Since the provision on the basis of the imposition of fines for negligence is not unconstitutional, it can not be viewed that the benefit was obtained without legal grounds.

The provision on the basis of the imposition of a fine for negligence is legitimate because it does not infringe property rights or equality rights, but does not impose a fine for negligence on violation of obligation to issue cash receipts.

Punishment of Tax Evaders Act Article 15 (Violation of Obligations to Issue Cash Receipts) and Article 162-3 of Income Tax Act (Obligation to join Cash Receipt Merchants and to Issue Cash Receipt Merchants)

2015da5218702 Action for the claim for restitution of unjust enrichment

Gangwon A

Korea

June 28, 2016

August 9, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant shall pay to the plaintiff 78,385,530 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

A. The Plaintiff operated the hospital under the trade name of ○○○○○○○○○○ Hospital.

B. On May 21, 2015, the head of the ○○ Tax Office notified the Plaintiff of the imposition of an administrative fine under Article 15(1) of the Punishment of Tax Evaders Act (hereinafter “instant administrative fine provision”) on the ground that the Plaintiff violated the obligation to issue cash receipts under Article 162-3(4) of the Income Tax Act, as indicated below. The Plaintiff paid the administrative fine of KRW 78,385,530 on June 15, 2015, within the period for stating the opinion.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, purport of the whole pleadings

2. Relevant statutes;

The contents of the statutes related to the instant case are as shown in the attached Form (the current statutes are recorded only in the attached Form).

3. Judgment on the plaintiff's claim

A. The plaintiff's assertion

(1) Claim on the unconstitutionality of the instant administrative fine provision

As seen below, the provision on the administrative fine of this case is unconstitutional and invalid in violation of the Constitution. The Plaintiff paid 78,385,530 won to the Defendant according to the prior notice on the imposition of the administrative fine based on the provision on the administrative fine of this case. Since the Defendant’s prior notice on the imposition of the administrative fine based on the provision on the administrative fine of this case, which is unconstitutional and invalid, is invalid, the Defendant received the administrative fine from the Plaintiff without any legal ground. Accordingly, the Defendant, upon return of unjust enrichment, should pay the said administrative

(A) Excessive infringement of property rights

① The administrative fine imposed pursuant to the provision of the instant administrative fine is identical to the penalty tax in that it is a sanction on the act of violating the duty to cooperate with the tax authority. As such, the degree of restriction on the property right of the people pursuant to the provision of the instant administrative fine is balanced to the degree of restriction in the case of additional tax, and if not, it can be deemed that the property right of the people is excessively infringed.

However, compared to 50/100 of the transaction amount, the penalty tax imposed under the Income Tax Act and the Corporate Tax Act is merely 5/100 of the issue amount by case (Article 81(11)2 of the Income Tax Act and Article 76(12)2 of the Corporate Tax Act).

In addition, a fine for negligence is a minor means of imposing a fine for negligence on minor violations of administrative duties, and the amount equivalent to KRW 50,00,000 through KRW 20,000,000 in cases of gross violations. On the other hand, the provisions of the fine for negligence of this case impose a fine for negligence equivalent to 50/100 of the transaction amount for which cash receipts have not been issued. Considering the cost of sales, the provisions of the fine for negligence of this case may threaten the continuation of the business of the business entity subject to issuance of cash receipts (hereinafter referred to as the "business entity subject to issuance of cash receipts") if it is serious by requiring the payment of most of the income from unissued cash receipts as an administrative fine.

Therefore, the above provision excessively infringes on the property rights of the target business operators.

② Furthermore, in the event that the target business operators commit fraud or other unlawful acts in the course of violating the obligation to issue cash receipts, the subject business operators are punished for criminal punishment under Article 3 of the Punishment of Tax Evaders Act. In this case, the subject business operators are still subject to the obligation to pay the fine for negligence under the provisions of the instant fine for negligence, and thus, the subject business

(3) In order to secure the faithful performance of the duty of cooperation for the capture of tax sources by the State, not only sanctions against the nonperformance of the duty but also benefits to the persons who faithfully perform the duty. Therefore, the degree of sanctions against the breach of duty and the benefits granted at the time of the fulfillment of the duty shall be balanced to any extent.

According to the special case of taxation on cash receipt issuers and Cash Receipt Merchants stipulated in Article 126-3 of the Restriction of Special Taxation Act, the subject entrepreneur is entitled to benefit from the tax credit by issuing cash receipts, and the amount of tax credit is limited to the calculated tax amount. The provision of the administrative fine provision of this case requires the subject entrepreneur to pay 50% of the tax credit based on the sales price, namely, the sales price, etc. when calculating the administrative fine. It goes beyond the vehicle that seeks to cooperate in the taxation of tax credit for the source of tax credit, and in fact transfers the subject entrepreneur's property rights to the subject entrepreneur.

