Daegu District Court-2015-Gu Partnership-24392 (Law No. 117.08.11)

Although fishermen's illegal supply and demand of tax-free petroleum should be confirmed, 00 business cooperatives are not implementing them and are responsible for poor management.

(As in the judgment of the court of first instance, 00, which is ultimately responsible for the management of duty-free oil requires thorough verification in the examination of the documents to issue the duty-free petroleum purchase card, and the fact that the plaintiffs were not aware of it even though the duty-free petroleum purchase card was issued mistakenly shows that there was negligence in management by the plaintiffs.

Article 106-2 of the Restriction of Special Taxation Act

2017Nu6793, 2017Nu6809 (combined) revocation of disposition imposing value-added tax, etc.

000 Business 000 Partnership et al. 7

00. Head of tax office and 2

Daegu District Court Decision 2015Guhap24293, 2015Guhap24392 Decided August 11, 2017

(iv)a judgment;

May 18, 2018

July 6, 2018

1. All appeals filed by the plaintiffs are dismissed.

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

The judgment of the first instance court is revoked. The disposition of imposition of additional tax in the attached Form 1, which the Defendants made against the Plaintiffs, is revoked in entirety.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on this case is as stated in the reasoning of the judgment of the first instance except for the following modifications, and thus, this Court’s explanation is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Parts to be corrected;

A. To revise the judgment of the court of first instance to the detailed criteria for determining “it must be considered as a matter of course in determining” in the 20th to 11th of the judgment.

나. 제1심 판결문 중 제4 다 2) ㈎항 부분(제21면 제12행~제24면 제15행)을 다음과 같이 수정한다.

㈎ 해외로 출국한 어민 및 사망한 어민 명의의 출고지시서 발급 부분에 대한 판단관계 법령의 규정, 갑 제4, 7, 8, 14 내지 21, 25 내지 28호증(특별한 표시가 없으면 가지번호를 포함한다. 이하 같다), 을 제6, 7, 9, 11호증의 각 일부 기재 및 변론전체의 취지에 의하여 인정되는 아래와 같은 사정을 종합하면, 어민이 해외로 출국하거나 사망함으로써 면세유를 직접 인수할 수 없는 경우 '인수확인자'가 어민 명의로 된 출고지시서는 발급될 수 없고, 다만 해외출국 어민의 경우, 위임장과 수임인의 신분증 등 정당한 위임관계서류에 의하여 위임관계가 확인된 수임인 명의로 된 출고지시서만 예외적으로 발급될 수 있을 뿐임에도 불구하고, 면세유류관리기관인 원고들은 그 위임관계서류를 제대로 확인하지 아니한 채 해외출국 중이거나 이미 사망한 어민 명의로 된 출고지시서를 발급함으로써, 구 조세특례제한법 제106조의2 제11항 제2호에서 정한 '관련 증거서류를 확인하지 아니하는 등 관리 부실로 인하여 어민에게 출고지시서가잘못 발급하거나 어민 외의 자에게 출고지시서를 발급한 경우'에 해당한다고 할 것이다. 갑 제1 내지 28호증의 각 일부 기재만으로는, 위와 같은 판단을 뒤집기에 부족할 뿐만 아니라, 원고들에게 그 의무해태를 탓할 수 없는 정당한 사유가 있는 경우에 해당한다는 점을 인정하기에 부족하므로, 원고들의 이 부분 주장은 모두 이유 없다.

(1) There is no general rule that fishermen may be provided with duty-free oil by entrusting other persons with procedures, etc. for issuing written orders for delivery: Provided, That Article 18 of the former Rules on Special Cases provides that "the association may allow other persons to receive duty-free oil only if the 00-level economic representative director, such as those located in remote areas or fishermen, etc., determines that the delegation of authority for receipt of oil may be made only when the former Rules on Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Agricultural and Forestry, and Article 20 (2) and Article 26 (1) of the former Rules on Supply of Oil Cards to other persons: Provided, That the former Rules on Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Special Cases Concerning Fisheries.

As above, the old business guidelines that have prepared an exception provision for the ‘the principle of acquiring tax-free petroleum himself/herself' under the statutes stipulate the strict procedures for identification and verification of delegated documents by means of a device to prevent the illegal outflow of tax-free petroleum thereby.

