The plaintiff can not be deemed to have supplied alcoholic beverages through the method of operation of the branch entry system.

Since the Plaintiff could not be deemed to have supplied alcoholic beverages to HB and four other parties without issuing a tax invoice, the revocation disposition of this case on a different premise is unlawful.

§ 9. Article 15 of the Liquor Tax Act

2012Guhap3666 Revocation of revocation of a comprehensive alcoholic beverage wholesaler's license

AA Alcoholic Beverages Sales Co.

Kim Jong-soo

May 20, 2014

September 26, 2014

1. The Defendant’s revocation of the license for the comprehensive liquor wholesale business that the Plaintiff rendered on October 22, 2012 shall be revoked.

2. On December 10, 2012, the Defendant’s disposition of reducing the volume of alcoholic beverages to the Plaintiff as to each enterprise listed in the separate sheet shall be revoked.

3. The costs of lawsuit shall be borne by the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

(a) Results of tracking the distribution process of alcoholic beverages;

1) The Plaintiff is a legal entity that runs a comprehensive liquor wholesale business, etc. with OOO-376-gil 17 (O-dong) as its principal office’s domicile.

"2) The Plaintiff was investigated to track the distribution process conducted by the Busan Regional Tax Office from April 24, 2012 to June 12, 2012. However, the Busan Regional Tax Office confirmed that the Plaintiff continued to sell alcoholic beverages equivalent to the KRW OOOOOOOOOOOOOOOOOOO in the form of HB, JeonCC, KimD, HuE, HuE, KimF (nB et al., hereinafter referred to as the "nB et al.") by registering the Plaintiff as the Plaintiff's business employees on the basis as follows: (a) from February 24, 2012 to February 2, 2011, the Plaintiff was operating the HB et al., which was a non-licensed liquor seller; and (b) according to the number of the accounting officers of the OG, the Plaintiff continued to record and manage the amount carried over, sales, settlement amount, deduction amount, etc. for each business date.

O Payment of benefits to nB and 4 other than nB is only in the form, and the revenue is confirmed to be settled at the end of the month after deducting all the expenses such as commission and vehicle maintenance expenses according to the sales volume.

Pursuant to the vehicle ledger for business use by HB and KimF, HB and KimF are confirmed to have been transferred to the company at the time of transfer to the company.

3) On the other hand, the Busan Regional Tax Office concluded that, after reviewing the data on purchase of the Plaintiff in the process of tracking the aforementioned alcoholic beverage distribution process, it is impossible to find out suspicions of omitting sales, such as excessive competition, and judged that the sales price was lower and the surcharge rate was lower due to sales of the two owners below the cost, and that there was no evidence as to whether there was a disguised processing transaction.

(b) Disposition of revoking licenses for comprehensive alcoholic beverage wholesale business;

(1) On October 10, 2012, the Defendant filed a lawsuit seeking revocation of the instant disposition with the court on October 22, 2012, on the ground that the Plaintiff violated the license conditions, and the amount of violation of the obligation to issue tax invoices exceeds 100/1,000 of the total sales amount of alcoholic beverages by each taxable period, on the grounds that the Plaintiff violated the license conditions and the amount of violation of the obligation to issue tax invoices is more than 10/1,00 of the total sales amount of alcoholic beverages by each taxable period, pursuant to Articles 9 and 15(2)4 of the former Liquor Tax Act (amended by Act No. 11134, Dec. 31, 2011; hereinafter referred to as the “ Liquor Tax Act”), based on the statutory basis under Article 15(2)4 of the former Liquor Tax Act, the Plaintiff filed a lawsuit seeking revocation of the instant disposition.

(c) Disposition of reducing the volume of alcoholic beverages;

1) On November 28, 2012, the Plaintiff was determined to suspend the execution of the instant revocation disposition that the effect of the Defendant’s revocation disposition was suspended until the instant judgment is rendered, in a case where the suspension of execution was conducted by this court 2012O.

"2) Accordingly, on December 10, 2012, the Defendant rendered a disposition to reduce the volume of alcoholic beverages to the Plaintiff (hereinafter referred to as the "disposition to reduce the volume of alcoholic beverages in this case", and the revocation of the instant disposition until the date of the instant revocation) to each company listed in the separate sheet that mainly purchased alcoholic beverages by the Plaintiff pursuant to Article 91 (3) of the Regulations on the Management of Liquor Tax (National Tax Service Directive No. 1956, Oct. 1, 2012; hereinafter the same)."

