Red Cross-Appellant Co., Ltd. (Attorneys Cho Young-chul et al., Counsel for the defendant-appellant)

Head of Incheon Airport Head

June 13, 2013

Incheon District Court Decision 2012Guhap2164 Decided October 25, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's rejection disposition against the plaintiff on October 6, 201 is revoked (the plaintiff corrected the purport of the claim as above in the appellate court, and it is not clear whether the plaintiff sought the above purport of the claim merely by itself stated in the complaint, but it is also obvious that the plaintiff seeks the above claim as the cause of the claim, and as long as the appellate court clearly expresses its intention to correct the purport of the claim as above, it is allowed to correct the above purport of the claim (see Supreme Court Decision 88Nu10251, Aug. 8, 1989, etc.).

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

The reasoning for the court’s explanation in this part is as follows: ① the part of the former Individual Consumption Tax Act (amended by Act No. 11120, Dec. 31, 201; hereinafter the same shall apply) “the Individual Consumption Tax Act”; ② the part of the Enforcement Decree of the same Act (amended by Presidential Decree No. 23845, Jun. 7, 2012; iii) “the part of the former Enforcement Decree of the Customs Act (amended by Presidential Decree No. 23602, Feb. 2, 2012; hereinafter the same shall apply)” (amended by Presidential Decree No. 23602, Sept. 20, 201; hereinafter the same shall apply) is used for the following reasons: (i) the part of the first instance court’s “the pertinent Individual Consumption Tax Act (amended by Act No. 11110, Sep. 20, 201; hereinafter the same shall apply)”; and (ii) the part of the said judgment is stated in the main sentence of Article 20 of the Civil Procedure Act.

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

(1) The instant goods are not subject to the imposition of the individual consumption tax from the beginning, and the submission of an application for carrying out without paying the individual consumption tax as provided by Article 19(1) of the Enforcement Decree of the Individual Consumption Tax Act (hereinafter “the instant provision”) shall be interpreted not as a requisite requirement for carrying out without paying the tax on specific goods as provided by Article 14(1) of the Individual Consumption Tax Act, but as an example procedural provision. On the contrary, interpreting the application for carrying out without paying the tax and the approval procedure required for carrying out without paying the tax without paying the tax on the said goods is in violation of the principle of no taxation without the law and the prohibition of comprehensive delegation. Accordingly, the instant disposition on the ground that the Plaintiff’

(2) In addition, in the case where the goods were exported for the purpose of foreign display as seen in the instant goods before the Board of Audit and Inspection pointed out regarding the imposition of the individual consumption tax, there was a practice that approved the transfer of the goods without the collection of the individual consumption tax, even without submitting a separate application for removal without the payment of the tax, if the goods were to be confirmed as the same goods as those exported for the purpose of display, and if only the application for reduction or exemption of the tax was filed, the instant disposition is in violation of the good faith principle

(3) Even if an application for carrying out without payment of the individual consumption tax and approval thereof are deemed necessary to be taken out without payment of the individual consumption tax and the individual consumption tax, the imposition and collection procedure of the individual consumption tax pursuant to Article 4 of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010; hereinafter “the Customs Act”) which applies to the disposition of this case shall be deemed to be in accordance with the Customs Act and subordinate statutes. Thus, the Plaintiff’s disposition based on the premise that the application for the approval of carrying out without payment of the individual consumption tax and the individual consumption tax (hereinafter “the application for the approval”), which was made on May 12, 2011 pursuant to Article 112(1) of the former Enforcement Decree of the Customs Act (amended by Presidential Decree No. 23602, Feb. 2, 2012; hereinafter “Enforcement Decree of the Customs Act”), should be lawful within five days from the date of the imposition and collection notice of the Defendant’s individual consumption tax and the individual consumption tax.

B. Relevant statutes

[Attachment] The entry is as follows.

C. Determination

(1) As to the first argument

(A) Under Article 14(1)2 of the Individual Consumption Tax Act, where the goods which were displayed on a fair held at home or abroad are returned to a manufacturing place or taken out from a bonded area, the individual consumption tax shall not be levied on such goods as prescribed by Presidential Decree. The provisions of this case stipulate that the person who intends to take out the said goods from a selling place, manufacturing place, or storage place or to take them out of a bonded area shall submit an application for taking them out from the head of the competent tax office or customs office, stating specific matters (in the case of imported goods, from the time of import declaration until the date of import declaration) at the time

(B) According to the language, structure, and purport of the pertinent provision of the Individual Consumption Tax Act, a specific imported goods under Article 14(1) of the Individual Consumption Tax Act can be taken out without paying the individual consumption tax, shall meet the requirements under each subparagraph of Article 14(1) of the Individual Consumption Tax Act, and as provided in the instant provision, an application for carrying out without paying the tax shall be submitted to the head of the competent tax office, etc. from the time of import declaration to the time of receiving the import declaration, and the relevant approval shall be obtained. Even if specific imported goods constitute goods that can be taken out without paying the individual consumption tax under Article 14(1) of the Individual Consumption Tax Act, and if there is no legitimate application for carrying out without paying the individual consumption tax and no approval therefor, it shall not be taken out without paying the individual consumption tax under Article 14(1) of the Individual Consumption Tax Act (see Supreme Court Decision 88Nu8593, May 9, 198).

