[1] Whether traffic tax should be refunded or deducted on the ground that the goods are used in an overseas navigation ship, in case where the goods were leaked to another place and were not used in an overseas navigation ship, and whether the shipper should be deemed as the “person who has not used the goods for the prescribed purpose” under Article 24(5) of the former Enforcement Decree of the Traffic Tax Act (affirmative)

[2] The case affirming the judgment below holding that in case where Gap oil refining company entered into a oil supply service contract with Byung for the supply of oil for overseas navigation vessels through Eul's brokerage, Byung company entered into a charter contract with Eul company for the supply of oil for overseas navigation vessels, Eul company entered into a charter contract with Eul company for the supply of oil for overseas navigation vessels, Eul company's subsequent oil supply certificate, etc. which was unlawfully distributed part of oil supplied to Eul company Gap company, and Gap company issued a false shipment permit with the head of the competent customs office by forging the oil supply certificate, etc., and Gap company imposed traffic tax already paid and traffic tax refunded

[3] The case affirming the judgment below holding that the above disposition is lawful in case where Gap oil refining company entered into a oil supply service contract with Byung for the supply of oil for overseas navigation vessels through Eul's brokerage, Eul corporation entered into a charter contract with Eul company for the supply of oil for overseas navigation vessels, Eul company entered into a charter contract with Eul company for the supply of oil for overseas navigation vessels, and Eul company entered into a charter contract with Eul company for the supply of oil for overseas navigation vessels, and Eul company entered into a false shipping permit with the head of the competent customs office by forging the certificate of oil supply, etc., and Gap company was issued a false shipping permit by forging the certificate of oil supply, etc.

[1] According to Article 17(2)4 of the former Traffic Tax Act (amended by Act No. 7576 of Jul. 8, 2005; hereinafter “the Act”) and Article 24(1) and Article 24(2)4 of the former Enforcement Decree of the Traffic Tax Act (amended by Presidential Decree No. 18941 of Jul. 8, 2005; hereinafter “Enforcement Decree”), traffic tax on the goods used for overseas navigation vessels shall be refunded or deducted as the condition that the goods are carried in overseas navigation vessels. Article 17(8) of the Act provides that traffic tax shall be additionally collected in cases where it is confirmed that the goods do not meet the requirements for traffic tax refund or deduction. Article 15(2) of the Act provides that traffic tax shall be collected from an overseas navigation vessel without being carried in to an overseas navigation vessel. In such cases, it is reasonable to consider that the pertinent goods should be carried in to an overseas navigation vessel for the purpose of traffic tax exemption from the aforementioned condition that traffic tax should not be refunded.

[2] Where Company A entered into an oil supply service contract with Company B for supplying oil to overseas navigation vessels through its brokerage, and Company B entered into a charter contract with Company B to supply oil to overseas navigation vessels, and Company B entered into the charter contract with Company B to supply some of the oil supplied to Company A (hereinafter “instant oil”), as if the oil supply certificate, etc. was forged to supply oil supply certificate, etc. to the head of the competent customs office, and submitted Company A’s certificate of carrying-in export goods subject to refund (loading) which is the shipment permit, and Company A was entitled to refund traffic tax already paid in accordance with Article 17(2)4 of the former Traffic Tax Act (amended by Act No. 7576 of July 8, 2005; hereinafter “Act”), and Company B was deemed lawful until Company B was punished for unlawful acts, and Party B was not entitled to receive refund from the tax authority prior to the use of the oil trading right as an agent for overseas navigation vessels between Company A and Party B, and Party B did not supply the oil to Party B’s ship B’s agent and Party B’s manager.

[3] Where Company A entered into a charter agreement with Company B to supply oil to overseas navigation vessels through the brokerage of Company B, and Company C entered into a charter agreement with Company B to supply oil to overseas navigation vessels, and Company A subsequently, Company B entered into a charter agreement with Company B to supply some of the oil supplied to Company A (hereinafter “instant oil”), but the Plaintiff forged a certificate of oil supply, etc. to the head of the competent customs office and submitted the certificate of carrying-in (loading) of the exported goods subject to refund, which is a shipment permit, to the head of the competent customs office, as if the oil supply was supplied normally, and Company A was unable to obtain a refund of traffic tax already paid in accordance with Article 17(2)4 of the former Traffic Tax Act (amended by Act No. 7576 of Jul. 8, 2005; hereinafter “Act”), the case affirming the lower court’s judgment that it was difficult for Company B to impose traffic tax exemption and/or additional tax on the goods subject to refund under the premise that it did not comply with the legitimate reasons for issuing the traffic tax exemption and supervision.

[1] Article 15 (2) (see current Article 15 (2)) of the former Enforcement Decree of the Traffic, Energy and Environment Tax Act (Amended by Act No. 7576, Jul. 8, 2005); Article 17 (2) 4 (see current Article 17 (2) 4); Article 17 (8) of the current Enforcement Decree of the Traffic, Energy and Environment Tax Act (see current Article 17 (8) of the Traffic, Energy and Environment Tax Act); Article 24 (1) (see current Article 24 (1)) of the former Enforcement Decree of the Traffic, Energy and Environment Tax Act (Amended by Presidential Decree No. 18941, Jul. 8, 2005); Article 24 (2) 4 (see current Article 24 (2) 4) of the former Enforcement Decree of the Traffic, Energy and Environment Tax Act (see current Article 8 (2) and (5) (see current Article 7) of the former Enforcement Decree of the Traffic, Energy and Environment Tax Act)

Seoul High Court Decision 2001Na14477 decided May 1, 201

Head of Ulsan District Office

Busan High Court Decision 2008Nu2118 decided January 9, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

