Examination- Other-2017-0031 (Law No. 15, 2017)

Whether the revocation of the license for alcoholic beverage sales business on the ground of the violation of the duty to issue the tax invoice and the sales of alcoholic beverages to the unlicensed businessmen is illegal

The revocation of alcoholic beverage sales business by reason of the violation of the duty to issue tax invoices and the sales of alcoholic beverages to non-licensed operators is legitimate.

Article 15 of the Liquor Tax Act: Suspension of Sale of Liquor

Daegu District Court 2017Guhap21861

○○○ Alcoholic Beverages

○○ Head of tax office

April 11, 2018

May 25, 2018

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

The Defendant’s revocation disposition of the license for alcoholic beverage sales business that the Plaintiff rendered on June 8, 2017 and the disposition of reducing the quantity of alcoholic beverages shipped to the Plaintiff on June 27, 2017, which the Plaintiff made to each company listed in the Schedule 1, is revoked.

1. Details of the disposition;

A. Status of the parties

1) The Plaintiff is a company that acquired a license for alcoholic beverage sales business (a license for import alcoholic beverage sales business) on June 1997 and runs an import alcoholic beverage sales business, etc.

2) ChoA is the actual manager of the Plaintiff, and each company listed in the list of Attached 1. is the company that supplies alcoholic beverages to the Plaintiff.

(b) Monitoring and investigating the distribution process of alcoholic beverages and notifying taxation data;

1) From February 9, 2017 to March 30, 2017, the ○○ regional tax office tracking and investigating the Plaintiff’s distribution process of alcoholic beverages. As a result, the Plaintiff issued a false tax invoice for approximately KRW 2.96 billion out of KRW 14.74 billion to KRW 2,000,000,000,000,000 for total sales of alcoholic beverages from February 2, 2015, and confirmed that the Plaintiff sold alcoholic beverages to leB without a license for alcoholic beverage sales business.

2) Accordingly, the director of ○○ Regional Tax Office notified the Defendant of the taxation data following the above tax investigation.

(c) Disposition on the revocation of alcoholic beverage sales business license and previous trial procedures;

1) On June 8, 2017, the Defendant revoked the Plaintiff’s license for alcoholic beverage sales business as follows (hereinafter “instant revocation disposition”).

2) The Plaintiff filed a request for an examination with the Commissioner of the National Tax Service on September 15, 2017, against the instant revocation disposition, but the request for examination was dismissed.

(d) Reduction disposition of alcoholic beverage delivery volume and pre-trial procedures;

1) On June 15, 2017, the Plaintiff filed a lawsuit seeking revocation of the instant revocation disposition (2017Guhap21861) with the instant court, and filed an application for suspension of the execution of the said disposition (2017Guhap10195). On June 26, 2017, the instant court rendered a decision to suspend the execution of the instant disposition to the Plaintiff as follows, and the said decision became final and conclusive around that time.

○ Text

In June 8, 2017, the disposition to revoke the license of alcoholic beverage sales business rendered by the Defendant to the Plaintiff on June 8, 2017 shall be suspended from the execution of alcoholic beverage sales business by the date on which 30 days elapse from the date on which the Daegu District Court 2017Guhap 21861 rendered

2) As such, when the execution of the instant revocation disposition was suspended by the court’s decision, the Defendant issued on June 27, 2017 a disposition to order each company listed in the separate sheet to reduce the delivery volume of alcoholic beverages to the Plaintiff at 50% of the average delivery volume during the period of suspending the execution of the instant revocation disposition (hereinafter “instant disposition”), pursuant to Article 3 of the Notice of Standard of Reduction in Shipment for Indecent Alcoholic Manufacturers, Importers, and sellers (Notice of National Tax Service Notice No. 2015-25, Jul. 1, 2015; hereinafter “Public Notice of Standard of Reduction in Shipment”) to each company listed in the separate sheet during the period of suspending the execution of the instant revocation disposition (hereinafter “instant disposition”).

3) The Plaintiff filed a request for an examination with the Commissioner of the National Tax Service on October 31, 2017, against the instant disposition of reducing shipment volume, but the request for examination was dismissed on October 31, 20

Facts having no dispute over recognition, Gap's evidence 1 through 7 (including various numbers; hereinafter the same shall apply), Eul's evidence 1 to 8 (written evidence of not less than 2017Guhap21861), Gap's evidence 1 through 8 (written evidence of not less than 2017Guhap22154), the purport of the whole pleadings, and the purport of the whole pleadings.

