Whether an entertainment tavern with the area of 40 square meters or less is subject to special consumption tax.

Whether it is subject to special consumption tax or not shall be determined according to the size of the place of business, not depending on whether it has been engaged in entertainment, eating and drinking.

Articles 15 and 18 of the Framework Act on National Taxes, Article 1,3,8,9, and 10 of the Special Consumption Tax Act

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The defendant's disposition of non-permission of correction of KRW 9,157,036 of December 9, 2004 against the plaintiff on December 9, 2005 and KRW 2,747,108 of education tax shall be revoked.

1. Details of the disposition;

A. From December 2004, the Plaintiff operated an entertainment tavern of 62.31 square meters (18.84 square meters) with the trade name of 00 square meters (18.84 square meters) from the underground of a building located in ○○○○-dong, ○○○○-dong, ○○○○○-dong (hereinafter “instant entertainment tavern’s participation”).

B. The Plaintiff reported and paid the special consumption tax and education tax from December 2004 to June 2005 as follows, and did not report and pay the special consumption tax from July 2005.

(unit: source)

Classification

December 2, 2004

January 2005

February 2, 2005

on March 2005

April 2005

May 2005

June 2005

Special consumption tax

664,521

1,226,870

1,117,860

1,416,733

1,190,265

1,772,083

1,768,704

Education Tax

199,356

365,061

35,358

425,019

357,079

531,624

530,611

C. Thereafter, on October 13, 2005, the Plaintiff filed a request for correction with the Defendant for the refund of the special consumption tax that was reported and paid to the Defendant. On November 9, 2005, the Defendant dismissed the application for correction on the ground that the instant entertainment tavern constitutes the taxable entertainment place under Article 1 of the Special Consumption Tax Act (hereinafter referred to as the "disposition's order").

Each entry of Gap's No. 1,2,3

2. Whether the disposition is lawful;

A. The parties' assertion

The defendant asserts that the disposition of this case is legitimate in accordance with the relevant Acts and subordinate statutes. The plaintiff asserts that the tax authority voluntarily reported and paid the special consumption tax and education tax from December 2004 to June 2005 without gathering the fact that the plaintiff, who operates entertainment tavern business with the limit of 40 square meters and less than 40 square meters, was exempt from special consumption tax in accordance with the guidelines for taxation and normalization of entertainment tavern by the Commissioner of the National Tax Service, and that the disposition of this case that the plaintiff refused to make a decision of correction in accordance with the guidelines should be revoked as unlawful inasmuch as the plaintiff, who operates entertainment tavern with the limit of 40 square meters and less, becomes aware of the fact that it is exempt from special consumption tax and paid the special consumption tax and education tax.

(b) Related statutes;

【National Tax Basic Act

Article 45-2 (Request for Correction, etc.)

(1) In any of the following cases, a person who has filed a tax base return within the statutory due date of return may request the head of the competent tax office to determine or correct the tax base and amount of the national tax which has been filed for the first return and revised return within three years after the statutory due date of return expires (referring to the tax base and amount of tax after the decision or revision is made, where such decision or

1. Where the tax base and tax amount entered in the tax base return (referred to the tax base and tax amount after such determination or correction is made, if such determination or correction is made under the provisions of each tax-related Act), exceed those to be reported under the tax-related Acts;

【Special Consumption Tax Act”

Article 1 (Taxable Object and Tax Rate)

(1) The special consumption tax shall be imposed on admission to specific goods or specific places, and entertainment, eating and drinking at a specific place.

(4) A place where special consumption tax is imposed on entertainment, eating and drinking (hereinafter referred to as "taxable entertaining place") and the tax rate therefor shall be as follows:

Amusement taverns, foreigner-only amusement restaurants, and other similar places;

10/100 of charges for entertainment and food;

(5) Items and types of taxable goods, taxable places, and taxable entertaining places shall be prescribed by Presidential Decree.

Article 8 (Tax Base)

(1) The tax base of special consumption tax shall be each of the following subparagraphs: Provided, That the tax base of the taxable goods under Article 1 (2) 2 shall be the price exceeding the base price out of the prices under subparagraphs 1 through 4 below:

6. For entertainment, eating and drinking at the taxable entertaining places, the fee at the time when such entertainment, eating and drinking is performed: Provided, That in the case of the taxable entertaining places under Article 23-3, the cash income amount may be the tax base under the conditions as prescribed by the Presidential Decree;

【Enforcement Decree of the Special Consumption Tax Act

The items of taxable goods under Article 1 (5) of the Special Consumption Tax Act (hereinafter referred to as the "Act") shall be as follows; the kinds of taxable places shall be as shown in the attached Table 2; and the kinds of taxable entertainment places shall be entertainment bars, entertainment restaurants exclusively for foreigners and other similar places.

