Asian Aviation Co., Ltd. (Law Firm Sejong, Attorneys Kim Hyun-jin et al., Counsel for the plaintiff-appellant)

Head of Daegu Customs Office (Law Firm LLC, Attorneys Kang Hun-gu, Counsel for defendant-appellant)

December 17, 2014

1. The Defendant’s imposition of penalty tax of KRW 334,581,380 and penalty tax of KRW 723,075,120 against the Plaintiff on June 27, 2013 shall be revoked, respectively.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff was fully exempted from customs duties pursuant to Article 89(1)1 of the former Customs Act (amended by Act No. 11602, Jan. 1, 2013; hereinafter the same shall apply) and Article 35 of the former Enforcement Rule of the Customs Act (amended by Ordinance of the Ministry of Strategy and Finance No. 337, Feb. 23, 2013; hereinafter the same shall apply) while importing aircraft parts from German LFth transportationa TYnic AG (hereinafter referred to as “LHT”), and was fully exempted from customs duties pursuant to Article 12(2)15 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter the same shall apply) and Article 46 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24683, Jun. 28, 2013; hereinafter the same shall apply).

B. On July 1, 2011, the Free Trade Agreement between the Republic of Korea, the European Union, and its member states (hereinafter “Korea-EU FTA”) entered into force. Accordingly, on July 1, 201, the Plaintiff sent to a foreign customer, including LHT, a statement on July 1, 201 that, in order to be subject to the said conventional tariff, the Plaintiff’s request the exporter to enter a certain phrase for the exporter’s origin declaration in the invoice, etc.

C. However, even if LHT’s actual number of employees is not an approved exporter subject to conventional tariffs under the Korea-EU FTA, LHT sent to the Plaintiff a invoice indicating that the number of the certified exporter’s customs certification (DE/3227/E/0146) was the customs certification number of the approved exporter (DE/327/E/0146).

D. On July 1, 2011 through February 17, 2013, the Plaintiff filed an application for the application of Article 10 of the former Act on Special Cases of the Customs Act for the Implementation of Free Trade Agreements (amended by Act No. 11612, Jan. 1, 201; hereinafter “FTA”) with respect to the total of 941 imported from LHT, as follows: ① from July 1, 201 to July 17, 201, 1 to 138 imported from LH; ③ from the time of filing an import declaration, the Plaintiff filed an application for the reduction of or exemption from conventional tariffs pursuant to Article 10 of the former Act on Special Cases of the Customs Act for the Implementation of Free Trade Agreements (amended by Act No. 11612, Jan. 1, 2013; Ⅲ. 205) and the application for the reduction of or exemption from conventional tariffs on 20.15 (Ex Post Facto Goods).

Article 89 of the former Customs Act on Special Cases of Free Trade Agreements (amended by Presidential Decree No. 2350, Nov. 10, 2011; Presidential Decree No. 2350, Nov. 11, 201; Presidential Decree No. 2350, Nov. 5, 2011; Presidential Decree No. 2417, Nov. 10, 201; Presidential Decree No. 2425, Nov. 25, 2011; Presidential Decree No. 2425, Nov. 10, 2011; Presidential Decree No. 24455, Jul. 25, 2012; Presidential Decree No. 24477, Feb. 5, 2013; Presidential Decree No. 24477, Jul. 25, 2012; Presidential Decree No. 24577, Feb. 2, 2013>

E. On April 10, 2013 through May 30, 2013, the Defendant confirmed that LHT applied for conventional tariffs to the imported goods of question even if it is not an approved exporter subject to conventional tariffs under the Korea-EU FTA, and notified the Plaintiff of the result of a written investigation of import verification to the Plaintiff on June 27, 2013, and relevant issues (i) and (iii) among them are as follows.

A notice of the result of a written investigation of import verification (Evidence 4) in the head of the tax office included in the head of the tax office, and (3) (total 325 items), customs duties of KRW 2,049,346,572, and additional duties of KRW 335,289,79,793, and value-added tax of KRW 2,935,523,363, and additional duties of KRW 725,410,275, and additional duties of KRW 725,410,275, which the Plaintiff had not paid upon filing an application for conventional tariff application.