2. The plaintiff's assertion

A. As to the cancellation disposition of this case

The instant revocation disposition is unlawful for the following reasons.

1) Whether a false tax invoice was issued

Generally, a manufacturer or importer of alcoholic beverages shall pay business incentives or a purchase discount, etc. when he/she sells products to a business establishment designated by an imported alcoholic beverage wholesaler in order to promote his/her own products and increase sales while supplying alcoholic beverages to the same imported alcoholic beverage wholesaler as the Plaintiff.

As a result, the plaintiff kept a record of sales of more alcoholic beverages to a business establishment designated as a long-term injury, and prepared a false record of sales "the current status of items by period" and "the current status of sales by period" in order to receive a more business incentive from a liquor supplier.

In other words, the Plaintiff issued a tax invoice to a business proprietor who actually sold alcoholic beverages, but prepared a false account book as if he sold alcoholic beverages to a business proprietor who was actually designated to receive more sales incentives from a liquor supplier.

Nevertheless, the Defendant issued the instant revocation disposition on the ground that the Plaintiff did not issue a tax invoice to the business (○○ and 34 business entities) recorded in the account book.

2) Whether the licensee sold alcoholic beverages to a non-exclusive licensee

The Defendant issued the instant revocation disposition on the ground that the Plaintiff sold alcoholic beverages to leB without a license for alcoholic beverage sales business.

However, the Plaintiff employed leB from May 2016 to December 2016 as a daily employee and paid approximately KRW 6,400,000 to leB in return for the work of delivering alcoholic beverages, and did not sell alcoholic beverages to leB.

B. As to the disposition of reducing shipment amount of the instant case

The disposition of the release reduction of the instant case should be revoked on the grounds that it is unlawful for the following reasons.

1) The Defendant rendered the instant disposition of reducing shipment volume based on Article 3 of the notification of the standards for reducing shipment volume.

However, the above provision unfairly limits the rights of the people beyond the delegation of the superior law or beyond the scope of delegation. The above provision violates the right of the people to be tried by the Constitution by disregarding the validity of the court's decision to suspend execution, and is contrary to the principle of excessive prohibition. Therefore, Article 3 of the Notice of Standards for Reduction in

2) Even if the foregoing provision is valid, the ex-factory volume disposition of the instant case was deviates from and abused discretion on the following grounds.

In other words, the above provision shall apply only to a bona fide seller of alcoholic beverages. At present, the plaintiff filed a revocation lawsuit against the instant revocation disposition, and thus, it was not confirmed as a bona fide seller of alcoholic beverages.

3. Relevant statutes;

Relevant statutes

m. Liquor Tax Act (Amended by Act No. 15228, Dec. 19, 2017)

Article 8 (License for Sales Business of Alcoholic Beverages)

(1) A person who intends to operate alcoholic beverage sales business (including sales brokerage business or hotel business; hereinafter the same shall apply) shall obtain a license for each sales outlet by sales business type from the head of the competent tax office after meeting the facility standards and other requirements prescribed by Presidential Decree.

(2) The types of sales business under paragraph (1) shall be prescribed by Presidential Decree.

Article 15 (Suspension, etc. of Sale of Alcoholic Beverages)

(2) If a person who has obtained a license for alcoholic beverage sales business falls under any of the following subparagraphs, the head of the competent tax office shall revoke the license:

4. Where the amount of violation of duties to issue the tax invoices under Article 10 (1), (2) or (3) of the Punishment of Tax Evaders Act by taxation period under Article 5 (1) of the Value-Added Tax Act is 100/1,000 or more of the gross total sales of alcoholic beverages (referring to the gross total purchases of alcoholic beverages where they are larger than the gross total sales of alcoholic beverages);

Article 40 (Order for Liquor Tax Retention)

(1) The Commissioner of the National Tax Service may, if deemed necessary for preserving liquor tax, issue orders on manufacture, storage, transfer, takeover, transport, facilities or prices to the manufacturers or vendors of alcoholic beverages, malt or wort, as prescribed by Presidential Decree.

(2) Where issuing an order under paragraph (1), it shall be limited to the minimum extent necessary for accomplishing its purpose, and it shall not discriminate against a manufacturer of alcoholic beverages, malt or wort or unfairly infringe on their interests without reasonable grounds.

【Enforcement Decree of the Liquor Tax Act

Any order necessary for preserving liquor taxes under Article 40 of the Act shall be issued in accordance with Articles 46, 46-2, and 47 through 51.

