2014 Jeon 3265

Whether a transaction of domestic distribution of special purpose tobacco after a disguised shipment for export is zero tax or exempted from tobacco consumption tax under the Local Tax Act.

The domestic trade that has not received a local letter of credit or a purchase approval for the transaction made for the purpose of supplying the special purpose tobacco manufactured to the ocean-going crew is not subject to zero-rate tax, and the special purpose tobacco taken out for export is exempted from tobacco consumption tax, so tobacco consumption tax, etc. is excluded from the base of value-added

Article 11(1)1 of the former Value-Added Tax Act, Article 24(2)1 of the former Enforcement Decree of the Value-Added Tax Act, Article 19(1) of the Tobacco Business Act, etc.

2014Guhap104093 Demanding revocation of the imposition of value-added tax

Xxxx

Daejeon Head of the District Tax Office

October 28, 2015

November 18, 2015

1. As to the Plaintiff on January 6, 2014:

(a) Excess of 243,744,519 won in the disposition of imposition of value-added tax of 689,517,730 won for one year, 209;

part of the section,

(b) Excess of 150,797,883 won in the disposition of imposition of value-added tax for a period of two years, 209 KRW 426,585,240;

part of the section,

(c) Amount exceeding 96,934,661 won in the disposition of imposition of value-added tax for two years, 2010 won;

part of the section,

(d) Disposition of imposition of value-added tax of KRW 706,063,130,00 in excess of KRW 249,593,319,00,00 for one year 201;

Part,

(e) The amount exceeding 335,911,731 won in the disposition of imposition of value-added tax of 950,245,340 won for two years, 2011;

part of the section,

(f) Amount exceeding 746,156,380 won in the disposition of imposition of value-added tax of 2,110,767,690 won for one year, 2012;

part of the order,

(g) Elementary, 1,072,070,427 won in the disposition of imposition of value-added tax for two years, 2012 (3,032,731,050 won;

Parts to which the section is to be added

Each cancellation shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 3/8 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Details of the disposition;

A. The Plaintiff’s Tobacco Business Act (amended by Act No. 12269, Jan. 21, 2014) around January 12, 2009

Seafarers of overseas service who are special-purpose tobacco under Article 19(1) of the Tobacco Business Act (hereinafter referred to as the " Tobacco Business Act").

The purpose of sale was to sell tobacco for export to wholesalers dealing with special purpose tobacco such as xx, etc. (hereinafter referred to as "market priority traders").

B. The key trading company is “Sey Latat (State, Passenger Ship)” when ordering tobacco to the Plaintiff.

The term "application for purchase of manufactured tobacco for special use (international passenger ships)" is submitted, etc.;

It has taken the same type as ordering special-use tobacco sold to the crew of the commercial vessel or ocean-going vessel.

C. The Plaintiff during the taxable period of value-added tax between 2009 and 2012 (No. 1, 2010)

(other) to the key trading entity, the crew of the ocean-going vessel or deep-sea fishing vessel, or an air route operated on the international route.

The phrase “tax-free, DUTY FREE” that is produced for the purpose of sale to the passengers of a flag or passenger ship.

The tobacco printed by the Gu (hereinafter referred to as "speak tobacco") was sold for the purpose of Chinese export (hereinafter referred to as "speak tobacco").

The purpose of this case's transaction is "the purpose of this case's transaction", the statement, receipt, etc. of this case's transaction.

The plaintiff was indicated as the "passenger, international passenger, etc.", and the plaintiff was issued an export declaration certificate from the key trading company while engaging in the transaction in this case, but did not receive a local letter of credit or a purchase confirmation.

E. The key trading company exports part of the tobacco supplied by the Plaintiff to China, and Nass money

Most of them are distributed in Korea.

F. Seoul Regional Tax Office’s corporate tax integration with the Plaintiff from March 6, 2013 to July 24, 2013

A tax investigation was conducted, and the plaintiff sold to the non-commercial tobacco crew as above.

The sale of vessels for export was confirmed.

G. The Defendant sold tobacco for export to the key trading company that is a domestic company by the Plaintiff.

Since a local letter of credit or purchase certificate has not been issued, the transaction in this case is zero tax rate transaction.

The tobacco constitutes a non-taxable transaction and carried out as a special purpose tobacco for export not for that purpose;

After determining that tobacco consumption tax shall not be exempted by supply as well.

of 5,974,831,385 won tobacco, including tobacco consumption tax, etc., is sold to the

On January 6, 2014, on the ground that value-added tax was not levied and paid without filing a return, the portion for January 6, 2009 against the Plaintiff.

Value-added tax 689,517,730 won (including additional tax; hereinafter the same shall apply) and value-added tax for two years in 2009

426,585,240 won, value-added tax for two years, 274,214,030 won, and value-added tax for one year, 2011.

