Claim that traffic tax liability is unfair as a bona fide trading party who did not know the illegal distribution of oil

Until meeting the requirements for refund, the owner and the shipper of the instant oil is the Plaintiff, and thus, the tax liability is the Plaintiff, and there is a justifiable reason that cannot be caused by negligence in connection with the performance of the obligation to pay traffic tax. Therefore, the penalty tax imposition portion is illegal.

Article 17 of the Traffic Tax Act shall be deducted and refunded.

1. Traffic tax on December 21, 2005, stated in the attached disposition list against the plaintiff on December 21, 2005

The imposition of KRW 3,012,325,640 among the imposition of KRW 3,962,86,670 and the imposition of KRW 451,845,780 among the additional imposition of KRW 497,030 and KRW 447,234,270 among the additional imposition of KRW 3,962,86,670.

311,826,826,00 won or more shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the plaintiff and the remainder by the defendant.

The Defendant’s imposition of traffic tax of KRW 3,962,86,670, education tax of KRW 497,030,360, value-added tax of KRW 447,234,270, as stated in the separate disposition list against the Plaintiff on December 21, 2005, is revoked.

1. Details of the disposition;

From April 15, 2003 to May 31, 2004, the Plaintiff already paid traffic tax, etc. on oil from overseas navigation vessels through ○○○, an oil developer, which was shipped out of Korea (hereinafter “instant oil”). However, the Defendant did not illegally remove the oil of this case to land intermediate wholesalers, etc. without supplying other oil or selling other oil, and thus did not actually use it for an overseas navigation vessel, and thus, it did not constitute the requirements for refund under Article 17 of the Traffic Tax Act (amended by Act No. 7576 of July 8, 2005), including the traffic tax list, 3,96,87, 306, 47, 307, 405, 306, 4757, 406, 207, 3057, 407, 205, 307, 205, 307, 457, 207, 47, 47516

(In fact that there is no dispute, Gap evidence 1 to 17, Gap evidence 4, the purport of the whole pleadings and arguments.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Oil supplied to overseas navigation ships is not directly taken out and sold to overseas navigation ship owners, but sold to overseas navigation ship owners and taken out through the above companies. The ship oil supplier's oil shipment to overseas navigation ships also requires the head of the competent customs office to verify whether or not the oil supplier's oil shipment is made. According to Article 24 (5) of the Enforcement Decree of the Traffic Tax Act, the additional tax amount refunded should be collected from the person who does not use the goods for the prescribed purpose. Thus, the imposition of the instant disposition is in violation of the principle of self-responsibility and the principle of excessive prohibition.

(2) Even if the Plaintiff is liable to impose traffic tax, etc. refunded to the Plaintiff as the shipper, the Plaintiff is a bona fide trading party who did not know the illegal distribution of the instant oil, and is merely a refund of traffic tax, etc. on the belief that the entry of the entry certificate was made by the head of customs office.

(b) Related statutes;

The entries in the attached Table-related statutes shall be as follows.

(c) Fact of recognition;

(1) With respect to the instant oil, the Plaintiff was refunded traffic tax, etc. from the Defendant on the ground that the Plaintiff took out the instant oil to an overseas navigation ship through ○○, an radar, from April 15, 2003 to May 31, 2004 after paying the traffic tax, etc. at the time of oil shipping from the manufacturing place to the oil reservoir.

(2) As a result of the investigation conducted by the ○○○ Head Office, ○○○○○○○○○○○ (hereinafter “○○○○○○○○”). From April 15, 2003 to May 31, 204, after receiving orders of 8,286 liters via an overseas navigation vessel, 44,976 liters, 33,140 liters via a false order, it was prepared as if it were ordered to do so, and then, ○○○○○ (the oil oil of this case was entrusted to an oil supplier, but ○○○, which was the oil supplier, could have been charged with the oil supply of 24,85 literss via an overseas navigation vessel. However, ○○○○○○○○○○○○○○○○, which was sentenced to imprisonment with labor, 11,952, and 894, which was ordered to supply the oil to the overseas navigation vessel, the Plaintiff and its related persons were aware of the violation of the provision of the oil to the international navigation agent.

