The assertion that the special consumption tax should be excluded from the total amount of income of the special consumption tax because the service fee was reported in the tax base.

It can be recognized that the amount of service fees is not reported through withholding, and since the service fees are reported as the service fees subject to value-added tax, and the service fees are appropriated as their income, it cannot be excluded from the tax base of special consumption tax.

Article 1 of the Special Consumption Tax Act

Article 8 of the Special Consumption Tax Act

1. The plaintiff's claim is dismissed.

2. The costs of the claim are assessed against the Plaintiff.

The imposition of each special consumption tax and education tax on the plaintiff on May 9, 2008 (the notice of May 1, 2008 seems to be a clerical error) shall be revoked.

1. Details of the disposition;

A. From April 24, 2003, the Plaintiff operated an entertainment tavern with the trade name of ○○○○-dong, Daegu ○○○-dong, 170-○○○-dong, 170-○○○, a main store for ○○○○ (hereinafter the instant business establishment) and closed the business on October 31, 2005.

B. From the first to the first half of 2003, the Plaintiff reported and paid value-added tax as in the column of “value-added tax base” as shown below, and the special consumption tax did not pay it by self-return.

C. Accordingly, the Defendant, on January 5, 2007, determined and notified the special consumption tax and education tax (hereinafter “the initial disposition of this case”) to the Plaintiff on the basis of the Plaintiff’s tax base of value added tax reported by the Plaintiff from the first to the first period of 2003, which is a taxable entertainment place under Article 1(4) of the Special Consumption Tax Act, based on the report that the instant business place falls under the special consumption tax subject to the special consumption tax.

Table Omission of the Table

D. The Plaintiff paid KRW 4,286,290 of the special consumption tax for the first period of November 27, 2003, KRW 965,00 of the education tax, KRW 346,560 of the additional tax for the first period of November 27, 2007, KRW 140,720 of the increased additional tax for the first period of January 2005, KRW 2,418,920 of the special consumption tax, KRW 640,590 of the education tax, KRW 2,607,790 of the education tax for the second period of February 2003, and KRW 2,607, KRW 76,690 of the additional tax, KRW 2,625,520 of the special consumption tax.

E. The defendant revoked ex officio the original disposition of this case on April 24, 2008, and returned the special consumption tax and education tax from May 9, 2008 to June 2005, respectively (hereinafter the first disposition) on the basis of the period of each taxation on May 9, 2008 as stated in the attached disposition list of the special consumption tax and education tax, and on May 13, 2008, the defendant returned 15,500,000 won paid to the plaintiff and 361,930 won for additional tax refund to the plaintiff on May 13, 2008.

E. On September 18, 2008, the defendant calculated additional tax on additional tax on additional tax on the special consumption tax (2,625,520 won in 203 + 1,625,520 won in 203 + 2,418,920 won in 1, 2005) in relation to the special consumption tax (4,286,290 won in 203) that the plaintiff had already paid during the period from September 18, 2008, only until the date of the decision of initial disposition of imposition (2,418,920 won in 200 in 205) in addition to each disposition of this case (hereinafter referred to as "the second disposition in 205 and 200 won in 200 in 200) as stated in the notice of disposition of the special consumption tax in the attached disposition list from May 18, 2008 to June 8, 2005 (hereinafter referred to as "the second disposition in this case").

[Ground of Recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 12-1 through 4, Gap evidence 13-1 through 26, Eul evidence 1-1 through 5, Eul evidence 11-5, Eul evidence 12, Eul evidence 18-20, Eul evidence 21-1 through 5, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) The Plaintiff stated service charges separately in credit card sales slip, etc., and paid the total amount of service charges to the relevant employee, but did not withhold them, and filed a return on the tax base of value-added tax included in the tax base. As such, the service charges paid to the cost employee are KRW 106,443,064, and the value-added tax corresponding thereto was already reported as the value-added tax base, it shall be excluded from the total amount

(2) The Defendant’s disposition of May 9, 2008 was issued by the Plaintiff who visited the Defendant’s tax office to receive the Defendant’s tax payment notice, and thus, the Defendant’s disposition was unlawful in violation of Article 14(1) of the Administrative Procedures Act.

(3) The Defendant, when making the initial disposition on January 5, 2007, committed an error in the taxable period, and the Defendant voluntarily revoked the initial disposition and made the primary disposition in order to correct the defect. However, it is unlawful to impose an additional tax of KRW 62 million from January 5, 2007 to May 1, 2008, which is the date of the initial disposition, from January 1, 2007 to the date of the first disposition.

(4) In appropriating national taxes, the monthly taxable period should first be appropriated for the national taxes, and the special consumption tax or education tax should be appropriated for all national taxes, and the amount of the special consumption tax or education tax should be appropriated for the same order, and the amount of 6,140,720 won paid by the Plaintiff with respect to the special consumption tax or education tax for the second period of February 2003 is not subject to the increased additional tax, so it is unlawful to impose an additional tax on the Plaintiff for the additional tax of 76,690 won, the increased additional tax of 140,720 won, and the remainder should be appropriated in the order of each special consumption tax or education tax for 6,140,720 won paid by the Plaintiff. However, it is reasonable to impose an additional tax for the additional tax on the Plaintiff on August 9, 2003.