Article 35 of the former Guidelines for Business shall, when a fisher presents his/her oil card to the Cooperative, issue an order for release in attached Form 26 with due care to prevent unlawful outflow (paragraph (1) 1); when issuing an order for delivery, he/she shall directly deliver his/her oil card to the fishermen subject to issuance after obtaining approval from the person in charge; after verifying the identity of the person referred to in paragraph (1) 1, a copy of the order for delivery for prompt submission (where a photograph is registered in the purchase information system and printed in the order for delivery) shall be attached to the back of the order for delivery (it shall be possible to omit the identity card). Provided, That when it is deemed inevitable for the entrusted supply because he/she falls under Article 23, the Cooperative shall submit the letter of delegation (within three months) pursuant to attached Form 14, documents (certificate, etc.) verifying that he/she is the spouse or lineal family members, and the Association shall prepare a copy of the certificate of identity card of the person entrusted with the issuance of the order for release to the rear of the order for delivery (re-out).

On the other hand, Article 106-2 (20) of the former Restriction of Special Taxation Act provides that "the agency responsible for managing tax-free petroleum may request the administrative agencies, etc. to provide death and removal data for the efficient management of tax-free petroleum, and the administrative agencies, etc. so requested shall submit the data requested to the agency responsible for tax-free petroleum unless there is any justifiable reason."

According to the provisions of the aforementioned relevant Acts and subordinate statutes, the delivery order in the supply and demand of tax-free petroleum for fishing constitutes a certificate that grants the right to take over oil, and this is, in principle, required to be issued by fishermen themselves. However, in accordance with the former supply guidelines and exceptional delegation provisions prescribed in the former business guidelines, only the authorized person with certain status may obtain a delivery order upon delegation from fishermen. As such, it is extremely exceptionally permissible for the authorized person to receive the delivery order. In the event the association issuing the delivery order, it is an essential part of the management of tax-free petroleum in order to prevent the illegal distribution of tax-free petroleum due to transfer of the delivery order. Accordingly, the Plaintiffs, who are the duty-free petroleum management agency, should issue the delivery order after checking whether fishermen themselves or whether they have legitimate authority in accordance with the procedures set out in the former business guidelines.

In this regard, the plaintiffs asserted that the former business guidelines are only 00 internal regulations, which are tax-free petroleum management organizations, and that the procedures for verifying documents related to the fishery personnel themselves and delegated documents are more strict procedures than the statutes without being delegated by the former Restriction of Special Taxation Act and the former Special Provisions. Therefore, the plaintiffs asserted that the former business guidelines cannot be the standard for determining "management insolvency, such as failing to verify relevant evidentiary documents" under Article 106-2 (11) 2 of the former Restriction of Special Taxation Act

However, the issuance of a written order for delivery by a mandatory and the procedure for taking over tax-free petroleum at issue in this case is an exceptional method for the principle of self-acquisition of fishermen under the former Restriction of Special Taxation Act and the former Special Provisions, and the method of taking over tax-free petroleum by the former and the former business guidelines. The former business guidelines also provide for the exceptional procedure for taking over tax-free petroleum by a mandatory is more relaxed than the former Special Provisions on the Restriction of Special Taxation Act and the former Special Provisions on the Restriction of Special Taxation Act, which prescribe only the principle of taking over fishermen, and it cannot be deemed that the procedures for taking over tax-free petroleum by a fisherman are more strict.

Furthermore, even if the former business guidelines merely provide for detailed matters necessary for the supply of duty-free petroleum and post-management, as long as this appears to have been prescribed by a reasonable standard for the methods and procedures for the supply of duty-free petroleum and post-management by embodying superior statutes, the duty-free petroleum management agency, such as the Plaintiffs, should comply with the above guidelines and supply and manage duty-free oil. Thus, it can be considered as the detailed criteria for determining whether there was a "reliability in management of the provision on the imposition of penalty tax in this case" (see, e.g., Supreme Court Decision 2015Du2864, Jul. 11, 2017).

Therefore, the above assertion by the prior plaintiffs cannot be accepted on a different premise.

② In the instant case, Plaintiff A00, BB00, EE00, andCC0 submitted delegation documents (Evidence A7, 8, 14 through 21, 25 through 28) such as proxy and identification cards to some overseas fishermen. However, in light of the following circumstances, it is difficult to deem that the delegation documents submitted as above were submitted to the Plaintiffs at the time of the actual issuance of each of the instant shipment orders from 2009 to 2012. Rather, it is deemed that the documents submitted as above were only made after September 2013 when the National Tax Service’s inspection of the status of management of exempted oil was conducted by the National Tax Service, and thus, the Plaintiffs’ assertion on this premise cannot be accepted.

The plaintiff D00, FF North Korea 00, GG0, H00 did not submit all delegated documents, such as power of attorney, copy of identification card of the mandatory, etc.