Article 47 (Order for Raw Materials, Quality, etc.) The Commissioner of the National Tax Service may order the manufacturer or the vendor of alcoholic beverages, malt or wort to manufacture, store, transfer, acquire or move raw materials, quality, quantity, time, method, other matters in the manufacture, storage, transfer, acquisition or transfer of alcoholic beverages, malt or wort.

Article 50 (Order on Prices of Alcoholic Beverages) The Commissioner of the National Tax Service may order a manufacturer or a vendor of alcoholic beverages to report on the change of the delivery price and price of alcoholic beverages, etc. for the preservation of liquor tax and control of distribution of alcoholic beverages.

Article 51 (Delegation of Matters Subject to Orders) The Commissioner of the National Tax Service may have the Commissioner of the competent Regional Tax Office or the head of the competent tax office handle part of the affairs under Articles 47 through 50.

4. Public notice of standards for delivery reduction by a manufacturer, importer, seller of defective alcoholic beverages (Notice of the National Tax Service No. 2015-25 on July 1, 2015)

Article 1 (Purpose) The purpose of this public notice is to prescribe matters concerning the standards for the quantity of delivery reduction for unfaithd alcoholic beverage manufacturers, importers and sellers in accordance with delegation of Article 40 of the Liquor Tax Act and Article 47 of the Enforcement Decree of the same Act.

Article 3 (Reduction Criteria for Persons whose License for Alcoholic Beverages Sales Business is revoked or Suspension) The reduction criteria for those who have received a decision of revocation or suspension of license from the court after revocation or suspension of alcoholic beverage sales business shall be as follows:

Reduction rate: 50%

Reduction Period: By the final judgment

* Standard for calculation of monthly shipment during the reduction period:

[Amount shipped out of 12 months immediately preceding the amount of reduction 】 (100-0-0 reduction rate) ± 12

average of the relevant number of months, if the month immediately preceding the reduction is not 12 months;

director Regulations on the Management of Liquor Tax (amended by National Tax Service Directive No. 2208 on June 30, 2017)

Article 24 (Supplementary Designation)

(1) Where the scope of business and other conditions to be observed are designated pursuant to Article 9 of the Liquor Tax Act in granting a license or permit for the manufacture and sale of alcoholic beverages, the license or permit shall be clearly stated and designated, but where the scope of business and conditions of designation are not complied with, the phrase "the license or permit shall be revoked" shall be also designated.

(2) When intending to issue a certificate of license or certificate of completion of report on sale of alcoholic beverages, the scope and conditions of each type of business shall be designated on the basis of the contents listed in subparagraph 3 of the attached Table, and such certificate and certificate shall be issued.

(3) Where a license (including a new, brokerage, merger, etc.) for alcoholic beverage wholesale business is subject to the same punishment or disposition again by a new offense of the same type under the Punishment of Tax Evaders Act within one year from the date of receiving the punishment or disposition under the same act of violation, the condition that the license be revoked shall be designated without fail, and the license shall be clearly stated on the license.

(4) If a licensee of alcoholic beverages sells alcoholic beverages to a non-licensed alcoholic beverage dealer at the time of granting a license, the license shall be revoked, and such conditions shall be clearly stated on the license.

Table 3

Designation of the scope and conditions of business of sales business licenses;

Head of the Gu branch of the company

Class of alcoholic beverages to be sold

d. Dried Dried dried

2. Comprehensive alcoholic beverages:

Wholesale Business License

Only types of alcoholic beverages to be sold shall be wholesaleed.

Electrical alcoholic beverages (including imported alcoholic beverages) excluding general consignment and spirits;

In any of the following cases, the license shall be revoked:

2. Where he/she has sold alcoholic beverages to a non-licensed dealer;

1. In the case of a dealer, it shall be stated as a sales, or in the case of a broker;

m. Punishment of Tax Evaders

Any person who manufactures (excluding manufacture for an individual consumption) or sells a liquor, crude liquor and pre-liquor without obtaining a license pursuant to the Liquor Tax Act shall be punished by imprisonment for not more than three years or by a fine not exceeding 30 million won (where the amount which is three times the amount equivalent to the relevant liquor tax exceeds 30 million won, the amount which is three times the amount equivalent to such liquor tax). In such cases, crude liquor and pre-liquor shall be deemed Takju.

