Whether disposition such as return of an application for alcoholic beverage sales business is legitimate

Since the transfer of comprehensive alcoholic beverage wholesale licenses and the grant of supplementary licenses are not permissible, a disposition rejecting an application for supplementary licenses is legitimate.

Article 8 of the Liquor Tax Act

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The defendant's disposition of return to the plaintiff on April 19, 2005, such as the application for the license for alcoholic beverage sales business, shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or each of the items in Gap evidence 1 to 4, Gap evidence 5-1, 5-2, and Gap evidence 6 can be admitted by considering the whole purport of the pleadings.

A. On June 30, 2003, the Commissioner of the National Tax Service applied for a license for comprehensive alcoholic beverage wholesale business to the Defendant for the acquisition of one license for comprehensive alcoholic beverage wholesale business permitted in Gangnam City by a public notice of the number of new comprehensive alcoholic beverage wholesale business licenses in 2003. The applicants applied for a license for comprehensive alcoholic beverage wholesale business in ○○ City were selected as eligible for a license through an open lottery for the applicants. On November 18, 2003, the Defendant obtained a license for comprehensive alcoholic beverage wholesale business (hereinafter referred to as the “instant license”) from the Defendant. On the same day, the Defendant completed the business registration of comprehensive alcoholic beverage wholesale business from November 25, 2003 to the Defendant.

B. On January 29, 2004, in order to convert ○○ Integrated Alcoholic Beverages from a private enterprise to a private enterprise, the Plaintiff was established with the purpose of comprehensive wholesale business, etc. on January 29, 2004, and on April 13, 2005, the Defendant applied for the cancellation of the instant license and applied for a supplementary license to grant the instant license to the Plaintiff as the representative of the Plaintiff (hereinafter “instant application”). However, on April 19, 2005, the Defendant issued a disposition to dismiss the instant application on the ground that the comprehensive alcoholic beverage wholesale business is not subject to a supplementary license as stipulated in Article 15 of the Liquor Tax Act (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The purpose of Article 15 (2) 9 of the Liquor Tax Act is to prevent the transfer of alcoholic beverage sales business license to a disqualified licensee. The supplementary license is to prevent the transfer of alcoholic beverage sales business license to a new licensee whose license is revoked and revoked, and the competent authority grants a supplementary license after examining whether the license requirements for the former licensee are met, disqualifications, etc. Therefore, it cannot be deemed that the supplementary license system violates the provisions on prohibition of transfer of the Liquor Tax Act. In light of the above circumstances, the supplementary license system cannot be deemed to violate the provisions on prohibition of transfer of the Liquor Tax Act. In light of the above circumstances, it does not go against the purport of employing a license system for the alcoholic beverage sales business by permitting the supplementary license for the comprehensive liquor sales business, causing confusion in the distribution order of alcoholic beverages, and making it impossible to collect liquor tax effectively. The main purpose of the disposition is to supplement the provision on alcoholic beverage sales business, other than the comprehensive liquor sales business license and the comprehensive liquor sales business license, without any difference in the distribution process of alcoholic beverages, the comprehensive alcoholic beverage sales business license and sales business license, as well as the comprehensive provision on the proviso of Article 15 (1).

(b) Related statutes;

○ License for liquor sales business under Article 8 of the Liquor Tax Act

(1) A person who desires to operate alcoholic beverage sales business (including sales, brokerage, or entertainment business; hereinafter the same shall apply) shall obtain a license from the head of the competent tax office for each sales outlet by kinds of alcoholic beverage sales business by meeting the facility standards

Article 10 of the Liquor Tax Act

The head of the competent tax office may, in case where any of the following reasons is applicable to a license application filed under Articles 6 through 8, not issue licenses:

13. Where an applicant for a license intends to set up a sales outlet in an area designated and publicly notified by the Commissioner of the National Tax Service as deemed likely to substantially undermine the balance of supply and demand of alcoholic beverages by taking into account the population, alcoholic

Article 15 of the Liquor Tax Act, etc.

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

9. Where he has transferred or lent his sales business license to another person;

10. Where he runs the business in partnership with others.

○ former Liquor Tax Act (amended by Act No. 6055 of Dec. 28, 1999)

Article 10 of the Liquor Tax Act

The Government may not grant a license in any of the following cases, when an application for a license under the provisions of Articles 5, 7 and 8 is filed by the Government:

10. When it is deemed improper to grant a license on the adjustment of manufacture or sale.

Article 9 of the Enforcement Decree of the Liquor Tax Act

(1) A person who intends to obtain a license for alcoholic beverage sales business pursuant to Article 8 (1) of the Act shall meet the requirements listed in the attached Table 5.

