Changwon District Court 2014Guhap20016

It shall not be deemed to constitute "a person punished pursuant to Article 6 of the Punishment of Tax Evaders Act" when he/she conducts notification of an act of selling alcoholic beverages without a license.

The disposition of notice on the act of selling alcoholic beverages without a license can not be deemed to constitute the "person subject to punishment under Article 6 of the Punishment of Tax Evaders Act", which is the requirement for license for the business of selling alcoholic beverages without a license. Thus, the disposition revoking a license for a comprehensive alcoholic beverage sales business is illegal because there is no ground for disposition under Article 15

Article 8 of the Liquor Tax Act and the disposition of suspending the sale of alcoholic beverages under Article 15

2014Nu11444 Revocation of revocation of the license for a comprehensive alcoholic beverage sales business

○ ○○ Company’s ○

○ Head of tax office

Changwon District Court Decision 2014Guhap20016 Decided October 2, 2014

8.19

2015.09.09

1. Revocation of a judgment of the first instance;

2. The Defendant’s revocation disposition on January 13, 201 to the Plaintiff on January 13, 201 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On May 14, 2007, the Plaintiff: (a) obtained a comprehensive license for alcoholic beverage wholesale business (including imported alcoholic beverages); (b) ○○○○○○○ 61-8 (hereinafter referred to as “○○○○ head office”) from the Defendant, at the seat of ○○○, Nam-nam ○○○, and (c) the type of alcoholic beverages to be sold, and (d) operated a wholesale business of alcoholic beverages (including imported alcoholic beverages) at the seat of the Plaintiff.

B. From August 29, 201x to October 17, 201, the director of the Busan Regional Tax Office: (a) determined that “the Plaintiff established a place of business in ○○○○ Dong 923-1 (hereinafter “○○○○”) and stored and sold alcoholic beverages without obtaining a license for alcoholic beverage sales business from October 1, 200x to the Plaintiff; (b) issued a tax invoice to the customer during the quarterly taxable period from February 2, 200x to December 2, 201x, and notified the Defendant.”

C. Accordingly, on February 13, 201x, the Defendant issued a notice to the Plaintiff and Kim ○○ who actually operated the Plaintiff to pay KRW 54,057,890, which constitutes a fine on the ground of the Plaintiff’s non-licensed alcoholic beverage sales and the issuance of a false tax invoice (hereinafter “instant notice disposition”). Accordingly, the Plaintiff complied with the instant notice disposition on April 26, 201x, and Kim ○○ on November 6, 201x.

D. On January 2, 201, the Defendant notified the Plaintiff of the revocation of the Plaintiff’s comprehensive liquor wholesale business license pursuant to Article 15(2)1 of the Liquor Tax Act on the ground that the Plaintiff did not meet the licensing requirements under Article 8(1) of the Liquor Tax Act and Article 9(1) [Attachment 5] of the Enforcement Decree of the same Act due to the act of selling liquor without a license. Thereafter, the Defendant issued a new notification that the Plaintiff would revoke the Plaintiff’s comprehensive liquor wholesale business license on January 13, 201 of the Liquor Tax Act. Since the prior notification is unclear on January 17, 201, the date of revocation of the license is designated as January 17, 201, and the date of revocation of the Plaintiff’s comprehensive liquor

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on January 9, 201x. However, the Tax Tribunal dismissed the appeal on April 15, 201x.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, Eul evidence Nos. 1, 5, 6, 9 through 12, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

1) While the disposition of revocation must indicate the relevant laws and regulations and the violation thereof, the Defendant omitted it while making the instant disposition. As such, the instant disposition is procedural defect.

2) Article 8(1) of the Liquor Tax Act, Article 9(1) [Attachment Table 5] of the Enforcement Decree of the same Act, 1. b. 3] requires that "in the case of punishment under Articles 6 and 12 of the Punishment of Tax Evaders Act, five years have passed since the Plaintiff only 1, in the case of loading or stopping alcohol storage in the location of ○○○, or vehicle drivers only used them as the place where they take rest in liquor, so the Plaintiff cannot be deemed to have kept and sold alcoholic beverages without obtaining a license under Article 6 of the Punishment of Tax Evaders Act. 2 Since the Plaintiff received a comprehensive liquor wholesale business, the Plaintiff's act constitutes an act of selling liquor without obtaining a license under Article 6 of the Punishment of Tax Evaders Act, and thus, the Plaintiff cannot be deemed to have obtained a license under Article 6 of the Punishment of Tax Evaders Act without obtaining a license under Article 16 of the same Act.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 15(2)1 of the Liquor Tax Act does not meet licensing requirements under Article 8(1) of the Liquor Tax Act.