Article 10 (Violation, etc. of Duty to Issue Tax Invoice)

(1) Where a person liable to prepare and issue a tax invoice (including an electronic tax invoice; hereafter the same shall apply in this Article) pursuant to the Value-Added Tax Act and a person liable to submit a tax invoice by buyer to the Government falls under any of the following subparagraphs, he/she shall be punished by imprisonment for not more than one year or by a fine equivalent to not more than twice

1. Where he/she fails to issue a tax invoice or issues a false tax invoice;

2. Where the list of the total tax invoice by buyer is submitted;

4. Issues of the instant case

A. As to the cancellation disposition of this case

1) According to Article 115(2)4 of the Liquor Tax Act (amended by Act No. 15228, Dec. 19, 2017; hereinafter the same), the head of the competent tax office shall revoke a license where a license holder violates his/her duty to issue a tax invoice under Article 10(1), (2), or (3) of the Punishment of Tax Evaders Act by taxable period under Article 5(1) of the Value-Added Tax Act, if the amount exceeds 100/1,00 of the total sales of alcoholic beverages.

In addition, Article 10 (1) of the Punishment of Tax Evaders Act provides that a person obliged to prepare and issue a tax invoice under the Value-Added Tax Act and a person obliged to submit a tax invoice to the government shall not issue a tax invoice or issue a false tax invoice (Article 10 (1)), and a person submitted a tax invoice with false entries (Article 2)

However, according to the result of the ○○ director of a regional tax office’s tracking and investigating the Plaintiff’s distribution process, the amount of the Plaintiff’s tax invoice issued for the second period from 2015 to 2016 is 26.62% (2015), 21.16% (2016), and 25.36% (2) of the total sales amount of alcoholic beverages during that period.

Therefore, the Plaintiff’s violation of the duty to issue the tax invoices under Article 10(1) of the Punishment of Tax Evaders Act constitutes at least 100/1,000 of the total sales amount of alcoholic beverages, and if the Plaintiff issued the tax invoices excessively or excessively during the pertinent taxable period, the disposition to revoke the instant license is legitimate.

After all, this part of the issue is whether the plaintiff issued the tax invoice differently from the fact during the second period from 2015 to 2016.

2) In addition, Article 9 of the Liquor Tax Act, Article 24(1) and Article 24(3) of the Liquor Tax Act (amended by National Tax Service Directive No. 2208, Jun. 30, 2017; hereinafter the same) provides that ① the head of the competent tax office may, if deemed necessary for preserving liquor tax in granting a license for a manufacture of alcoholic beverages, malt or wort, or a liquor sales business, set the license term, scope of manufacture or sales, matters to be observed at the time of manufacture or sales, etc., as conditions for a license, and ② if he/she designates the scope of business and other conditions to be observed in granting a license or a license for manufacture or sales business of alcoholic beverages, he/she shall clearly state such designation in the license or license, but if he/she fails to comply with the scope of business and conditions, he/she shall designate the license (or license) together with the phrase “

(3) A sales business license shall be subject to the conditions of designation that the license be cancelled when a sales business operator sells alcoholic beverages to a non-licensed sales business operator.

However, the Defendant issued the instant revocation disposition on the premise that the Plaintiff sold alcoholic beverages to leB without a license for alcoholic beverage sales business. Accordingly, the Plaintiff asserts that leB is not a non-licensed alcoholic beverage sales business entity but an employee of the Plaintiff’s work. Therefore, this part of the issue is whether the Plaintiff sold alcoholic beverages to leB without a license for alcoholic beverage sales business.

B. As to the disposition of reducing shipment amount of the instant case

According to Article 3 of the Notice of Standards for Quantities of Shipments, with respect to a person whose license is revoked or suspended by the court after the revocation or suspension of a license for a alcoholic beverage sales business, the quantity of alcoholic beverages shipped shall be reduced by 50% of the average quantity of alcoholic beverages shipped for 1

On the other hand, the Plaintiff asserts that the above provision is null and void, or that the instant provision was abused or abused from discretion. Accordingly, this part of the issue is ① whether Article 3 of the Notice on the Quantities Criteria is null and void, ② whether the instant order was abused or abused from discretion.

5. Whether the revocation disposition of the instant license is legitimate

(a) Facts of recognition;

According to the above evidence, the following facts are acknowledged.

1) Plaintiff’s license for alcoholic beverage sales business

On June 25, 1997, the Plaintiff obtained a license for alcoholic beverage sales business (license for import alcoholic beverage sales business) with the following contents.

2) Details of the investigation of tracking the distribution process of alcoholic beverages

A) The result of ○○ regional tax office’s tracking and investigating the Plaintiff’s distribution process is as follows.

B) At the time of investigation of tracking the distribution process of alcoholic beverages by the ○○ regional tax office, ChoA, the actual manager of the Plaintiff, prepared, submitted, and stated a written confirmation to the investigator with the following contents.

