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유사석유제품에 해당되어 교통세 과세대상인지 여부(기각)
조세심판원 조세심판 | 2004-03-10 | 국심2004중0249 | 기타
[Case Number]

National High Court Decision 2004J0249 (Law No. 11, 2004)

[Items]

Traffic

[Types of Decision]

Dismissal

[Summary of Decision]

The principal ingredients are petrochemicals, and the manufacturer or the seller thereof are produced and sold for the purpose of motor vehicle fuel, and the use of them as fuel for motor vehicles is limited to pseudo petroleum products.

[Related Acts]

Article 2 of the Traffic Tax Act and tax rates / [Calculation of Tax Base of Article 2 of the Enforcement Decree of the Education Tax Act]

【Reference Decision】

National High Court 2003No3406//Sgd.

【Determination following Decision】

National core 2003 middle 3598/OOOOO/ national core 2004 0087/OOOOOOO/OOOOOOOOOOOOO

【Disposition】

I dismiss the appeal.

【Reasoning】

1. Summary of disposition;

In April and May 2003, the agency decided that the applicant corporation did not pay traffic tax, etc. on April 19, 2003 when it manufactured the OOOOO(OOOOO), OOO, or OOOOOO(OOOOOO) in the form of an order-based trademark attachment. On the other hand, the agency decided that the applicant corporation did not pay traffic tax, etc. even if it falls under the category of similar petroleum products under the Petroleum Business Act and did not pay traffic tax, etc. on it.

The applicant filed a request for trial on January 14, 2004 through the objection on September 17, 2003.

2. Opinion of the requesting corporation and the disposition agency;

A. The claimant corporation's assertion

The issue is that the applicant corporation obtains fixed permission from the Ministry of Environment under the Air Quality Conservation Act, and is supplied with a patent as an additives for clean gas from the Korean Intellectual Property Office, and it is not an "pseudo petroleum product" under Article 3 (1) (b) of the Enforcement Decree of the Traffic Tax Act. Therefore, it is unreasonable to impose traffic tax, etc. on this.

(b) Opinions of disposition agencies;

As a result of collecting and analyzing the taxable goods distributed in the city by the Ministry of Commerce, Industry and Energy, it is confirmed that the taxable goods are manufactured by mixing the taxable goods with Toluene, Jene, and Meluth alcohol, and the applicant corporation is confirmed to have manufactured the taxable goods and carried them out to (ju OO by manufacturing them) OO under the main trademark attachment method, so it is reasonable to impose traffic tax, etc. on them.

3. Hearing and determination

A. Key issue

It is reasonable to impose traffic tax on the taxable goods manufactured and taken out by the requesting corporation, considering them as pseudo petroleum products similar to gasoline.

(b) Related statutes;

(1) Traffic Tax Act (amended by Act No. 7011 of Dec. 30, 2003)

Article 2 2 【Taxable Object and Tax Rate】 (1) The goods subject to traffic tax (hereinafter “taxable goods”) and the tax rate are as follows:

1. Gasoline and substitute oil similar thereto:

630 won per liter.

(2) Items and types of taxable goods shall be prescribed by Presidential Decree.

Article 3 (Person Liable for Tax Payment) Any person falling under any of the following subparagraphs shall be liable to pay traffic tax under this Act:

1. Any person manufacturing and transporting goods as prescribed in Article 2 (1);

Article 9 【Determination and Revision Decision】 (1) In a case where a report pursuant to the provisions of Article 7 is not submitted, or there is an error or omission in the contents of the report, the head of the competent tax or customs office shall determine or correct

(2) The Enforcement Decree of the Traffic Tax Act (amended by Presidential Decree No. 18032, Jun. 30, 2003)

Article 3 (Items of Taxable Goods) The taxable goods prescribed in Article 2 (2) of the Act shall be as follows:

1. Gasoline and substitute oil similar thereto:

(a) Gasoline;

(b) Substitute oil similar to gasoline (referring to that falling under pseudo petroleum products under Article 30 of the Enforcement Decree of the Petroleum Business Act); and

(3) Petroleum Business Act (amended by Act No. 6627, Jan. 26, 2002)

§ 2. 【Definitions】 The definitions of terms used in this Act shall be as follows:

1. The term "petroleum" means crude oil, natural gas (including liquefied natural gas; hereinafter the same shall apply) and petroleum products;

2. The term "petroleum products" means gasoline, light oil, diesel oil, heavy oil, lub oil, hydrocarbon oil equivalent thereto and petroleum gas (including liquefied petroleum gas), which are prescribed by Presidential Decree;

【Prohibition of Manufacturing, etc. Similar Petroleum Products】 No person shall manufacture or sell products prescribed by Presidential Decree, which are manufactured by mixing petroleum products or petrochemicals (including mixing petroleum products with other petroleum products, the kinds or grades of which are different) with petroleum products, or by mixing petrochemicals with other petrochemicals (hereinafter referred to as “pseudo petroleum products”), or store, transport or keep such products with knowledge that such products are pseudo petroleum products for sale.

