Seoul Administrative Court-2016-Gu Partnership-73726 ( October 26, 2017)

A taxable pleasure place subject to imposition of individual consumption tax;

The instant workplace is mainly equipped with alcoholic beverages and entertainment facilities, and gents equipped with stage equipment, etc. can dance while drinking alcoholic beverages. As such, the instant workplace constitutes entertainment tavern which is a taxable entertainment place provided by the Individual Consumption Tax Act.

Article 2 of the Individual Consumption Tax Act

2017Nu55321 Revocation of the imposition and disposition, etc. of individual consumption tax

AAA and 2

BB Director of the Regional Tax Office and 2

2017.05.26

September 15, 2017

o October 13, 2017

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The decision of the first instance court is revoked. The notice of change in each income amount listed in the [Attachment 1] List of Notice of Change in Income Amount and the notice of change in the [Attachment 2] issued by the Director of the Regional Tax Office of BB against the Plaintiff AAAA andCC, and the Director of the Local Tax Office and the Director of the EE Tax Office shall revoke all of the value-added tax, individual consumption tax, and education tax disposition listed in the [Attachment 2] List of Disposition against the Plaintiffs.

1. Quotation of the reasons for the judgment of the first instance;

The reasoning for the court's explanation on this case is as follows: "Defendant 1" in the first instance court's five pages 5; "Defendant 2" in the second instance court's five pages 3; and the plaintiffs' following judgments are added with regard to the matters claimed in the court of the first instance, and therefore, they are cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Additional matters to be determined;

A. The plaintiffs' assertion

1) The tax authority issued a business registration certificate indicating that the application for business registration for "CCCC" stores, which carry on the same business as the instant place of business, had been conducted on-site verification, had expressed the public opinion that these stores are not subject to the individual consumption tax, and on this premise, had issued the business registration certificate indicating these types of stores as "food/other main points." The Plaintiffs trusted that these opinions of the tax authority were justifiable and did not pay the individual consumption tax on the instant place of business. The Defendants were subject to each of the instant dispositions contrary to these opinions, and thus, they were unlawful in violation of the principle of trust and good faith

2) The tax authorities established a non-taxation practice by failing to impose individual consumption tax on stores engaged in the same business with the same content including the instant business establishment from around 000 to 000. The Defendants did not express their intent to impose individual consumption tax in the future by correcting the previous non-taxation practice. Thus, the Defendants’ disposition of this case was unlawful in violation of the principle of retroactive taxation prohibition by non-taxation practice.

3) Since there exist justifiable grounds for the Plaintiffs’ failure to know that they were liable to pay individual consumption tax, the penalty tax portion of each of the instant dispositions is unlawful.

B. Determination

1) As to the assertion of violation of the principle of trust and good faith (the principle of trust and good faith)

In general, in tax law relations, the principle of trust and good faith applies to the tax authority's act, first, the tax authority must issue a public opinion list that is the object of trust to taxpayers, second, the tax authority's statement of opinion should not be attributable to the taxpayer. Third, the taxpayer must trust that the name of opinion is legitimate, and what is it should be done by the taxpayer. Fourth, the tax authority's disposition contrary to the above opinion list should cause the result of infringing the taxpayer's interest by making the disposition contrary to the above opinion list. Only when the tax authority satisfies the above requirements, the disposition of the tax authority is considered illegal (see, e.g., Supreme Court Decision 9Du1861, Mar. 29, 2002).

According to the health stand, Gap evidence No. 12-1 through 5 as to this case, it can be acknowledged that each application is accepted on the ground that the Plaintiff AAA and the business entity engaged in a business similar to this case’s business is classified into other main businesses not subject to individual consumption tax because it has not been verified as a result of the on-site verification at each tax office regarding the application for the business registration by the FFFFF,CCCC GG store, FFH HH corporation, etc. However, it cannot be viewed that the actual business after the time of filing the application for the business registration is an application for the business registration according to the on-site verification as to whether the facilities, etc. at the time of filing the application for the business registration meet the requirements for imposition of individual consumption tax and the individual consumption tax is not imposed even in cases where the actual business constitutes an act of employing entertainment workers or allowing dancing by customers. There is no other evidence suggesting otherwise.

Therefore, this part of the plaintiffs' assertion that the defendants expressed public opinion to that purport is without merit.

2) As to the assertion of violation of the principle of retroactive taxation prohibition

In order to establish a non-taxable practice prescribed in Article 18(3) of the Framework Act on National Taxes, there is an objective fact that has not been taxed over a considerable period of time, and a tax authority should have the intent not to impose taxes due to any special circumstance despite its knowledge that it is able to impose taxes on the said matter. Such public opinion or intent must be explicitly or implicitly expressed, and in order to establish an implied indication, there is a circumstance to deem that the tax authority expressed its intent not to impose taxes on the state of non-taxation for a considerable period of time, unlike the omission of taxation (see, e.g., Supreme Court Decision 2016Du43077, Oct. 13, 2016).

As to the instant case, since around 000, the Defendants received an application for business registration for the places of business engaged in similar businesses, including the instant place of business, and did not impose individual consumption tax. The instant disposition was rendered around 000 by confirming that the instant place of business had a dance hall, etc., which is an entertainment facility, and the customers are actually engaged in business with the content that the act of dancing is permitted. Accordingly, the Defendants cannot be deemed to have established non-taxation practices for a considerable period of time, even though they are aware that the instant place of business is possible to impose individual consumption tax on the instant place of business. The Plaintiffs’ assertion on the different premise is without merit.

3) As to additional tax

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, the taxpayer’s intentional and negligent acts are not considered in the case of violations of the duty to report and pay taxes under the law without justifiable grounds, and the taxpayer’s intentional and negligent acts do not constitute justifiable grounds (see, e.g., Supreme Court Decision 2000Du5944, Apr. 12, 2002).

With respect to the instant case, as seen earlier, the Defendants cannot be deemed to have expressed the public opinion that they would not impose individual consumption tax on the Plaintiffs, and cannot be deemed to have established a non-taxable practice of imposing individual consumption tax on the same business at the instant workplace. Although the Plaintiffs were unaware of the fact that they should report and pay individual consumption tax on their business operations at the instant workplace, such site or mistake does not constitute a justifiable ground that it is difficult for the Plaintiffs to neglect their duty of care. The Plaintiffs’ assertion on this part is groundless.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in its entirety due to the lack of reasonable grounds, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed in its entirety due to the lack of reasonable grounds, and it is so decided as per Disposition.