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Title
If a tax-free petroleum purchase right is transferred to another person, whether the tax amount can be collected.
Summary
Even if the right to purchase tax-free petroleum was transferred to another person, if the above act was done before January 1, 2002, there is no provision that allows collection of the reduced or exempted tax amount, etc., and thus, the disposition of imposition in 2001 among the dispositions of imposition was made without any legal basis.
Related statutes
Article 106-2 (Exemption, etc. of Value-Added Tax)
Text
1. On February 4, 2005, the Defendant issued a disposition of imposition of KRW 25,097,890 in total value added tax on the attached sheet, KRW 96,329,10 in total, and KRW 12,780 in total, and KRW 2,406,760 in the attached sheet of education tax indicated in the attached sheet of the attached sheet of education tax, and KRW 7,60,00 in total, KRW 140,00 in the attached sheet of education tax, and KRW 1,40,00 in the attached sheet of education tax listed in the attached sheet of the attached sheet of the attached sheet of education tax.
2. The plaintiff's remaining claims are dismissed.
3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.
Purport of claim
The Defendant’s imposition of KRW 25,097,890, total value-added tax on the attached Table No. 25,097,890, total traffic tax on the attached Table No. 96,329,100, total education tax on the attached Table No. 12,780,690 shall be revoked.
Reasons
1. Details of the disposition;
A. The Plaintiff purchased a heavy livestock heating container for the combined use of light oil and light oil (a model name OWL-203S) from 2001 to 00, 000, and engaged in livestock business entrusted with the operation of livestock business by bringing sick children from livestock raisers to sexual intercourse with the trade name of ○○○○○○○○ farm from ○○○○○○○○○, ○ farm. From 2001 to 2004, the Plaintiff obtained a right to purchase tax-free petroleum for light oil 394,600 liter and light oil 10,000 liter from ○○ Agricultural Cooperative. From 2001 to 2004, the Plaintiff issued the right to purchase tax-free petroleum for 70,000 liters of the above duty-free petroleum refinery tickets to ○○○○○○○○, thereby offsetting the Plaintiff’s right to purchase tax-free petroleum with 10,500,000 liter of the amount of unpaid petroleum into 150,300,604,2000 liter of the remainder.
Business year
Oils listed in the duty-free petroleum purchase right
Oil actually purchased
Transit (l)
Light oil (l)
Transit (l)
Light oil (l)
201
44,000
10,000
0
54,000
202
128,600
0
4,000
124,600
2003
140,000
0
4,000
86,000
204
82,000
0
2,000
60,000
Consolidateds
394,600
10,000
10,000
324,600
B. On February 4, 2005, the Defendant issued a notice of correction and correction of value-added tax, traffic tax, and education tax (hereinafter referred to as "each disposition of this case") as stated in the attached Table Table, traffic tax, and education tax table on the ground that "the Plaintiff transferred the tax-free petroleum purchase right, etc. received by the Plaintiff, and the petroleum products supplied by the said tax-free petroleum purchase right, etc. to others or used them for purposes other
C. On May 6, 2005, the Plaintiff requested an examination to the National Tax Tribunal, and received a decision of dismissal on October 25, 2005.
[Ground of recognition] The items in Gap evidence 1-1-38, Gap evidence 2, 3, Eul evidence 1-1-7, Eul evidence 2-1 to 32, and the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The parties' assertion
(1) The plaintiff's assertion
The right to purchase the above duty-free petroleum is offset by 10,50,000 won against the plaintiff at the ○○○ gas station using the duty-free petroleum purchase right for the remaining 324,600 liters, and it is used for payment of the above duty-free petroleum purchase right in whole. ① The above duty-free petroleum purchase right under Article 106-2 (1) 1 of the Restriction of Special Taxation Act and the petroleum products supplied through such duty-free petroleum purchase right are transferred to another person or used for purposes other than farming or fishing. ② Even if this is applicable, the provision imposing a reduced or exempted tax amount such as duty-free petroleum purchase right should be imposed on January 1, 2002, and thus the traffic tax should be imposed on the aggregate of the value-added tax stated in the separate sheet 1,204,60,701 or 400, 200, 200, 200, 206, 201 or 606, 206, 2001.
(2) The defendant's assertion
In the event that the Plaintiff purchased light oil using the duty-free petroleum purchase right to the Plaintiff and paid the unpaid oil price with the remaining duty-free petroleum purchase right constitutes a case where the Plaintiff transfers tax-free petroleum purchase right issued under Article 106-2 (5) of the Restriction of Special Taxation Act, and the petroleum supplied by the said duty-free petroleum purchase right, etc. to another person or is used for purposes other than farming and fishing, each of the dispositions of this
(b) Related statutes;
It is as shown in the attached Form.