[Certificate] (No. 3)

1. I confirm that 'the current status of electronic output products' and 'the current status of sales by period' identified in the process of tracking and investigating the distribution process of alcoholic beverages conducted by ○○ regional tax office are documents recording the actual transactions related to the Plaintiff's sales of alcoholic beverages.

2. The plaintiff confirms that a tax invoice was issued differently from the facts as follows:

[Protocol of Examination of Suspects of Tax Offenses] (No. 1)

○ Issuance of tax invoices under or over-issuance

- The content of the above certification is recognized as it is.

- The under-issuance of the tax invoice is due to the fact that the transaction partner who actually purchased alcoholic beverages at the time of the transaction refuses to receive the tax invoice, and the under-issuance of the tax invoice was issued at a place more than the actual transaction.

- Although having attempted several times to sell alcoholic beverages to an enterprise that wishes to obtain a tax invoice while engaging in the business, it is extremely difficult to perform funeral services, such as a decrease in sales, and there is no inevitable law.

sales of alcoholic beverages to a person who has no license for sales business of alcoholic beverages

- The Plaintiff sold alcoholic beverages equivalent to KRW 260,00,08,818 in total amount of KRW 201,813,352 from May 201, 2016 to June 201 of the year from July 2016, and from July 2016 to December 12 of the year, entered the account book and issued a tax invoice as if the Plaintiff sold alcoholic beverages to 24 other than the ○○○○○○○○○ store.

- The circumstances of leB were trying to help him/her.

C) At the time of investigating the tracking process of the distribution of alcoholic beverages by ○○ regional tax office, leB prepared, submitted, and stated a written confirmation to the investigator with the following contents:

[Certificate] (Certificate No. 4)

I confirm that the plaintiff supplied alcoholic beverages from May 2016 to December of the same year by the plaintiff and supplied alcoholic beverages to his customer's ○○○○○○ singing store and 24 other business establishments.

[Protocol of Examination of Suspects of Tax Offenses] (No. 2)

Although ○○ wanting to work as an employee of the Plaintiff, the Plaintiff said that it is difficult for the Plaintiff to employ as an employee, and thus, the Plaintiff supplied alcoholic beverages to his customer individually. When he supplies alcoholic beverages, he only had the name of the Plaintiff’s director and did not have a position or a staff member.

As ○○ does not have a large amount of cash, the Plaintiff received alcoholic beverages from the Plaintiff and delivered them to the customer, and then received cash within the day or day and paid it to the Plaintiff.

○ The author left and delivered the benefit of KRW 1,000 per one alcoholic beverage.

○ The Plaintiff did not hold a license for alcoholic beverage sales business, and issued a tax invoice as if it were sold directly to the transaction partner in the Plaintiff’s name.

3) Circumstances of the investigation

A) At the time of the prosecutor’s investigation on the suspicion of violation of the Punishment of Tax Evaders Act, the Plaintiff stated the following details.

【Examination of Police Suspect (First Instance)】 (Evidence No. 7-7)

○ The statement made by the National Tax Service at the time of the investigation is not a fact.

○○B served as an employee of the Plaintiff’s daily employed worker.

【Examination of Police Suspected (Second Session)】 (No. 7-8)

○○○○○, the representative of the ○○ club, stated that “The amount actually purchased from the Plaintiff from December 2, 2015 to December 2, 2016 is KRW 1,981,642,984, and the amount of tax invoice issued by the Plaintiff was KRW 620,123,309, which was KRW 1,361,519,675.” The said statement by the ○○○○○ was true.

It is true that the ○○○ Regional Tax Office was first investigated.

[Examination of Suspected Suspect] (No. 7-9)

○ The current status of the product for each period is the account book in which the plaintiff prepared the actual sales.

○ himself has not issued a tax invoice while operating the Plaintiff, or issued a tax invoice at an amount less than the actual value of supply, or issued a tax invoice at an amount larger than the actual value of supply, or issued a false tax invoice without any actual transaction.

○○B was not an employee of the Plaintiff. MaB was individually supplied alcoholic beverages with the benefit of KRW 1,000 per alcoholic beverage in return for the supply of alcoholic beverages to its customers.

○ The alcoholic beverages were supplied as personal vehicles of leB.

Unlike leB, other employees supplying the Plaintiff’s alcoholic beverages paid a regular monthly wage.