(4) Enforcement Decree of the Petroleum Business Act (amended by Presidential Decree No. 18038, Jun. 30, 2003)

【pseudo petroleum products” under the provisions of Article 30 of the Act means pseudo petroleum products under the provisions of subparagraph 1 of Article 2 of the Automobile Management Act and machinery and vehicles (limited to those using gasoline or light oil as fuel) under the provisions of each subparagraph of Article 2 of the Enforcement Decree of the same Act, regardless of their title, regardless of their manufacturing, combustion, additives or others: Provided, That energy falling under any of the following subparagraphs shall not be considered as pseudo petroleum products:

1. Alternative energy under Article 2 of the Act on the Promotion of the Development and Use of Alternative Energy;

2. Other energy which the Minister of Commerce, Industry and Energy deems necessary to expand the use and distribution of energy to enhance the efficiency of energy utilization.

(5) Education Tax Act (amended by Act No. 7011 of Dec. 30, 2003)

【Person Liable for Tax Payment】 Persons falling under any of the following subparagraphs shall be liable for the payment of education tax pursuant to this Act:

3. Taxpayers of traffic tax under the provisions of the Traffic Tax Act;

C. Facts and determination

(1) In April and May 2003, there is no dispute between the disposition authority and the applicant corporation as to the fact that the applicant corporation manufactures the taxable goods O, OO, or OO liters and takes them out to the main trademark attachment method.

(2) According to the investigation data of the disposition agency, since November 2002, the applicant corporation was released from (ju)OOOOOO's subdivision work (stock charging work in a container for sale from storage tanks). From April 1, 2003, (ju) OOOOO entered into a contract with the main owner owner, and directly manufactured OOOO and supplied it to (ju)OOOO. However, it is confirmed that production was suspended since May 23, 2003 as an order to adjust the supply and demand of solvents by the Ordinance of the Ministry of Commerce, Industry and Energy was hindered the securing of raw materials.

(3) According to the patent register, etc. presented by the claimant, it is confirmed that the OOO obtained a patent from the Commissioner of the Korean Intellectual Property Office on September 3, 2002 as the additives for the purification of gasoline harmful gas, and transferred part of his rights to the OOOO on November 4, 2002. The non-claimer asked the Minister of Environment as to whether the taxable goods are petroleum products or not. The Minister of Environment presented that the non-claimer's reply that "the taxable goods constitute fuel additives to improve the performance of the automobile by adding the taxable goods not for the vehicle fuel but for the vehicle fuel, or to reduce the emissions of the automobile." However, as to whether the taxable goods are similar substitute petroleum under the Special Consumption Tax Act, it is confirmed that the non-claimer called "in the Ministry of Finance and Economy" (Ministry of Environment transportation67231-422, June 1, 2000).

(4) Based on the above facts, the requesting corporation asserts that the pertinent taxable goods are not subject to traffic tax, since the pertinent taxable goods are used as a mixture of about 40% of the ordinary oil, which is greatly helpful for environmental preservation, and that they are not subject to traffic tax, this is examined.

(A) First, examining the raw materials and components of the pertinent taxable goods, the composition ratio of chemicals, raw materials, and ingredients, which are chemical substances mixed with solvent, 60% of the taxable goods, 30% of the Toluene, and ethyl alcohol (Tlcoho) in proportion to 10% of the taxable goods, are the same as that of the chemical substance, and all of the above ingredients are petrochemicals extracted from crude oil, natural gas, and petroleum products through the chemical process. It is confirmed by the Ministry of Commerce, Industry and Energy, etc.

