Whether it is against the ability of attribution of the ruling

It is insufficient for the Defendant to conduct a reinvestigation according to the purport of the decision of the Director of the Tax Tribunal to conduct a reinvestigation, and if the same disposition as the original disposition is allowed in the absence of any data to acknowledge special circumstances, it is difficult to autonomously control the administrative appeals system or to remedy the taxpayer's rights.

Articles 14, 16, 65, and 80 of the Framework Act on National Taxes, and Article 106-2 of the Restriction on Special Taxation Act

Daejeon District Court-2016-Gu Partnership-102565 ( April 12, 2017)

AA

The director of the tax office

2, 2017.03

2017.12

1. On May 20, 2016, the imposition of the traffic, energy, and environment tax of KRW 82,102,670 for the first period of value-added tax for the Plaintiff on May 20, 2013, KRW 106,695,540 for the month of January 2013, and KRW 7,875,00 for the education tax, and KRW 136,190,560 for the traffic, energy, and environment tax for February 2013 and KRW 10,125,00 for the education tax shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

1. Main claim;

Paragraph (1) shall apply.

2. Preliminary claim;

The Defendant’s imposition of KRW 82,102,670 on February 11, 2015 and KRW 106,695,540 on January 2013 and KRW 7,875,00 on education tax, and KRW 136,190,560 on February 2013 and KRW 10,125,00 on education tax, shall be revoked.

1. Details of the disposition;

가. 원고는 2004. 4. 1.부터 @@시 @@면 @@리 100-5에서 '00주유소'라는 상호로 주유소를 운영하고 있다. 원고는 2013년 제1기 부가가치세 신고시 부가가치세 9,300여만 원, 2013년 1월분 교통세 1억 1,600여만 원, 2013년 2월분 교통세 1억2,700여만 원을 환급신청하였다.

나. 피고는 2014. 11. 7.부터 2015. 1. 26.까지 원고에 대하여 세무조사를 실시한 후 원고가 2013년 제1기 부가가치세 과세기간 중 **네트웍스 주식회사 등으로부터 매입한 경유 32만 리터(이하 '이 사건 유류'라 한다)를 원고가 운영하는 00주유소에 입고

related taxes are refunded under the presumption that sales were made as tax-free oil even though they were sold as non-material;

On February 11, 2015, the Plaintiff notified the Plaintiff of KRW 82,102,670 of value-added tax on February 11, 2015, KRW 114,570,540 of traffic tax on January 2013, and KRW 342,98,70 of traffic tax on February 1, 2013 (hereinafter “instant original disposition”).

다. 원고는 이에 불복하여 2015. 4. 27. ##지방국세청장에게 이의신청을 하였고, ##지방국세청장은 2015. 6. 3. '피고가 2015. 2. 11. 원고에게 한 2013년 과세연도 부가가치세 및 교통세 342,988,770원의 부과처분은 원고가 이 사건 유류를 농민에게 면세 매출하였다고 주장하면서 제시한 카드매출내역 등에 대한 사실여부 확인이 필요하고, 면세매출이 아닌 과세매출에 해당할 경우 특정 매출처에 대한 추가확인이 필요하므로 재조사하여 그 결과에 따라 과세표준과 세액을 경정합니다'라는 취지의 결정을

was made.

D. In accordance with the foregoing decision on the objection, the Defendant conducted a reinvestigation on the Plaintiff from June 22, 2015 to July 9, 2015, but notified the Plaintiff of the result of the objection processing that the Plaintiff maintains the original disposition on July 13, 2015.

E. On August 18, 2015, the Plaintiff filed an appeal with the Director of the Tax Tribunal. On February 18, 2016, the Director of the Tax Tribunal decided that the imposition of traffic tax of 114,570,540 won on January 18, 2013, traffic tax of 146,315,560 won on February 2, 2013, and value-added tax of 142,102,670 won on February 1, 2013, which was presented by the Plaintiff that the Plaintiff sold 320,000 liter via purchase at tax exemption, and that the tax base and tax amount were corrected on the amount verified by re-assessment of illegal distribution of tax-free oil on the card.

F. On May 20, 2016, the Defendant re-audited according to the decision of the Director of the Tax Tribunal on re-audit, but determined that the original disposition of the instant case was justifiable and notified of the results of re-audit that the same tax base and notified tax amount as the original disposition of the instant case are maintained (hereinafter “instant disposition”).

(In fact that there is no dispute, Gap's 1 through 5 (including a branch number, if any; hereinafter the same shall apply), Eul's 1 through 3, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

A) The primary claim

The disposition of this case is deemed to have changed the original disposition of this case, and the revocation of the disposition of this case is sought for the following reasons.