B) On September 29, 2017, the public prosecutor in charge was indicted for committing a crime in violation of the Punishment of Tax Evaders Act on the ground that he/she did not issue a tax invoice to the Daegu District Court (2017dan5475) or that he/she issued a tax invoice in excess of the fact or under-issuance of the tax invoice or a false issuance without any actual transaction.

On May 17, 2018, the above court found the above criminal facts guilty and sentenced the MediationA to the punishment of one-year suspended sentence for six months, and a fine of 20 million won for the Plaintiff.

C) On the other hand, with respect to the suspected facts that leB purchased and supplied alcoholic beverages from the Plaintiff without a license for alcoholic beverage sales business, the prosecutor in charge issued a non-prosecution disposition (not guilty of being suspected by insufficient evidence) on the following grounds.

○ It is recognized that leB was not licensed for alcoholic beverage sales business, and that it was delivered alcoholic beverages using its own name without being registered as the Plaintiff’s employee.

○○B was actually an employee of the Plaintiff at that time, but was not registered as an employee depending on the Plaintiff’s circumstances. At that time, the Plaintiff’s automobile owned by the Plaintiff was insufficient and used as a motor vehicle in his name, and it is vindicateed to the effect that he was paid by the Plaintiff.

○ The fact that the Plaintiff paid 80,000 won per month to leB as salary, and the fact that leB does not confirm the circumstances in which leB acquired a separate benefit through this transaction, etc. are consistent with the defense of leB, and there is no other evidence to acknowledge the fact of leB.

B. Whether the Plaintiff issued tax invoices excessively or excessively differently from the fact

For the following reasons, the Plaintiff is deemed to have issued the tax invoice differently from the fact during the second period from 2015 to 2016. Therefore, this part of the Plaintiff’s assertion is without merit.

1) The Plaintiff’s assertion is premised on the fact that the account books, such as “the current status of items seized during the process of tracking and investigating the distribution process of the ○○ regional tax office” and “the current status of sales by period,” are different from the actual details of transactions.

However, the plaintiff's actual manager recognized that the above books were the same as the plaintiff's actual details of transactions in the process of tracking the distribution process of alcoholic beverages by ○○ regional tax office and prosecutor's investigation.

In particular, in the tax investigation of ○○ Regional Tax Office, he denied the above facts in the police investigation, and recognized the above facts with the reversal of them again in the prosecutor investigation. In light of the background leading up to the reversal of the statement by ○○ Regional Tax Office, the above books seems to be the same as the actual details of the Plaintiff’s transactions.

2) The Plaintiff asserts that, in order to receive more sales incentives from a liquor supplier, the Plaintiff made a false book of accounts as if he directly sold alcoholic beverages to a liquor supplier, such as AU, etc. However, the business incentive is merely determined in proportion to the purchase amount of alcoholic beverages from a liquor supplier, and there is no reason to determine whether a liquor supplier, such as the Plaintiff, sells alcoholic beverages to any liquor supplier, such as the Plaintiff’s assertion.

In addition, the Defendant inquired the Plaintiff about the method of determining the sales incentive by 101 alcoholic beverage suppliers. However, all of the companies responded to the purport that they decided the sales incentive according to the sales volume or the actual result of the collection of the sales incentive.

3) The above book contains detailed descriptions of whether discount items are discount items for each item of alcoholic beverages, discount rates, and discount amounts, and where discount amounts are applied, the plaintiff's profit is also specified.

This content seems to be difficult to prepare at will, if it is not the actual transaction details of the Plaintiff.

4) Although the Plaintiff asserted that he had issued a tax invoice to the business place that actually supplied alcoholic beverages, the Plaintiff still failed to submit to the Defendant objective evidence proving it.

5) On the other hand, on September 29, 2017, the prosecutor charged him/her with the crime of violation of the Punishment of Tax Evaders Act on the ground that he/she did not issue tax invoices to the Daegu District Court (2017Dadan5475) or issued tax invoices to the Daegu District Court (2017Dadan5475) or did so in a false manner, or issued tax invoices to the Plaintiff in a false manner without any actual transaction. In addition, the said court also rendered

C. Whether the Plaintiff sold alcoholic beverages to leB without a license for alcoholic beverage sales business

For the following reasons, the Plaintiff sold alcoholic beverages to leB without a license for alcoholic beverage sales business. Accordingly, the Plaintiff’s assertion on this part is without merit.

1) The Plaintiff’s actual manager recognized that leB was not an employee of the Plaintiff in the process of tracking and investigating the distribution process of alcoholic beverages by the Daegu Regional Tax Office and the prosecution investigation.