C. Determination
(1) Determination as to each of the dispositions of this case in 201
(A) Articles 106-2 subparag. 1, 2, and 111 of the former Restriction of Special Taxation Act (amended by Act No. 6297 of Dec. 29, 2000 and amended by Act No. 6299 of Dec. 29, 200), proviso of Article 1 of the Addenda, Article 30 of the Addenda, and Article 30 of the Addenda of the former Restriction of Special Taxation Act shall be exempted from value-added tax, special consumption tax, and traffic tax on the portion of petroleum for agriculture or fishing as prescribed by the Presidential Decree supplied or supplied until June 30, 203, or taken out from a manufacturing place or bonded area, and from July 1, 2003 to December 31, 2003, the amount of tax equivalent to 75/100 of value-added tax, special consumption tax, or traffic tax has not been reduced or exempted, as prescribed by the Presidential Decree.
However, Article 106-2 of the Restriction of Special Taxation Act (amended by Act No. 6538 of Dec. 29, 2001 and amended by Act No. 6689 of Apr. 20, 2002; hereinafter referred to as the "Act") shall be exempted from the value-added tax on the portion of petroleum prescribed by Presidential Decree for agricultural or fishery use until June 30, 2003, and the special consumption tax, traffic tax, education tax, and driving tax on the portion of petroleum released from a manufacturing place or bonded area shall be exempted from the taxes under the conditions as prescribed by the Presidential Decree, and the amount equivalent to 1/100 of the special consumption tax, traffic tax, education tax, and driving tax on the portion of petroleum released from Chapter 2 or bonded area shall be exempted from the taxes and the amount equivalent to 75/100 of the value-added tax on the aggregate of petroleum exempted from the above taxes and the amount equivalent to 1/100 of the tax-exempt, traffic tax and driving tax on the portion of agricultural or fishery use.
Comprehensively taking account of the above provisions, even though the right to purchase tax-free petroleum delivered by farmers and fishermen and the petroleum products supplied by such right to purchase tax-free petroleum are transferred to others or used for purposes other than farming and fishing, if the above act was done before January 1, 2002, there is no provision that it can be collected additionally, and thus, the reduced or exempted tax and additional tax cannot be collected additionally.
(B) However, the defendant's act of transferring the petroleum products supplied by the plaintiff's right to purchase tax-free petroleum, etc. to another person or using them for purposes other than farming and fishing, the value-added tax of the first half year of 201, the value-added tax of the second half year of 200, the traffic tax of 75,000 won for January 201, the traffic tax of 75,000 won for February 201, the traffic tax of 1,240, the traffic tax of 1,240,000 won for April 201, the traffic tax of 5, 201, the traffic tax of 5,000 won for July 1, 201, the traffic tax of 1,48, the traffic tax of 1,480,00 won for November 27, 201, the education tax of the second half year of 201, the education tax of 1,61,201.
(2) Determination on the remaining dispositions of imposition of each of the instant dispositions
(A) According to the facts found in the above 1-A, the Plaintiff’s right to purchase the duty-free petroleum from the Southern Agricultural Cooperative during the period from 2002 to 2004, with the Plaintiff’s right to purchase 350,600 liters, purchased 10,000 liters via the right to purchase the duty-free petroleum for 10,000 liters, and purchased 270,600 liters via the right to purchase the duty-free petroleum for 270,600 liters, and the remainder of the duty-free petroleum purchase right to 70,000 liters via the Plaintiff’s right to purchase the duty-free petroleum.
As above, the Plaintiff’s act of transferring the right to purchase the duty-free petroleum to the Namnam Oil station and being supplied with the equivalent oil in return for the transfer of the right to purchase the duty-free petroleum, and discharging the obligation to purchase the goods to the Southern Oil station with the right to purchase the duty-free petroleum constitutes a case where the right to purchase the duty-free petroleum delivered to another person under Article 106(1)1 of the Restriction of Special Taxation
(B) According to Article 106-2(5)1 of the Restriction of Special Taxation Act, where the right to purchase tax-free petroleum is transferred as above, an amount equivalent to the reduced or exempted amount of value-added tax, special consumption tax, traffic tax, education tax and driving tax in the event that the petroleum is supplied by the right to purchase tax-free petroleum at the time of transfer, and an amount equivalent to 10/100 of the above amount
Therefore, even if light oil was supplied with the same quantity as the right to purchase tax-free petroleum against 270,600 liters, the additional tax amount of the part should be determined based on the amount equivalent to the abated or exempted tax amount of 270,600 liters via light, and the remainder after deducting the abated or exempted amount of oil from the abated or exempted tax amount is not determined based on the difference equivalent to the abated or exempted tax amount.