Article 2 (Definitions of Terms)

(1) The definitions of terms used in the Act or this Decree shall be as follows:

11. The term "charges for entertainment and food" means an amount received by an operator of a taxable entertainment place from a person who conducts entertainment and food, regardless of the pretext, such as food and food charges, meal charges, or other charges: Provided, That where the amount received includes service charges for employees (including free-income earners), and where it is confirmed that the amount has been paid to the relevant employee, the service charges shall not be included in the charges for entertainment and food, but where the operator of the taxable entertainment place appropriates the relevant service charges as his/her income from his/her income, the service charges shall be included in the charges for entertainment and food (amended by Presidential Decree No. 18707 of Feb. 19, 2005: "charges for entertainment and food" means the amount received by the operator of the taxable entertainment place from a person who conducts entertainment and food, regardless of the pretext of such charges, meal charges, or other charges for entertainment and food: Provided, That where an employee (including free-income earners) includes his/her income from his/her income from his/her service charges, receipt or debit card service charges, it shall be included in the charges for entertainment and food service.

(3) "Other places similar thereto" in Article 1 (4) of the Act means a place where a person conducts business similar to entertainment taverns under the Enforcement Decree of the Food Sanitation Act.

(c) Fact of recognition;

(1) On February 3, 1997, the National Tax Service established a detailed promotion plan for the regular taxation of entertainment tavern 1 (the first step promotion plan, the people's 1)". The purpose of the first step promotion plan is to ensure smooth enforcement by relaxing administrative problems following the temporary expansion of taxation by imposing a special consumption tax on a business establishment permitted for entertainment tavern 1 (the "the first step promotion plan", and the first step promotion plan is to impose a special consumption tax on a temporary basis, regardless of the scale of the business establishment permitted for entertainment tavern 1 (the "the first step promotion plan", if the special consumption tax is imposed on a temporary basis on a temporary basis, regardless of the size of the business establishment having difficulties in livelihood.

In the first-stage promotion plan, local taxes were imposed on the area of entertainment tavern subject to special consumption tax for the Metropolitan City or more, 40 or more in the Si area, 45 or more in the Gun area, and 45 or more in the Gun area, and even in the case of a business which falls short of the standard size, a person who employs entertainment workers or operates an entertainment facility and operates an entertainment facility and is deemed appropriate to be imposed by the head of the tax office.

(2) Since March 1, 1999, the National Tax Service established a plan to promote the normal taxation of entertainment taverns in the second stage of entertainment tavern business (hereinafter "the second stage of entertainment tavern promotion plan"; hereinafter "the second stage of entertainment tavern promotion plan") on April 9, 199 as it is necessary to adjust the basic area for business operators who are postponed from taxation in the first stage promotion plan and to strengthen taxation management for related business establishments, such as the permission for night business and the cancellation of the restriction on permission for entertainment tavern business.

The second-stage promotion plan is a content that the head of a tax office is required to impose taxes, where entertainment and eating are confirmed and it is deemed appropriate to impose taxes even in cases where the actual size of entertainment and eating is below the standard size and entertainment and entertainment and entertainment and entertainment are changed to at least 30 square meters in cases of entertainment and entertainment drinking and 40 square meters in cases of entertainment and entertainment drinking and 35 square meters

(3) The Plaintiff had an entertainment entertainment worker and operated the instant entertainment tavern from December 2004 to June 2005, according to the details of credit card usage fees settled in the instant entertainment tavern, 78,682,00 won was paid to entertainment workers as service fees.

Facts that there is no dispute over recognition, entry of Eul No. 45, and the purport of the whole pleadings.

D. Determination

We examine the existence of the grounds for correction in the instant case.

(1) First of all, the tax authority notifies that it defers taxation on entertainment taverns of a size not exceeding 40 square meters while holding a meeting with the entertainment tavern association, and actually participates in whether a non-taxable practice has been established for entertainment taverns of a size not exceeding 40 square meters since 1999.

In general, in order to apply the principle of trust protection or good faith to the acts of the tax authorities in tax and law relations, the tax authorities should name the public opinion that is the subject of trust to taxpayers, and the taxpayer should not be responsible for the taxpayer to believe that the tax authority’s statement of opinion is justifiable, and there should be no reason attributable to the taxpayer. The taxpayer should trust the name of the opinion and engage in the act in which the taxpayer is in trust, and the tax authorities should make a disposition contrary to the statement of opinion, thereby infringing the taxpayer’s interest (see Supreme Court Decision 2001Du9103, Nov. 26, 2002).

The instant plan for the first and second stages of promotion is a practical standard established by the National Tax Service for the normal taxation of the special consumption tax on entertainment taverns and operated uniformly by one-way tax office. The main contents of the plan are that the special consumption tax should be deferred once in principle for entertainment taverns with the area of business of less than 40 square meters. However, in addition to the above area standard, if a business establishment actually engaged in entertainment and food activities falls short of the content of taxation regardless of the area (the first stage promotion plan) and the standard area, and if the head of a tax office deems it appropriate to impose tax on entertainment taverns without any condition (the second stage promotion plan), the overall purpose of the plan is not to impose any special consumption tax on entertainment taverns of less than 40 square meters located in the Si area, rather than to impose any special consumption tax on entertainment taverns as alleged by the Plaintiff, the special consumption tax should not be imposed on the entertainment tavern business operator under the jurisdiction of the head of the tax office, including the special consumption tax, even if it is not necessary to impose special consumption tax on the business operator.

