Cho Jae-2015- Daejeon-025 (O6, 2015)

The Plaintiff’s sales of the salted fish of this case are not subject to value added tax because it does not constitute unprocessed food.

The Plaintiff’s sales of the salted fish does not constitute a business imposing value-added tax because the Plaintiff’s sales of the salted fish constitutes a business imposing value-added tax because it does not constitute an unprocessed food for temporary transportation purposes.

Article 26 of the Value-Added Tax Act: Scope of Unprocessed foodstuffs, etc. exempt under Article 34 of the Enforcement Decree of the Value-Added Tax Act.

Daejeon District Court-2015-Gu Partnership-102469 ( October 30, 2016)

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o Head of the tax office

2016.05.19

16.06.30

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s imposition of value-added tax of KRW 51,953,520, value-added tax of KRW 79,171,766, value-added tax of KRW 44,902,470, value-added tax of KRW 44,64,887, value-added tax of KRW 43,916,053, value-added tax of KRW 43,916,053, value-added tax of KRW 57,729,760 for the second period, 2011, which for the second period, 2012, is revoked.

1. Details of the disposition;

A. From June 1, 2007 to December 31, 2013, the Plaintiff is engaged in the wholesale business, etc. of other fishery products in the trade name from 00:00 :00 to 00 :00 :00 :00 to 163; and the wholesale business of other fishery products from 00:0 :00 :00 :00 :00 to 84 (00 dong).

B. During the value-added tax period from the first to the second period from 2011 in 2011, the Plaintiff supplied 331 LDRer stores with scambling, falling, scambling, signaling, lighting, lighting, scambling, etc., and reported it as tax-free sale by deeming it as an unprocessed food under Article 26(1)1 of the Value-Added Tax Act.

C. From May 15, 2014 to June 3, 2014, the Defendant: (a) determined that the Plaintiff’s fish farming supplied as stated in Paragraph (b) is not subject to value-added tax; (b) on September 3, 2014, the value-added tax of KRW 51,953,520 (including additional tax of KRW 20,283,764); (c) additional tax of KRW 79,171 (including additional tax of KRW 29,943,347); (d) additional tax of KRW 29,97,90,470 (including additional tax of KRW 15,64,47); and (e) additional tax of KRW 30,97,97,975 (including additional tax of KRW 29,975,975,2716,2765,2716,279,27616,275,27616,275,27,2794,267,267

[Ground of recognition] Evidence A Nos. 1, 2, 8, and Eul Nos. 1 and 2 (including Serial Nos. 1, 2, and 1)

Each entry and the purport of the whole pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) According to the Value-Added Tax Act and subordinate statutes, in a case where a person is equipped with the manufacturing facilities and packages and supplies the salted fish in an independent transaction unit for the purpose of sale by packaging it in an independent transaction unit, the object of value-added tax is exempted, but the case where a person temporarily packages it for the convenience of transportation by simple means of transportation is exempt from non-processed foodstuffs. However, the Plaintiff is not packaging the salted fish of this case with manufacturing facilities, but temporarily packaging it to the extent that the inherent nature of the original product does not change by using the de factoing and plastic container for simple transportation. In addition, the Plaintiff did not temporarily pack the salted fish of this case until the end of 2013. Accordingly, the Plaintiff was not subject to value-added tax because the Plaintiff supplied the salted fish of this case is not subject to value-added tax. Accordingly, the disposition of this case on which value-added tax was imposed is unlawful.

2) In light of the circumstances such as the fact that there is an example of determination of the National Tax Service’s request for review that the packaging store is subject to value-added tax exemption, the instant disposition that deemed the salted fish of this case as not subject to value-added tax exemption is unlawful as it

3) Even if the salted fish of this case is subject to value-added tax, the Plaintiff could not be deemed to have been unaware of the duty to impose tax on the salted fish of this case, and there are circumstances to justify this. As such, the penalty tax part of the instant disposition should be revoked by unlawful means.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) From around 2008 or 2009, the Plaintiff entered into a contract for the supply of salted fish with LDR shopping companies, and supplied 331 LDR stores, such as LDRer Asan store, with the instant salted fish, and the specific business methods are as follows.

A) The Plaintiff purchased the salted fish in the 20 kilograms from the Sincho-si's 'JKL salted fish', 'SY sY clffm' located in Busan, 'OUS food located in Bo-si', and 's 20 kilograms of nick-si', and divided it into 250 grams or 500 grams in each Plaintiff's place of business (hereinafter referred to as the "Plaintiff's place of business") located in 00:00 :00 00 :00 :00 :00 :00 :00 00 :00 :00 :00 .0 .0 .0 . 50 . 20 . . . .

나) 원고는 위와 같이 포장한 젓갈의 용기에 상품명(KK맛깔젓), 원고의 상호(KKJG백화점) 및 연락처, 바코드 등이 기재된 스티커를 부착하여 이를 LD슈퍼매장에 공급하고, 이 사건 젓갈은 LD슈퍼매장에서 원고가 공급한 상태 그대로 진열되어 소비자에게 판매된다.

2) In the Plaintiff’s workplace, two or seven employees working for the Plaintiff, the Plaintiff’s wife, and the Plaintiff’s employees are equipped with the cooling facilities for salted fish, and practicaling equipment (on-siteing equipment).

3) The Plaintiff’s function of contributing to the preservation of content by protecting the content of the container attached to the container at the time of the instant salt supply, preventing the leakage of content from the outside, and preventing mixing outside oxygen and damping in the container.