Article 4 of the former Traffic Tax Act (amended by Act No. 7576 of Jul. 8, 2005; hereinafter “the Act”) provides that traffic tax shall be imposed at the time of shipment from a manufacturing place. Article 17(2) provides that where the goods on which traffic tax has already been paid or is to be paid fall under any of the following subparagraphs, the traffic tax already paid shall be refunded as prescribed by the Presidential Decree. In this case, if there is a payable amount, it shall be deducted, and Article 4 provides that “where the taxable goods are used in an overseas navigation ship,” Article 24(1) and (2)4 of the former Enforcement Decree of the Traffic Tax Act (amended by the Presidential Decree No. 18941 of Jul. 8, 2005; hereinafter “Enforcement Decree”) provides that traffic tax shall be imposed upon the relevant goods to be refunded or deducted for the reason that they are used in an overseas navigation ship, and Article 17(2) of the Act provides that the goods are not refunded or deducted from the relevant person under Article 17(2)4 of the Act.

Meanwhile, Article 15(1)3 of the Act provides that traffic tax shall be exempted in cases where approval is obtained from the head of the competent tax office or customs office with respect to goods used in an overseas navigation vessel. Article 23(2) of the Enforcement Decree, Article 23(1)3 of the Act, and Article 17(2) proviso provides that traffic tax shall be collected from the shipper for those goods not proven that they were brought into an overseas navigation vessel by a loading permit. The traffic tax shall be collected from the shipper when they were brought into the overseas navigation vessel and the traffic tax shall be collected from the shipper when they were changed

According to Article 17 (2) 4 of the Act and Article 24 (1) and (2) 4 of the Enforcement Decree of the Act, traffic tax on goods used in overseas navigation ships shall be refunded or deducted on the ground that the goods are used in overseas navigation ships, and Article 17 (8) of the Act provides for ex post facto collection of traffic tax in cases where it is confirmed that the goods do not meet the requirements for refund or deduction of traffic tax, and Article 15 (2) of the Act provides for conditional tax exemption, where the goods are not carried in overseas navigation ships, the traffic tax shall be collected from the shipper, and in cases of traffic tax refund or deduction, the traffic tax shall be imposed differently from the case of conditional tax exemption. Thus, it is not necessary to deal differently with the above reasons. In full view of the above, where it is confirmed that the goods in question are not carried in the overseas navigation ship but carried in the overseas navigation ship, it is reasonable to view the shipper to use the goods in question as "the goods in question" under Article 24 (5) of the Enforcement Decree.

In full view of the adopted evidence, the lower court: (a) concluded an oil supply service contract with the south Sea Oil Co., Ltd. (hereinafter “Dongnam Sea Oil”) for the purpose of supplying oil to an overseas navigation ship through brokerage from April 15, 2003 to May 31, 2004; (b) concluded a charter contract with the Plaintiff for oil supply; (c) such south Sea Oil Co., Ltd. for the purpose of supplying the oil taken out of the Plaintiff to an overseas navigation ship; and (d) such agreement concluded with the Plaintiff for oil supply to the Plaintiff on the ground that the Plaintiff would supply the oil to an overseas navigation ship with oil oil oil supply to the Plaintiff on a dry Sea Oil Co., Ltd. (hereinafter “Sein”); and (d) the Plaintiff supplied the Plaintiff with an oil supply certificate for oil supply to the Plaintiff on the ground that it would not be subject to the Plaintiff’s purchase of the oil to the Plaintiff on the ground that it would be subject to the Plaintiff’s supply of the oil to the Plaintiff on the ground that it would not be subject to the Plaintiff’s supply of education tax.

Based on these factual basis, the lower court determined that the instant disposition, which collected traffic tax, etc. refunded from the Plaintiff in relation to the instant oil, is lawful, on the grounds that: (a) Cinin is an oil trading broker between the Plaintiff and the overseas navigation vessel; (b) the Plaintiff is in the position to manage the instant oil until it is supplied to the overseas navigation vessel through the right to manage and supervise the East-Nam Sea Oil; and (c) the instant oil was not used for the purpose provided for in Article 17(2) Subparag. 4 of the Act before the instant oil was brought into the overseas navigation vessel; and (d) the Plaintiff was deemed the Plaintiff.

In light of the above provisions, legal principles, and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to persons subject to traffic tax, etc.

2. As to the third ground for appeal

In order to facilitate the exercise of taxation rights and the realization of tax claims, penalty taxes under tax law may not be imposed in cases where a taxpayer violates various duties, such as a declaration and tax payment, as prescribed by tax laws, without justifiable grounds, and where there are justifiable grounds that are not attributable to his/her duty, such as where it is unreasonable to expect the taxpayer to fulfill his/her duty, etc. (see Supreme Court Decision 2008Du16001, Sept. 10, 2009).

According to the reasoning of the judgment below, the court below acknowledged the facts as mentioned in the preceding paragraph, and determined that it is difficult to view that there is a justifiable reason to exempt the Plaintiff from additional tax solely on the ground that the head of the competent customs office issued a certificate of shipment (loading) of the exported goods subject to refund and trusted it on November 1999, based on the following: (a) although the Plaintiff was responsible for managing and supervising the Plaintiff before the oil was supplied to an overseas navigation vessel; (b) the oil in this case was illegally distributed for a long time; (c) the exemption from taxation for oil, such as traffic tax, is an exceptional system recognized on the premise that all the exemption requirements prescribed by the statutes, and (d) the certificate of shipment (loading) of the exported goods subject to refund issued by the head of the competent customs office, which was issued by the Plaintiff

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error of law by misunderstanding legal principles as to additional tax as alleged in the ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)