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

On November 9, 2005, the defendant's application for non-permission of the total amount of 11,717,702 won in total and the total amount of 3,515,304 won in total and the total of 11,515,304 won in each special consumption tax on the entertainment tavern for December 12, 2004 and 2,368,737 won in total and the total of 7,895,816 won in each special consumption tax on the entertainment tavern for February 2004 and June 2005.

1. Details of the disposition;

A. From January 2002 to December 2004, the Plaintiff operated an entertainment tavern with the trade name of 62.31 square meters (around 18.84 square meters) under the underground space of the building located in ○○○○○○○○○○○○○○○ from around December 2002, and from January 2004, the Plaintiff operated an entertainment tavern with the trade name of 125.74 square meters (around 38.03 square meters) under the underground space of the building located in ○○○○○○○○○○○○○○○○○○○○ so far from around January 2004.

B. The Plaintiff reported and paid KRW 3,515,304 in total as education tax for the same period as the education tax for each special consumption tax for the same period from January 2004 to December 2004 with respect to the said entertainment tavern, and reported and paid KRW 2,368,737 in total as education tax for each period from February 2004 to June 2005 with respect to the said entertainment tavern.

C. On October 13, 2005, the Plaintiff asserted that each entertainment tavern was not subject to taxation, such as special consumption tax, etc. when the Commissioner of the National Tax Service performed from February 1999, and filed a claim for correction to the effect that the refund of the special consumption tax and education tax paid was made. Accordingly, on November 9, 2005, the Defendant rendered a disposition to dismiss the Plaintiff’s application for correction (hereinafter “instant disposition”) on the ground that the Plaintiff’s above entertainment tavern was a taxable entertainment place that provides for the return and payment of special consumption tax, etc. under the Acts and subordinate statutes, and the above promotion plan was merely an internal work guidelines for the disposition agency and did not indicate that the Plaintiff’s entertainment tavern was not subject to taxation (hereinafter “the instant disposition”).

D. Meanwhile, on the other hand, the National Tax Service established a policy to impose special consumption tax on all business establishments permitted for entertainment tavern regardless of the size by expanding the taxable object of the special consumption tax imposed on some entertainment tavern regardless of the previous provisions related to the entertainment tavern on December 96, 1996. However, considering the fact that there is a shooting to a small-scale business entity following the extension of the tax imposition, the National Tax Service established a detailed promotion plan for entertainment tavern taxation (1 step) on February 3, 1997 as the provisional measure, and established and implemented a "the detailed promotion plan for entertainment tavern taxation (2 step)" for the purpose of expanding taxation on entertainment tavern on April 9, 199 and strengthening taxation on illegal business, such as entertainment bar (hereinafter referred to as the "the plan for the normalization of taxation of entertainment tavern").

The main contents of the 1-stage plan include, in the case of a Si area, a tax shall be imposed on entertainment taverns with a preference to 40 square meters or more in the area of a place of business, and a tax shall be imposed regardless of the area of a place of business which actually engages in entertainment and food activities under the policy to increase the scope of taxation by phase. The main contents of the 2-stage plan include, in the case of a Si area located in the Metropolitan City and a Si area, the standard of area of entertainment and food, which are subject to taxation by priority, is lower than the previous one, and in the case of a place of business falling short of the standard, the head of a tax office

Facts that there is no dispute for recognition, Gap evidence 1 through 3 (including each number), and Eul evidence 1

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

From February 1997, the Plaintiff did not know that the plan for normalization of the taxation of this case was established and implemented, and reported and paid the special consumption tax and education tax from 2004 to 6th 2005.

The National Tax Service’s plan for the simplification of taxation of this case is a public statement of opinion that the area of the business place is less than 40 square meters in the case of the Si area, and the tax authority has widely accepted non-taxation practices that do not impose special consumption tax, etc. on entertainment taverns less than a certain area for 10 years as the plan was implemented. Therefore, it becomes the basis for the interpretation of tax law.

Since the area of each entertainment tavern operated by the Plaintiff is less than 40 square meters and is exempt from taxation in accordance with the pertinent tax normalization plan, the Defendant is obligated to accept the Plaintiff’s claim for correction, and refund the special consumption tax and education tax paid by the Plaintiff. The Defendant’s disposition rejecting the Plaintiff’s claim for correction is an arbitrary disposition that violates the principle of trust and good faith and that does not comply with the principle of fair taxation, and is against the standard of tax interpretation such as respect for tax practice generally accepted (Article 18(3) of the Framework Act on National Taxes)

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The assertion on the violation of the principle of trust and good faith

In general, in order to apply the principle of trust and good faith to the tax authority's acts in tax legal relations, the tax authority should issue a public opinion list that is the subject of taxpayer's trust, and the taxpayer should not be responsible for the taxpayer's reliance on the tax authority's reliance on the tax authority's reliance on the tax authority's reliance on the tax authority's reliance on the tax authority's reliance on the tax authority's reliance on the tax authority's reliance on the tax authority's reliance on the taxpayer's reliance, and the tax authority's disposition contrary to the reliance on the tax authority's reliance on the tax authority's reliance should result in

