Gwangju District Court 2014Guhap10097

The early 2013 Mine3995

Disposition to revoke imposition;

The plaintiff is the owner of butane injecting the tank lorri vehicle. The plaintiff is the owner of butane mixed with the propane purchased from the screen wholesaler. It is reasonable to impose the individual consumption tax on the plaintiff as it enjoys economic benefits using differences in the rates of butane and propane.

Article 1 [Taxable Object and Tax Rate of Individual Consumption Tax Act)

Gwangju High Court 2014Nu5803

East elabane Co., Ltd. and 3

Head of Seogju Tax Office 2

Gwangju District Court Decision 2014Guhap10097 Decided July 3, 2014

November 30, 2014

November 13, 2014

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

3. The decision of the court of first instance is corrected as follows. The plaintiffs' claims are dismissed in entirety.

The portion of the judgment of the first instance court against the plaintiffs shall be revoked. The head of the tax office revokes the imposition of KRW 63,327,020, including individual consumption tax, etc. against the plaintiff 1 on July 5, 2013 and the imposition of KRW 260,00,180, including individual consumption tax, etc. against the plaintiff 2; the imposition of KRW 77,375,790, including individual consumption tax, etc. against the plaintiff 3 on July 4, 2013; and the imposition of KRW 143,110,990, including individual consumption tax, etc. against the plaintiff 4 on July 1, 2013.

1. Details of the disposition;

A. The Plaintiffs are business operators engaging in the business of filling and selling liquefied petroleum gas for each vehicle fuel. (b) The Director of the Gwangju Regional Tax Office, from November 1, 2012 to November 20, 2012, conducted an investigation into the distribution process tracking of the alleged illegal distribution of fake petroleum products with respect to the Plaintiffs, found the following facts, and notified the Defendants of such fact by deeming the Plaintiffs’ act as constituting an act of manufacturing individual consumption tax taxable goods.

C. Accordingly, the Defendants determined and notified the individual consumption tax and education tax (including each additional tax; hereinafter referred to as "individual consumption tax, etc.") to which the fluoral tax (275 won per kilogramme) is applied to the portion of the Plaintiff's carbon sales for automobile fuels as listed in the table below for each jurisdiction (hereinafter referred to as "each of the instant dispositions").

D. The Plaintiffs were dissatisfied with each of the instant dispositions and filed a petition for an inquiry with the Tax Tribunal on August 22, 2013, but all were dismissed on November 20, 2013.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 7, Eul evidence Nos. 1 and 2

A. Summary of the plaintiffs' assertion

The plaintiffs asserted that each of the dispositions of this case is unlawful on the following grounds.

1) According to Article 1(1)4 (e) and (f) of the Individual Consumption Tax Act, a mixture of butane or propane is treated as butane or propane according to the mixed ratio, regardless of whether it is an butane or propane, and individual consumption tax is levied as a source on manufacturers. Thus, the mixture of propane and butane is not subject to individual consumption tax after the mixture of propane or butane.

2) Since a liquefied petroleum gas manufacturer is not equipped with facilities for mixing and manufacturing propane and but with facilities for mixing and manufacturing propane, the Plaintiffs cannot be deemed as a person (a manufacturer) who mixed propane and but with propane for the purpose of selling at a place other than a manufacturing place of a manufacturer. Therefore, a person liable to pay individual consumption tax, etc. is a person who manufactures and ships taxable goods and takes them out.

3) Even if the Plaintiffs are liable to pay taxes, since they were not aware that they were liable to pay individual consumption tax, etc. because they did not participate in the mixture and removal of propane and but did not know that they were liable to pay individual consumption tax, the imposition of additional tax is unlawful as

4) The Plaintiffs are paying the value-added tax and the income tax on the sales profits of propane and but imposing the individual consumption tax, etc. in addition, there is a risk of double taxation. Moreover, even though the Plaintiffs purchased propane and but the Defendant purchased propane reflecting the individual consumption tax, it is double taxation that the Defendant imposed the individual consumption tax on the mixture of propane and but imposed the individual consumption tax, etc.

5) Although there is no ground to adjust the carbon tax pursuant to Article 1(7) of the Individual Consumption Tax Act, the Defendants were found to impose individual consumption tax, etc. retroactively by applying the carbon force tax rate to the portion of liquefied petroleum gas sales that was previously traded with the Plaintiffs.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

o The Plaintiffs, after being released from a tank loaded in the tank Libered in a liquefied petroleum gas manufacturer (Co., Ltd., e1, Zxex Co., Ltd., S-Oil Co., Ltd., SK Gas Co., Ltd.), moved the tank glass vehicle into a professional wholesaler (new energy, high energy Co., Ltd., Ltd., limited liability company, and peace energy), injected the protocol plate ordered from the professional wholesaler into a tank loaded in the tank glass vehicle, and sold it to the consumer as a fuel fuel.

o u 300 professional board wholesalers, employed by the plaintiffs, measured the weight of tank lorri vehicle when the driver puts the tank lorri vehicle into the tank lorri vehicle, injected the ordered quantity into the tank in the tank lorri vehicle, measure the weight of tank lorri vehicle, etc., and then calculated the difference in the weight of tank lorri vehicle, and received the payment of the sales proceeds from the plaintiffs.

o The plaintiffs visited the professional board wholesalers directly and inject them into the professional board, and in the case of the professional board wholesalers, they did not transport or directly supply the professional board to the plaintiffs' workplace.