(3) On the other hand, in the case of a general flow of oil for an overseas navigation vessel, if an overseas navigation vessel owner (in this case, Cambodia and China, etc. overseas navigation vessel owner), requests a vessel agency to supply oil to the vessel agency, the vessel agency shall commission a oil refining company (Plaintiff) to supply oil to ○○, which is entering into an oil supply contract. Accordingly, if the vessel oil supplier orders a oil refining company to determine the oil supply unit price, etc., the oil refining company shall request oil supply company to ○○, which is an oil supplier, to remove oil to the overseas navigation vessel through the oil supplier.

(4) In the case of general application for refund, the representative of oil refining company that the above oil was brought into an overseas navigation ship normally after receiving oil from the overseas navigation ship and the head of the overseas navigation ship shall prepare a certificate of oil supply signed jointly by the head of the competent customs office and submit it to the head of the competent tax office for traffic tax refund.

(5) The term "marine oil supply condition", which is a general contract between the Plaintiff and ○○ upon the first transaction, stipulates that the Plaintiff, a oil refining company, shall agree on the price of oil prior to the occurrence of any obligation to sell and purchase oil by accepting the sale of oil by the seller and ○○, a trayer, and that the buyer has prepared to deliver the oil to the designated vessel by specifying the accurate quantity, place and time of delivery at least 72 hours prior to the occurrence of the obligation.

The purpose of Gap's evidence 2 through 5, Eul evidence 1 through 14, Eul evidence 3-1 through 3, Eul evidence 4 and 5, Eul evidence 6-1 and 6-2, testimony and the whole purport of oral argument.

D. Determination

(1) Judgment on the Plaintiff’s assertion No. 2. A. (1)

(A) Interpretation of Article 17(8) of the Traffic Tax Act and Article 24(5) of the Enforcement Decree of the same Act

Article 17 (8) of the Traffic Tax Act provides that the traffic tax shall be collected in cases where oil taken out to an overseas ship is already paid with the traffic tax, and the traffic tax shall be collected in cases where the oil is not used for the prescribed purpose. Article 24 (5) of the Enforcement Decree of the same Act provides that the traffic tax shall be collected from the person who has not used the goods for the prescribed purpose in the case falling under paragraph (8) of Article 17 of the same Act.

On the other hand, Article 15 (2) of the Traffic Tax Act provides that the traffic tax shall be collected from the shipper or the importer of the oil brought into the overseas navigation ship, if it is found that the oil brought into the ship is not used for the tax exemption purpose after being exempted from the traffic tax. Thus, it is reasonable to view that Article 15 (2) of the Traffic Tax Act applies to the traffic tax refund procedure as in this case, since Article 17 (8) of the Traffic Tax Act and Article 24 (5) of the Enforcement Decree of the same Act do not prove that the oil brought into the ship is not used for the tax exemption purpose after being exempted from the traffic tax, the traffic tax shall not be imposed on the oil brought in from the person subject to the traffic tax exemption from the shipper or the importer of the oil brought into the ship, but it is not used for the tax exemption purpose. Thus, it is reasonable to interpret that Article 15 (2) of the same Act does not apply to the traffic tax refund procedure as in this case.