706,063,130 won, value-added tax for the second term of 201, 950,245,340 won, and value-added tax for the first term of 2012

2,110,767,690 won, and value-added tax for the second term in 2012 was imposed respectively (hereinafter referred to as "disposition of this case").

H. On April 4, 2014, the Plaintiff filed an appeal with the Tax Tribunal on April 4, 2014, but the said appeal was filed.

The Board dismissed the Plaintiff’s claim on February 4, 2015.

Facts without any dispute arising in recognition, Gap's 1 through 4, 7, Eul's 1 and 2 (including each number for which there is no number); the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) transactions subject to zero tax rate;

The Plaintiff confirmed the fact of Chinese export of the key trading company through various processes, such as supplying the key tobacco for export to the key trading company and receiving export declaration completion certificates.

A local letter of credit or a written confirmation of purchase has not been received, but is stronger than a local letter of credit or a written confirmation of purchase.

as long as an export declaration certificate, which is a documentary evidence, is issued and the tobacco is supplied for export;

transaction shall be deemed tax rate transaction.

(ii)any tax base, including tobacco consumption tax,

Even if the instant transaction does not constitute zero-rate transaction, the export offer is made.

Tobacco is eligible for exemption from tobacco consumption tax pursuant to Article 54 of the former Local Tax Act (amended by Act No. 13427, Jul. 24, 2015). Therefore, as long as the Plaintiff ships the issue tobacco for export, the tax base of the instant disposition is the tobacco consumption tax and local education tax, local education tax, national health promotion charge

The waste disposal charge (hereinafter referred to as "tobacco consumption charge, etc.") shall not be included in the waste disposal charge.

Furthermore, the Plaintiff received tobacco consumption tax, etc. from the key trading company in return for the instant transaction.

There is no fact that there is no value added which is the tax base for the price received from the other party.

Even under Article 13 (1) 1 of the Tax Act, tobacco consumption tax, etc. shall be included in the tax base.

v. n.

3) Exclusion from the application of additional tax

If there is a conflict of opinion in legal interpretation, justifiable grounds for not imposing additional tax can not be made.

(2) If the goods were exported, the purchase order was not issued, or was issued later.

The Seoul High Court stated that it constitutes zero tax rate under substantive law.

Since there is a conflict of view in legal interpretation before the Supreme Court reverses it, the export declaration completion certificate is issued.

The transaction of this case is made on the ground that there is no local letter of credit or written confirmation of purchase.

It was difficult to determine that the instant transaction constitutes a zero-rate transaction. Therefore, whether the instant transaction is a zero-rate transaction.

Whether it is a taxable transaction or not is based on the doubt in the interpretation of tax-related Acts, and the plaintiff's obligations are the same.

Since there is a reasonable ground for failure to pay penalty tax, penalty tax out of the disposition of this case is additional tax

Part is illegal.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant transaction constitutes zero-rate transaction

A) The former Value-Added Tax Act (wholly amended by Act No. 11608, Jan. 1, 2013; hereafter the same shall apply)

Article 11 (1) 1 of the Value-Added Tax Act, the former Enforcement Decree of the Value-Added Tax Act ( June 28, 2013)

The Enforcement Decree of the Value-Added Tax Act (hereinafter referred to as the "Enforcement Decree of the Value-Added Tax Act") before wholly amended by Presidential Decree No. 24

Article 24(2)1 of the former Enforcement Rule of the Value-Added Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 329, Mar. 23, 2013); Article 9-2 of the former Enforcement Rule of the Value-Added Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 329, Mar. 23, 201) provides that the zero-rate tax rate shall apply to the supply of exported goods; and even in the case where an entrepreneur supplies goods to a domestic enterprise through a local letter of credit or a purchase confirmation, the "local letter of credit" shall apply to the goods exported; however, the "local letter of credit" is to be issued by the head of a foreign exchange bank within 20 days after the end of the taxable period to which the time of supply for goods or services belongs; and the "purchase confirmation" means a letter of confirmation issued by the head of the foreign exchange bank within 20 days after the end of the taxable period to which the time of supply for goods or services belongs, stating the basis documents,

On the other hand, in principle, the value-added tax system to realize the principle of taxation for the country of consumption by preventing foreign consumers from bearing the burden of value-added tax in Korea.

w only apply, and exceptionally is supplied with raw materials for export or finished products for export in Korea.

(i) the supply of goods to an entrepreneur (exporter) under a local letter of credit or a written confirmation of purchase;

only a transaction which is prior to or is not substantially different from the export;

On the other hand, it is easy to avoid the possibility of taxing and returning again, and to purchase raw materials by exporters, etc.

For the effect of export support to be terminated, zero tax rate will be applied in advance.

foreign exchange and the collection of value-added taxes shall be equivalent to the export for the consumption of supply.