(B) The Plaintiff A00, BB00, EE00, andCC00 did not submit particular data despite the Defendants’ request for confirmation. However, only three years from the date of the inspection of the actual condition of tax-free oil management by the National Tax Service (round September 24, 2013) and the date of the instant lawsuit (round October 24, 2014), which was about two years after the date of the instant lawsuit (round October 24, 2014), were submitted on November 3, 2016. Some delegation-related data (Evidence Nos. 25 and 28) were submitted along with the preparatory documents as of March 7, 2018.

A. The Plaintiff AA00 and BB00 submitted only one fishermen’s power of attorney at the time of issuance of the actual order of delivery, and Plaintiff EE0 and CC0 submitted a number of delegations with which the mandatory’s identity can not be confirmed as falling under Article 23 subparag. 3 of the former Rules of Business. The defective details are as follows: (a) it is difficult to view that each of the instant order of delivery was submitted to the Plaintiffs from 2009 to 2012; (b) it is difficult to view that each of the instant documents was submitted to the Plaintiffs at the time of actual issuance of the order of delivery; and (c) it is deemed that the retroactive preparation was made ex post facto.

Among the delegations submitted by Plaintiffs EE00 andCC0, the details of the preparation are doubtful, such as those that the fishermen in Korea from abroad were prepared directly by the fishermen who sent most of one year, those that were prepared directly by the fishermen who sent more than one year, and those that were believed to have been prepared as the status of staff members of many fishermen.

When the plaintiffs issued a delivery order to the e-mail, they must verify the status of fishermen's ships, etc. and English, and specify the relevant vessels. In this case, a copy of sales documents, such as shipping volume by which they can verify the fact of J goods sales, or a ship entry report, etc. under Article 15 of the former Rules on Ship Safety and Operation (Article 106-2 (3) and (4) of the Restriction of Special Taxation Act, Article 20(2) of the former Rules on Special Cases, Article 15 of the former Rules on Supply Management, and Article 35(3) of the former Rules on Business. However, all documents submitted by Plaintiffs EE00 and CC0 as documents related to delegation by overseas fishermen (Article 15-1, 16-1 of the Evidence No. 15-1 of the former Rules on Supply Management), and all documents submitted by Plaintiffs e-E0 and CC0 as documents related to delegation by overseas fishermen (Article 15-1, 16-1 of the former Rules on Ship Safety and Management) have been inspected on September 13, 201, 2013.

16. Only a certificate of consignment sale and a certificate of confirmation of entry into and departure from a ship prepared before and after the arrival of a ship are attached. Therefore, it is insufficient to recognize that Plaintiff EE0 andCC0 properly performed the procedures for verifying the fishermen’s English facts at the time when issuing each of the instant shipment orders.

③ In each order of release confirmation as indicated in the table 1 of this case, both the fishermen’s name and signature are written only on the fishermen’s own name and signature without relation to the entry of the fishermen into the Republic of Korea. This means that the Plaintiffs issued the same type of delivery order in a uniform manner without checking the identity of the persons who received tax-free petroleum or whether the documents related to delegation were submitted. Accordingly, the tax-free petroleum supplied according to each order of release of this case was not known to anyone who actually received and distributed it.

④ In each order of release confirmation as indicated in the instant 2 table, the name and signature of all the deceased fishermen are written, and it is evident that they have taken over tax-free petroleum falsely in the name of the fishermen who died of others. As to this, the Plaintiffs asserted that it does not constitute a poor management as long as they confirmed and issued the status of the mandatory with the delegated document submitted by each mandatary, but the Plaintiffs did not submit the delegated document, such as the proxy or the person’s identification card, in relation to the above part of the deceased person’s name, and therefore, the above assertion is unacceptable.

⑤ In addition, the Plaintiffs asserted that the duty-free petroleum supplied in accordance with each of the above order was actually used for fishery business, upon submitting the consignment sales statement, the details of individual consignment sales, and the confirmation of whether the operation was carried out in relation to each of the orders stated in the table 1 and 2. However, as seen earlier, as long as the Plaintiffs issued each of the order to deliver the instant case to persons who are not fishermen themselves, without properly verifying the delegation-related documents, the management failure, which is the reason for the disposition, is recognized. Thus, the aforementioned assertion by the Defendants cannot be accepted on a different premise.

3. Conclusion

Therefore, all of the plaintiffs' claims in this case shall be dismissed as it is without merit. The judgment of the court of first instance is just in this conclusion, and all of the plaintiffs' appeals are dismissed as it is without merit. It is so decided as per Disposition.