On March 1, 2008, the Plaintiff opened a museum with the trade name “○○○ Museum” (hereinafter “instant museum”). On November 2, 2010, pursuant to Article 16(1) of the Museum and Art Gallery Support Act (hereinafter “the Museum Art Gallery Support Act”) and Article 8(1) of the Enforcement Decree of the same Act, the Plaintiff registered and operated the instant museum to Jeju Special Self-Governing Province Governor on the registration and operation of the instant museum, and received an experiential learning fee.

B. As a result of conducting a regular tax investigation (integrated investigation) against the Plaintiff, the Defendant determined and notified the Plaintiff of the value-added tax amount of KRW 1,572,580 on December 8, 2012 on the following grounds: (a) on December 8, 2014, the Plaintiff initially reported the amount of value-added tax exempt from value-added tax, and determined and notified the Plaintiff of the value-added tax amount of KRW 3,695,540 on the first day, 2012 (hereinafter “instant disposition”). Meanwhile, on the other hand, the Plaintiff filed a revised tax return on the first day, 201, 1 and 201, 2013, and 1st day, 2014 as recommended by the Defendant’s revised tax return around 2014.

C. On January 6, 2015, the Plaintiff was dissatisfied with the instant disposition and the recommendation for a revised return, and filed an appeal with the Tax Tribunal on January 6, 2015, but the Tax Tribunal dismissed the appeal on the recommendation for the revised return of value-added tax. On May 6, 2015, the Tax Tribunal decided to the effect that the appeal for the instant disposition was dismissed. The Plaintiff appealed and filed the instant lawsuit on July 14, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 and 2 (including paper numbers), the purport of the whole pleadings

2. Whether the revocation claim regarding the recommendation for a revised value-added tax return among the instant lawsuits is legitimate

A. The defendant's main defense

Since the Defendant’s recommendation for revised value-added tax return cannot be deemed an administrative disposition subject to appeal litigation, this part of the claim is unlawful.

B. Determination

(1) The issue of whether an administrative agency's act is deemed an administrative disposition cannot be determined abstract, general, and in specific cases, an administrative disposition is a law enforcement with regard to specific facts conducted by an administrative agency as the public authority, which directly affects the rights and obligations of the people. Considering that an administrative disposition is a law enforcement with regard to a specific fact conducted by an administrative agency as the public authority, the administrative disposition must be determined individually according to the subject, content, form, and procedure of the administrative disposition, and without any legal basis, a certain act of the administrative agency has the same external form as an administrative disposition which objectively gives disadvantages to the people. If the counter-party to the act is recognized as an administrative disposition, it is necessary to take measures to eliminate disadvantages or apprehensions from the disadvantage or apprehension of the people derived from the act of the administrative agency, the issue of whether the other party is suffering from the act of the administrative agency should be determined by considering not only the principle of rule of law administration at that time, the level of the rights of the people, but also the attitude of the administrative agency concerned related to the act (see Supreme Court Decision 93Nu

(2) In light of the above legal principles, the health class, the value-added tax, and the tax amount are determined only when the taxpayer files a tax base and the tax amount to the tax authority pursuant to Article 22 of the Framework Act on National Taxes and Article 10-2 subparag. 1 of the Enforcement Decree of the same Act. Thus, the Defendant’s recommendation for revised value-added tax return filed on the Plaintiff cannot take effect as an administrative disposition that directly affects the rights and obligations of the people even though the tax authority’s act does not constitute an act of the tax authority, and its content does not seem to have any degree of obligation under public law, and there is no apprehension about whether it can be viewed as an administrative disposition.

(3) Therefore, the part on the claim for revocation of the instant recommendation for the revised value-added tax return is unlawful.

3. Determination on the lawfulness of the instant disposition

A. The plaintiff's assertion 2)

(1) Article 12(1)16 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter “the Act”) provides for the exemption of value-added tax on the “library, Science Museum...........". Thus, the disposition of this case is unlawful since the Plaintiff’s experience in creating favorable to visitors in the instant museum and received from visitors are subject to value-added tax exemption.