F. On June 27, 2013, the Plaintiff sent a reply that there was no objection to the investigation result to the Defendant (No. 2-1), and the Defendant found any error in calculating the amount of the final computerized input tax in the course of issuing the tax notice and partly changed the amount of the tax already notified, and on the same day, imposed customs duties of KRW 2,049,347,110 on the Plaintiff (i) 2,043,32,150 + 3,024,960 + 6,024,960 won + 6,024,960 won + 2,928,380,90 won + 37,140,000 won + 1,05,05,014,005,36,650 won (i) additional taxes of KRW 2,07,381,285,305,37,405, and 307,375, and 304,25).

G. On July 1, 2013, the Plaintiff issued the instant disposition on July 1, 2013, based on Article 112(1)1 of the Enforcement Decree of the Customs Act, Article 89(1)1 of the former Customs Act, and Article 12(2)15 of the former Value-Added Tax Act, with respect to the principal tax, and with respect to the principal tax, the Plaintiff filed an application for reduction and exemption and refund based on Article 12(2)15 of the former Value-Added Tax Act. On July 26, 201, the Defendant fully refunded

H. The Plaintiff dissatisfied with the instant disposition and filed an appeal on September 24, 2013, but the Tax Tribunal dismissed the disposition on April 4, 2014.

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 5, 7, Eul's 1, 2, 4 through 7 (including each number), 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 additional tax is a means to enforce the obligation to report and pay the principal tax, so it can be recognized only on the premise of the existence of the principal tax. As long as the total amount of the customs duties and the principal tax is reduced or refunded upon application for ex post reduction and exemption, the instant additional tax and the value-added tax constitute additional tax that has no principal tax, and thus, the instant disposition is unlawful.

B) In the case of the instant additional customs duties, Article 42(1) of the Customs Act provides that “in short of the amount of customs duties” as the requirement for imposing additional customs duties. As long as the principal tax is reduced or exempted upon application for ex post facto reduction or exemption, the amount of tax so reduced or exempted as a result, which led to the absence of “insufficient amount of tax” is illegal

C) In the case of the instant value-added tax, the Plaintiff is exempt from the principal tax pursuant to Article 12(2)15 of the former Value-Added Tax Act, regardless of whether LHT is an approved exporter or not, on the ground that the Plaintiff did not fulfill any duty of return and payment from the beginning; thus, the imposition of the value-added tax is unlawful, regardless of whether LHT is an approved exporter or not.

D) In the case of additional customs duties, “justifiable cause” should be interpreted more broadly than national tax additional duties; inasmuch as grounds for imposing additional duties have occurred within the scope of liability of LHT, a third party, the Plaintiff should be deemed to have no possibility to expect the Plaintiff to perform such duties; (i) key goods ①, and (iii) as goods are originally exempted from customs duties and are subject to value-added tax exemption, the degree of the Plaintiff’s duty of care required for the Plaintiff should be deemed to be much lower than ordinary cases; (ii) LHT exported aircraft parts, etc. to the global world, which was no longer reliable for the Plaintiff to believe that LHT was qualified as an approved exporter and properly carried out duties; and (iii) the Plaintiff was able to believe that the tax authority committed an application only for the application for the application of conventional tariffs pursuant to the Korea-EU FTA and did not file an application for reduction or exemption from customs duties. In light of the fact that the Plaintiff

E) The instant disposition was unlawful since each calculation basis, calculation basis, etc. of the penalty tax and value-added tax were not clearly specified.

2) The defendant's assertion

A) The additional tax is established independently when the liability to pay the national tax, which is separate items from the principal tax, is established. The liability to pay the tax is finalized when the government determines the tax base and amount of the tax, and the Plaintiff is merely subject to the reduction of the principal tax ex post facto, and thus, the liability to pay the additional tax of this case has already been established lawfully and effectively at the time of the imposition. Therefore, it cannot be deemed that the main tax is nonexistent or cannot be deemed unlawful ex post facto, unless there are special provisions, such as the imposition and collection of the principal tax, and where there is no amount of the principal tax, the additional tax can be imposed and collected independently, even if there is no amount of the principal tax, unless there is a special provision, such as imposition and collection

B) It is obvious that there was a shortage of customs duties at the time of the instant disposition, and if there is a ground provision on the imposition of customs duties and additional duties under the relevant statutes, it would be difficult to accept the conclusion that the tax authority should expect the Plaintiff to file an application for reduction and exemption and should not impose additional duties.