(C) The remaining dispositions are lawful.
3. Conclusion
The defendant's each disposition of 201 is illegal, and all other dispositions are legitimate, so the plaintiff's claim is justified only within the scope of recognition.
Value-Added Tax List
No.
Items of Taxation
Tax year
Taxation Period
Amount of tax (source)
1
Value-added Tax
201
1.
1,086,040
2
〃 4
〃 4
2nd class
1,320,720
3
〃 4
202
1.
3,327,590
4
〃 4
〃 4
2nd class
4,021,650
5
〃 4
2003
1.
5,335,390
6
〃 4
〃 4
2nd class
4,079,180
7
〃 4
204
1.
5,927,320
Total
25,097,890
Traffic Tax Table
No.
Items of Taxation
Tax year
Taxation Period
Amount of tax (source)
1
Traffic Tax
201
January;
75,000
2
〃 4
〃 4
February
75,000
3
〃 4
〃 4
April;
1,240,000
4
〃 4
〃 4
July;
55,000
5
〃 4
〃 4
November;
1,480,000
6
〃 4
〃 4
December;
2,775,000
7
〃 4
202
January;
3,924,740
8
〃 4
〃 4
February
3,183,690
9
〃 4
〃 4
March;
2,618,650
10
〃 4
〃 4
April;
1,310,940
11
〃 4
〃 4
May;
1,313,160
12
〃 4
〃 4
6 months
1,313,160
13
〃 4
〃 4
August;
1,589,430
14
〃 4
〃 4
September;
1,589,430
15
〃 4
〃 4
October;
3,182,110
16
〃 4
〃 4
November;
3,979,590
17
〃 4
〃 4
December;
6,099,730
18
〃 4
2003
January;
6,899,000
19
〃 4
〃 4
February
5,843,780
20
〃 4
〃 4
March;
2,658,660
21
〃 4
〃 4
April;
2,654,560
22
〃 4
〃 4
May;
2,654,560
23
〃 4
〃 4
July;
2,980,060
24
〃 4
〃 4
September;
2,979,160
25
〃 4
〃 4
November;
2,980,660
26
〃 4
〃 4
December;
5,367,720
27
〃 4
204
January;
8,948,900
28
〃 4
〃 4
February
2,982,960
29
〃 4
〃 4
March;
5,835,370
30
〃 4
〃 4
April;
3,502,870
31
〃 4
〃 4
May;
2,336,210
Total
96,329,100
Education Tax Table
No.
Items of Taxation
Tax year
Taxation Period
Amount of tax (source)
1
Education Tax
201
January;
16,250
2
〃 4
〃 4
February
16,250
3
〃 4
〃 4
April;
186,000
4
〃 4
〃 4
July;
83,250
5
〃 4
〃 4
November;
22,000
6
〃 4
〃 4
December;
416,250
7
〃 4
202
January;
515,700
8
〃 4
〃 4
February
418,290
9
〃 4
〃 4
March;
343,800
10
〃 4
〃 4
April;
171,900
11
〃 4
〃 4
May;
171,900
12
〃 4
〃 4
6 months
171,900
13
〃 4
〃 4
August;
208,800
14
〃 4
〃 4
September;
208,800
15
〃 4
〃 4
October;
417,600
16
〃 4
〃 4
November;
522,000
17
〃 4
〃 4
December;
800,400
18
〃 4
2003
January;
904,800
19
〃 4
〃 4
February
765,600
20
〃 4
〃 4
March;
348,000
21
〃 4
〃 4
April;
348,000
22
〃 4
〃 4
May;
348,000
23
〃 4
〃 4
July;
391,500
24
〃 4
〃 4
September;
391,500
25
〃 4
〃 4
November;
3915,500
26
〃 4
〃 4
December;
704,700
27
〃 4
204
January;
1,174,500
28
〃 4
〃 4
February
391,500
29
〃 4
〃 4
March;
765,000
30
〃 4
〃 4
April;
459,000
31
〃 4
〃 4
May;
306,000
Total
12,780,690
Related Acts and subordinate statutes
In the Restriction of Special Taxation Act (amended by Act No. 6297 of Dec. 29, 2000 and amended by Act No. 6299 of Dec. 29, 2000)
Value-added tax, etc. on petroleum products for farming, fishing and coastal passenger ships under Article 106-2
(1) As regards the petroleum products falling under any of the following subparagraphs, the tax amount equivalent to 75/100 of the value-added tax shall be abated or exempted under the conditions as prescribed by the Presidential Decree, limited to the portion supplied not later than December 31, 2003:
1. Petroleum products for agriculture or fishery as prescribed by the Presidential Decree;
(2) As regards the petroleum products falling under any subparagraph of paragraph (1), the tax amount equivalent to 75/100 of the special consumption tax or traffic tax shall be reduced or exempted under the conditions as prescribed by the Presidential Decree, for the portion taken out from a manufacturing place or bonded area not later than December 31, 2003.