1) On September 1, 2012, the Defendant issued a notice to the Plaintiff on September 1, 2012 on the sales amount of HB and 4 other than HB, and issued a notice on the correction and correction of the total value-added tax OO cost from February 2, 2009 to February 2, 2011, and the Plaintiff filed an objection on September 13, 2012. The Defendant re-audited the sales amount as at October 29, 2012, and then deducted and corrected the said value-added tax amount as at OO cost.

2) On January 7, 2013, the Plaintiff filed an appeal with the Tax Tribunal on January 7, 2013. However, on March 10, 2014, the Tax Tribunal dismissed the said appeal on the grounds that the Plaintiff appears to have sold alcoholic beverages to the subordinateB and four other persons without a license for alcoholic beverage sales business.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 3, 17, 19, 21 (including each number; hereinafter the same shall apply), Eul evidence Nos. 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) In order for a tax official to obtain the Plaintiff’s documents, such as a feet, prepared by accounting personnel in the course of the tax investigation, the tax official must give prior notice of the tax investigation and obtain the Plaintiff’s genuine consent. However, the tax official who conducted the tax investigation of the Plaintiff did not undergo

2) The provision on the disposition of reducing liquor tax in this case is merely an administrative rule, and Article 91(3) of the Liquor Tax Act provides that the disposition of reducing liquor tax in this case may be conducted without delegation by law. Thus, the disposition of reducing liquor tax in this case was contrary to the principle of statutory reservation. In addition, even though the disposition of reducing liquor in this case is a disposition that restricts the Plaintiff’s rights and interests, the Defendant did not provide prior notice procedure and opportunity to submit opinions

3) HaB and 4 others are not non-licensed alcoholic beverage sellers, but the Plaintiff’s employees, and the Plaintiff did not supply alcoholic beverages to HB and 4 other than HB through the method of operation of the branch entry. The Defendant determined that the Plaintiff was erroneous in operating the branch entry system, and thus revoked the instant disposition.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the procedural defect argument in the tax investigation

According to Articles 81-4, 81-7, and 81-10 of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter “Framework Act”), a tax official shall conduct a tax investigation to the minimum extent necessary, notify a taxpayer who is subject to a tax investigation of the items of investigation, the period of investigation, grounds for investigation, etc. 10 days prior to the commencement of the investigation, and if the taxpayer gives his/her consent, he/she may temporarily keep the books or documents during the period of tax investigation.” However, according to the items of evidence Nos. 5 and 6, the Plaintiff’s new representativeS system of the Plaintiff’s representative director was signed on April 24, 2012 upon receipt of a tax investigation notice, the taxpayers’ right site, etc. to verify the receipt of the taxpayers’ rights charter, etc. with respect to the tax investigation on the same day, the said newS does not constitute evidence destruction or destruction of evidence with prior notice given by the Plaintiff’s prior notice, etc.

Therefore, this part of the plaintiff's assertion is without merit.

2) Determination on the assertion that the instant disposition violated the principle of statutory reservation on the reduction of the amount

A) First, we examine whether the instant reduction measure violates the principle of statutory reservation.

According to Article 40 of the Liquor Tax Act and Articles 45, 47, and 51 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24577 of Jun. 11, 2013; hereinafter referred to as the "Enforcement Decree of the Liquor Tax Act"), the head of the competent tax office may, if deemed necessary to preserve liquor tax, issue to a manufacturer or a vendor of alcoholic beverages necessary orders for raw materials, quality, quantity, time, method, other matters in manufacture, storage, transfer, acquisition, transfer, or movement of alcoholic beverages. The disposition of reducing liquor in this case is not subject to the revocation of the execution order based on Article 40 of the Liquor Tax Act, Article 45, 47, and 51 of the Enforcement Decree of the Liquor Tax Act, and Article 45, 47, and 51 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 2011-21 of Dec. 30, 2011).

B) Next, we examine whether there is procedural defect that prior notice of the instant disposition and did not give an opportunity to present opinions.