(1) Since the decision of the Director of the Tax Tribunal’s reinvestigations the Defendant, the Defendant should conduct a reinvestigation as to whether the duty-free oil sold to farmers was illegally distributed, and how much was illegally distributed to anyone, according to the purport of the said decision, and then determine specific requirements for taxation and the amount of tax to be imposed. However, the Defendant did not conduct a reinvestigation and notified the same tax amount as that of the existing tax requirements, and the instant disposition was unlawful in violation of the binding force of the Director of the Tax Tribunal’s decision.

(2) The defendant shall conduct a reinvestigation in accordance with the re-audit decision, but shall maintain the original disposition of this case.

The taxation disposition was made by estimating the circumstances without clear grounds for taxation, which violates the substance over form principle under Article 14 of the Framework Act on National Taxes and the underlying taxation principle under Article 16 of the Framework Act on National Taxes and is illegal.

B) Preliminary Claim

If the instant disposition cannot be deemed a disposition, only the original disposition was issued on February 11, 2015, and thus, the revocation of the instant original disposition is sought for the same reason as the primary claim.

2) The defendant's assertion

For the following reasons, the instant disposition is lawful.

A) The Plaintiff did not comply with the Defendant’s reinvestigation, and it is impossible for the Defendant to conduct a clear investigation on farmers disadvantaged at disadvantage when the illegal distribution of tax-free oil is confirmed, and thus, the Plaintiff issued the instant disposition after collecting and re-auditing various data, such as details of tax-free petroleum purchase cards, tax-free petroleum management ledger, farmland ledger, farmland ledger, financial data investigation association, and heating farmers using the heating apparatus, and production records. Therefore, the Plaintiff did not violate the binding force of the Director of the Tax Tribunal’s decision.

B) Unless the Plaintiff’s purchase of oil is false, the oil not entered into the gas station shall be deemed to have been illegally distributed to other gas stations. The Defendant verified the following matters and expressed that the fact of taxation requirements was presumed in light of the empirical rule. Therefore, the instant disposition is lawful, and the Plaintiff must prove that the instant disposition was unlawful.

(1) According to the release details of oil reservoir from January 2, 2013 to December 2, 2013, aa90-2306 (Transportian bb), it cannot be deemed that the instant oil was delivered to 00 gas stations by considering the transport time between oil reservoir and 00 oil stations. bbb made a statement to reverse the initial statement and then deliver the instant oil to 00 gas stations. If the instant oil was issued in advance at the oil reservoir, the issuance rate of the next set may be within two hours, but it is reasonable to view that the Plaintiff’s statement is not reliable because it is impossible to simultaneously issue the second set of the first set of the two vehicles; bbbbbbbb’s statement on January 2 to 2, 2013, which was submitted by the Plaintiff, was not proven to the vehicle transport tank’s entry and exit without the signature of the Plaintiff; and 00bbbb’s information and data on this case’s vehicle transport tank.

(2) On February 11, 2013, ccc unrelated to farmers was presumed to have transferred 22,700 million won to the Plaintiff’s account in the name of the Plaintiff on February 11, 2013, in view of the fact that one of the 100,000 won check used in the EE-gas station operated by the Plaintiff’s Dong-based DD deposited in the account of farmers FF with the card payment for exempted oil on February 18, 2013, the Plaintiff is presumed to have returned the check received as the sale proceeds of oil from the EE oil station to the settled farmer with the payment of exempted oil. In light of the fact that the Plaintiff purchased the E-E-gas station’s purchase tax invoice and the purchase of the 100,000 won amount to KRW 22,700,000 from DD to the Plaintiff’s account, and the purchase of the E-gas’s quantity to be less than 212,000,000 liter per annum per year from 213.

(3) As a result of the analysis of 'the access details of transportation vehicles in the place of a gas station's establishment' information, the average monthly frequency of operation of the vehicle per month is 67-68 times per month, which is reported oil.

Considering the sale volume, the Plaintiff cannot be deemed to have supplied 320,000 liters of the instant oil to actual farmers.

(4) From July 1, 2015, the agricultural heating apparatus’s tax exemption oil was converted from the via oil to the floating oil.

From January 2, 2013 to February 2, 2013, 38 of 93 members of the settlement card for the purchase of duty-free petroleum.