(B) Legal relationship between the Plaintiff on the instant oil and ○○

The term "marine oil supply condition", which is a general contract between the plaintiff and ○○, which is a general contract for the first transaction between the plaintiff and the seller and ○○○, includes oil as the buyer, but it is recognized as a whole by considering the facts and the purport of the entire pleadings as above. In other words, under the premise that the final consumer of the oil of this case is determined as the overseas navigation vessel, the contract between the plaintiff and ○○ under the premise that the final consumer of the oil of this case is determined as the overseas navigation vessel, the contract for marine oil supply conditions and the supply conditions between the plaintiff and ○○ is entered into between the plaintiff and ○○. ② The plaintiff is not ○, a person who was entitled to the traffic tax, etc. with the certificate of oil supply and the certificate of export products brought in subject to refund. ③ In light of the fact that the plaintiff, other than ○○ under the maritime oil supply condition of this case, was agreed to deliver oil to the overseas navigation vessel, the owner of the oil of this case is the plaintiff until it is delivered to the overseas navigation vessel.

(C) Sub-determination

Therefore, as seen earlier, the Plaintiff is entitled to traffic tax, etc. so long as the instant oil was normally supplied to an overseas navigation ship and did not meet the requirements for refund, the owner and the shipper of the instant oil shall be the Plaintiff until the Plaintiff satisfies the requirements for refund, and the Plaintiff shall also be held responsible for management and supervision, on the other hand, the Plaintiff’s assertion, which is a different premise, is without merit.

(2) Judgment on the Plaintiff’s assertion No. 2. A. 2

Under the tax law, in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, the taxpayer’s intention and negligence are not considered as administrative sanctions imposed as prescribed by the individual tax law. On the other hand, such sanctions cannot be imposed in cases where there are circumstances where it is unreasonable for the taxpayer to be aware of his/her duty, or where there are circumstances where it is unreasonable for the taxpayer to expect the performance of his/her duty, or where there are circumstances where it is unreasonable for him/her to have caused the failure to cause the failure to perform his/her duty.

Under Article 1-1-2 of the Public Notice on the Handling of Refundable Customs Duties, etc. on Raw Materials for Export, the term "export item entry certificate" in this case refers to the document confirmed and issued by the head of the competent customs office with respect to the goods loaded on an overseas navigation vessel. According to the facts acknowledged earlier, the Plaintiff was entitled to the traffic tax, etc. that was submitted to the Defendant, the head of the competent customs office, based on the belief that the entry of the certificate of bringing-in of exported items issued by the head of the competent customs office, the amount of the oil, the quantity, the supply amount, etc. was carried in, and submitted to the Defendant, who is the head of the competent tax office. Thus, it is unreasonable to believe the entry of the above certificate of bringing-in, which was issued by the head of the competent customs office, and expect that the Plaintiff would be obliged to pay the traffic tax, etc. refunded

3. Conclusion

Therefore, the Plaintiff’s claim seeking revocation of the instant disposition is KRW 3,012,325,640 among the disposition of imposition of traffic tax of KRW 3,962,86,670 listed in the separate disposition list (= KRW 3,962,86,670 - KRW 301,230,560 - KRW 649,330,470), and KRW 451,845,780 among the disposition of imposition of education tax of KRW 497,030,360 - KRW 45,184,580 (=497,030,360 - KRW 45,184,580), and value-added tax of KRW 447,234,270 among the disposition of imposition of KRW 31,826,00 (=447,234,270,270 - 3152,600,57,425).

List of Impositions

○

Relevant statutes

Traffic Tax Act (amended by Act No. 7576 of July 8, 2005)

Article 2 (Taxable Object and Tax Rate)

(1) The goods subject to traffic tax (hereinafter referred to as "taxable goods") and rates thereon shall be as follows:

1. Gasoline and substitute oil similar thereto:

630 won per liter.

2. Light oil and alternative oil similar thereto:

404 won per liter.

(2) Items and types of taxable goods shall be prescribed by Presidential Decree.

(3) The tax rates as referred to in paragraph (1) above may be adjusted within the limit of 30/100 of the tax rates by the Presidential Decree, if necessary to secure financial resources for transport facilities investment and supply and demand of the goods concerned for the efficient management of national economy.

(4) The determination of taxable goods shall be based on the form, use, character and other important characteristics of the goods concerned, regardless of their names.