[Ground of Recognition] Facts without dispute, the evidence mentioned above, Eul evidence Nos. 2 and 3, the purport of the whole pleadings

D. Determination

1) Whether a mixture of propane and butane is subject to individual consumption tax

According to Article 1(2)4 (e) and (f), Article 3 subparag. 2, and Article 5 subparag. 1 (c) of the Individual Consumption Tax Act, the mixture of propane and butane among petroleum gas is deemed an act of manufacturing and imposing individual consumption tax on a person who manufactures and ships out the mixture of petroleum gas for the purpose of sale at a non-factory. As seen below (2) as seen in Article 1(2)4 (e), (f), Article 3 subparag. 2, and Article 5 subparag. 1 (c) of the Individual Consumption Tax Act, in a case where the Plaintiffs, other than the manufacturer, take out the mixture of propane and butane for the purpose of sale at a non-factory, such

As seen above, if a mixture of propane and butane is deemed as an act of manufacturing and removing the same for the purpose of sale at a place other than a manufacturing place, and the individual consumption tax is imposed on the person who manufactures and carries out the mixture. In other words, “manufacturing place” provided for in the Individual Consumption Tax Act refers to a mixture of propane and but the manufacturer’s act of mixing propane with butane using equipment at his/her place of business. Thus, if the plaintiffs, other than manufacturers, purchased the propane and butane to sell them to consumers at a place other than a manufacturing place, it constitutes a mixture of propane and but the plaintiffs’ act of mixing propane with the propane to purchase them at the place of business, which is not a manufacturing place, constitutes a mixture of propane and but a mixture of propane, which is not a manufacturing place, and thus, the plaintiffs' act of purchasing propane and but a mixture of propane to purchase them with the content of the propane stored in the place of business, and thus, the plaintiffs' act of purchasing them by mixing them with the same can only be seen as a mixture of carbon storage tank.

3) Whether the imposition of additional tax is illegal

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 under the Act without justifiable grounds in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, and the taxpayer’s intention and negligence is not considered, and the land or mistake of the law does not constitute justifiable grounds (see, e.g., Supreme Court Decision 2013Du1829, May 23, 2013). Furthermore, the determination of the error that the taxpayer is exempted from the duty to pay taxes by interpretation of his/her own name is merely a mere fact of the fact that the taxpayer’s fault or error does not constitute a justifiable ground that does not constitute a breach of such duty (see, e.g., Supreme Court Decision 201Du1776, Jun. 27, 2013).

see, e.g., Supreme Court Decision

In light of the above legal principles, the plaintiffs' combination and removal of professional plates and butane.

Even though the above did not know that it was an act of tax liability, the land or mistake in such a statute

The plaintiffs cannot be deemed as a justifiable ground for neglecting their duty to return and pay taxes.

C. The plaintiffs' duty to pay taxes was exempted by the interpretation of their names, even if they were erroneous.

Article 5 subparagraph 1 (c) of the Individual Consumption Tax Act provides that the plaintiffs' acts constitute a constructive act of manufacturing.

The plaintiffs merely have erroneous determination that there is no conflict of opinion on the point of view.

It is difficult to deem that there is a justifiable reason to believe that there is a breach of duty to report and pay taxes.

The imposition of taxes is lawful.

4) Whether it is double taxation

Value-added tax is levied on the supply of goods or services, and income tax is imposed on an individual.

On the other hand, this case is a mixture of plaintiffs' professional plates and butanes.

A new act due to an act of manufacturing under subparagraph 2 of Article 3 and subparagraph 1 of Article 5 of the Individual Consumption Tax Act;

The defendant imposes the individual consumption tax on the portion of the sale of the taxable goods.

Since there is a risk of double taxation, it cannot be viewed that there is a risk of double taxation.

Even if the professional board and ammunition purchased were purchased, a combination of the professional board purchased and but a new one.

As long as taxable goods have been manufactured, the Defendant again imposed the individual consumption tax on them.

It can not be regarded as double taxation.

5) Whether there was an error in the application of the carbon tax rate

According to Article 1 (7) of the Individual Consumption Tax Act, the tax rate is for the efficient operation of the national economy.

Financial resources for support projects following the business adjustment, price stabilization, supply and demand adjustment, and change of prices;

Where necessary for the month, the tax rate may be adjusted by Presidential Decree within the extent of 30/100 of such tax rate.

The carbon tax rate is stipulated as follows: (a) the basic tax rate prescribed by law is flexibly changed and operated; (b)

Temporary application of tax rates to be adjusted from time to time according to the policy purpose for the adjustment of games, etc.

(1) in general consumption to business entities by adjusting the rate of such tax under the Presidential Decree.

Since it is applied as a criterion for imposition, the adjustment of the carbon rate shall be in accordance with the Presidential Decree other than the defendant.

The defendant is obligated to impose individual consumption tax accordingly, and the plaintiffs are only obligated to impose individual consumption tax.

Trading petroleum gas (bane) is a mixture of propane and butane as seen earlier by the plaintiffs.

Since the defendant is a new taxable article, there is a reason for the government tax rate adjustment.

General provisions of Article 2-2 of the Enforcement Decree of the Individual Consumption Tax Act to which carbon rates are applied by policy decision;

Since individual consumption tax (275 won per kilogramme) is imposed according to the criteria for imposition, the defendant's each disposition of this case

in applying the carbon tax rate, there is no illegality in applying the coal tax rate.

3. Conclusion

Thus, the plaintiffs' claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is delivered with this decision.

The plaintiffs' appeal is dismissed for the same reason, and all of the appeals are dismissed for the first instance judgment.

Since it is evident that there was a mistake under paragraph (1) of this Article, it is decided to correct it ex officio as per Disposition.

shall be ruled.