1. From January 2, 2016 to December 2, 2016, which has been converted from the heating apparatus’s tax-free oil to its transit, the cash deposited in the accounts of farmers can be deemed to have been deposited with the refund due to false settlement of tax-free oil, in light of the fact that the amount of tax-free oil purchased has significantly decreased on or around 38 farmers, 16 among the 38 farmers, whose source is unclear after the settlement date of the tax-free oil purchase card, and the farmers failed to disclose the source of the deposited cash.

(5) In comparison between the details of the purchase card submitted by the Plaintiff and the monthly inventory of the GG gas station association reported by the Plaintiff and the details of the storage of the oil list by date, unlike gasoline, light oil, etc., the entry and withdrawal of light oil does not comply with all, and thus, the details of the purchase card for light oil were falsely prepared or not reliable.

B. Judgment on the main claim

1) Whether it is against the binding force of the ruling

A) Facts of recognition

If Gap evidence No. 2 and Eul evidence No. 3 show the purport of the whole pleadings.

The following facts are recognized:

(1) The Director of the Tax Tribunal, while making a decision of reinvestigation on the original disposition of the instant case (hereinafter referred to as “decision of the instant case”), states the following reasons:

(A) The Defendant concluded that the shipment slips submitted by the Plaintiff were sold as non-farmerless materials in the form of non-farmer oil stations, etc. on the part of the fact that they were unable to trust in the transaction documents. However, it is insufficient to conclude that the instant oil was not delivered to 00 gas stations in light of the statement bB.

(나) 원고는 이 사건 유류를 자신이 운영하는 주유소에 정상적으로 입고하여 농민에게 면세로 판매하였다는 면세유류 구입카드 매출내역을 제시하였고 ##지방국세청장의 이의신청결정문에서 농민에 대한 사실여부 확인이 필요하다고 적시 하였음에도 불구하고 이에 대한 사실확인이 이루어지지 않았으며, 이 사건 유류와 면세유 부정유통과의 관련성 여부 및 조세탈루의 개연성 또한 전혀 입증되지 아니하고 있는바, 2013. 1.~2.기간 중 이 사건 유류를 면세로 판매하였다고 제시한 면세유 전용 카드매출내역과 카드로 면세유를 결제한 농민들에 대하여 면세유 부정유통여부를 재조사하여 면세유 부정유통이 객관적으로 확인되는 금액에 대하여 과세매출누락액으로 보아 부가가치세 등의 과세표준 및 세액을 경정하는 것이 타당하다고 판단된다.

(2) Since the decision of this case had 00 gas stations settle the purchase card of duty-free petroleum from farmers during the first period of 2013 for the following reasons, the defendant judged that there is no problem in the initial investigation determined by considering the illegally distributed oil as the omitted amount of tax sales, and issued the disposition of this case to maintain the original disposition of this case.

(A) From July 1, 2015 to eradicate illegal distribution of tax-free petroleum, the Defendant’s assertion that the effectiveness of illegal distribution of tax-free petroleum has decreased by converting the tax-free petroleum from the agricultural heating apparatus via transit to the transit. As a result, the Defendant compared the purchase amount of tax-free petroleum from January 2, 2013 to January 2, 2012 to February 2016 by 38 farmers who significantly decreased the purchase volume of tax-free petroleum from January 2, 2016 to February 2.

(B) While light oil is more high-efficiency than that of light oil used as heating-free oil than that of light oil, more than that of using light oil as heating-free oil, if compared with the quantity of tax-free oil purchased on January 2, 2016 to the quantity of tax-free oil purchased on January 2, 2013 to the quantity of tax-free oil purchased on January 2, 2016 presumed that the quantity of tax-free oil purchased was actual quantity, it is determined that the certain quantity out of the quantity of tax-free oil purchased on January 2, 2013 to December 2, 2013 has been illegally distributed.

(C) From January 2, 2016 to February 2, 2016, the tax-free oil purchase volume significantly decreased on or around 38 farmers among 38 farmers, the cash account for which the source is unclear after the date of settlement of the purchase card was deposited on January 2, 2013. The cash deposited into the accounts of farmers due to the failure of the farmers to disclose the source of the deposited cash was deemed to have been deposited in the refund due to the false settlement of tax-free oil, and there is a suspicion of illegally distributing a certain amount of the tax-free oil purchased on or around January 2, 2016 to the 00 gas station.