Article 3 (Taxpayer)

Any person who falls under any of the following subparagraphs shall be subject to traffic tax under this Act:

1. A person manufacturing and transporting goods as prescribed in Article 2 (1);

2. A person carrying out goods from a bonded area under the Customs Act (hereinafter referred to as a "bonded area") (referring to a person liable to pay customs duties in accordance with the Customs Act; hereinafter the same shall apply);

3. With respect to the goods on which customs duties are collected other than under subparagraph 2, any person liable to pay the customs duties.

Article 4 (Time of Taxation)

Traffic tax shall be imposed when the taxable goods are carried out of the manufacturing place or when an import declaration is filed: Provided, That the goods under subparagraph 3 of Article 3 shall be governed by the Customs Act.

Article 9 (Determination and Revision Decision)

(1) Where a return pursuant to Article 7 is not filed or there are errors or omissions in details of such return, the head of the competent tax or customs office shall determine or correct the tax base and amount thereof.

(2) Determination or revision prescribed in paragraph (1) shall be based on book-keeping records or other evidence: Provided, That decision by estimation may be allowed where there are any clear reasons prescribed by the Presidential Decree.

Article 15 (Conditional Tax Exemption)

(1) Where approval from the head of the competent tax or customs office is obtained for the goods falling under any of the following subparagraphs, the traffic tax shall be exempted:

3. Those used as raw materials for medical treatment, manufacturing medicines, fertilizers, manufacturing agricultural chemicals or petroleum chemical industries, and those used for overseas navigation ships, deep-sea fishing ships, or aircraft;

(2) With respect to the goods under paragraph (1) which are not proven to have been carried in to the carry-in place as prescribed by the Presidential Decree, the traffic tax shall be collected from the person carrying-in or the importer, and with respect to the goods concerned after being carried in to the carry-in place, the traffic tax shall be collected from

Article 17 (Deduction from and Refund of Tax Amount)

(1) If the goods or raw materials, on which any traffic tax has already been paid or is yet payable, are carried in from the manufacturing place or the bonded area and used directly for manufacturing or processing of the taxable goods, the amount of such traffic tax already paid or payable shall be deducted from the amount of the traffic tax payable or payable with regard to such taxable goods, as prescribed by Presidential Decree.

(2) If the goods, on which any traffic tax has already been paid or is yet payable, fall under any of the following subparagraphs, such traffic tax already paid shall be refunded, as prescribed by Presidential Decree: In such cases, when any traffic tax payable exists,

4. Where taxable goods are used as raw materials for medical treatment, manufacturing medicines, fertilizers, or manufacturing agricultural chemicals, and where they are used by aircraft, foreign navigation ships, deep sea fishing ships, foreign diplomatic missions in Korea or other equivalent institutions;

(8) Where it is confirmed that the goods which fall under paragraph (2) 4 and were refunded or deducted have not been used for the prescribed purpose, the traffic tax refunded or deducted shall be collected.

Enforcement Decree of the Traffic Tax Act (amended by Presidential Decree No. 18941 of July 8, 2005)

Article 24 (Application for Deduction or Refund of Tax Amount)

(1) Any person who intends to obtain a deduction or refund due to occurrence of causes falling under Article 17 (1) and (2) of the Act shall file an application with the head of the competent tax or customs office pursuant to the provisions of the following subparagraphs (including an application by means of national tax information and communications networks) along with documents attesting the occurrence of such causes and documents attesting that the traffic tax has already been paid or is to be paid: Provided, That where the taxed petroleum products are used by a foreign mission in Korea

1. In cases of Article 17 (1) and (2) 2 of the Act, the chief of the competent tax office having jurisdiction over the applicant;

2. In cases falling under Article 17 (2) 1, 3 and 4 of the Act, the head of the competent tax office or customs office who has imposed or is to impose the traffic tax on the relevant goods jointly with the person who has paid the traffic tax: Provided, That where the person who has actually borne the traffic tax is different from the person who has actually borne the traffic tax, he/she