(2) Even if it is not so, the value-added tax shall be exempted on the ground that the experiential learning offered by the museum of this case to visitors (hereinafter “instant services”) falls under “educational services prescribed by the Presidential Decree” under Article 12(1)6 of the Act, and thus, the instant disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the expenses for experiential learning are eligible for the exemption of value-added tax prescribed in Article 12(1)16 of the Act

Article 12(1)16 of the Act provides that “The value-added tax shall be exempted only for the supply of goods or services related to the admission to a museum,” and Article 12(1)16 of the Act provides that “the supply of goods or services related to the admission to a museum shall not be deemed to have occurred from the supply of goods or services related to the admission to a museum by the audience.” This part of the Plaintiff’s assertion is without merit.

(2) Whether the expenses for experiential learning are eligible for the exemption of value-added tax prescribed in Article 12(1)6 of the Act

"Government's permission or authorization" under Article 30 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24359, Feb. 15, 2013) refers to the permission or authorization under the law that sets the standards for the specific facilities and equipment of schools providing educational services, etc., such as the Elementary and Secondary Education Act, the Higher Education Act, the Higher Education Act, the Private School Act, the Private Teaching Institutes Act, the Social Education Act, the Private Teaching Institutes Act, the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons Act, the Installation and Utilization of Sports Facilities Act, the Framework Act on Vocational Training, the Infant Care Act, etc. (hereinafter "Educational Facilities Act") in consideration of the legislative intent of the value-added tax exemption system.

However, even if the plaintiff completed the registration procedure under the Museum Art Gallery Act with respect to the museum of this case, it cannot be viewed as the same as the permission or authorization under the Education Facility Act. Thus, the service of this case cannot be deemed as an educational service subject to the exemption of value-added tax under the Education Facility Act. Therefore, the plaintiff's above assertion is without merit (the plaintiff applied for permission or authorization to the Office of Education, which is the competent authority prior to the filing of the lawsuit of this case, but was rejected on the ground that there was no relevant statute, so the defendant's disposition of this case was unlawful. However, there is no evidence to acknowledge that the plaintiff filed such application, and even if the plaintiff filed such application, it cannot be asserted as a separate lawsuit against the rejection disposition, and it is also difficult to accept the allegation that the disposition of this case is unlawful merely on the ground that it is alleged by the plaintiff).

4. Conclusion

Therefore, the part of the claim for revocation against the recommendation of the revised value-added tax return among the lawsuit in this case is unlawful, and it is dismissed as the remaining claims of the plaintiff are without merit.

[Attachment]

Judges Byun Jae-jin (Presiding Judge)

Note 1) According to the respective statements in subparagraphs 1 and 2-1 and 2-2 of subparagraph 1-2, it appears that the value-added tax for the first term of 2012 as stated in the complaint and the value-added tax for the second term of 2012 as stated in the complaint are 1,572,58 won and 3,695,540 won for the second term of 2012 as stated in the complaint, each clerical error in the amount of KRW 1,572,58

2) The Plaintiff cited the Value-Added Tax Act as the basis law of the instant disposition. However, as a matter of principle, the imposition of taxes must be governed by the provisions of the law in force at the time of the establishment of tax liability, and the tax liability is established at the time of the completion of the taxation requirements prescribed by each tax law (see, e.g., Supreme Court Decision 2003Du13083, etc.), Article 21 Subparag. 7 of the Framework Act on National Taxes, and Article 5 of the Value-Added Tax Act, the tax liability for value-added tax is established at the time of the expiration of the taxable period (from January 1 to June 30, 200, from July 1 to December 31, 200), in this case, the former Value-Added Tax Act as effective as at the time of the first and second taxable period, and the same applies to the Enforcement Decree