(B) Violation of the principle of equality

The obligation to issue cash receipts is mainly borne by only a certain scope in consideration of the type and scale of business to consumers, and there exists discrimination between an entrepreneur who does not bear such obligation (hereinafter referred to as “other entrepreneur”) and the subject entrepreneur. The other entrepreneur bears only the obligation to report income tax, corporate tax, etc., and when he neglects the performance of such obligation, he/she is subject to penalty tax only. However, when the subject entrepreneur violates the obligation to issue cash receipts, 50/100 of the transaction amount should be paid as a fine for negligence, and it is difficult to recognize the minimum infringement of the effect of discrimination and the balance of legal interests.

(2) Claim regarding issuance of Cash Receipt for the amount transferred to the account

Although the instant provision on the fine for negligence is not unconstitutional, it is against the principle of no taxation without law to regard the portion of the account transfer as a transaction subject to issuance of cash receipts even if it is not unconstitutional, and thus, it is unlawful to impose an excess on the portion of account transfer

B. Determination as to the unconstitutionality of the instant administrative fine provision

(1) Determination as to whether excessive property rights have been infringed

(A) The instant provision on the fine for negligence is aimed at preventing tax evasion and establishing a fair trade order by improving the taxation standards for high-income professional workers, etc., and its legislative purpose is justifiable. Furthermore, if the pertinent enterpriser supplies goods or services with a price exceeding 100,000 won per transaction (30,000 won prior to January 1, 2014) and receives the price in cash, it is mandatory to issue them even if the other party does not request the issuance of cash receipts, and imposing fines for negligence calculated on the basis of the non-issuance of cash receipts at the time of the failure to issue them can serve as an effective and appropriate means to achieve the above legislative purpose.

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, if a taxpayer violates various duties, such as a tax return and tax payment, without justifiable grounds, it is different from the administrative fine corresponding to the administrative order punishment, which is imposed in accordance with the individual tax law. Therefore, it cannot be readily concluded that both sanctions should be balanced.

On the other hand, as long as there is a certain correlation between the transaction price corresponding to the non-issuance of cash receipts and the liability of the non-issuance of cash receipts, it cannot be said that it is remarkably unfair to consider the amount of the fine for negligence.

(B) The instant provision on the fine for negligence sets the amount equivalent to 50% of the amount of the fine for negligence issued without receiving cash receipts. In light of the fact that high-income professional employees, etc. are subject to the global income tax rate of the actual high-rate, and that the said tax rate of 10% is also applicable, the amount of the fine for negligence should be determined commensurate with such tax amount, but it is possible to prevent the tax evasion inducement of high-income professional employees, etc. in advance, and to further ensure the effectiveness of the Cash Receipt System. In light of these circumstances, the foregoing criteria for imposing the fine for negligence cannot be readily

(C) The provisions of Article 3(1) of the Punishment of Tax Evaders Act are different from the provisions of the instant administrative fine and the elements thereof, which provide for the case where cash receipts are not issued merely because they are punished by “Fraud or other unlawful acts,” or they are punished by tax refund or deduction. In addition, even if the provisions of Article 3(1) of the Punishment of Tax Evaders Act and the instant administrative fine are concurrently applied to cases where cash receipts are not issued due to fraud or other unlawful acts, it cannot be deemed that the excessive punishment is imposed in light of the behavior and possibility of criticism, etc. in a case where they are actively seeking tax evasion based on intention.

(D) Benefits from the deduction of the tax amount recognized for issuance of cash receipts shall be the mutually advantageous system and cash.

It cannot be said that the instant administrative order penalty provision, which is an administrative order penalty for nonperformance of the obligation to issue receipts, is different from the criteria for the benefits and calculation of the amount of tax.

(e) Sub-decisions

The instant administrative fine provision cannot be deemed as excessively infringing the Plaintiff’s property right.

(2) Whether the principle of equality is violated

The instant provision on the fine for negligence aims to prevent tax evasion and establish a fair trade order by fostering the taxation standards for high-income professional business operators, etc. In this regard, the instant fine for negligence provisions are reasonable discrimination even if there is discrimination between the subject business operators and other business operators, taking into account the social and economic status of the subject business operators and their social impacts.

Therefore, the provision of the administrative fine of this case cannot be seen as remarkably unreasonable and unfair discrimination beyond the scope of reasonable discretion, and thus, it does not violate the principle of equality.

(3) Sub-determination

The provision of the fine for negligence of this case does not violate the principle of excessive prohibition and equality.

C. Determination on the part of the administrative fine on account transfer amount

It is merely a method of receiving cash from a consumer to a bank account through Internet banking, telephone banking, and cashless transfer. Therefore, it should be viewed that the payment is included in the "case of receiving the cash" under Article 162-3 (4) of the Income Tax Act.

4. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.