(b) Related statutes;

Article 1 of the Special Consumption Tax Act

Article 8 of the Special Consumption Tax Act

Article 13 of the Special Consumption Tax Act

C. Determination

(1) As to the first argument

According to Article 2 (1) 11 of the Enforcement Decree of the Special Consumption Tax Act, "charges for entertainment and food" means the amount received by an operator of a taxable entertainment place from a person who conducts entertainment and food regardless of the name, such as food charges, tobacco charges, or other service charges: Provided, That where an employee (including a free-income earner) is included in the amount received, the service charges shall be stated separately in the tax invoice, receipt, credit car sales slip, or debit card receipt under the Value-Added Tax Act, and where it is confirmed that the payment to the employee is made, the service charges shall not be included in the entertainment and food charges, but the service charges shall be included in the case where the operator of the taxable entertainment place includes the service charges in his/her income amount. According to Article 48 (9) of the Enforcement Decree of the Value-Added Tax Act, the service charges of the employee (including free-income earner) who receives with the charges for the provision of food and food, accommodation services, or personal service, etc. under the provisions of Article 32-2 of the Act, the service charges shall not be included in the relevant tax base.

In this case, comprehensively taking account of the purport of the entire arguments in the statement of evidence Nos. 1, 2, and 10 of evidence Nos. 2, 13 through 8 of this case, according to the issuance table of credit card sales slips, which are attached to the report of value-added tax at the place of business during the first taxable period from 2003 to 205 submitted by the Plaintiff, the Plaintiff was 106,443,064 won (21,914,200 won) out of the service fees separately stated in credit card sales slip at the time of the report of value-added tax for each taxable period, + 21,087,064 won + 15,268,200 won + 60 won in global income tax base at the time of the report of value-added tax for each taxable period, but the Plaintiff was 106,43,064 won in global income tax base at the time of the report of the above tax amount, and 30,000 won in global income tax base.

Therefore, since the plaintiff filed a return of value-added tax with the service fee as the service fee imposed and appropriated it as his income, it cannot be excluded from the tax base of value-added tax and special consumption tax pursuant to Article 48 (9) of the Enforcement Decree of the Value-Added Tax Act and Article 2 (1) 11 of the Enforcement Decree of the Special Consumption Tax Act. In addition, as to the fact that the plaintiff did not withhold the service fee income from the service fee and actually paid the relevant service fee, it is not sufficient to recognize it only by the statement of the evidence No. 9 and No. 10, and there is no other evidence to acknowledge it, it shall not be excluded from the tax

The plaintiff's assertion on this part is without merit.

(2) As to the second argument

According to Gap evidence Nos. 13-1 through 26, Eul evidence Nos. 16, Eul evidence Nos. 17-1 through 26, the defendant sent 26 of the above tax payment notice to the plaintiff's domicile on May 8, 2008 at ○○○○-gu 853 1403 o's apartment complex, which is the plaintiff's domicile, at 103 o's 16:10 o's 16:0 o's o's o's o's o's o's o's 103 o's o's o's o's 13 o's o's o's o's o's o's o's o's o's o's o's o's o'

(3) As to the fifth argument

According to Article 13 (1) and (2) of the Special Consumption Tax Act, if a person liable to pay special consumption tax fails to file a return, an amount equivalent to 10/100 of the amount of unpaid special consumption tax (an amount equivalent to 10/100 of the amount of unpaid tax) shall be added to the amount of payable tax if the amount of unpaid additional tax is not paid or the amount paid falls short of the amount of payable tax, the amount of unpaid additional tax (an interest rate prescribed by Presidential Decree in consideration of the interest rate applied by X financial institutions to overdue loans from

In this case, according to the above, the plaintiff did not report each of the special consumption tax of this case. The defendant imposed the non-reported additional tax and the non-paid additional tax for the period from the day following the due date of payment to the date of payment notice while making the first disposition, which the plaintiff made the second disposition, and then imposed the special consumption tax of 9,330,730 won (one-year period, 4,286,290 won + 2,625,520 won during the second year of 2003 + 2,625,520 won during the second year of 203 + 2,418,920 won during the first year of 205) by reducing the non-paid additional tax by the due date of the initial disposition (2,418,920.1 December 1, 2006). The defendant's disposition of such additional tax is legitimate under the above-mentioned related Acts and subordinate statutes, and therefore, this part of the plaintiff's assertion

(4) As to the fourth argument

According to the above facts, according to the defendant's initial disposition on November 27, 2007, the plaintiff paid increased 140720 won, education tax 2,607,790 won, additional 76,690 won, and 2,625,520 won of special consumption tax, and 2,625,520 won of special consumption tax, according to the defendant's initial disposition on November 27, 2007. However, there is no evidence to deem that the defendant arbitrarily appropriated the amount different from the plaintiff's intent, the plaintiff's assertion on this part is

3. Conclusion

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