To the extent that it does not impair the order, it is consistent with the national policy purpose of encouraging foreign exchange earnings.

only if it is recognized exceptional and restricted as prescribed by law, and the local letter of credit;

goods supplied to Korea under a purchase certificate shall be included in the export goods, and the zero-rate tax rate shall be

The aforementioned relevant statutes ought to be strictly interpreted (see, e.g., Supreme Court Decision 2011Du2774, May 26, 2011).

In light of the relevant laws and legal principles as above, the health class, the Plaintiff’s domestic company

To the key trading company, tobacco for export without being subject to a local letter of credit or a written confirmation of purchase;

As seen earlier, the transaction in this case is a local letter of credit or purchase confirmation.

The Plaintiff’s assertion that this part of the Plaintiff’s assertion is not subject to zero tax rate.

shall not be held.

B) For this, the Plaintiff shall apply zero tax rate to domestic transactions for export purposes under the Value-Added Tax Act

for the purpose of requesting a local letter of credit, purchase confirmation, or export confirmation

In other words, the number of evidence with high probative value on export facts rather than the local letter of credit and the purchase certificate.

As long as a certificate of completion of report has been issued, this case asserts that the transaction constitutes zero-rate transaction.

However, as seen earlier, tax on domestic transactions by local letter of credit or written confirmation of purchase;

The purpose of applying the percentage is to apply the pre-stage transaction of export or to the extent that it does not substantially differ from the export;

In the future, it avoid a challenge that is imposed and returned once again, and as a result, raw materials such as exporters, etc.

Export support as easy to purchase, and at the time of supply of goods, local letter of credit or purchase;

requirement for a certification is not a confirmation of the fact of export, but a good to be used for export.

to confirm the supply. Accordingly, by local letter of credit or written confirmation of purchase.

Goods supplied shall be sold in Korea by a person supplied after being supplied without being used for export.

Even though it does not affect the zero tax rate already applied, the Value-Added Tax Act also enters into several countries.

‘the number issued to certify that the goods are exported to the exporter after completion of the high value; and

Export performance on the basis of the original letter of credit, etc. received by the exporter who is not a "certificate of completion of report";

In order to facilitate domestic financing for raw materials for export or finished products for export;

It is required that small and medium-sized exporters, which are difficult to open a local letter of credit due to lack of credit or export deposit limit opened by the exporter's bank with the exporter's producer as the beneficiary bank, require 'purchase confirmation' which is issued by the head of the foreign exchange bank corresponding to the local letter of credit.

Ultimately, the zero tax rate shall apply to domestic transactions by local letters of credit or purchase confirmations as above.

In light of the purport and relevant provisions, the export declaration certificate shall apply zero tax rate for domestic transactions.

of this case with export declaration certificate. Thus, the zero-rate tax rate is less than

The plaintiff's assertion that it should be applied is without merit.

C) Furthermore, through Supreme Court Decision 2004Du8224 Decided February 18, 2005, the Plaintiff’s business operator

If a document evidencing the zero tax rate is not submitted at the time of filing a value-added tax return, the tax base shall

If it is confirmed that it is subject to application of the zero tax rate according to the substance over form principle;

However, if the substance is an export transaction, it shall not interfere with the application of zero-rate tax rate even without a purchase certificate.

the judgment is not a domestic transaction but a direct exporter of the goods. However, the judgment

this case may not be invoked in this case.

2) Whether tobacco consumption tax, etc. is included in the tax base

Article 49 of the former Local Tax Act (Amended by Act No. 13427, Jul. 27, 2015; hereinafter the same shall apply) 49

Paragraph 1 of Article 1 provides that the producer shall pay tobacco consumption tax on tobacco taken out of the factory.

section 50(1) of the Local Tax Act provides that "no one shall exist," and Article 49(1) and (2) of the Local Tax Act

In the case of tobacco consumption tax, it shall be the seat of the retailer's place of business where the tobacco is sold.

In principle, tobacco consumption tax is basically an indirect consumption in which the consumption of tobacco is subject to taxation.

vertical tax shall be paid in advance to the manufacturer when the goods are taken out of the manufacturing place, etc. for the convenience of tax collection

In light of the fact that the tobacco is to be carried out (see, e.g., Constitutional Court en banc Order 2002Hun-Ga27, Jun. 24, 2004). The term "taking tobacco" does not mean physically realizing tobacco out of a manufacturing place, but means that a manufacturer delivers tobacco to a buyer.

On the other hand, Article 14(2) of the Framework Act on National Taxes provides for the calculation of tax bases under tax laws;

applied according to the substance, regardless of the name or form of profit, property, act or transaction;

C. The term "c." is defined as follows.

In light of the above interpretation and the contents of the relevant regulations, the manufacturer’s taking out of tobacco

1) The former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010) enters into force on January 1, 2011; thus, the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010); however, the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010) applies to any disposition of value-added tax imposed on the second part of the instant disposition.