(2) The kinds of sales business of alcoholic beverages as prescribed in Article 8 (2) of the Act shall be as follows:

1. Comprehensive alcoholic beverage wholesale business;

To wholesale alcoholic beverages by purchasing and wholesale alcoholic beverages (excluding spirits) from a manufacturer or importer of foreign alcoholic beverages directly.

2. Specific alcoholic beverage wholesale business.

Those which wholesale by purchasing from a manufacturer of alcoholic beverages falling under any of the following items:

(a) Consignee, medicinal Notes and Cheongju among fermented alcoholic beverages;

(b) Alcoholic beverages manufactured by agricultural or forestry personnel or producers' organizations recommended by the Minister of Agriculture and Forestry with agricultural products produced mainly as their main raw materials;

3. Spirits wholesale business.

4. Alcoholic beverage export and import business;

Those exported or imported;

5. Alcoholic beverage brokerage business;

To arrange the export or import of alcoholic beverages, or to intermediate the trade of alcoholic beverages in Korea.

Article 16 of the Enforcement Decree of the Liquor Tax Act

(2) When a licensee of manufacture of malt or wort or a vendor of alcoholic beverages discontinues his manufacture or sales pursuant to Article 16 (2) of the Act, he shall submit a report stating the reasons therefor to the head of the competent tax office within 15 days from the date of discontinuance.

○ Article 1 of the Regulations on the Management of Liquor Tax

The purpose of this Regulation is to improve the quality of alcoholic beverages to contribute to the national health, to rationalize the management of alcoholic beverage manufacturing and sales business, and to increase the tax revenue by normalizing the administration of liquor tax, by prescribing the general guidelines for the facilities of alcoholic beverage manufacturing places, the manufacture and sales management of alcoholic beverages, the management of alcoholic beverages, the maintenance of alcoholic beverages, the execution of alcoholic beverage business, and detailed procedures for the imposition and collection of liquor tax.

○ Article 2 of the Liquor Tax Management Regulations

The definitions of terms used in this Regulation shall be as follows:

1. The term "Act" means the Liquor Tax Act, the Enforcement Decree of the Liquor Tax Act, the Enforcement Rule of the Liquor Tax Act, the "Rules" means the Enforcement Rule of the Liquor Tax Act, and the "Public Notice" means the National Tax Service;

7. The term "new license" means a license to newly grant a license for manufacture or sales business other than the joint manufacture license and its return license, merger license, supplementary license, inheritance license and legal fiction sales license (referred to as those as provided in Article 8 (3) of the Act, and including those as provided in Article 4 (2) of the Tourism Promotion Act); and

10. The term "Supplementary License" means a license which is granted to all license holders for a brewing business prior to revocation of their license voluntarily and replacement therefor, and the term "testinging manufacture license" means a license which is granted to those who intend to manufacture alcoholic beverages for the purpose of testing alcoholic beverages, by designating the manufacturing period and manufacturing quantity in spite of the manufacturing facilities requirements among the license requirements, where a justifiable reason for manufacture exists;

11. The term "comprehensive alcoholic beverage wholesaler" among those who have obtained a license under Article 8 of the Act means a person whose scope of business has been designated at the time of granting a license to directly purchase alcoholic beverages from a manufacturer (including direct retail stores of manufacturers) or importer of alcoholic beverages to sell them to a retailer or importer of alcoholic beverages, and the term "specific alcoholic beverage wholesaler" means a person whose scope of business has been designated at the time of granting a license to purchase alcoholic beverages from a manufacturer of alcoholic beverages as prescribed in Article 9 (2) 2 (a) through (d) of the Decree to sell them to a retailer or importer of alcoholic beverages, and the term "alcoholic importer" means a person whose scope of business has been designated at the time of granting a license to sell them to a retailer or importer of alcoholic beverages, such as a comprehensive manufacturer or importer of alcoholic beverages, an importer of alcoholic beverages, and a person whose scope of business has been designated at the time of granting a license to sell alcoholic beverage by directly purchasing foreign alcoholic beverages from a manufacturer of alcoholic beverages, an importer of alcoholic beverages, and a person designated at the time of granting a license to export trader or importer of alcoholic beverages;

Article 7 of the Regulations on the Management of Liquor Tax Affairs

(1) Supplementary licenses for a manufactory may be granted.