(2) The evidentiary documents under paragraph (1) are as follows:

4. Report on the user's use in the case of medical raw materials, medical supplies, fertilizers, and raw materials for the manufacture of agricultural chemicals under Article 17 (2) 4 of the Act, and written confirmation of use issued by the head of the competent authority, in the case of aircraft, user's use in the case of aircraft, and in the case of international navigation ships and deep sea fishing ships, the shipment permission under the proviso of Article 17 (2) (in

(5) In case of falling under Article 17 (8) of the Act, the traffic tax shall be collected from the person who has not used the relevant goods for the prescribed purpose. In this case, for the petroleum products used in an overseas navigation ship or deep sea fishery ship from among Article 17 (2) 4 of the Act, the customs collector shall collect the relevant goods from the person who has not used such goods for the prescribed purpose.

Education Tax Act (amended by Act No. 7578 of July 13, 2005)

Article 3 (Taxpayer)

Anyone falling under any of the following subparagraphs shall be liable to pay education tax in accordance with the provisions of this Act:

3. Taxpayers of traffic tax under the Traffic Tax Act;

Value-Added Tax Act (amended by Act No. 7318 of Dec. 31, 2004)

Article 16 (Tax Invoice)

(1) Where an entrepreneur registered as a taxpayer supplies goods or services, he/she shall deliver an invoice stating the following matters (hereinafter referred to as "tax invoice") to the person who receives the supply, as prescribed by Presidential Decree, at the time provided for in Article 9 (where Presidential Decree prescribes otherwise, the time otherwise, such time as prescribed by Presidential Decree). In such cases, a tax invoice may be modified, as prescribed by Presidential Decree, if any ground prescribed by Presidential Decree, such as error or correction, arises

1. Registration number, name or denomination of the businessman who provides;

2. Registration number of the person who receives;

3. Supply value and value-added tax;

4. Date of preparation.

5. Matters prescribed by Presidential Decree, other than those under subparagraphs 1 through 4.

Article 22 (Additional Tax)

(2) Where an entrepreneur falls under any of the following subparagraphs, an amount equivalent to 1/100 of the value of supply shall be added to the payable tax amount or deducted from the refundable tax amount:

1. If all or part of the requisite entries in the tax invoice issued pursuant to Article 16 (1) are not entered by mistake or negligence or are different from the fact;

Notice of Customs Duties, etc. Levied on Raw Materials for Export Article 1-1-2 (Definition of Terms)

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

4. The term “written confirmation of carrying in (loading) the export goods subject to refund” means the documents (hereinafter referred to as the “written confirmation of carrying in or loading”) confirmed and issued by the customs collector with respect to the raw materials for export brought in to the bonded warehouse, bonded factory, bonded store, general bonded area, free trade zone, occupant enterprise in the free trade zone, goods for sale, etc., and the ship or aircraft under subparagraph 4 of Article 4 and Article 2 (4) of the Rules;

Article 5-1-1 (Application for Confirmation of Carrying in and Documents to be Submitted) of the Public Notice on Customs Duties, etc. on Raw Materials for Export

(1) Any person who intends to obtain a written confirmation of shipment of exported items to be refunded from a bonded area, etc. and a free trade zone pursuant to subparagraph 3 of Article 4 of the Act and Article 2 (3) of the Rule shall immediately transmit the application data prepared in accordance with the guidelines for written confirmation of shipment (loading) of exported items to be refunded to the relevant bonded area, etc. and the relevant free trade zone, to the head of the customs office having jurisdiction over the place of shipment (attached Form 2-3) along with the documents falling under any of the following subparagraphs within three days from the date on which he/she receives the notice of receipt: Provided, That where the processing standards are immediately examined when he/she receives the notice of receipt under Article 5-1-2 (2), the submission of documents may not