4) From March 28, 2011 to May 31, 2013, the Plaintiff purchased a total of at least 265,000, total supply price of at least KRW 1,6310,00,00 in total from Youngcheon Kantech Co., Ltd.

5) The size of the instant salted fish supplied by the Plaintiff exceeds KRW 30 million through KRW 500,000 for each taxable period based on the tax base.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 5, 7, Eul evidence 1 to 10, and the purport of the whole pleadings

D. Determination

1) Whether the salted fish of this case constitutes an unprocessed food exempt from value-added tax

Article 26 (1) of the Value-Added Tax Act provides that the supply of unprocessed foodstuffs shall be exempted from value-added tax, and Article 34 (1) of the Enforcement Decree of the Value-Added Tax Act provides that "non-processed foodstuffs stipulated under Article 26 (1) 1 of the Value-Added Tax Act are not processed, or are provided for food through primary processing to the extent that the inherent nature of original products does not change." Accordingly, matters necessary for its scope are delegated to the Ordinance of the Ministry of Strategy and Finance. Accordingly, Article 24 (1) and attached Table 1 of the Enforcement Rule of the Value-Added Tax Act provide that "the scope of unprocessed foodstuffs" shall be limited to "the scope of unprocessed foodstuffs, kimchi, pawn, spawn, spawn, spawn, spawn, spawn, spawn, spawn, spawn, spawn, spawn, spawn, manufacturing facilities (excluding the case of packing by packing or temporarily supplied).

In light of the legislative form, structure, and language of the aforementioned relevant laws and regulations, especially the listing rules under the tax laws, the Value-Added Tax Act must be strictly and narrowly interpreted, and in light of the fact that the list of goods and services subject to tax exemption is specified, and the expansion of the scope of tax exemption of value-added tax, which is the large tax, can be a factor such as the distortion of the market economy, economic neutrality, and impairment of fairness, it is reasonable to strictly interpret the provisions on the scope of non-taxable foodstuffs under the Value-Added Tax Act.

In full view of the above facts and the evidence mentioned above, and the following circumstances acknowledged by the purport of the entire pleadings, the Plaintiff equipped with manufacturing facilities and supplied salted in the instant case in an independent transaction unit for the purpose of sale by packaging them in the form of entry, disease, or similar. Considering the increase in added value, such as the increase in the product value, it cannot be deemed as a primary processing to the extent that its original nature does not change. Thus, the salted fish of this case does not constitute non-processed food subject to value-added tax exemption. Accordingly, the Plaintiff’s assertion on this part is without merit.

① For several years, the Plaintiff has been continuously equipped with cooling facilities, packaging equipment, etc. at the Plaintiff’s place of business, and has packed and supplied the instant salt in a size equivalent to a considerable quantity and sales amount.

② In light of the method of packaging the salted fish of this case, the effect of packaging, etc., it cannot be deemed that the salted fish of this case supplied by the Plaintiff is merely a temporary intervention or bottled for the simple transportation convenience. In addition, the Plaintiff purchased the salted fish of this case in a state of 20 kilograms of 30 kilograms of 4 km and then subdivided it to supply it to LDRs. The Plaintiff appears to have risen the price supplied by the Plaintiff compared to the purchase price of the salted fish of this case.

③ In the container of the salted fish of this case, the Plaintiff’s product name, trade name, etc. are stored to a certain extent, and the sled fish of this case was displayed in the state of the Plaintiff’s supply at the Dominer store and sold to the consumers.

2) Whether the instant disposition is against arbitrary and equitable interests

According to the statements and images of Gap evidence Nos. 12 and 13, it is recognized that there is a case of the National Tax Service's decision on July 9, 199 to request a review of "(199-0321)" and the fact that the value-added tax is exempted among the packages on the market, which are packed for the purpose of simple transportation due to the unique characteristics of the goods.

However, it is difficult to readily conclude that the value-added tax is exempted on the two parts packed and distributed in the same or similar way as the salted fish of this case, and rather, according to the respective descriptions and images of the evidence Nos. 11, 13, and 15, and the purport of the pleadings, the case where the value-added tax is imposed on the salted, dried, dried, and dried, dried, dried, and dried, which are stored in an independent transaction unit for sale.

In addition, even if there is a case where the value-added tax is exempted on the supply of goods similar to the salted fish of this case, it cannot be readily concluded that the imposition of value-added tax on the supply of the salted fish of this case is unlawful merely due to such circumstance (in such a case, the possibility that the value-added tax is not exempted, but it is not possible to exclude the possibility that the non-declaration or the non-taxation of the value-added tax is omitted). Ultimately, as seen earlier, so long as the salted fish of this case does not fall under the non-processed food subject to value-added tax exemption, the disposition of this case alone cannot be deemed to be contrary to equity or arbitrary. Accordingly, the aforementioned assertion by the prior owner on a different premise

3) Whether the imposition of additional tax is illegal

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, where a taxpayer violates various obligations, such as a return and tax payment, as prescribed by the Act without justifiable grounds, the taxpayer’s intentional or gross negligence is not considered, and the site, mistake, etc. of statutes does not constitute justifiable grounds that do not cause the breach of duty (see, e.g., Supreme Court Decisions 2012Du7370, Mar. 13, 2014; 2001Du4689, Nov. 13, 2002). In light of the foregoing legal principles, comprehensively taking into account the following facts, the Plaintiff’s failure to pay value-added tax on the supply of salted fish, and the purport of the entire argument, the Plaintiff’s assertion on this part is not justified.

3. Conclusion

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

June 30, 2016