Moreover, in the instant case, the Plaintiff was unaware of the fact that the instant 1 and 2-level promotion plan was in force, and therefore, the Plaintiff’s operation of an entertainment drinking club cannot be deemed as an act based on the trust in the said plan, and there is no other evidence to support that the Plaintiff trusted the said plan and operated the entertainment drinking club accordingly. Therefore, the Plaintiff’s assertion in this part is without merit.

(2) Next, in addition to the instant entertainment tavern, the Defendant’s voluntary payment of special consumption tax is in violation of equity to the Plaintiff, who did not have any taxation on the entertainment tavern located in ○○○-dong, ○○○-si.

Individual citizens shall be treated equally in various tax legal relations, and the principle that tax burden should be equally allocated among the citizens according to their ability to pay taxes. The principle of taxation based on the capacity to pay taxes, which is demanded by the principle of tax equality, requires that the same taxable object should be taxed in principle, on the other hand, and on the other hand, require that the same taxable object should be taxed in principle, and on the other hand, the fair allocation of tax burden should be made among the other taxable objects (see Constitutional Court Order 98Hun-Ma55 delivered on November 25, 199).

However, as seen earlier, in accordance with the first and second stages promotion plan, where a person engaged in entertainment as seen in the instant entertainment tavern is employed, it may also be imposed on any business that falls short of the basic area. There is no evidence to support that the Defendant, even though he is a business that falls short of the basic area of the entertainment tavern as in the instant case, has an entertainment worker, there is no same taxation. Therefore, the Defendant refused a request for correction to the effect that the Plaintiff would refund the special consumption tax after having reported and paid the special consumption tax on the instant entertainment tavern which falls short of the basic area of the first and second stages promotion plan, and thus, the instant disposition violates the principle of tax equality. Accordingly, this part of the Plaintiff’s assertion is groundless.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

Daejeon High Court 2007Nu2027 ( December 27, 2007)

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of non-permission of the claim for correction of KRW 2,747,108 in total amount of special consumption tax and education tax of KRW 9,157,036 in respect of the plaintiff from December 9, 2004 to June 2005, respectively.

1. The reasoning of the court's explanation concerning this case is as follows. The court's explanation is based on Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since the court's explanation of this case is the same as the reasoning of the judgment of the first instance, except for the dismissal of the fourth to the fourth to the fifth to the fifth to the fourth to the fifth to the fifth to the second to the second to the above.

Article 2 (Definitions of Terms)

(1) The definitions of terms used in the Act or this Decree shall be as follows (amended by Presidential Decree No. 19895, Feb. 28, 2007):

11. The term "charges for entertainment and food" means the amount received by an operator of a taxable entertainment place from a person who conducts entertainment and food, regardless of the pretext thereof, such as food charges, meal charges, or other charges: Provided, That where the amount received includes the service charges of an employee (including a free-income earner) among the service charges, the service charges shall be stated separately in the tax invoice, receipt, credit card sales slip, or debit card receipt under the Value-Added Tax Act, and the service charges shall not be included in the charges for entertainment and food, but where the operator of the taxable entertainment place appropriates the service charges in his/her income amount, such service

2. If so, the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed.

[Supreme Court Decision 2008Du1658 (No. 14, 2008)]

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of non-permission of the claim for correction of KRW 2,747,108 in total amount of special consumption tax and education tax of KRW 9,157,036 in respect of the plaintiff from December 9, 2004 to June 2005, respectively.

1. The reasoning of the court's explanation concerning this case is as follows. The court's explanation is based on Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since the court's explanation of this case is the same as the reasoning of the judgment of the first instance, except for the dismissal of the fourth to the fourth to the fifth to the fifth to the fourth to the fifth to the fifth to the second to the second to the above.

Article 2 (Definitions of Terms)

(1) The definitions of terms used in the Act or this Decree shall be as follows (amended by Presidential Decree No. 19895, Feb. 28, 2007):

11. The term "charges for entertainment and food" means the amount received by an operator of a taxable entertainment place from a person who conducts entertainment and food, regardless of the pretext thereof, such as food charges, meal charges, or other charges: Provided, That where the amount received includes the service charges of an employee (including a free-income earner) among the service charges, the service charges shall be stated separately in the tax invoice, receipt, credit card sales slip, or debit card receipt under the Value-Added Tax Act, and the service charges shall not be included in the charges for entertainment and food, but where the operator of the taxable entertainment place appropriates the service charges in his/her income amount, such service

2. If so, the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed.