early 208 Mine3019 ( December 15, 2009)

It is illegal that traffic tax, etc. due to illegal circulation of agricultural tax-free oil is levied on the oil refining company.

The disposition imposing traffic tax on the Plaintiff, a oil company, due to illegal circulation of agricultural tax-free oil using the forgery or alteration of the certificate of supply of tax-free petroleum is not only a disposition contrary to the principle of self-responsibility under the Constitution, but also a disposition without any grounds of the disposition, which seems to be illegal.

2010Guhap924 Revocation of Disposition of Imposing traffic tax

City Venture Co., Ltd

O Head of tax office

April 28, 2011

June 9, 2011

1. On April 11, 2008 and August 13, 2008, the Defendant’s imposition of the total traffic tax of KRW 6,298,662,810 against the Plaintiff on April 11, 2008 and August 13, 2008, total education tax of KRW 790,313,070, and the special consumption tax of KRW 33,596,180 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

O The plaintiff has reported and paid the traffic tax, education tax, and special consumption tax on the supply of petroleum to the defendant as a oil refining company that sells oil products after fixing the raw milk.

O The Plaintiff, through its agency, submitted to the Defendant a written confirmation of tax-free petroleum supply (oil 15,126 km quantity; hereinafter referred to as the “written confirmation of supply”) in the name of the head of the Y-gun and the head of the 18 regional agricultural cooperative, from August 2003 to May 207, 207, which was submitted from six gas stations (hereinafter referred to as 'x petroleum, etc.'), such as the x petroleum gas station in Gangwon-do, XX-do 1132-15, representative Ansan-do. The Plaintiff was refunded from the Defendant the traffic tax, education tax, and special consumption tax already paid for the oil supply stated in the supply confirmation.

(O) However, through a special audit of the Board of Audit and Inspection on May 2007, 2007 'the operational status of the tax-free petroleum supply system' by the Board of Audit and Inspection', it was revealed that the instant supply certificate was obtained from an agency by releasing the quantity of the tax-free petroleum actually supplied to farmers by the said and modified supply certificate, and that the petroleum, etc. suffered enormous unjust profits by selling it for purposes other than agriculture.

O The imposition by the defendant and the plaintiff's appeal process are as follows.

(The following table omitted)

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Gap evidence Nos. 1 through 3 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The parties' assertion

(1) The plaintiff's assertion

The plaintiff asserts that each of the dispositions of this case in this case should be revoked for the following reasons.

㈎ 헌법상 자기책임 원칙의 위반

In addition, the Plaintiff did not have any duty to confirm the above and the alteration of the supply certificate of this case, and there was no method to confirm the above and the alteration, and therefore, even though there was no reason for the illegal distribution of the agricultural tax-free oil, the Defendant’s each disposition of this case was unlawful against the principle of self-responsibility under the Constitution, taking into account only the taxation convenience that the Defendant ought to recover from the National Treasury room (the traffic tax, etc. corresponding to the supplied tax-free oil illegally distributed) caused thereby.

㈏ 처분 근거의 부존재

Although the defendant's disposition of this case is a correction of tax base under Article 9 of the Traffic Tax Act, Article 9 of the Traffic Tax Act only stipulates that the tax authority may correct the tax base on the premise that the tax liability becomes final and conclusive due to the "declaration of Tax Base" act by the taxpayer. However, the plaintiff's refund of the traffic tax of this case by the defendant is in accordance with the "decision on Refund" made by the defendant against the plaintiff's application for refund tax amount. Thus, the defendant cannot deny its effect, and it is possible to collect the refund tax only if there are separate grounds for collection in law. Accordingly, the defendant's correction of tax base and amount of tax under Article 9 of the Traffic Tax Act, which is only the provision on correction of tax base and amount of tax, is unlawful in that each disposition

(2) The defendant's assertion

㈎ 헌법상 자기책임 원칙에 반하지 않는다

The Plaintiff asserted that each of the instant dispositions, which corrected error or omission, cannot be deemed to contravene the principle of self-responsibility under the Constitution, inasmuch as the Plaintiff’s obligor of the instant traffic tax had been able to easily verify the forgery of the instant supply certificate through the relevant agricultural cooperative, in that: (a) the Plaintiff, as the Plaintiff’s agent, had been supplied a large amount of tax-free petroleum to farmers; and (b) whether the instant supply certificate was normally issued to farmers, or whether the instant supply certificate was normally issued to farmers in the relevant agricultural cooperative, should have been inspected; and (c) the Plaintiff failed to faithfully perform its duty of care, thereby causing an error or omission in the Plaintiff’s details of tax refund.

㈏ 처분 근거가 존재한다

As traffic tax is a tax on the method of return and payment, a taxpayer shall submit a monthly traffic tax return along with an application for refund of traffic tax pursuant to Article 7 of the Traffic Tax Act, and thereby, the tax base and tax amount to be paid in the month are determined as the amount obtained by subtracting the amount of refundable tax, etc. from the calculated tax amount, the tax authority does not need to separately confirm and determine whether the taxpayer’s application for refund of traffic tax satisfies the requirements for refund. If the tax base and the amount of refundable tax are verified to be erroneous or omitted, the tax authority may rectify the amount of refundable tax of the tax base and tax amount under Article 9 of the Traffic Tax Act, such as tax on other tax return and payment method regardless of whether the Plaintiff intentionally or negligently participated, regardless of whether the Plaintiff intentionally or negligently participated, so each of the instant dispositions are lawful and lawful.

(b) Related statutes;

Attached 4. The entry is as shown in Annex 4.

(c)a fact;

(1) Operational process of a tax-free oil system for agriculture

For the purpose of supporting the economic stability of agricultural and fishing villages, the special provisions on the exemption of traffic tax, etc. have been newly established and amended several times by the amendment of Act No. 6297 of Dec. 29, 2000, and Article 106-2 of the former Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007; hereinafter referred to as the " Restriction of Special Taxation Act"), which are the Presidential Decree, have been enacted by delegation of the special provisions on the application of value-added tax and zero-rate tax exemption for the agricultural, livestock, forestry and fishery machinery and petroleum products (hereinafter referred to as the "special provisions on exemption from taxation"), and Article 27 of the special provisions on exemption from taxation has again delegated the details such as the procedures for the supply of tax-free oil and the procedures for the issuance of the written confirmation of the supply of tax-free oil to the National Tax Service.

In addition, the former Ministry of Agriculture and Forestry designated as a supervisory agency of the agricultural tax-free petroleum system in accordance with the above special provisions of the tax-free petroleum system has been operating the agricultural tax-free petroleum system by setting up the internal rules of the "Rules for the Supply of Tax-Free Petroleum for Agricultural Machinery".

(2) Illegal circulation of tax-free benefits due to the above and alteration of the supply certificate of this case and the audit results by the Board of Audit and Inspection.

According to the above relevant laws and regulations, it was revealed that the supply certificate of this case was illegally distributed through the special audit by the Board of Audit and Inspection as a result of the special audit conducted by the Board of Audit and Inspection during the supply of tax-free petroleum for agriculture, such as the supply procedure of tax-free petroleum for agriculture. In this regard, in the letter of request for disposition of the audit results by the Board of Audit and Inspection published around May 2008, the measures following the illegal distribution of tax-free petroleum for agriculture shall be stated as follows:

(The following table omitted)

(3) The status of the Plaintiff’s receipt of a certificate of tax-free petroleum supply

The Plaintiff received a certificate of the supply of tax-free petroleum in the name of the head of 120,000 local agricultural cooperatives with 1,000 local agricultural cooperatives across the country. The Plaintiff received a certificate of the supply of tax-free petroleum in the name of the head of Docheon branch, Gangwon branch, △△△, limited liability company, and ○○ Petroleum from August 2003 to May 207 from 18, 2007, which was submitted by the Plaintiff, an agent, to the Plaintiff, from August 200 to 15,498 local agricultural cooperatives.

(4) The amendment process of the statute

㈎ 감사원 특별감사 이후 조특한법 제106조의2 제2항은 "주유소 등 대통령령으로 정하는 석유판매업자(이하 이 조에서 '석유판매업자'라 한다)가 부가가치세, 개별소비세, 교통・에너지・환경세, 교육세 및 주행세가 과세된 석유류를 공급받아 농・어민등에게 공급한 석유류가 제1항 제l호에 해당하는 경우에는 석유판매업자는 대통령령으로 정하는 바에 따라 신청하여 그 면세되는 세액을 환급받거나 납부 또는 징수할 세액에서 공제받을 수 있다", 제12항은 "관할 세무서장은 농・어민등이 아닌 자가 제4항에 따라 면세유류구입차드등을 교부받거나 농어민등 또는 농어민등이 아닌 자가 농・어민등으로부터 면세유류구입카드등 또는 그 면세유류구입카드등으로 공급받은 석유류를 양수받은 경우에는 다음 각 호에 따라 계산한 금액을 추정한다"고 각 규정하고(시행일은 2008. 7. 1.), 그 위임에 따라 2008. 2. 22. 대통령령 제20544호로 개정된 조세특례제한법 시행령 제15조의2 제1항 제1호는 "법 제106조의2 제2항에서 '대통령령으로 정하는 석유판매업자'란 석유 및 석유대체연료 사업법 제2조 제7호부터 제9호까지의 규정에 따른 석유정제업자 ・ 석유수출업자 또는 석유판매업자"라고 규정하였다.

As a result, a petroleum retailer, such as gas stations, can apply for the refund of traffic tax directly to the Plaintiff. In addition, in a case where a petroleum retailer, such as gas stations, distributes tax-free oil unlawfully, the number of taxes and additional taxes can be estimated against the petroleum retailer, such as gas stations, regardless of the reasons therefor.

At the time, the Board of Audit and Inspection filed a charge of fraud, etc. on the ground that even if a supply certificate was forged in the process of 'xx petroleum, etc. which was confirmed to have forged supply certificates, the said agricultural cooperative storage that issued a supply certificate is practically impossible to confirm the forgery and the daily distribution of tax-free oil.' On the other hand, according to the records of the Board of Audit and Inspection, the tax authorities improved the system such as the issuance of supply certificates, etc., so that the current status of supply of tax-free oil can be disclosed in real-time computer.

[Reasons for Recognition] Evidence No. 5, Evidence No. 16, and the purport of the whole pleadings

D. Determination

(1) Criteria for determination

Since each disposition of this case is a case before the amendment of the law and its validity takes effect, the previous law was applied. Therefore, in determining the legitimacy of this case, the purport of the previous law and the subsequent amendment should be considered reasonably.

(2) Whether it goes against the principle of self-responsibility under the Constitution

Considering the following circumstances, each of the dispositions of this case is unlawful in that it is against the principle of self-responsibility under the Constitution, inasmuch as it cannot be expected to prevent any error or omission in the details of the tax refund return by means such as the above, alteration, etc. of the supply certificates, and it is recognized that the Plaintiff is liable to the Plaintiff who does not have any reason or does not have any control or decision right.

① The tax-free oil system for agriculture and fisheries, like this case, was introduced temporarily to reduce the burden of farmers and fishermen on oil used by farmers and fishermen. This system is a system that is introduced temporarily in order to reduce the burden of farmers and fishermen. The tax-free oil is paid first to the State in a lump sum, if the consumer satisfies certain reasons for exemption and the documents related thereto, the gas station is supplied with the oil exempted from taxes from the gas station, and the gas station is exempted from taxes again from the oil station. The tax-free oil system is merely a procedure that indirectly passes through the oil station to refund the tax already paid by the State with the documents received from the gas station, i.e., the procedure that indirectly passes through the oil station, and does not grant any benefit and authority to the oil station.

② As seen in the procedures for the supply of free petroleum for agriculture, the Plaintiff, a private business entity, who was in charge of submitting a certificate of supply of free petroleum to the Defendant and paying the refunded tax amount to the agency and the gas station, cannot be required to verify the above and alteration of the certificate of supply of this case, only when the Plaintiff, a private business entity, who was in charge of submitting a certificate of supply of free petroleum to the Defendant and paying the refunded tax amount to the Defendant to the agency and the gas station, did not have any mutual verification as to whether they meet the requirements for exemption even between the tax authority, including traffic tax, and the agricultural business entity, the management agency of free petroleum, etc., for distribution of free petroleum for agriculture.