Article 8 (1) of the Liquor Tax Act provides that "a person who intends to operate a liquor sales business shall obtain a license from the head of the competent tax office by satisfying the facility standards and other requirements for each selling outlet for each type of alcoholic beverage sales business," and Article 9 (1) [Attachment 5] of the Enforcement Decree of the same Act provides that "1. b. 3. b. c. 'the comprehensive liquor wholesale business' of Article 9 (1) of the same Act provides that "five years shall have passed since he/she was punished under Articles 6 and 12 of the Punishment of Tax Evaders Act in accordance with the qualification requirements for license for the comprehensive liquor wholesale business." Meanwhile, Article 6 of the Punishment of Tax Evaders Act provides that a person who sells alcoholic beverages without obtaining a license under the Liquor Tax Act

2) First, as to whether the Plaintiff constitutes “a person punished under Article 6 of the Punishment of Tax Evaders Act”

shall be deemed to have been.

As examined below, in light of the legislative purport and contents of the relevant Acts and subordinate statutes, such as the Liquor Tax Act, the Enforcement Decree of the same Act, and the Punishment of Tax Evaders Act, and the history of the amendment thereof, it is reasonable to view that the Plaintiff does not constitute “a person punished under Article 6 of the Punishment of Tax Evaders Act” under Article 9(1) [Attachment 5] of the Enforcement Decree of the Liquor Tax Act, which is the requirement for revocation of license (On the other hand, Supreme Court Decision 85Nu119 Decided July 23, 195 cited by the Plaintiff, cannot be applied to this case as it is,

① In cases where a person fails to meet the requirements for license under Article 8(1) of the Liquor Tax Act, the above provision was newly established under Article 18(1)1 in the former Liquor Tax Act amended by Act No. 5036, Dec. 29, 1995; accordingly, Article 14(2) [Attachment 2] of the Enforcement Decree of the same Act amended by Presidential Decree No. 14867, Dec. 30, 1995 provided that “a person who did not have any fact of being punished or disposed of pursuant to Articles 8 and 12-2 of the Punishment of Tax Evaders Act within the preceding five years from the date of application for license”, but Article 14(2) [Attachment 2] of the Enforcement Decree of the Liquor Tax Act was deleted by Presidential Decree No. 15975, Dec. 31, 1998 and Article 14(2) [Attachment 2] of the former Punishment of Tax Evaders Act within the preceding five years from the date of application for license.”

② Meanwhile, as the Enforcement Decree of the Liquor Tax Act was wholly amended by Presidential Decree No. 16665 on December 31, 199, Article 9(1) [Attachment Table 5] provides that “five years have passed since the punishment was imposed under Articles 8 and 12-2 of the Punishment of Tax Evaders Act,” and Article 8 of the former Punishment of Tax Evaders Act on manufacture of Unlicensed Alcoholic Beverages was stipulated in Article 6 of the Punishment of Tax Evaders Act amended by Presidential Decree No. 9919 on January 1, 2010, Article 8 of the former Punishment of Tax Evaders Act on manufacture of Unlicensed Alcoholic Beverages was stipulated in Article 6 of the Punishment of Tax Evaders Act, and accordingly, the license requirements were same as the current provision on the requirements of the Enforcement Decree of the Liquor Tax Act amended by Presidential Decree No. 22032 on February 18, 2010.”