(B) According to the provisions of Article 2 of the Traffic Tax Act, goods subject to traffic tax shall be gasoline and alternative oil similar thereto. According to the provisions of Article 3 subparagraph 1 of the Enforcement Decree of the same Act, alternative petroleum products similar to gasoline shall correspond to pseudo petroleum products under Article 30 of the Enforcement Decree of the Petroleum Business Act. According to the provisions of Article 30 of the Enforcement Decree of the Petroleum Business Act, pseudo petroleum products under Article 26 of the Enforcement Decree of the Petroleum Business Act may be used as automobiles under the Automobile Management Act, machinery and fuel for vehicles regardless of their terms, such as combustion, additives, etc., and the proviso provides that alternative petroleum products under the provisions of Article 2 of the Act on the Development, Use and Diffusion of Alternative Energy and other energy that the Minister of Commerce, Industry and Energy deems necessary to expand the use and distribution of alternative energy under the provisions of Article 2 of the Act on the Promotion of Development, Use and Diffusion of Energy and other energy that the Minister of Commerce, Industry and Energy deems it as pseudo petroleum products.

(C) In addition, according to the proviso of Article 30 of the Enforcement Decree of the Petroleum Business Act, alternative energy not deemed pseudo petroleum products is defined as alternative energy under Article 2 of the Act on the Promotion of the Development and Use of Alternative Energy, and the Minister of Commerce, Industry and Energy deems it necessary to expand the use and distribution of energy to improve the efficiency of energy use, and alternative energy under Article 2 of the Act on the Promotion of the Development, Use and Diffusion of Alternative Energy refers to alternative energy under Article 2 of the Act on the Promotion of the Development, Use and Diffusion of Alternative Energy, other than petroleum, coal, nuclear energy, bio-energy, wind power, small power, etc. The other energy publicly notified by the Minister of Commerce, Industry and Energy is “biobel” publicly notified by the Minister of Commerce, Industry and Energy under Article 202-54 ( May 21, 2002) of the Ministry of Commerce, Industry and Energy, so it does not constitute alternative energy (see the Ministry of Commerce, Industry and Energy (see the Ministry of Commerce, Industry and Energy57-368, 2000, Feb. 49).

(D) The claimant corporation asserts that the taxable goods at issue are not the products that obtained a sales license as gasoline additives under the Clean Air Conservation Act and do not constitute pseudo petroleum products because they were not the products that obtained a sales license as gasoline additives under the Clean Air Conservation Act. However, since the manufacturing standards of additives under the Clean Air Conservation Act and the regulations on pseudo petroleum products under the Petroleum Business Act separately stipulate different legislative purposes and their respective requirements related thereto are different, it should not be determined that the pertinent taxable goods meet the manufacturing standards of additives under the Clean Air Conservation Act and do not meet the requirements of other regulations. Therefore, the argument that the pertinent taxable goods do not constitute pseudo petroleum products under the Petroleum Business Act which are subject to traffic tax under the Traffic Tax Act is rejected.

(E) In addition, the claimant corporation filed a criminal complaint with the prosecutor's office on the suspicion that it violated Article 26 of the Petroleum Business Act and Article 30 of the Enforcement Decree of the same Act (Prohibition of Manufacturing and Sale of Similar Petroleum Products) such as OOO's representative director who manufactured and sold the chemical substance "SO" on July 2, 2002. As the OOO's court acquitted the above OOOO's not guilty on November 20, 2003, the pseudo petroleum product under Article 26 of the Petroleum Business Act refers to "non-fixed petroleum product". Since the OO's green is a separate petroleum product, it does not constitute pseudo petroleum product under Article 26 of the Enforcement Decree of the Petroleum Business Act (see, e.g., Supreme Court Decision 2002Da10278, Nov. 20, 2003). Thus, the judgment of the court is not identical to the OO's normal concept of manufacturing permission of similar petroleum product.

(F) In full view of the above facts and related Acts and subordinate statutes, the pertinent taxable goods manufactured and carried out by the requesting corporation shall not be deemed to constitute petrochemicals, and considering the fact that the main ingredients of the taxable goods are produced and sold for the purpose of motor vehicle fuel, and that the manufacturer or seller is able to purchase the quantity as desired by consumers and use them as fuel for motor vehicle, there is no room for not to constitute pseudo petroleum products which are subject to traffic tax.

Therefore, the disposition that the disposition agency imposed the traffic tax, etc. on the applicant corporation by deeming the taxable goods as taxable goods subject to the traffic tax under the Traffic Tax Act is considered to be legitimate (the majority other than the State 2003 Gwangju 3406, January 10, 2004).

4. Conclusion

This case shall be decided as ordered in accordance with the provisions of Article 81 and Article 65 (1) 2 of the Framework Act on National Taxes, because the petition is without merit as a result of the review.

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