③ Moreover, even if the Board of Audit and Inspection forged a certificate of supply during the process of tax-free petroleum reduction and exemption, it appears that it is practically impossible to verify the forgery of the certificate of supply only on a daily basis with the relevant agricultural cooperative storage, which issued a certificate of supply. This also applies to the Plaintiff who received a certificate of supply of tax-free petroleum in the name of the head of the relevant regional agricultural cooperative, 120,000 annually issued by 1,000 local agricultural cooperatives. Therefore, it cannot be deemed that the Plaintiff’s failure to verify that the certificate of supply of this case, which falls short of Chapter 231, was forged and altered among them, is due to the Plaintiff’s breach of its duty of care (the same applies to the case in which the tax authority improved the system such as the issuance of a certificate of supply according to the land registry by the Board of Audit and Inspection, thereby maintaining the existing system through real-time computerized disclosure).

④ The Plaintiff did not have the right of management, supervision, etc. of XX petroleum, etc. and could not participate in the alteration of the instant supply confirmation. Inasmuch as traffic tax to be refunded based on the instant supply confirmation has already been deducted from the amount when the agent and gas station, etc. pay the oil price to the Plaintiff, the Plaintiff, who cannot gain any benefit in relation to the refund tax, does not have any need or reason to participate therein.

⑤ In fact, the criminal charge was not made against the Plaintiff, and was made only against the x petroleum, etc.

(6) In addition, taking into account that it is unreasonable to recognize the liability for the tax return due to the above and alteration of the supply certificate of this case, which is not attributable to the Plaintiff, the Restriction of Special Taxation Act was revised, and the provision that can directly estimate the number of taxes and additional taxes for the illegal distribution of tax-free goods is added.

(3) Whether a disposition-founded statute exists

Considering the following circumstances, no legal basis exists for the instant rectification disposition.

㈎ 관련 규정의 검토

As to the interpretation of tax-related Acts, it shall be interpreted as a legal interpretation, barring special circumstances, regardless of the requirements for imposition or exemption, and shall not be extensively interpreted or analogically interpreted without reasonable grounds (see Supreme Court Decision 2007Du9884, Oct. 26, 2007).

However, the main point of the legal provisions related to the corrective disposition is as follows.

(O) Article 6 (1) of the Traffic Tax Act / [tax base]: Quantity of oil manufactured and taken out by the taxpayer.

O. [Tax Base Return] Article 7 of the Traffic Tax Act: The taxpayer shall submit to the head of the tax office having jurisdiction over the manufacturing place by the end of the following month a return stating the quantity and price of oil taken out from the manufacturing place each month, the amount of tax to be deducted, the amount of tax to be deducted

O. [Determination and Revision Decision] Article 9 of the Traffic Tax Act: In a case where the return pursuant to the provisions of Article 7 is not submitted or there is an error or omission in the contents of the return, the chief of the competent tax or customs office may determine or correct the tax base

㈏ 위 법률에 의하면, 교통세법 제9조에 의해서는 '환급세액'을 경정할 수 없다.

The reason is that "tax base and tax amount" are limited to "tax base and tax amount", and in this context, "tax amount" is automatically calculated by the tax rate set by the law when the tax base is set by the law, so it is a "tax base" and "tax base" are essentially different from that of "tax amount refunded" and "tax base", so it is an extended interpretation that it is subject to correction even "tax amount not in the law", because the tax base is set by the law.

㈐ 피고의 주장에 관한 판단

However, in this regard, the defendant asserts that the person liable to pay traffic tax may correct it under Article 9, even if there is a problem of refund tax, under the premise that the person liable to pay traffic tax returns monthly tax base under Article 7 of the Traffic Tax Act and states the amount of refund tax, thereby determining the tax base and tax amount to be paid in the month by deducting the amount of refund tax, etc. from calculated tax amount (i.e., the item constituting

However, as examined below, the above defendant's assertion is not reasonable, since it is essentially different from the tax base and the refunded tax amount.