According to Articles 21(1) and 22(3) of the former Administrative Procedures Act (amended by Act No. 12347, Jan. 28, 2014; hereinafter “Administrative Procedures Act”), where an administrative agency imposes an obligation on a party or imposes a restriction on his/her rights and interests, it shall notify in advance the party of the title of the disposition, the facts causing the disposition, the contents of the disposition, and the legal basis thereof, and the method of disposition when it does not present his/her opinion, and shall provide an opportunity to present his/her opinion.” However, the direct party to the reduction disposition of this case shall be deemed each company listed in the separate sheet, and it shall not be deemed that there is a defect in the procedure of the reduction disposition of this case immediately on the ground that the direct party to the reduction disposition of this case did not notify the Plaintiff of the matters regarding the disposition of this case prescribed in the Administrative Procedures Act, etc.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

3) Judgment on the non-existence of grounds for disposition - Whether a branch office is operated

A) Facts of recognition

(1) In the daily report prepared in the course of tracking the distribution process of alcoholic beverages, a tax official belonging to the Busan Regional Tax Office analyzed the status of customers movement of HB, KimD and JeonCC as follows.

“OHB entered the Plaintiff on May 23, 2003, and moved to HH on June 1, 2006 (hereinafter “HH”). During 2006, the Plaintiff’s business partner was eight and eleven members of HH business. Since January 2, 2007 to January 1, 2009, HH business partner increased to 26, HB had been affiliated with the Plaintiff on June 1, 2009, and the Plaintiff’s business partner was 23 to 75 members of the Plaintiff, and the Plaintiff’s business partner was 209 to 30 others and 29 others were 10 others for 20 years from 209 to 10 others for 20 years from 209 to 20 others for 10 others for 20 years from 209.

(2) However, on November 22, 2012, KimD did not have worked at HH, and he had worked at the Plaintiff from June 1, 2009 to December 31, 201, and stated that there was no fact that he left the Republic of Korea due to II alcoholic beverages. The formerCC also stated in the letter of confirmation issued on November 22, 201 that he had not worked at HH.

(3) The Plaintiff shall prepare a computerized sales list to the subordinateB and four other parties and enter the sales status in the sales status by transaction parties. The Plaintiff shall enter the sales status by transaction parties, including the date of sales, the sales payment by the sales members, the sales cost analysis table by transaction members, and the business day table.

(4) On June 10, 2009, the Plaintiff issued interim settlement of retirement pay to DoJ and KimF. On May 31, 2010, the Plaintiff issued interim settlement of retirement pay to HaB and four other persons. On September 30, 2011, the Plaintiff issued interim settlement of retirement pay to HaB, JeonCC, HuJ and KimF.

(5) On June 1, 2009, the employment date of HB and JeonCC was respectively listed on November 1, 2006 in the Plaintiff’s register of workers. HB, JeonCC, and KimF drafted a written oath to the effect that HB may not hold any other office at the time of his/her employment, and would not be employed by any other company in competition for two years after his/her retirement, and that any business partner at the time of his/her employment after his/her retirement shall not be engaged in business activities for two years.

(6) 그런데 원고의 다른 영업사원들인 강KK, 정MM, 구NN, 정PP, 이QQ, 옥RR 등에 대하여는 연봉계약서와 영업수당조견표가 작성되어 있는데 반하여, 하BB 외 4인에 대하여는 명시적으로 연봉계약서와 영업수당조견표가 작성되어 있지 아니하였다. 다만 하BB 외 4인에 대하여 2011년 기준으로 매출원가분석표는 작성되어 있었다.

(7) NewS, the representative director of the Plaintiff, entered the entry of 2.0 HaB and 4 others in his book, 2.0 HaB and 2.0 HaB and 2. 9 HaB and 2. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. 122. Doz. 122. Doz. 12. 12. 1. 1. 1. 1. 1. 1. 1. 2. 1. 2. 2. 2. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 2. 2. 2. 2. 2. 200 Doz. 1, 2006. 1. 3. 3. 2. 200 Doz. 1. 20. Doz. 1. 20.

(10) On June 11, 2012 and June 12, 2012, the Plaintiff’s representative director: (a) during the tax official’s questioning process, the Plaintiff was transferred from UU alcoholic beverages in around 2004 for 93 OOO units and 96 OOO units; and (b) the 93 OO units were transferred to H in the process of a lawsuit seeking the revocation of the license for alcoholic beverage sales business; and (c) the Plaintiff stated that the vehicle was transferred to H after the completion of the lawsuit.