Newly Inserted by Act No. 630, Dec. 29, 2000>
Addenda No. 6297, Dec. 29, 200
The enforcement date of Article 1 shall enter into force on January 1, 2001: Provided, That the amended provisions of Articles 6, 72-2 (2) and 88-6 shall enter into force on the date of its promulgation, the amended provisions of Article 72 (1) and (4) concerning donations shall enter into force on January 1, 2003, the amended provisions of Article 106-2 shall enter into force on July 1, 2003, and the amended provisions of Article 121-2 (9) and Article 121-5 (1) 1, (2) 1 and (3) 3 shall enter into force on February 1, 201.
The amended provisions of Article 106-2 of the same Act concerning reduction or exemption of value-added tax, etc. on petroleum products shall apply from the portion supplied or supplied for the first time after July 1, 2003, or the portion taken out from a manufacturing place or bonded area.
director Restriction of Special Taxation Act (amended by Act No. 6538, Dec. 29, 2001)
Article 106-2 Reduction or Exemption of Value-Added Tax, etc. for Petroleum Products for Farming, Fishing and Coastal Passenger Ships
(1) As regards the petroleum products falling under any of the following subparagraphs, the value-added tax on the portion of supply, and the special consumption tax, traffic tax, education tax and driving tax on the portion of carrying out of a manufacturing place or bonded area not later than June 30, 2003 shall be exempted under the conditions as prescribed by the Presidential Decree, and the tax amount equivalent to 75/100 of the value-added tax on the portion of supply, and of the special consumption tax, traffic tax, education tax, and driving tax on the portion of carrying out of a manufacturing place or bonded area from July 1, 2003 to December 31, 2003, shall be abated or exempted under
1. Petroleum products prescribed by Presidential Decree, which are to be used by farmers and fishermen prescribed by Presidential Decree (hereafter referred to as "farmers and fishermen" in this Article);
(2) In order for farmers and fishermen to be supplied with petroleum under paragraph (1) 1, a certificate of tax-free petroleum purchase or delivery support as prescribed by Presidential Decree (hereafter referred to as "certificate of tax-free petroleum purchase, etc." in this Article) shall be issued by the Agricultural Cooperatives Act and the Fisheries Cooperatives under the Fisheries Cooperatives Act.
(5) The head of the competent tax office shall, where the farmers or fishermen transfer to another person the tax-free housing, etc. issued under paragraph (2) and the petroleum products supplied under such tax-free housing, etc., or use them for purposes other than farming or fishing, collect the amount calculated
1. Where transferring to another person the tax-free housing, etc., the aggregate of the amounts calculated under each of the following items:
(a) An amount equivalent to the abated or exempted tax amount of value-added tax, special consumption tax, traffic tax, education tax and driving tax where petroleum products are supplied under the tax-free housing, etc. at the
(b) The additional tax equivalent to 10/100 of the amount equivalent to the abated or exempted tax amount under item (a);
2. Where supplied petroleum products are transferred to another person or used for purposes other than farming or fishing, the aggregate of the amounts calculated pursuant to the following items:
(a) Reduction or exemption of the value-added tax, special consumption tax, traffic tax, education tax, and driving tax on the relevant petroleum products;
(b) Additional tax equivalent to 10/100 of the abated or exempted tax amount under item (a); and
(10) Matters necessary for the procedures for the supply and management of petroleum products under paragraphs (1) through (9), the methods and procedures for issuing tax refund, etc., and the tax amount reduced or exempted, the amount equivalent to the reduced or exempted tax amount, and the procedures for additional collection, etc. shall be prescribed by the Presidential Decree.
A Addenda No. 6538, Dec. 29, 2001
The enforcement date of Article 1 shall enter into force on January 1, 2002: Provided, That the amended provisions of Articles 5-2, 15 (1) and (2), 16 (3), 23 (1), 38 (3) through (5), 28-3, 45-2, 72 (2), 73 (1) 15, 74 (1) 12, 86-2 (10), 88-5 (2), 89 (1), 117 (1) 4 through 6, 10 and 18, 119 (1) 18 and 144 (2) shall enter into force on the date of its promulgation, the amended provisions of Article 106-2 (3) and the former part of Article 74 (1) 12, Article 86-2 (10), Article 88-5 (2), the provisions of Article 120 (1) 10 and the former part of Article 215-2 (1) shall be excluded from the date of its promulgation.