B) Determination

(1) Under the Framework Act on National Taxes amended by Act No. 14382, Dec. 20, 2016, where it is necessary to conduct an additional investigation, such as confirmation of facts, due to the cancellation, correction, or necessary disposition for the disposition subject to a request for review, for which the request for review, etc. is deemed reasonable, the proviso to Article 65(1)3 and paragraphs (5) and (6) of the same Article were newly established in order to clarify the grounds for re-audit decision that should be cancelled, corrected, or necessary disposition according to the result of re-audit conducted by a disposition agency. Article 81 of the same Act provides that Article 65 shall apply mutatis mutandis to a request for a trial, and Article 80(1) provides that the decision of the Director of the Tax Tribunal pursuant to Article 65 shall bind the relevant administrative agency. In light of the purport of the amendment of the above provisions, it is reasonable to deem that

(2) In full view of the text and reasons of the instant decision, the purport of the re-examination is to verify whether the exempted oil was distributed to farmers by re-auditing whether it was related to the instant oil and the illegal distribution of tax-free oil, and to verify the amount objectively confirmed, and to revise the tax base and tax amount of value-added tax, considering the amount of tax evasion as the amount of tax sales. In accordance with the purport of the re-audit determination, the Defendant must verify the farmers’ objectively confirmed tax exemption and rectify the tax base and tax amount of value-added tax, considering the amount of tax omission as the amount of tax evasion only for the amount objectively confirmed among them. However, around January 2, 2016, 38, some of the farmers were reduced, and 15 of them were deposited cash, the source of which is unclear between January 2, 2013 and June 2013 (total 135,850,000 won), other than the investigation conducted against the farmers to determine who were objectively distributed tax exemption.

(3) As seen earlier, it is insufficient to deem that the Defendant conducted a reinvestigation according to its purport despite the instant decision, and if the same disposition as the original disposition is allowed in the absence of any data to acknowledge special circumstances, it is difficult to autonomously control the administrative appeals system or thereby remedy taxpayers’ rights and interests.

(4) Ultimately, when comprehensively considering the form and purport of the instant decision, and the autonomous administrative control functions of the Tax Tribunal, etc., the instant disposition is unlawful as it goes against the binding force of the Director of the Tax Tribunal’s re-audit decision, and it is reasonable to view that the Defendant should have conducted a tax disposition only on the amount of tax exempt from illegal distribution which is objectively verified, after re-auditing whether the relevant decision was illegally distributed to farmers in accordance with the purport of the

2) Whether the Plaintiff unlawfully distributed tax-free petroleum

If the disposition of this case does not violate the binding force of the decision of this case, it is examined whether the plaintiff illegally distributes duty-free oil to determine the legitimacy of the disposition of this case on the premise that the plaintiff illegally distributes the oil of this case.

A) Relevant legal principles

Generally, in a lawsuit seeking the revocation of a tax imposition disposition, the burden of proving the fact of taxation requirements is a taxable person. However, in a case where it is proved that the fact of taxation requirements is presumed in light of the empirical rule in the specific litigation process, unless it proves that the taxpayer’s issue is inappropriate to apply the empirical rule, or that there are special circumstances to exclude the application of the empirical rule in a case, it cannot be readily concluded that the taxation disposition is an illegal disposition that fails to meet the taxation requirements (see, e.g., Supreme Court Decision 2015Du60341, Jun. 10,

B) Relevant statutes

It is as shown in the attached Form.

C) the facts of recognition

In light of the overall purport of the pleadings, the following facts may be acknowledged in each entry of Gap evidence 1 to 4, 6, Eul evidence Nos. 3, 5, and 26.

(1) The details of value-added tax reported by the Plaintiff while operating a gas station of 00 are as listed below.

(2) The sales card sales submitted by the Plaintiff as evidence that the instant oil was sold to farmers as exempt from taxation are as listed below.

(3) The oil of this case purchased by the Plaintiff is as listed below, BB transported, and the shipment slips are total of 16 items.

(4) At the time of the Defendant’s investigation, bB stated that the instant oil was not transported to 00 gas stations after the second half of 2012, but thereafter, the Plaintiff stated that the instant oil was transported to 00 gas stations in the process of filing an objection. In the course of re-investigation, the part of the shipment slips issued at intervals of less than two hours between the oil reservoir and the 00 gas stations was issued in advance to reduce waiting time, and that it was possible to be issued in advance in 2013.

(5) 원고의 친동생인 DDD은 ## #구 ###로 270(##동)에서 EEE주유소를 운영하고 있는데, 원고와 DDD 사이의 2013년 하나은행 통장거래내역에 의하면 DDD이 원고에게 271,660,000원을 송금하고, 같은 기간 동안 원고는 DDD에게 390,370,000원을 송금하였다. ##세무서에서 EEE주유소의 2013. 1. 1.~2013.6. 30. 과세기간동안 00주유소로부터의 무자료 매입에 대한 현장확인 조사를 하였으나, 2016. 3. 14. 무혐의로 확인하여 DDD에게 이를 통지하였다.