(11) In the process of a tax official examination on June 12, 2012, HB made a statement that he/she is in charge of the business of OO-si and O-O-type, that he/she is not aware of the existence of such TV sets, and that 93OOO is a vehicle owned by the company. In the process of a tax official examination on the same day, HJ made a statement that he/she is in charge of the business of O-O-type and is working for the plaintiff for 8 years, and that he/she was in charge of the business of O-type and received monthly pay, and that administrative matters are not known at all.

(12) The headG testified to the effect that, as a witness of this court, the headG testified that the said head and the employees in charge of accounting affairs at the time were actually prepared for the settlement of sales allowances of the sales members. In addition, the headG testified testified to the effect that the sales from the electronic book are based on the transaction partner’s price, and that the sales from the manual are the amount calculated by deducting all the expenses from the sales amount in order to calculate the sales amount to be considered in the annual salary contract of the subordinateB and the fourth persons.

(13) Meanwhile, the Plaintiff and the Defendant filed a criminal charge of violating the Punishment of Tax Evaders Act due to the violation of the Act on Punishment, etc. of Tax Evaders against the charge of the establishment of a branch office in the Changwon District Prosecutors' Office. However, the Plaintiff and the NewS were subject to a disposition on the ground that the branch office was not recognized on December 20, 2012. Accordingly, the Defendant appealed to the branch office of the Busan High Prosecutors' Office on January 23, 2013, but the appeal was dismissed on April 15, 2013.

[Reasons for Recognition] Facts without dispute, Gap evidence 3, 5, 6, Gap evidence 7-2, 5, 6, 7, 10, 11, 13, 14, 15, 17, 18, 21, Gap evidence 8-2, 5, 6, 7, and 9-7, Gap evidence 10, Gap evidence 11-4 through 8, Gap evidence 12-6, 9, 11, 12, 21, 24, 28, 30, 34, 35, Gap evidence 13, 14, 15-1, 34, Gap evidence 16, 18, 20, 227, Eul evidence 11-2, Gap evidence 12-24, 28, 30, 35, Gap evidence 15-2, 34, Gap evidence 16, Gap evidence 18, 20, 27, Eul evidence 4.

B) Determination

In light of the following circumstances revealed by the fact of recognition, it cannot be deemed that the Plaintiff supplied alcoholic beverages to HB and 4 other than HB through the method of operating the branch entry system as non-data without issuing a tax invoice. Thus, the revocation disposition of this case on a different premise is unlawful.

Therefore, this part of the plaintiff's assertion is justified.

① The Defendant, based on the Plaintiff’s ground that the Plaintiff carried out a branch entry system, was first transferred by the HaB, JeonCC, and KimD while moving the company. However, it is difficult to readily conclude that HH’s transaction change between the Plaintiff and HH was transferred by the HaB, JeonCC, and KimD while moving the company. Even if the content of the transfer of the company can be acknowledged, it cannot be deemed that the transfer of the company to a business operator managing the said details to the HaB, and that the Plaintiff operated the branch entry system. Thus, such circumstance alone does not lead to deeming that the Plaintiff operated the branch entry system.

② Rather, JeonCC and KimD submitted a confirmation document stating that a tax official had not worked in HH, claiming that the tax official had been transferred to the Plaintiff and his transaction partner, and the Defendant also failed to produce specific evidence to prove that he had worked in the company other than the Plaintiff.

③ The Plaintiff’s list of computerized sales status, etc. includes sales details, etc. for HB and four other business partners, and includes sales details, etc. as they are, without any particular difference with other business partners, on the basis of the fact that the sales and sales details are managed at the company level instead of individual members. The Plaintiff had been engaged in interim settlement of retirement pay to four other business partners, such as HB and four other business employees, and there is no evidence to deem that the said sales and sales details are different from other business employees.

④ On the other hand, a non-licensed seller participating in a bid offer should reach the extent of independently performing all transactions under his/her own responsibility, including by entering into a contract by means of paper with a seller of alcoholic beverages who is a wholesaler and by being supplied alcoholic beverages to his/her fixed customers and selling them to his/her fixed customers. However, in full view of the evidence such as the aforementioned electronic sales situation table and sales day table, it cannot be deemed that four persons, separately from the Plaintiff, sell alcoholic beverages to their customers. Generally, the Plaintiff and four persons are not equipped with physical facilities such as storage storage, etc., which are necessary for selling alcoholic beverages, and there is no circumstance that the Plaintiff calculated a separate supply value of alcoholic beverages and profits from them, separate from the Plaintiff.