This case’s usual taxation plan is a practical standard established by the National Tax Service for the simplification of special consumption tax on entertainment taverns, and the main contents of the plan are less than 40 square meters in the Si/Gun/Gu to defer special consumption tax on entertainment taverns, in principle, on the other hand, on the other hand, on the other hand, on the business which actually provides entertainment and food in addition to the above area standard, where it is acknowledged that the act of entertainment and food is confirmed regardless of the area and it is appropriate for the head of a tax office to impose a special consumption tax (the second plan). The whole purpose of the plan is not to impose a special consumption tax on entertainment taverns less than 40 square meters located in the Si/Gun/Gu, rather than to impose a special consumption tax on entertainment taverns collectively prior to the imposition of special consumption tax on entertainment taverns, and it cannot be viewed that it is necessary to impose a provisional consumption tax on it, which is a business operator under the jurisdiction of the head of a tax office, such as the special consumption tax, if it satisfies the above standard.

Furthermore, since the Plaintiff was unaware of the fact that the pertinent tax normalization plan was in progress, there is no evidence to acknowledge that the Plaintiff’s operation of entertainment taverns cannot be deemed as an act based on trust in the said plan, and otherwise, the Plaintiff trusted the said plan and operated entertainment taverns accordingly.

(2) Claim as to violation of the principle of fair taxation

In this case, the plaintiff voluntarily reported and paid the special consumption tax, etc. and lawfully fulfilled tax liability provided for in the Special Consumption Tax Act, etc., and the defendant refused to make a request for correction, and there is no evidence to acknowledge that the defendant received a request for correction from another taxpayer to the same purport and received a request for correction and received a request for correction from the same purport and made a arbitrary different disposition against the same subject of taxation, such as accepting it. In addition, according to each case of the National Tax Tribunal and the Board of Audit and Inspection decision attached to the defendant's written report on August 17, 2007, there are many cases where the tax authorities actively impose special consumption tax on a business establishment less than the area specified in the plan for normalization of taxation of this case. Thus, the disposition of this case

(3) Claim on violation of the standard of tax interpretation such as respect for tax practice

The principle of trust and good faith or the principle of respect for tax practices under Article 18(3) of the Framework Act on National Taxes apply only to cases where there are special circumstances deemed that the protection of taxpayer's trust is consistent with the concept of justice, even if there are sacrifice of the principle of legality (see, e.g., Supreme Court Decision 2001Du1253, Oct. 25, 2002).

As shown in the relevant Acts and subordinate statutes, the taxable and tax rate of the special consumption tax and education tax are specified in the Acts and subordinate statutes, and they are not delegated to the Enforcement Decree or the Enforcement Rule, etc., so in principle, entertainment taverns under the Special Consumption Tax Act are all subject to taxation. Furthermore, since the Special Consumption Tax Act provides that the taxpayer should report and pay it by himself, the operator of all entertainment taverns including the Plaintiff is obligated to report and

The plan for the normal taxation of this case was established and implemented in accordance with the basic policy that gradually expands the imposition and collection of special consumption tax from a business establishment larger than a certain size to a business establishment which is smaller than a certain size prior to the imposition of special consumption tax on entertainment taverns en bloc. The purport of the plan is as seen above that the purpose of the plan is not to impose an unconditional special consumption tax on entertainment taverns less than 40 square meters located in the area, and it cannot be said that such an unconditional non-taxable practice has been formed. Thus, the defendant's disposition of this case does not deviate from the standard for the interpretation of tax law, such as respect for taxation practice.

3. Conclusion

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

Daejeon High Court 2007Nu1994 ( 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's rejection of each claim for correction of KRW 11,717,702 in total and KRW 3,515,304 in total and KRW 7,895,816 in total and KRW 2,368,737 in total and KRW 2,37 in total and KRW 3,515,304 in total and KRW 3,515,304 in total and KRW 2,368,737 in each education tax on entertainment tavern from January to December 12, 2004 for the plaintiff on November 9, 2005.

1. The reasoning for this court's explanation is as follows: Article 2 (1) 11 of the Enforcement Decree of the Special Consumption Tax Act is the same as the judgment of the first instance except for the dismissal as follows. Thus, it shall be accepted as it is in accordance with Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act.

〝특별소비세법 시행령(2007. 2. 28. 대통령령 제19895호로 개정되기전의 것)

Article 2 (Definitions)

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

11. "유흥음식요금"이라 함은 음식료·연주료 기타 명목 여하에 불구하고 과세유흥장소의 경영자가 유흥음식행위를 하는 자로부터 영수하는 금액을 말한다. 다만, 그 영수하는 금액 중 종업원(자유직업소득자를 포함한다)의 봉사료가 포함되어 있는 경우에 「부가가치세법」의 규정에 의한 세금계산서·영수증·신용카드매출전표 또는 직불카드영수증에 이를 구분하여 기재한 때에는 그 봉사료는 유흥음식요금에 포함하지 아니하되, 과세유흥장소의 경영자가 그 봉사료를 자기의 수입금액에 계상하는 경우에는 이를 포함하는 것으로 한다.〞

2. If so, the judgment of the first instance is just, and the plaintiff's appeal is dismissed as it is without merit.