Cho High Court Decision 2012Nu0426 ( October 27, 2012)

The disposition imposing the value-added tax by deeming the claimant as an intermediary for non-licensed alcoholic beverages is legitimate.

In the confirmation document, it is confirmed that only the claimant was registered as an employee in the form of form and was operated under his responsibility and accounting in the actual form, and the Busan District Court convicted the claimant and the customer in relation to this case, and since both appeal and appeal were dismissed, it is deemed that he was actually engaged in the alcoholic beverage sales business on his own responsibility and account.

Article 14 of the Framework Act on National Taxes

2012Guhap2857 Revocation of Disposition of Imposition of Value-Added Tax

IsaA

Head of Suwon Tax Office

March 22, 2013

April 19, 2013

1. The plaintiff's claim is dismissed.

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

For the plaintiff on August 3, 201, the imposition of the value-added tax (this tax) for the second period of 200, the value-added tax for the first period of 2009, the value-added tax for the first period of 2010, the value-added tax for the second period of 200, the value-added tax for the second period of 2000, the value-added tax for the second period of 2009 for the plaintiff on November 12, 2012, and the value-added tax for the second period of 200 and the value-added tax for the second period of 2000 for the second period of 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff served as an executive director of BB Partnership Co., Ltd. (hereinafter referred to as “BB Partnership”) that operates liquor sales business from November 2009 to December 201, 2010.

B. As a result of the tracking survey on the distribution process of alcoholic beverages, the Defendant: (a) deemed that the Plaintiff purchased alcoholic beverages from a limited liability company that actually engages in BB joints and alcoholic beverage sales business; (b) made registration of business ex officio; and (c) decided on August 3, 201 on the omitted portion of the value-added tax on the sales of alcoholic beverages, KRW 00 of the value-added tax for the second period (including the additional tax) and KRW 000 of the value-added tax for the second period (including the additional tax) and KRW 000 of the value-added tax for the second year (including the additional tax) for the second year (2010).

C. The Defendant revised the value-added tax for the second period of 2009 to KRW 000 (including additional tax), and the value-added tax for the first period of 2010 to KRW 000 (including additional tax), and the value-added tax for the second period of 2010 to KRW 000 (including additional tax).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on December 29, 201, but on March 3, 2012

27. The above claim was dismissed.

E. After November 12, 2012, the Defendant: (a) revoked the portion of the value-added tax that was revised earlier; (b) subsequently, the Defendant issued a new correction and notification of the amount of the value-added tax (additional Tax) for the second term portion in 2009; (c) the amount of the value-added tax for the second term in 2009; and (d) the amount of the value-added tax for the second term in 2000; and (e) the amount of the principal tax for the second term in 2009; and (e) the amount of the value-added tax for the second term in 200; (b) the amount of the principal tax for the first term in 200; and (c) the amount of the first term portion in 2010; and (c)000 won for the second term in 2010.

[Reasons for Recognition] The non-speed facts, Gap evidence 1, 2, and Eul evidence 1, 2, and Eul evidence 9, 10, 2, and 3, and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

1) The Plaintiff only worked as an employee in the Ohapdong and did not engage in the alcoholic beverage sales business.

2) Even if the Plaintiff engaged in the liquor sales business, and since B&C andCC issued a tax invoice and fully paid the value-added tax collected by transaction, the Plaintiff’s imposition of value-added tax is invalid as an exercise of unconstitutional public power, and if the Plaintiff is deemed an unregistered business entity, only the unregistered penalty tax should be imposed.

3) Since the Plaintiff did not receive the value-added tax separately from the customer, it shall be deemed that the value-added tax is included in the sales amount, and if so, the amount calculated by dividing the sales amount by 1.1 rather than the total sales amount as the tax base shall be deemed the tax base.

4) Since the Plaintiff believed himself/herself as a worker with BB consent, it is difficult for him/her to expect the return and payment of value-added tax or to cause the failure to perform his/her duty, and thus, the additional tax should be exempted.

B. Determination

1) Determination on the Plaintiff’s first argument

In light of the following circumstances, i.e., (1) the Plaintiff was in charge of 17 out of 10 OB and agreed to divide sales earnings between BB and 17 out of 200, and (2) the amount calculated by deducting monthly wages from sales earnings to the Plaintiff after paying 000 won monthly wages to the Plaintiff is merely a mere formality card or cash, and (3) the Plaintiff was in charge of 20 years of 20 years of 20 years of 20 years of 20 years of 20 years of 20 years of 20 years of 20 years of 3 years of 7 years of 3 years of 20 years of 20, 200 of 7 years of 207 of 3 years of 20 years of 20, 200 of 2 years of 20 years of 7 years of 3 years of 20 years of 20, and the Plaintiff was in charge of 20 years of 3 years of 20 years of 20 years of 20 years of 2 of 20 years of 20 years of 2 of 20 years of 2,000.

2) As to the second argument by the Plaintiff

As seen earlier, the Plaintiff purchased alcoholic beverages from BBcom andCC’s independent business entity and sold them to its own business entity, and thus, the Plaintiff’s sales of alcoholic beverages and BBcom orCC’s sales of alcoholic beverages are separate transactions. Therefore, the Plaintiff cannot be deemed to have paid value-added tax solely on the ground that BBcom andCC’s payment of value-added tax was made by the Plaintiff. Moreover, the Plaintiff is not exempt from the obligation to report and pay value-added tax even if the Plaintiff was engaged in the alcoholic beverage sales business without registration, and even if the Plaintiff was a registered business entity, it is difficult to view that the Plaintiff is exempt from the obligation to report and pay value-added tax. Ultimately, the Plaintiff’s assertion on the opposite premise is without merit.

3) As to the third argument by the plaintiff

In full view of the arguments, Eul 2, 3, and 5, and Eul joint representative director KimD confirmed that the supply price (including value added tax) of alcoholic beverages sold as non-data to the plaintiff is KRW 000,00, and that the representative member ofCC Note E confirmed that the supply price of alcoholic beverages supplied as non-data to the plaintiff is KRW 000, and the defendant can find the fact that the defendant only uses the supply price excluding value added tax among the sales price of alcoholic beverages, and that the value-added tax is generally paid separately and excluded from the supply price, and that the plaintiff's own assertion that the value-added tax was paid from BBcom andCC Note , and that the above argument seems to be premised on the receipt of value-added tax, this part of the argument is without merit.

4) As to the plaintiff's fourth argument

In order to facilitate the exercise of taxation rights and the realization of tax claims under the tax law, where a taxpayer violates various obligations, such as reporting 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 the law does not constitute justifiable grounds that do not cause any breach of duty (see Supreme Court Decision 2002Du10780, Jun. 24, 2004). As seen earlier, in light of the fact that the Plaintiff actually operates a liquor sales business as an independent entrepreneur, it is difficult to deem that there is a justifiable reason that the Plaintiff does not pay additional tax solely on the ground that the Plaintiff claims, and this part of the Plaintiff's assertion is without merit.

3. Conclusion

Then, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.