C) Since additional tax is a sanction against nonperformance of the duty of cooperation under tax-related Acts, it cannot be said that the state of violation of the law, such as failure to comply with the duty of cooperation immediately due to the fact that the application of VAT exemption is based on the same provision. Therefore, even if the Plaintiff’s exemption from the duty of cooperation was made after the Plaintiff’s ex post facto reduction of or exemption from the value-added tax on the application of conventional tariffs, the Plaintiff’s

D) In light of the following: (a) whether an exporter is eligible for conventional tariffs as an approved exporter ought to be confirmed by the importer; and (b) whether an exporter is determined by the administrative guidance of the public official in charge is not a matter determined; and (c) whether an exporter is subject to conventional tariffs and is subject to reduction or exemption of customs duties on a balanced tariff item is different in cases of being subject to special agricultural and fishing villages tax; and (d) the degree of duty of care cannot be deemed much lower than that of ordinary cases; and

E) In order for the Defendant to impose a tax on the instant case, the penalty tax on each imported goods must be calculated on a daily basis. Therefore, a considerable period of time has to be required to prepare and notify the Plaintiff of the individual tax payment notice. However, the Plaintiff’s request was made to the Plaintiff for cooperation on July 1, 2013 so that the disposition can be completed prior to the completion of the disposition, and the details of additional tax were directly calculated and the basis for calculation was clearly understood by communicating with the Defendant. Thus, it constitutes a case where it is evident that the taxpayer did not have any impediment to determining whether to object to the instant disposition and filing

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Relation between principal and additional taxes

In order to facilitate the exercise of the right to impose taxes and the realization of tax claims, additional taxes are a kind of administrative sanctions imposed on taxpayers who violate their obligations prescribed by tax-related Acts without justifiable grounds. Even if the amount of penalty taxes is collected as the principal tax, such as corporate tax calculated under individual tax-related Acts, it is merely a collection of penalty taxes in addition to the principal tax amount for the convenience of collection procedure, and its nature is different from that of the principal tax established and determined under tax-related Acts. However, in a specific calculation of penalty taxes, where the principal tax is calculated based on the basis of the principal tax amount, where the principal tax is calculated regardless of the principal tax amount, the two are combined calculation. Therefore, the legal nature of the principal tax and additional tax are different, but how to calculate and impose individual penalty taxes in relation to the principal tax (e.g., where the principal tax and additional tax are not assessed or paid, etc.) should be determined in accordance with the specific provisions of relevant applicable tax-related Acts and subordinate statutes (see Supreme Court Decision 2005Du12725, Mar. 15, 2007).

Article 47-2 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014) - Income tax, corporate tax, inheritance tax and gift tax: 20/100 of the calculated tax amount under the Income Tax Act, the Corporate Tax Act and the Inheritance Tax and Gift Tax Act - Value-added tax: 20/100 of the payable tax amount under the Value-Added Tax Act - Additional tax on underreporting or over-reported return (Article 47-3 (1) of the former Framework Act on National Taxes) calculated on the tax base under Article 7 of the Securities Transaction Tax Act (Article 47-3 (1) of the former Framework Act): Income tax, corporate tax, inheritance tax, gift tax, securities transaction tax, global real estate holding tax base x (tax base for underreporting) 】 Value-added tax amount under Article 10/100 - Value-Added tax on the amount reported for excess or over-reported return and additional tax amount under Article 7 of the Corporate Tax Act -10-Unreported or overpaid tax amount (147).

2) Relation between the principal and additional taxes of customs duties and value-added taxes

A) Article 89(1) of the former Customs Act provides that customs duties may be reduced or exempted for any of the following goods prescribed by Ordinance of the Ministry of Strategy and Finance among parts and raw materials used to manufacture or repair any of the following goods at a factory designated by the head of a customs office, as prescribed by Presidential Decree, and Article 35(2) of the former Enforcement Rule of the Customs Act provides that the rate of customs duties on the parts and raw materials imported by an aircraft manufacturer, etc. for the manufacture, etc. of aircraft and its parts shall be 100/100. In addition, Article 12(2) of the former Value-Added Tax Act provides that "Customs duty free or duty free" under Article 15 of the former Enforcement Decree of the Value-Added Tax Act provides that "any goods prescribed by Presidential Decree among parts and raw materials used to manufacture or repair any of the following goods shall be reduced or exempted, and Article 46(2) of the former Enforcement Decree of the Value-Added Tax Act provides that "any of the following goods or parts of an aircraft shall be exempt from customs duty free or exempt from customs duties:

Meanwhile, Article 42(1) of the former Customs Act provides that when the head of a customs office collects shortage of customs duties pursuant to Article 38-3(1) or (4), he/she shall collect the aggregate of the following amounts as an additional tax: “10/100 of the shortage of customs duties” (Article 47-4(1)1) and “the relevant shortage of customs duties 】 the period from the day following the original payment deadline to the day a declaration is filed or a notice is served on the day a declaration is filed or a notice of tax payment is served” (Article 47-3(1)2 of the former Framework Act on National Taxes). In addition, Article 47-3(1)2 of the former Framework Act on National Taxes provides that where a person liable for duty payment files a return on the tax base of national taxes under tax-related Acts by the statutory deadline for filing a return or an excess return, the amount equivalent to 10/100 of the underreported amount of customs duties and the overreported amount of customs duties shall be the penalty tax.

B) As to the instant case, the Defendant imposed customs duties of KRW 2,049, 347,10 on the Plaintiff’s key goods ①, and KRW 334,581,380 on the imported items and KRW 335,95,521,880 on the imported items, and KRW 723,075,120 on each of them. Since then, the Plaintiff filed an application for ex post facto reduction or exemption under Article 112(1)1 of the Enforcement Decree of the Customs Act and received full reduction or exemption of customs duties of KRW 2,049,347,110 and value-added taxes of KRW 2,935,521,80 on the Defendant pursuant to Article 112(2)15 of the former Value-Added Tax Act.

위 인정사실 및 관계법령에 의하여 알 수 있는 다음의 각 사정, 즉 ㉠ 구 관세법 제42조 제1항 은 해당 부족세액의 10/100에 상당하는 금액 및 해당 부족세액에 지연일수 및 일정 이자율을 곱한 금액을 가산세로 징수한다고 규정함으로써 관세 가산세는 납부세액을 기준으로 산정되는 점, ㉡ 구 국세기본법 제47조의3 제1항 제2호 는 부가가치세 과소신고의 경우 과소신고한 납부세액의 10/100에 상당하는 금액을 가산세로 한다고 규정함으로써 부가가치세 가산세도 납부세액을 기준으로 산정되는 점, ㉢ 피고는 쟁점물품①, ③과 관련하여 구 관세법 제42조 제1항 및 구 국세기본법 제47조의3 제1항 제2호 에 따라 관세 가산세 및 부가가치세 가산세를 산정하여 이 사건 처분을 한 점, ㉣ 그런데 피고는 원고의 사후감면신청에 따라 쟁점물품①, ③에 관한 관세 및 부가가치세를 모두 감면·환급해준 점 등에 비추어 보면, 피고가 쟁점물품①, ③에 관한 관세 및 부가가치세의 각 본세를 감면·환급해 줌으로써 원고의 납부세액이 존재하지 않게 되었으므로, 납부세액을 기준으로 산정되는 구 관세법 제42조 제1항 및 구 국세기본법 제47조의3 제1항 제2호 에 따른 가산세 역시 존재하지 않는다고 봄이 타당하다. 따라서 원고의 위 주장은 이유 있다.

C) As to this, the Defendant alleged that the disposition of this case, which was lawful upon the existence of the principal tax payable at the time of the disposition, cannot be deemed unlawful ex post due to the full exemption of the principal tax upon the application for ex post facto reduction or exemption. However, there is no ground to view the effect of ex post reduction or exemption upon the application for ex post reduction or exemption under Article 112(2)1 of the Enforcement Decree of the Customs Act differently from the effect of ex post reduction or exemption under Article 112(1) of the Enforcement Decree of the Customs Act. The key goods (i), and (iii) related customs duties and value-added tax were lawful at

In addition, the defendant asserts that the obligation to pay the additional tax of this case, which was already determined at the time of the disposition of this case, cannot be extinguished due to ex post facto reduction or exemption application, etc. However, it is merely a concept under the Tax Procedure Act that the tax authority can commence the execution procedure, and it cannot be deemed that the determination of the tax obligation affects any legal relationship between the taxpayer and the tax authority, and Article 112 (2) 1 of the Enforcement Decree of the Customs Act explicitly prescribes an application for reduction or exemption after the notice of imposition. Thus, the defendant's above assertion cannot be accepted.

3) Sub-decisions

Therefore, the instant disposition should be revoked as it is unlawful without examining the remainder of the Plaintiff’s remaining arguments.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

[Attachment]

Judges Kim Jong-dae (Presiding Judge)