According to the above laws and the facts of recognition, ① Article 17(5) of the Traffic Tax Act provides that a person who intends to receive a refund shall submit the report under Article 7 of the Traffic Tax Act along with the documents prescribed by the Presidential Decree within 6 months from the date of occurrence of such cause to the chief of the competent tax office. Article 24(1) of the Enforcement Decree of the Traffic Tax Act provides that where a person intends to receive a traffic tax refund, he shall apply to the chief of the competent tax office along with the documents proving the occurrence of such cause and the documents proving that the traffic tax has already been paid or has to be paid. ② As such, the plaintiff is recognized to have submitted an application for a deduction (Refund) based on Article 17 of the Traffic Tax Act and Article 24 of the Enforcement Decree of the Traffic Tax Act in the form of

As such, the distinction between the return of tax base and the application for tax refund is about the month of the return of tax base filed by the plaintiff in this case, and the "tax refund amount filed by the plaintiff" is a system that intends to receive the refund of the tax previously paid by the plaintiff, and the "tax return of tax base", which is the "declaration", is determined without any separate act of the tax authority by the taxpayer, by informing the tax authority of the tax base, but unlike this, the "application for refund tax amount", which is the "application", is not effective in itself, and becomes effective by the " separate decision of the tax authority."

Therefore, as seen earlier, the procedures for both the filing of the ordinary tax base and the procedure for application of the refund tax together with the filing of the tax base in the form of tax return determined by the taxpayer’s return are added. As a result, the procedure for determining traffic tax liability under the Traffic Tax Act and the procedure for refund by the tax authorities are simultaneously handled. Even if the taxpayer pays the remainder after deducting the amount of tax already paid from the calculated tax amount under the tax base for the month and the amount of tax refund is offset and finally paid, it is merely a system for the convenience of taxation and refund, and in essence, it is merely a system for the convenience of taxation and refund, and it is a system for the convenience of tax return and the application of the refund tax amount. The above two procedures are handled at the same time, as claimed by the Defendant, only once the amount of tax refund is determined by deducting the amount of tax refund from the amount of tax refund calculated based on the tax base to be paid by the taxpayer on the basis of the tax base for the month (i.e., the items included in the refund tax amount in the calculation basis).

In other words, unlike the defendant's assertion, the tax amount that the defendant refunded to the plaintiff on the basis of the supply certificate of this case is subject to the "decision of refund" made by the defendant in response to the plaintiff's above "application for refund tax amount", and the tax amount that the plaintiff reported cannot be deemed to have been refunded without a separate decision of refund. Thus, unlike the defendant's assertion, the defendant, who is the tax authority, can not correct the tax base and tax amount after the return of the taxpayer under Article 7 of the Traffic Tax Act, separately from the return of the plaintiff's tax base, even the refund tax amount that is made by the defendant's refund decision

㈑ 따라서, 이 사건 공급확인서가 위 ・ 변조되어 그에 기한 원고의 환급세액 신고내용에 오류 또는 탈루가 있기 때문에 환급할 대상이 아닌 것으로 후에 밝혀져 피고가 당초 원고에게 환급한 세액을 다시 징수할 필요가 있다 하더라도, 과세관청인 피고가 한 환급결정에 따른 이러한 환급세액을 원고로부터 다시 징수하기 위하여는 법률에 별도의 징수 근거가 마련되어 있어야만 할 것이나(대법원 2010. 12. 23. 선고 2010두 17144 판결 참조), 그러한 징수 근거가 별도로 존재하지 않음에도 불구하고 피고가 곧바로 과세표준과 세액의 경정 근거 규정일 뿐인 교통세법 제9조를 근거로 환급세액을 경정하여 징수한 이 사건 각 처분은 그 처분의 근거가 부존재한다는 점에서 위법하 다.

(4) The theory of lawsuit

As seen above, each of the dispositions in this case is not only a disposition contrary to the principle of self-responsibility under the Constitution, but also a disposition without any grounds, which seems to be a single disposition and illegal.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of each disposition of this case is with merit, and it is so decided as per Disposition with the assent of all.