In particular, in the tax investigation of ○○ Regional Tax Office, he denied the above fact in the police investigation, and thereafter, in the prosecution investigation, he reversed it and recognized the above fact in a net manner. In light of the background leading up to the reversal of the statement of ○○ Regional Tax Office, MaB seems to be not an employee of the Plaintiff.

2) The leB also acknowledged that he was not the Plaintiff’s employee in the process of tracking and investigating the distribution process of the Daegu regional tax office.

3) The Plaintiff, among his employees, provided a vehicle under the Plaintiff’s name to the employees engaged in the delivery of alcoholic beverages for business purposes, and provided a monthly wage periodically to them. On the other hand, leB delivered alcoholic beverages to his own name, not to a regular monthly wage but to a certain amount (1,000 won per alcoholic beverage) calculated based on the number of alcoholic beverages supplied by himself.

4) Most of the businesses supplied with alcoholic beverages through leB by the Plaintiff are not businesses originally traded by the Plaintiff, but businesses in which leB was personally known by the Plaintiff.

5) The Plaintiff asserted that leB was employed as an employee, but did not submit a statement of financial transactions that regularly paid leB to leB. Moreover, there is no evidence to support that the Plaintiff purchased four major insurance, such as the National Pension and Employment Insurance, by designating leB as the insured. As such, there is no objective evidence to support leB as being the Plaintiff’s employee in addition to the fact that leB supplied alcoholic beverages supplied by leB to her business place.

6) On the other hand, the prosecutor in charge issued a non-prosecution disposition (not guilty of being suspected by insufficient evidence) on the suspected fact that leB purchased alcoholic beverages from the Plaintiff without a license for alcoholic beverage sales business and supplied them to its customers.

However, the prosecutor's above disposition of non-prosecution is not sufficient to prove that there is insufficient proof that the judge is not able to have a reasonable doubt based on strict evidence that is admissible as to the suspected facts, and it does not mean that the absence of such a fact is proven immediately.

Therefore, it is difficult for leB to immediately deem leB as the Plaintiff’s employee on the sole ground of the above non-prosecution disposition.

6. Whether the disposition of reducing the shipment amount of the instant case is legitimate

(a) Whether Article 3 of the Public Notice of Criteria for Reduction of Shipment Quantity is invalid;

1) According to Article 40(1) of the Liquor Tax Act, where the Commissioner of the National Tax Service deems it necessary for preserving liquor tax, he/she may issue an order necessary for manufacture, storage, transfer, takeover, movement, facilities or prices to the manufacturer or vendor of alcoholic beverages, malt or wort, as prescribed by Presidential Decree.

In addition, according to Articles 45, 47 and 50 of the Enforcement Decree of the Liquor Tax Act, the Commissioner of the National Tax Service may order a manufacturer or a vendor of alcoholic beverages, malt or wort to take necessary measures for raw materials, quality, quantity, time, method, other matters in the manufacture, storage, transfer, takeover or movement of alcoholic beverages, malt or wort, and the Commissioner of the National Tax Service may have the director of the competent regional tax office or the head of the competent tax office handle part of his/her affairs.

In addition, according to the delegation of Article 40 of the Liquor Tax Act and Article 47 of the Enforcement Decree thereof, the public notice of the standards for delivery reduction of alcoholic beverages is set on the basis of the standards for the delivery reduction of alcoholic beverages manufacturers, importers, and sellers. Among them, according to Article 3 of the public notice of the standards for delivery reduction of alcoholic beverages, for those who are determined by the court to cancel a license or suspend the suspension of license after the cancellation or suspension of a license for a alcoholic beverage sales business, the amount of delivery of alcoholic beverages

As such, Article 3 of the Notice on Standards for Shipment Reduction stipulates matters delegated by the Liquor Tax Act and the Enforcement Decree thereof, which are higher statutes.

2) In addition, Article 40(1) of the Liquor Tax Act and Article 47 of the Enforcement Decree thereof provide that when the Commissioner of the National Tax Service deems it necessary for preserving liquor taxes, he/she may issue a necessary order to a vendor in the transfer, acquisition or movement of alcoholic beverages, i.e., the quantity of alcoholic beverages, or the quantity of delivery quantity, and does not provide a separate provision that such order may be issued only in cases where the administrative disposition or criminal punishment becomes final and conclusive and conclusive as an unfaithful manufacturer, importer or seller

Therefore, Article 3 of the Notice of Shipment Reduction Standard does not deviate from the delegation scope of the Liquor Tax Act and its Enforcement Decree.