(3) The constituent elements and statutory penalty for a tax offense case shall be prescribed in the Punishment of Tax Evaders Act (referring to a violation falling under Articles 3 through 14 of the Punishment of Tax Offenses Act (Article 2 subparagraph 1 of the Procedure for the Punishment of Tax Offenses Act). The Act on the Procedure for the Punishment of Tax Offenses was enacted to fairly and efficiently handle such a tax offense case (Article 1 of the same Act). According to the Procedure for the Punishment of Tax Offenses Act, a tax official shall investigate the tax offense case in order to determine tax offense, and report it to the Commissioner of the National Tax Service, the director of a regional tax office, or the head of a regional tax office, or the head of a regional tax office on the disposition of notification (Article 2 subparagraph 3 and Article 12 of the same Act), the disposition for a tax offense case shall be made, accusation, free suspicion (Article 13 of the same Act), the head of a regional tax office, or the head of a regional tax office shall, if he/she obtains positive evidence of a tax offense, notify him/her that the amount of a fine equivalent amount be paid, if he/she fails or is unable to receive the notice within seven (Article 15).

④ As above, a notice disposition under the Procedure for the Punishment of Tax Evaders Act is a device for a tax offender to notify a tax offender of a monetary sanction equivalent to a fine in lieu of a criminal procedure imposed by a court’s sentence in lieu of a criminal procedure where a tax offender is not capable of performing a fine, with respect to a relatively minor case among the crime committed by a tax offense, unless there are special circumstances, such as where the tax offender is deemed to be financially unable to perform the said disposition as notified, and the tax office is exempted from criminal punishment for the offense. Whether a tax offender subject to a notice disposition by the court is subject to voluntary choice and not performing it is not possible for the tax office to implement criminal procedures by compulsory execution. On the other hand, a notice disposition is merely allowed to proceed with criminal procedures by filing an accusation with an investigation agency. A disposition of notification disposition is effective as res judicata with a final and conclusive judgment because the tax offender was not punished again for the same case, but this is clearly distinguishable from criminal punishment in light of the purpose of the aforementioned system prior to criminal punishment in lieu of criminal punishment.

(5) If it is interpreted that a tax offender who received a notification is included in the "person punished pursuant to the Punishment of Tax Evaders Act", the tax offender subject to the notification disposition fails to comply with it and thus accused of the failure by the public prosecutor to institute a public prosecution and thereby the acquittal is confirmed in the court through the relevant criminal procedures, the requirements for the license are not satisfied. On the other hand, a tax offender who has received the notification disposition does not meet the requirements for the license under the above provision, thereby resulting in unreasonable results that a tax offender who has complied with the notification disposition is more unfavorable than the tax offender who has rejected the notification disposition, such as failing to meet the requirements for the license (see Supreme Court Decision 80Nu380, Oct. 14, 1980).

(6) If the Defendant notified the Plaintiff of the fact that the Plaintiff’s license for comprehensive wholesale business was revoked when the Plaintiff implemented the instant notification disposition, considering the overall circumstances revealed in the pleadings, it would be deemed that the Plaintiff failed to implement the instant notification disposition and actively asserted the Plaintiff’s innocence in the criminal proceedings. Moreover, the Plaintiff’s implementation of the instant notification disposition is only deemed to have carried out the instant notification disposition under the expectation that it would be able to continue comprehensive wholesale business without a separate criminal punishment upon the implementation of the instant notification disposition.

(7) Articles 8 and 12 of the Punishment of Tax Evaders Act shall be applied initially to the Enforcement Decree of the Liquor Tax Act prescribing the requirements for license.

The revised provision as the "a person who does not have any fact of punishment or disposition" under the provision as the "a person who has no fact of being subject to punishment or disposition" and then deleted the "disposition" is to prevent the license from being granted only by being subject to a disposition of notification on behalf of criminal punishment for a minor tax offense is to alleviate the requirements for license according to reflective considerations that are unreasonable.

(8) Article 15 subparagraph 5 of the Liquor Tax Act provides that "where a licensee commits an offense under Article 10 (4) of the Punishment of Tax Evaders Act" and such act is not a case where a licensee is subject to criminal punishment under the Punishment of Tax Evaders Act, but a "violation of a licensee" itself is a case where a license holder is subject to criminal punishment under the Punishment of Tax Evaders Act, the relevant provisions clearly stipulate it in the relevant provisions.

3) Sub-determination

Therefore, the disposition of this case is unlawful because there is no ground for the disposition under Article 15 (2) 1 of the Liquor Tax Act ( so long as the disposition of this case is deemed unlawful as above, it shall not be judged separately with respect to other illegal causes of the disposition of this case asserted by the plaintiff).

3. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with different conclusions, so it is revoked, and it is so decided as per Disposition to cancel the disposition of this case.