(2) A person who intends to obtain a supplementary license shall require a new business operator to submit to the head of the competent tax office of the manufacturing place an application for the same alcoholic beverage manufacturing license at the same place of manufacturing place pursuant to Article 4 of the Decree, along with the documents prescribed in subparagraph 1 of the attached Table, at the same time as the application for the

(3) A supplementary licence shall also be equipped with alcoholic beverage brewing facilities which meet or exceed the criteria for alcoholic beverage manufacturing facilities prescribed in Article 5 of the Decree.

Article 13 of the Regulations on the Management of Liquor Tax Affairs

(1) Comprehensive liquor wholesale business licenses shall be granted within the allowable scope of licenses by Si/Gun taking into account the number of population, liquor consumption, number of sales stores, etc. pursuant to Article 10 (13) of the Liquor Tax Act.

(3) The number of new license companies for each Si/Gun shall be calculated by subtracting the number of license companies for the preceding year from the allowable scope for each Si/Gun.

Article 15 of the Regulations on the Management of Liquor Tax Affairs

(1) A supplementary license for a sales business and brokerage business of alcoholic beverages may be granted: Provided, That such license shall not be granted to a general waterway wholesaler and chain business operator.

○ General Rules 6-4. 9 Renewal of a licence

Where a person who has obtained a license is a natural person, if he/she intends to renew it as a juristic person (the same shall apply to the renewal of a juristic person as a natural person), or to renew part of the licensed person jointly, he/she shall obtain a new license.

C. Determination

(1) Grounds for the supplementary licensing system

Article 2 subparagraphs 7 and 10 of the Regulations on the Management of Liquor Tax, which is an instruction of the National Tax Service, stipulates that all license holders of manufacture or sales business of alcoholic beverages shall voluntarily cancel their license, and exclude the previous license from the new license granting a new license to replace it for the previous license, and Article 7 of the Regulations on the Management of Liquor Tax shall allow a supplementary license for a manufactory. However, a person who intends to obtain a supplementary license shall be equipped with the current license under Article 16 (1) of the Enforcement Decree of the Liquor Tax Act and shall submit an application for a license for the manufacture of the same alcoholic beverage at the same place of the same manufactory to the head of the competent tax office under Article 4 of the Enforcement Decree of the Liquor Tax Act. Article 15 of the Regulations on the Management of Liquor Tax Affairs provides that a new business operator may supplement a license for the sales or sales business of alcoholic beverages, but does not permit a supplementary license in the case of a comprehensive wholesale business or a chain business operator.

(2) Effect of the regulation on liquor tax administration allowing a supplementary license

The purpose of the Liquor Tax Act, which employs a license system for manufacture and sales business of alcoholic beverages, is to prevent confusion in transactions and to ensure uneasy collection of liquor tax by securing revenue from the State to meet the financial demand of the State, while virtually collecting the liquor tax while in charge of distribution process of alcoholic beverages. (See Supreme Court Decision 2000Du3849, Jul. 27, 2001). However, as a means to achieve such purport, Article 13 (1) 13 and 14, and Article 15 (2) 9 and 10 of the Liquor Tax Act provide that a license system for sale business of alcoholic beverages shall be revoked if a person who obtains a license for manufacture or sales business of alcoholic beverages transfers or leases the relevant license to another person or operates the same business with another person, and thus, the provisions of the National Tax Service No. 1480 provide that a license system prior to the issuance of a license system for sale business of alcoholic beverages shall not be deemed to have been established in accordance with the preceding provisions of the Liquor Tax Act.

(3) The plaintiff applied for a new comprehensive liquor wholesale business license to the defendant, which can legally obtain a comprehensive liquor wholesale business license (it is not different even if it is difficult for the plaintiff to obtain a new comprehensive liquor wholesale business license due to the restriction on the number of liquor manufacturers due to the population and consumption of alcoholic beverages in the area where the liquor affairs are applicable, considering the population and consumption of alcoholic beverages). The plaintiff's application of this case purport that the plaintiff's transfer of the license of this case granted to ○○ is not only the date of application without any ground under the liquor tax law, but also the application against the provisions of Article 15 (2) 9 of the Liquor Tax Act, which provides that the above license should be revoked if a liquor sales business license is transferred. Thus, even if the tax office permits a supplementary license for the liquor sales business other than the comprehensive liquor wholesale business and the chain business operator, it is a business practice in the process of administration, which is not contrary to the purpose of the liquor sales business license system to prevent the confusion of transaction, and to supervise the collection of liquor tax, and thus, the plaintiff's assertion is not inconsistent with the above regulations.

4. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the disposition of this case is without merit, and it is dismissed. It is so decided as per Disposition.