(6) 성명불상의 제보자가 2013. 2. 1.경부터 2013. 3. 31.경까지 CCTV로 00주유소를 촬영하여 제공한 영상은 피고가 원고를 조세범처벌법위반으로 고발하여 진행된 수사과정에서 국립과학수사원구원 디지털분석 결과 및 ##고등검찰청 컴퓨터 포렌식 결과 위 녹화 영상 중 2013. 3. 1.경 이후의 녹화 영상은 녹화시각과 실제시각의 차이가 약 20분에 불과한 것으로 확인되나, 2013. 2. 1.부터 2013. 2. 28.까지의 녹화 영상은 그 녹화시각과 실제시각이 동일한지 알 수 없는 것으로 확인되었다. 2013.1.부터 2013. 1. 31.까지 00주유소를 촬영한 CCTV 영상은 남아있지 않다.

(7) The Plaintiff filed a charge of violating the Punishment of Tax Evaders Act in relation to the instant oil, but was subject to a disposition of non-prosecution on December 21, 2016 due to lack of evidence as to the suspicion of being refunded value-added tax, and was subject to a disposition of non-prosecution by the director of the tax office having jurisdiction over the charge of not issuing a tax invoice. As to the suspicion of not issuing a tax invoice, the Plaintiff was subject to a disposition

3) Determination

In full view of the following circumstances, the facts alleged by the Defendant, which found that the entire purport of the pleading was visible, and thus, it cannot be deemed that the Plaintiff sold the entire oil of this case to the gas station in the city, instead of having sold it as tax-free oil, and that the disposition of this case was unlawful.

A) The fact that the time of shipment at the oil reservoir and the time of transport from the oil reservoir to the oil reservoir to the oil station to the oil station to the 00 hours falls under an estimate based on the relevant persons’ statements, and the possibility that the actual time of shipment and time of transport may vary by various factors cannot be ruled out. In addition, bB prepared a statement that the instant oil was not transported to the oil station after the second half of January 16, 2015, which was the time of the initial tax investigation. However, 00 oil was stored in the oil station to the Defendant. Based on the video of the oil station to the 00 gas station provided by the informant, “the details of the transportation vehicle access prepared by the Defendant based on the video of the said CCTV installed by the Defendant from the date of January 2013 to the end of February 2013, 200 cannot be readily concluded.

B) According to the “number of vehicles to be transported within the place of business of a gas station”, from February 1, 2013 to March 31, 2013, the number of times the instant oil was operated by the Home Ri for a total of 35 days from February 1, 2013 to March 31, 2013 is only 78 times. However, insofar as the instant “number of vehicles to be transported within the gas station’s place of business” does not guarantee accuracy, it is difficult to presume that the instant oil was not sold to farmers through the frequency of operation of the Home Ri for the said period.

C) The amount of duty-free oil purchased by farmers who purchased tax-free oil in 00 stations may vary depending on the various factors. Even if the details of cash deposited in the accounts of farmers and the details of the use of checks were conducted before and after the date of settlement of duty-free oil, the confirmation of whether such facts were true has been conducted on the farmers. In light of the duty-free oil sold on or around January 2, 2013 and the sales amount sold on or around January 2, 2013, it cannot be readily concluded that farmers cooperate in the illegal distribution of the instant oil. The Defendant did not confirm how the instant oil was distributed by any farmer.

라) 피고는 원고가 이 사건 유류를 EEE주유소에 판매하였고, EEE주유소는 이를 무자료로 매입한 것으로 추정하고 있으나, 원고와 DDD은 친형제간으로서 둘 사이의 금융거래가 지속적으로 이루어져 왔고 그 중 일부 금융거래내역만을 토대로 이 사건 유류 판매대금이라고 추정할 수 없는 점, EEE주유소의 무자료 매입 혐의에 대하여는 ##세무서에서 현장확인결과 2016. 3. 14. 무혐의로 확인하였던 점에 비추어 보면, 이 사건 유류가 EEE주유소에 판매되었다고 단정할 수 없다.

4) Sub-determination

The legality of taxation disposition is determined depending on whether it exceeds the legitimate tax amount, but it is difficult to calculate the legitimate tax amount only by the data submitted by the parties, and the entire disposition of this case shall be revoked.

3. Conclusion

Therefore, the plaintiff's primary claim of this case is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.