3) In addition, Article 3 of the Notice of Standards for Shipment Quantity cannot be deemed as infringing on the citizens’ right to a trial under the Constitution or as violating the principle of excessive prohibition for the following reasons.

A) The legislative intent of Article 40 of the Liquor Tax Act is to effectively secure and preserve liquor tax revenues to meet the financial demand of the State, while strictly manage the business of collecting liquor tax from a liquor distributor who actually collects liquor tax in the course of distribution of alcoholic beverages.

In light of this, Article 3 of the Notice of Standard Quantities for Shipment Quantities 50% of the average shipping volume for 12 months immediately before reducing the shipping volume of alcoholic beverages, thereby complying with the legislative intent of Article 40 of the Liquor Tax Act, and is also appropriate as a means to achieve the purpose of establishing transparent trading order of alcoholic beverages and normalization of the

B) The suspension of execution by the court pursuant to Article 23 of the Administrative Litigation Act is not a final judicial judgment on the legality of the disposition, but a provisional suspension of the validity, enforcement or the continuation of the procedure when it is deemed that there is an urgent need to prevent irrecoverable damage caused by the disposition or its enforcement or the continuation of the procedure.

Therefore, even if the execution of the cancellation disposition of this case is suspended due to the court's decision to suspend execution, the proper regulation and response measures for the act of violation which caused the disposition are essential.

C) A vendor may apply for the suspension of execution to the court as well as the disposition for the reduction of the quantity of alcoholic beverages under Article 3 of the Notice on Criteria for Reduction of Shipments (in fact, the Plaintiff was issued a decision of acceptance that orders the suspension of execution of the instant disposition on July 20, 2017 by this Court (2017 A10257)).

In addition, Article 3 of the Notice on Criteria for Reduction of Shipments does not completely prohibit alcoholic beverage sellers from shipping alcoholic beverages, but limits the quantity of alcoholic beverages shipped during the period of revocation of a license or suspension of execution of a disposition to suspend alcoholic beverage sales business to 50% of the average quantity of alcoholic beverages shipped for the immediately preceding 1

Therefore, it is difficult to view that the level of disadvantage suffered by the Plaintiff pursuant to Article 3 of the Notice of Standard Quantities of Shipment Quantity is extremely harsh enough to reduce the level of disadvantage.

4) Ultimately, Article 3 of the Notice on Standards for Reduction of Shipment Quantity does not limit the rights of the people without delegation of superior statutes or beyond the scope of delegation thereof, and does not violate the principle of prohibition of excessive restriction.

Therefore, since Article 3 of the Notice of Quantities Criteria cannot be deemed null and void, the plaintiff's assertion on this part is without merit.

B. Whether the ex-factory reduction disposition of this case deviates from or abused its discretionary authority

For the following reasons, it cannot be deemed that the ex-factory reduction measure of this case was a deviation or abuse of discretionary authority, and thus, the Plaintiff’s assertion on this part is without merit.

1) The Plaintiff asserts that Article 3 of the Notice on Criteria for Quantities of Shipments ought to apply only to an unfaithd seller.

However, Article 3 of the Notice on Standards for Shipment Quantity only stipulates that "a person whose license is revoked or suspended by the court after the cancellation or suspension of a license for a alcoholic beverage sales business is revoked or suspended" as the other party to the disposition.

In addition, Article 40 (1) of the Liquor Tax Act and Article 47 of the Enforcement Decree thereof are not limited to cases where the other party to the disposition is determined as "unfaithful liquor distributor".

2) In addition, even if following the Plaintiff’s assertion, the Plaintiff issued tax invoices that are less and less than the fact and supplied alcoholic beverages to a person who has no license for alcoholic beverage sales business, thereby constituting an unfaithd seller of alcoholic beverages.

3) Article 3 of the Notice of Standards for Quantities of Shipment is merely a business regulation inside the National Tax Service and thus does not externally bind the people or the court.

However, barring any reasonable ground to acknowledge the content of the relevant provision that is inconsistent with the Constitution or laws or that is considerably unreasonable, it cannot be deemed that a disposition pursuant to such provision was an abuse of discretion (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 2007).

4) The amount of the Plaintiff’s tax invoice issued that the Plaintiff undergoes more than the actual transaction details is much more than 100/100 of the total sales amount of alcoholic beverages. As such, the Plaintiff has disturbed the transaction order of alcoholic beverages and disturbed the distribution structure, and thus, is not less likely to cause social criticism.

7. Conclusion

Therefore, the plaintiff's claim is without merit, and it is so decided as per Disposition.