(C) Furthermore, as long as Article 14(1) of the Individual Consumption Tax Act provides that the individual consumption tax shall not be imposed on the goods stipulated in each subparagraph as prescribed by Presidential Decree, the provision of this case is deemed to be directly based on the above Individual Consumption Tax Act, and the detailed part of the procedure for granting approval for carrying out without tax payment is deemed necessary to be delegated to the Presidential Decree in order to flexibly regulate the changing economy and administrative circumstances from time to time. ② Furthermore, considering the nature of the system for reducing the burden of individual consumption tax, the removal without tax payment can be provided by the taxpayer’s application and the competent tax authority’s approval procedure. Furthermore, Article 248(3) of the Customs Act provides that an application for reduction or exemption of customs duties shall not be granted prior to the acceptance of the import declaration (see Article 2 subparag. 12 of the Customs Act, e.g., Supreme Court’s application for exemption or reduction prior to the completion of the import declaration, and thus, the application for exemption or reduction of customs duties shall not be granted in principle prior to the completion of the import declaration.

(D) Ultimately, the Plaintiff’s assertion on the premise of another is without merit.

(2) As to the second argument

(A) In order to establish the good faith principle or non-taxation practice prescribed in Articles 15 and 18(3) of the Framework Act on National Taxes with respect to the tax and legal relations, the tax authority’s intent not to impose taxes on certain matters over a long-term period, and the tax authority’s awareness that it is able to impose taxes on certain matters, and such intent needs to be externally and explicitly expressed, and the term “the interpretation of the tax-related law or practices in tax administration accepted by the general taxpayer” under Article 18(3) of the same Act refers to the degree that it is unreasonable for the taxpayer to trust such interpretation or practice with an unspecified general taxpayer, not a specific taxpayer even if erroneous interpretation or practice, and the burden of proof on the existence of such practices is asserted against the taxpayer (see, e.g., Supreme Court Decision 2007Du19294, Apr. 15, 2010).

(B) However, when comprehensively considering the above legal principles and evidence Nos. 10 and 11 (including additional numbers), all the evidence submitted by the Plaintiff, including the testimony of the non-party witness of the first instance trial, etc., is confirmed as the same goods in cases where exported was imported for the purpose of display prior to the instant disposition. If the tax authorities were to confirm it as the same goods in the case of import prior to the instant disposition, there was a practice for which the tax authorities approved the non-collection of the individual consumption tax without the payment of the individual consumption tax, through only filing an application for approval for exemption without the payment of the individual consumption tax, and such practice was accepted to an unspecified general taxpayer, who is not a specific taxpayer, without objection, and thus, it is insufficient to conclude that the Plaintiff’s trust

(C) Ultimately, we cannot accept the Plaintiff’s assertion on the premise of such a different premise.

(3) As to the third argument

(A) Under the principle of no taxation without law, the elements for taxation, non-taxation, or tax reduction and exemption shall be interpreted as the text of the law, barring special circumstances, and the expanded interpretation or analogical interpretation without reasonable grounds shall not be allowed (see Supreme Court Decision 2008Du11372, Aug. 20, 2009).

(B) The following facts are found: ① the pertinent imported goods are insufficient to carry out without paying individual consumption tax for a certain imported goods without paying individual consumption tax; ③ the pertinent imported goods are subject to approval for carrying out without paying the tax under each subparagraph of Article 14(1) of the Individual Consumption Tax Act; ② the Plaintiff’s lawful application for carrying out without paying the tax and obtaining approval for the pertinent imported goods before the import declaration is accepted; ② the pertinent provisions of the Internal Consumption Tax Act including the Individual Consumption Tax Act are applied with priority to the imposition of individual consumption tax or the imposition of the tax without paying the tax for the pertinent imported goods when the pertinent imported goods conflict with the pertinent provisions of the Customs Act; ② the application period for carrying out without paying the individual consumption tax and the imposition of the individual consumption tax for the pertinent imported goods for carrying out without paying the tax can be deemed lawful; ② the pertinent provisions of the Individual Consumption Tax Act concerning the imposition of the individual consumption tax and the imposition of the individual consumption tax can be applied with respect to the subsequent approval for carrying out without paying the tax, and the pertinent provisions of Article 4(1) of the Customs Act can be deemed legitimate.

(C) Ultimately, we cannot accept the Plaintiff’s assertion on the premise of such a different premise.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal shall be accepted and the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed as per Disposition

[Attachment Omission of Related Acts]

Judges Lee Tae-tae (Presiding Judge)