3. Article 225(1) of the Act on 31. 31. The producer is obligated to pay tobacco consumption tax on the tobacco shipped out of the manufacturing place. Paragraph 5 of the same Article, after taking out the duty-free tobacco under Article 232, and selling and selling it without using it for that purpose.

Notwithstanding the provisions of paragraphs (1) through (4), where sales, consumption, or other disposition is taken, a person who has taken such disposition shall be deemed a person liable for duty payment of tobacco consumption tax, and Article 232 (1) shall be exempted from tobacco consumption tax where a manufacturer or import distributor provides tobacco for the following purposes:

C. Since "export" is referred to as "export under subparagraph 1, there is no particular difference in its content, only the law applicable on January 1, 201 shall be stated.

Whether it falls under any of the subparagraphs of Article 54 (1) of the Local Tax Act (hereinafter referred to as "reasons for exemption from taxation")

It should be determined according to the actual attitude of tobacco delivery, not in form, such as the report of withdrawal, etc.

In this case, the plaintiff reported the shipment to the "commercial use for the crew of the ocean-going ship".

B. As seen earlier, the issue tobacco was delivered to the key trading entity for export.

The same shall apply.

For this reason, the transaction of this case is not for ‘sale to the crew of the ocean-going ship', but for ‘sale to the crew of the ocean-going ship'.

Article 54 (1) 1 of the former Local Tax Act because the tobacco in question is taken out for the purpose of 'dis-delivery'.

Accordingly, tobacco consumption tax is exempted. Unlike this, the plaintiff takes the issue of tobacco into account as "for ocean-going crew."

of this chapter, as the tobacco consumption tax has been supplied to the trading entity at issue for any purpose other than its use, the tobacco consumption tax exemption

the disposition of this case that included tobacco consumption tax in the tax base

The Plaintiff’s assertion on this part is with merit.

As to this, the defendant does not export the issue tobacco and brought in and distributed to the domestic market.

Inasmuch as the Plaintiff is responsible, tobacco is attributable to the Plaintiff pursuant to Article 49(5) of the former Local Tax Act.

Although it is argued that the consumption tax should be imposed, the employee of the family household shall distribute the issue tobacco domestically.

Even if part of the Plaintiff participated, the issue was transferred by the Plaintiff to the key trading company.

As long as a trader becomes the subject of disposition of the key tobacco, the Plaintiff shall be subject to the provisions of Article 49(5) of the former Local Tax Act.

person who has sold, sold, consumed, or otherwise sold, sold, consumed, or otherwise disposed of without being used for that purpose;

Therefore, the defendant's above assertion is without merit.

3) Whether to exclude the application of additional tax

Tax amount under tax law is to facilitate the exercise of taxation rights and the realization of tax claims.

If a person violates any of his/her obligations, such as reporting and tax payment, without any justifiable reason, such Act;

The taxpayer's intentional and negligent acts are not considered as administrative sanctions imposed as prescribed by the law.

The site, mistake, etc. of statutes shall not constitute a justifiable ground that does not constitute a violation of the duty.

(See Supreme Court Decision 2012Du7370 Decided March 13, 2014, etc.)

In light of the above legal principles, in this case, the Plaintiff cited it as the opinion of statutory interpretation.

Seoul High Court Decision (Seoul High Court Decision 2010Nu26843 decided Dec. 27, 2010) in the Supreme Court Decision 2010Nu26843 decided Dec. 27,

The Supreme Court Decision 2004Du8224 Decided February 18, 2005 is based on the Supreme Court Decision 2004Du8224 Decided February 18, 2005. The Supreme Court Decision 2004Du8224 Decided May 26, 2011 and the Supreme Court Decision 201Nu2774 Decided May 26, 201, which reversed the Supreme Court Decision 2011Nu2774 Decided May 26, 201, which did not conflict with each other, provides only a local letter of credit or a purchase confirmation as a documentary evidence of domestic transactions for applying zero-rate tax rate, and (3) if the plaintiff exports and sells tobacco professionally, it seems that it would have been well aware of the type of documentary evidence for applying zero-rate tax rate, and (5) the nature of a local letter of credit, purchase and export declaration certificate is different, and (5) the Plaintiff’s failure to report and pay the duty cannot be viewed as justifiable.

(iv)the calculation of a reasonable amount of tax;

Ultimately, the disposition of this case is erroneous because tobacco consumption tax is included in the tax base.

reasonable taxes calculated as follows after excluding tobacco consumption tax, etc. in the disposition of the case:

The portion exceeding the amount is illegal.

3. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remainder

The claim is dismissed as it is without merit. It is so decided as per Disposition.