Cases of incomplete deliberation on requirements for the establishment of non-taxable practices

In selling gas, it is recognized that it is a general practice that only sells contents on condition of returning containers after use, and the head of a tax office, who is the tax office, knowing that the containers of the above tea that did not obtain approval for use during the execution period under Article 4(2) of the former Enforcement Decree of the National Tax Service Directive pursuant to Article 4(2) of the former Enforcement Decree of the Customs Duties Act may impose the customs duties on the containers of the above tea without approval for use during the execution period under Article 4(2) of the former Enforcement Decree of the Customs Duties Act, was not imposed as necessary for the public interest, and the taxpayer is judged to

Article 18 (2) of the Framework Act on National Taxes

Supreme Court Decision 80Nu6 Decided June 10, 1980 80Nu601 Decided September 22, 1981

East Sea Gas Corporation

Head of the tax office

Gwangju High Court Decision 78 Gu4 delivered on March 20, 1981

The original judgment is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal by the defendant litigant are examined.

According to the reasoning of the judgment below, the court below acknowledged that the Plaintiff Company's transaction of carpets, such as oxygens, nitrogens and sludge, which the price of the contents is too high compared to the price of the contents, and that the above containers, etc. are specially and repeatedly made of steel products and are able to use them continuously and repeatedly due to the lack of risk of damage, and that the sale only of the contents was made on the condition that the containers should be returned after use after use is recognized at each national tax settlement office, and it also knew the above practices. Thus, the National Tax Service Directive No. 404 was enacted on October 12, 1973 under Article 4 (2) of the former Enforcement Decree of the Customs Act until it was abolished on January 9, 1978, and it was not subject to the Defendant's detailed administrative disposition that it was not subject to the Defendant's tax-exempt practice, and that it was not subject to the Plaintiff's tax-free practice, even if it was not subject to the Defendant's tax-free practice.

However, there is room for recognizing that the practice of non-taxation has been established when the tax authorities knew of the fact that it can be imposed for a considerable period of time in the public interest (see Supreme Court Decision 80Nu6, Jun. 10, 1980; Supreme Court Decision 80Nu601, Sept. 22, 1981). The records also show that, in selling the gas above as the Plaintiff company, it is high in quality and durability compared to its contents, so it is possible to re-use it. Thus, it is a common practice to sell only contents on condition of returning containers after ordinary use. On the other hand, it is recognized that the Defendant, the tax authorities, even though it did not obtain the approval of use from the head of the competent tax office in accordance with the above Directive, during the implementation period under Article 4(2) of the former Enforcement Decree of the National Tax Service Directive under the above Directive, it was not imposed for the public interest purpose, and the Plaintiff, the taxpayer, also, was also exempt from taxation, and thus, the court below's decision that the above practice of non-taxation practice of this case was unlawful.

Therefore, the original judgment is reversed, and the case is remanded to the original court for a trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)