⑤ Furthermore, in order to recognize that the HB and four persons are selling alcoholic beverages to the customer independently from the Plaintiff, it is necessary to view that the claim against the customer belongs to HB and four persons. Rather, there is no evidence to support this, and rather, the alcoholic beverage payment seems to have been paid to the Plaintiff from the customer as seen in the electronic sales situation table, etc. In addition, there is no evidence such as back agreement that the HB and four persons are responsible for the obligation to pay alcoholic beverages to the Plaintiff, and there is no circumstance that the Plaintiff took measures to secure the obligation to pay alcoholic beverages to HB and four persons, or that there is no circumstance that the Defendant clearly supports the flow of the amount of alcoholic beverages equivalent to the amount of non-data sales or the fact of financial movement.

6. “The Plaintiff’s newS pocket book cited by the Defendant as the basis for the branch entry system includes a number of the Plaintiff’s employees other than BB and 4. It is reasonable to view that the Plaintiff’s employees’ names are also written in order to control and manage the Plaintiff’s operating employees and credit card payment, etc. as alleged by the Plaintiff. The mere fact that the lowerB and 4 persons’ names are written in the name side of the lowerB and 4 persons cannot be viewed as the basis for the branch entry system in light of the fact that the said persons’ names are written in the lowerB and 4 persons other than HaB and 4 persons, and there is no circumstance for granting the probative value in the pocket book.” 7) The lowerB and the Kim FF motor vehicle register cited by the Defendant as the other grounds for branch entry, which is changed from the lowerB and Kim F personal company to the entire number of employees, and it is difficult for the Plaintiff to manage and operate the vehicle in a lump sum, but it is difficult for the Plaintiff to be in charge of the operation of the vehicle.

④ In addition, the content of the feet prepared by the headGG, etc., who was the Plaintiff’s accounting employee, differs from the above computerized account book, and the sales of the feet are the price for alcoholic beverages supplied by the Plaintiff to HaB and 4 other persons, and is cited as the basis for the branch business. However, the Plaintiff’s representative director stated that the NewS was not in operation from the beginning of the tax investigation, and the HB and HuJJ also stated that they were working as the Plaintiff’s operating employee, and that they were not aware of the said feet.

9) The headG testified that the employees of the accounting department have consistently prepared the said vertical set in order to calculate the operating allowances of the employees, and that the amount of sales on the electronic account book was based on the transaction partner’s price, and that the amount of sales on the electronic account book was the amount calculated by deducting all expenses from the sales amount in order to calculate the sales allowance to be considered in the annual salary contract of HaB and 4 persons. On the contrary, there is no circumstance to reject the testimony, but there is no explicit annual salary contract for HaB and 4 persons, and the fact that the sales revenue analysis table for calculating the operating allowances was prepared around 2011 is the circumstance supporting the testimony.

(10) It can be seen as the proviso to the operation of a branch office that the number of sets, other than the electronic sales list, etc. and the sales status separately, as alleged by the Defendant, have been prepared. However, in full view of the fact that the annual salary contract of other employees attached with business allowances and allowances based on their performance are paid to the subordinateB and four persons, and that such business allowances were not paid to the subordinateB and four persons, and that the said number of sets was rarely not written after July 201, it may be deemed that the said set was made for the calculation of business allowances as alleged by the Plaintiff, and the existence of the said number of sets alone cannot be readily concluded that the Plaintiff is operating the branch office.

11) In light of these circumstances, the Plaintiff appears to have been subject to a disposition of suspicion of violation of the Punishment of Tax Evaders Act by the Changwon District Prosecutors' Office, and there is no evidence to acknowledge the fact of the operation of the system, as alleged by the Defendant.

4) Sub-committee

Therefore, the revocation disposition of this case is unlawful because there is no ground for the revocation disposition. Since the revocation disposition of this case requires the suspension of execution on the revocation disposition of this case, so so long as the revocation disposition of this case is unlawful, the reduction disposition of this case premised on the existence of the revocation disposition of this case is also unlawful and thus its revocation cannot be exempted. Ultimately, the disposition of this case is unlawful

3. Conclusion

Therefore, since the plaintiff's claim is well-grounded, all of them shall be accepted, and it is decided as per Disposition.