Cho High Court Decision 2009Du3915 ( December 14, 2009)

If alcoholic beverages are sold to a non-licensed seller, the license for alcoholic beverage brokerage shall be revoked.

Since it violated the conditions of designation by selling alcoholic beverages to non-licensed sellers, the cancellation of alcoholic beverage brokerage license is legitimate.

The contents of the decision shall be the same as attached.

○○ Distribution Corporation

The director of the tax office

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant's disposition of revoking alcoholic beverage brokerage business cancellation against the plaintiff on September 18, 2008 shall be revoked.

1. Details of the disposition;

A. On March 25, 1985, when the Plaintiff Company acted as a broker of alcoholic beverages from the Defendant to a non-licensed dealer, the Plaintiff Company obtained a license for alcoholic beverage brokerage business (hereinafter “instant license”) by setting forth six conditions, such as the condition that the license is revoked (Article 2 of the Terms and Conditions of Designation), and operated a alcoholic beverage brokerage business in ○○-dong 34-3 of ○○○-dong.

B. On September 18, 2008, the Defendant issued the instant disposition revoking the Plaintiff’s license as of September 25, 2008 pursuant to Articles 9 and 15(2)4 of the Liquor Tax Act (amended by Act No. 9847, Dec. 29, 2009; hereinafter the same) on the ground that the Plaintiff’s sales of alcoholic beverages to a non-licensed seller violates the designated conditions subparagraph 2 by selling alcoholic beverages, and the amount of breach of duty to issue tax invoices by taxation period under the Value-Added Tax Act constitutes at least 10/100 of the total sales of alcoholic beverages.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2-1, 2-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) The size of issuance of false tax invoices on January 2007 does not constitute cases where the amount of violation of duty to issue tax invoices by taxation period under Article 15(2)4 of the Liquor Tax Act is not less than 10/100 of the total sales of alcoholic beverages.

(2) Although KimA had been operated in the past, in light of the fact that the liquor price was not deposited from retailers to the Plaintiff via KimA, but deposited directly to the Plaintiff. In light of the fact that the Plaintiff issued a tax invoice for alcoholic beverages supplied to retailers via KimA, KimA is merely an agent of the Plaintiff and is not a non-licensed dealer. Accordingly, the Plaintiff did not supply alcoholic beverages to a non-licensed retailer.

(3) In light of all circumstances, even though the Plaintiff’s supply of alcoholic beverages to KimA, a non-licensed seller, and constitutes a ground for revocation of the license under subparagraph 2 of the designated conditions, the value-added tax is not omitted since the Plaintiff issued a tax invoice for alcoholic beverages supplied to retailers via KimA, and thus, the Plaintiff and KimA were not exempted; the relationship between the Plaintiff and KimA is different from the general non-licensed seller; the Plaintiff’s discontinuance of alcoholic beverage brokerage business operated for several hundred and twenty months due to the instant disposition; and the 20 employees working for the Plaintiff company lose their livelihood, etc., the instant disposition was excessively harsh, thereby abusing discretion or deviating from its limit.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether Article 15 (A112) 4 of the Liquor Tax Act is violated

According to Article 15 (2) of the Liquor Tax Act, "the head of the competent tax office shall revoke a license when the person who has obtained a license for a liquor sales business falls under any of the following subparagraphs." According to subparagraph 4, "the amount of violation of duties to issue the tax invoices under Article 11-2 (1), (2) or (4) of the Punishment of Tax Evaders Act by taxation period under the Value-Added Tax Act is not less than 10/100 of the gross total sales of alcoholic beverages or the gross total purchases of alcoholic beverages." Accordingly, the head of the competent tax office shall revoke the license for a liquor sales business if the amount of violation of duties to issue the tax invoices by taxation period under the Value-Added Tax Act exceeds 10/100

There is no dispute between the parties that the breach of duty to issue a tax invoice, except for the portion for the first period of January, 2005 to February, 2007 during the taxable period of value-added tax for three years from 1, 2007, does not constitute 10/100 or more of the total sales of alcoholic beverages, and thus, there is no dispute as to whether the amount of violation of duty to issue a tax invoice for the first period of January 2007 constitutes 10/10 or more of the total sales of alcoholic beverages. The following circumstances acknowledged by the purport of Gap evidence No. 14-1 to 31 as well as the whole arguments, namely, ① the plaintiff is engaged in a wholesale business as well as alcoholic beverages, such as sugar, hot water, potable water, drinking water, and smuggling. The plaintiff's assertion that the plaintiff's disposal of alcoholic beverages is separate from the total sales of alcoholic beverages to 10/100 or more, but the defendant has no reason to recognize it as 1/100 or more of the total sales of alcoholic beverages beverages issued by the plaintiff.

