Seoul High Court 2008Nu32470 (209.08)

2006 Heavy2343 (Law No. 785, Oct. 14, 2006)

Where tax-free oil is illegally used before being carried into an ocean-going ship, traffic tax, etc. shall be collected from the oil-free shop.

In case where tax-free oil is used for other purpose before it is brought into an ocean-going ship, "a person who has not used the goods for the prescribed purpose" shall be deemed to have been refunded traffic tax, etc. Therefore, it is legitimate to additionally collect traffic tax, etc. from oil refinery who is the shipper of tax-free oil.

209Du14972 Disposition of revocation of traffic tax imposition

XX Stock Company

the director of the tax office of Western

Seoul High Court Decision 2008Nu32470 Decided July 8, 2009

October 27, 2011

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 3

Article 4 of the former Traffic Tax Act (amended by Act No. 7576 of Jul. 8, 2005; hereinafter referred to as the "Act") provides that traffic tax shall be imposed when taxable goods are taken out of a manufacturing place. Article 17 (2) provides that where the goods for which traffic tax has already been paid or is yet to be paid fall under any of the following subparagraphs, the tax amount already paid shall be refunded as prescribed by the Presidential Decree. In this case, if there is any tax amount payable, the tax amount shall be deducted, and subparagraph 4 provides that "where taxable goods are used in an overseas ship," Article 24 (1) and (2) 4 of the former Enforcement Decree of the Traffic Tax Act (amended by Presidential Decree No. 18941 of Jul. 8, 2005; hereinafter referred to as the "Enforcement Decree") provides that the goods for which the traffic tax has not been paid from the person under Article 17 (2) 4 of the Act are not used for the purpose of refund or deduction, the traffic tax shall be collected as a document.

Meanwhile, Article 15(1)3 of the Act provides that traffic tax shall be exempted in cases where the head of the competent tax office or customs office grants approval for goods used in an overseas navigation vessel. Article 23(2) of the Enforcement Decree of the Act and Article 23(1)3 and the proviso of Article 17(2) of the Act provide that traffic tax shall be collected from the shipper for those goods not proved that they carried in an overseas navigation vessel by a loading permit, and the traffic tax shall be collected from the shipper when they change or transfer the purpose of use after entering the overseas navigation vessel.

According to Article 17 (2) 4 of the Act and Article 24 (1) and (2) 4 of the Enforcement Decree of the Act, traffic tax on goods used for overseas navigation vessels shall be refunded or deducted for the reason that the goods are used for overseas navigation vessels. Article 17 (8) of the Act provides for ex post facto collection of traffic tax in cases where it is confirmed that the goods do not meet the requirements for traffic tax refund or deduction, and Article 15 (2) of the Act provides that traffic tax shall be collected from the shipper if the goods are not carried into overseas navigation vessels. In the case of conditional tax exemption under Article 15 (2) of the Act, the traffic tax shall be refunded or deducted for the reason that the goods are used for overseas navigation vessels. Thus, it is reasonable to view that traffic tax should be refunded or deducted for the purpose of traffic tax exemption under Article 24 (5) of the Enforcement Decree.

In full view of the adopted evidence, the lower court determined that: (a) the Plaintiff, a oil refining company, was to supply oil to overseas navigation vessels through brokerage of △△ Co., Ltd. (hereinafter referred to as “Vein, etc.”) from January 9, 2003 to October 27, 2004; (b) concluded an oil supply service contract with OO sea oil Co., Ltd. (hereinafter referred to as “OO sea, etc.”) for this purpose; (c) when concluding an oil tanker charter contract with the Plaintiff, the Plaintiff provided oil to the overseas navigation vessel by dry Ba, etc. for the purpose of using the oil for the purpose of using the oil in question on the ground that it did not meet the above order order provision for the above period; and (d) the Plaintiff was not entitled to traffic tax exemption for the reason that the Plaintiff was not entitled to traffic tax exemption for the purpose of using the oil in question (hereinafter referred to as “the Plaintiff’s oil in question”) under the premise that it was not entitled to traffic tax exemption for the oil in question.

In light of the above provisions, legal principles, and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to persons subject to traffic tax, etc.

In addition, even if the owner of the taxable article was exempted from traffic tax on the ground that the goods were used for overseas navigation vessels, and the traffic tax is collected from the shipper because it was confirmed that the goods were not carried in overseas navigation vessels, it does not violate the principle of excessive prohibition or self-responsibility under the Constitution. The argument in the grounds of appeal disputing this point is without merit.

2. Regarding ground of appeal No. 2

The lower court determined that the Defendant, who is the head of the competent tax office, becomes the subject of traffic tax, etc. pursuant to the first sentence of Article 24(5) of the Enforcement Decree, as long as the oil in this case is not carried into an overseas ship but used for other purposes by the head of the competent customs office pursuant to Presidential Decree No. 18180 of December 30, 2003 in order to collect the traffic tax from the shipper, etc. of the overseas ship in question, on the ground that the latter part of the same paragraph is nothing more than the fact that the oil legally brought into the overseas ship remains without being used for the prescribed purpose at the overseas ship in question.

In light of the relevant provisions and the legislative intent of the above, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the collecting entity of traffic tax, etc. alleged in the grounds

3. As to the fourth ground for appeal

Article 11 (1) of the Value-Added Tax Act (amended by Act No. 8826 of Dec. 31, 2007) provides that "the zero tax rate shall apply to the supply of goods or services falling under any of the following subparagraphs," and Article 26 (1) 3 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 19892 of Feb. 28, 2007) provides that "goods or services supplied to ships going to a foreign country, which are prescribed by Presidential Decree."

The court below held that the oil of this case, which is not supplied to an overseas ship, cannot be subject to zero tax rate under the Value-Added Tax Act, since the plaintiff could not recognize the fact that the plaintiff supplied the oil of this case to a foreign ship, and instead, they can only recognize the fact that XX, etc. illegally sold the oil of this case to land intermediate wholesalers, etc.

4. As to the fifth ground for appeal

Under the tax law, 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, an additional tax is an administrative sanction imposed as prescribed by the Act, and it is unreasonable to expect the taxpayer to fulfill his/her obligations, and there is a justifiable reason not to impose such obligations (see, e.g., Supreme Court Decision 2008Du16001, Sept. 10, 2009).

The court below held that, based on the facts as seen in paragraph (1), since the Plaintiff’s right to manage and supervise the oil of this case is recognized throughout the entire course of oil supply in accordance with the terms of the maritime oil supply service agreement entered into with the Plaintiff, etc., the Plaintiff cannot be exempted from liability for the management and supervision of the illegal outflow of the oil of this case, and the certificate of bringing-in (loading) export goods subject to refund, which is a supporting document for the refund of traffic tax, etc., shall be issued on the basis of the certificate of oil supply signed jointly by the Plaintiff (supplier) and the captain of an overseas ship or his/her agent, as long as the Plaintiff participated in preparing the above certificate of oil supply, the Plaintiff cannot avoid liability for the illegal outflow of oil of this case, such as Yma, etc., as long as he/she participated in preparing the above certificate of oil supply.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error of law by misunderstanding legal principles as to additional tax as alleged in the ground of appeal.

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.