In the Restriction of Special Taxation Act (amended by Act No. 7210 of March 22, 2004)
Article 106-2 Reduction or Exemption of Value-Added Tax, etc. for Petroleum Products for Farming, Fishing and Coastal Passenger Ships (Revised December 11, 2002)
(1) As regards the petroleum products falling under any of the following subparagraphs, the value-added tax on the portion of supply, and the special consumption tax, traffic tax, education tax and driving tax on the portion of carrying out of a manufacturing place or bonded area not later than June 30, 2005 shall be exempted under the conditions as prescribed by the Presidential Decree, and the tax amount equivalent to 75/100 of the value-added tax on the portion of supply, and of the special consumption tax, traffic tax, education tax and driving tax on the portion of carrying out of a manufacturing place or bonded area from July 1, 2005 to December 31, 2005, shall be abated or exempted under the conditions as prescribed by the Presidential Decree:
1. Petroleum products prescribed by Presidential Decree, which are used by farmers, persons engaged in forestry, and fishermen prescribed by Presidential Decree (hereafter referred to as "farmers, fishermen, etc." in this Article) for the purposes of agriculture, forestry, or fisheries;
(2) In order for farmers and fishermen to be supplied with petroleum under paragraph (1) 1, they shall obtain the tax-free petroleum purchase or shipment support as prescribed by the Presidential Decree (hereafter in this Article, referred to as the "tax-free petroleum purchase, etc.") from the agricultural cooperatives under the Agricultural Cooperatives Act, the forestry cooperatives under the Forestry Cooperatives Act, and the fisheries cooperatives under the Fisheries Cooperatives Act.
(3) Where a farmer or fisherman under paragraph (1) 1 intends to use petroleum products under subparagraph 1 of the same paragraph in agricultural machinery, ships, and fishing facilities, he/she shall observe the following matters:
1. In cases of agricultural machinery and ships prescribed by Presidential Decree, the devices determined by Presidential Decree that can confirm the actual use, etc. shall be attached and the documents determined by Presidential Decree that can confirm the actual use, etc.
2. For agricultural machinery and fishery facilities prescribed by Presidential Decree, documents prescribed by Presidential Decree that can verify production records, etc. shall be submitted.
(5) The head of the competent tax office shall, where the farmers, fishermen, etc. transfer to another person the tax-free housing, etc. issued under paragraph (2) and the petroleum products supplied under such tax-free housing, etc., or use them for purposes other than farming, forestry and fishery, additionally collect the amount calculated pursuant to the following subparagraphs:
1. Where transferring to other person the tax-free housing, etc., the total amount calculated under each of the following items:
(a) An amount equivalent to the abated or exempted amount of value-added tax, special consumption tax, traffic tax, education tax and driving tax where petroleum products are supplied at the time of transfer;
(b) The additional tax equivalent to 10/100 of the amount equivalent to the abated or exempted tax amount under item (a);
2. Where supplied petroleum products are transferred to another person or are used for purposes other than farming, forestry and fishery, the sum of the amounts calculated pursuant to any of the following items:
(a) Reduction or exemption of the value-added tax, special consumption tax, traffic tax, education tax, and driving tax on the relevant petroleum products;
(b) Additional tax equivalent to 10/100 of the abated or exempted tax amount under item (a); and
(11) Matters necessary for the procedures for supply and management of petroleum under paragraphs (1) through (10), the methods and procedures for issuing certificates, etc. of tax refund, etc. of tax abatement or exemption, amount equivalent to tax abatement or exemption, and procedures for additional collection, etc. shall be prescribed by the Presidential Decree.
(Specialized Amendment 201.29
A Addenda No. 6538, Dec. 29, 2001
The enforcement date of Article 1 shall enter into force on January 1, 2002: Provided, That the amended provisions of Articles 5-2, 15 (1) and (2), 16 (3), 23 (1), 38 (3) through (5), 28-3, 45-2, 72 (2), 73 (1) 15, 74 (1) 12, 86-2 (10), 88-5 (2), 89 (1), 117 (1) 4 through 6, 10 and 18, 119 (1) 18 and 144 (2) shall enter into force on the date of its promulgation, the amended provisions of Article 106-2 (3) and the former part of Article 74 (1) 12, Article 86-2 (10), Article 88-5 (2), Article 89 (1), the provisions of Article 210 and the former part of Article 2120-1-2 (1.