(2) Whether Article 9 of the Liquor Tax Act is violated

(A) As to the effect of the terms of designation (II)

On the other hand, Article 9 of the Liquor Tax Act stipulates that "The head of the competent tax office may determine the time limit of license, the scope of manufacture or sales, and the conditions to be observed in making manufacture or sales of alcoholic beverages, if deemed necessary for preserving liquor tax in making a license for alcoholic beverage sales business," and stipulates that "the conditions of designation may be designated in making a license for alcoholic beverage sales business," and therefore, even if the conditions of designation are not listed in the grounds for revocation of license under Article 15 (2) of the Liquor Tax Act, if there is a change in circumstances, if there is a change in circumstances in circumstances, the right to cancel a narrow sense is reserved, or a serious public interest needs arise, etc., the administrative agency which has taken the relevant administrative disposition may cancel such disposition."

(B) As to whether the Plaintiff sold alcoholic beverages to KimA, a non-licensed seller,

In full view of the following facts: (a) the Plaintiff Company sold alcoholic beverages of approximately KRW 1.537 billion to KimA, a non-licensed seller of alcoholic beverages from January 2005 to February 2, 2007; (b) the Plaintiff Company falsely entered the Plaintiff’s tax invoice under the Plaintiff’s name and delivered it to KimA’s customer; (c) the Plaintiff Company did not have paid the payment to KimA; (d) the Plaintiff Company raised and used all kinds of expenses; and (c) the KimAAA was in a state of non-licensed license without business registration; (d) the Plaintiff Company kept alcoholic beverages of KRW 378-7 from Dongdaemun-gu, Dongdaemun-gu, Seoul on September 7, 2007 to 378-7, a non-licensed seller of alcoholic beverages and discovered them by using its illegal cargo in its warehouse; and therefore, (e) the Plaintiff Company’s assertion that the Plaintiff Company knowingly sold alcoholic beverages to the said non-licensed seller is without merit.

(C) As to the deviation and abuse of discretionary power

The regulation on liquor tax affairs is merely a general rule on the handling of liquor tax affairs within the National Tax Service, which set the general guidelines and standards for the handling of liquor tax affairs, and there is no external legal effect to bind the court or the people externally. Thus, the above regulation on the handling of liquor tax affairs and the designation conditions accordingly do not necessarily require revocation of a license on the ground that the above regulation on the handling of liquor tax affairs and the designation conditions therefor are the grounds for revocation of a license. In addition, by comprehensively examining the provisions and purport of the liquor tax law and the overall circumstances of the relevant case, the revocation of a license shall be determined within the scope of discretionary authority by comparing and comparing the major needs for public interest, etc. that can justify the revocation of a license with the disadvantage that the revocation party

The following facts are acknowledged: (a) there is no dispute over this case's health; (b) Nos. 1 through 3 (including virtual number 10 to 12) and Nos. 18 through 200 (including virtual number ); (c) the Plaintiff violated the terms of designation of this case's license by selling alcoholic beverages to KimA who is a non-licensed seller; and (d) the Defendant violated the provision on imposition of liquor tax Article 9 of the Liquor Tax Act; (b) the Plaintiff Company continued to sell alcoholic beverages to Kim 200 million won for a long period of 7 billion won from 1 to 2007, and there is no possibility that the Plaintiff would incur about KRW 700,000,000,000,000,000 won, which are more than KRW 700,700,000,000,000,000 won.

(3) Sub-decisions

Therefore, the instant disposition is a legitimate disposition made within the scope of discretion based on Article 9 of the Liquor Tax Act.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.