1. Local letters of credit;

2. Purchase confirmation.

3. An export letters of credit or an export contract (the price of goods is in foreign currency and the goods are delivered to an affiliated enterprise designated by the foreigner, and the letter of credit or the export contract and the person to whom the goods are delivered are entered: Provided, That in cases of an export contract, it shall be limited to cases where the delivery of the goods is confirmed by a statement of transaction, etc. and

Article 5-1-3 (Method of Handling Application for Confirmation of Carrying in and Review Matters) of the Public Notice on Customs Duties, etc. on Raw Materials for Export

(1) The following methods shall be applied for confirmation of shipment:

1. An immediate examination;

2. Examination for submission of documents;

(2) Any of the following cases shall be treated as subject to submission of documents, and other cases shall be treated as subject to examination immediately:

1. Where the head of customhouse determines as an inspection goods pursuant to Article 5-1-4; and

2. Where the case is an enterprise or item subject to the refund prior examination under Article 14 (3) of the Act and Article 13 of the Rules;

3. The case where the enterprise which is unfair and excessive refund for the latest one year is supplied: Provided, That the case where the customs collector deems that there is no possibility of excessive refund, shall be excluded; and

4. An enterprise or item that the head of the relevant customs office deems necessary to submit documents or examine.

(3) The head of a customs office shall examine cases subject to an immediate examination on the following matters. Where it is deemed difficult to conduct an immediate examination, he/she may examine such cases by changing them into cases of submission of documents:

1. Whether the contents of the application are accurately prepared pursuant to the outline for preparing the application; and

2. Whether the item number (H or 10 units), the name, and standard are appropriate.

3. Whether the goods are subject to refund under paragraph (4) 6;

(4) The head of any customhouse shall confirm documents submitted and transmitted under Article 5-1-1 with respect to cases of examination of submission of documents, and examine whether such documents and materials have been prepared accurately in accordance with the guidelines for preparation of applications and the following matters:

1. Whether the items and specifications are accurate;

2. If the number of goods (the number of HS 10 units) is appropriate.

3. Original condition, manufacturing and processing;

4. Whether the supplier is actually investigating;

5. Whether accurate descriptions are made by weight and by weight.

Article 5-1-6 (Electronic Registration of Details of Issuance, Issuance of Certificates, and Notification of Notice on Refund of Customs Duties, etc. on Raw Materials for Export)

(1) With respect to a case, the examination (inspection) of which has been completed pursuant to Articles 5-1-3 through 5-1-4, the date of confirmation, etc. shall be recorded electronically and the applicant shall be notified electronically.

(2) Where an applicant makes a request, a certificate of entry may be notified to the transferee in electronic form. In such cases, the transferor shall notify the head of the competent customs office of the notice of a certificate of electronic document transmission business (attached Form 4-6) before the application, and the head of the customs office so notified shall register the certificate in the

(3) An applicant for verification of entry shall issue a certificate of entry with the following confirmation affixed thereon after checking whether the case subject to the immediately issuance of the examination conforms with the details of confirmation notified by the customs refund system after being notified of the details of confirmation:

(4) The head of a customs office shall, upon completion of an examination of a case involving the submission of documents, issue a written confirmation with a seal (attached Table 4) affixed by a customs officer stated in the written confirmation application.

(5) When a person provided with export items subject to refund to a bonded area, etc. finds any fact different from the details of the confirmation, he/she shall immediately report such fact to the head of the relevant customs office that issued the relevant confirmation

(6) When the head of a customs office brings in oil for use and consumption in a bonded factory, he/she may issue a written confirmation of carrying in of goods when the quantity subject to confirmation is determined, excluding the quantity required after the completion of test run.

(7) An applicant shall arrange and keep relevant documents, such as transaction documents and a receipt of goods, related to the issuance of a carry-in certificate, in accordance with the provisions of Article 8-0-4.