early 2014west 703

Whether a taxable entertainment place constitutes an entertainment drinking house business prescribed by Enforcement Decree of the Food Sanitation Act.

In selling alcoholic beverages, entertainment and eating facilities such as stage, sound equipment, special lighting, and entertainment facilities were allowed for customers to use entertainment facilities, and at the same time as consumption of alcoholic beverages were conducted. It seems that it constitutes a taxable entertainment place.

Article 1 of the Individual Consumption Tax Act

Seoul Administrative Court 2015Guhap4747

○ ○

○ Head of tax office

October 22, 2015

November 19, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 00,000,000 (including additional tax) in addition to the individual consumption tax and education tax stated in the separate sheet against the Plaintiff on October 0, 000 shall be revoked.

1. Details of the disposition;

A. The Plaintiff, with Nonparty ○○○ as a joint business proprietor, has operated the business up to the present day (for example, performance place operating business, food, and miscellaneous business on October 000) with the trade name of “○○○○ (hereinafter “instant business site”) from among the 1st underground floor and middle floor 00.0 square meters of 00 square meters of ○○○-dong, Seoul, 000-00 square meters of ○○-dong (hereinafter “instant building”) from among the 1st and middle floor of 000 square meters of ○○-dong (hereinafter “instant building”).

B. On the other hand, on October 0, 000, the Plaintiff reported the type of business of the instant place of business to ○○○○ Office as 'food entertainment business', and the type of business as 'general restaurant'.

C. The ○○ regional tax office conducted an integrated investigation of individual taxes against the Plaintiff, the representative of the instant workplace, from October 0, 000 to October 0, 000, and notified the Defendant of the taxation data to the effect that the instant workplace constitutes a taxable entertainment place stipulated in the Individual Consumption Tax Act, and thus the individual consumption tax should be imposed on the entertainment and food charges arising from the instant workplace. According to the above notification, on October 0, 000, the Defendant decided and notified the Plaintiff of the total amount of 00,000,000 won of individual consumption tax and education tax for the month from October 0, 000 to October 0, 000 (including additional tax) (hereinafter “instant disposition”).

D. On October 0, 00, the Plaintiff appealed against the instant disposition and filed an appeal with the Tax Tribunal on October 0, 000, but dismissed on October 0, 000 (the written decision of dismissal appears to have been served on the Plaintiff after October 0, 000, and the Defendant did not dispute this point), and the Plaintiff appealed and filed the instant lawsuit on October 0, 00.

[Ground for Recognition: Facts without dispute, Gap evidence Nos. 1, 2, 17, 18, Eul evidence No. 1, the purport of the whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

① The instant place of business does not sell food after cooking; ② the instant place of business is mainly for the holding and viewing of performances, and its customers are not primarily for dancing or singing; ③ the average consumption amount of customers in the instant place of business is less than KRW 00,000,000, and ④ the so-called so-called “○○ club,” such as the instant place of business, serves as a sound cultural space for facilitating exchanges of diverse music and performance culture and creating new music and performance culture, it cannot be said that the instant place of business is a taxable entertainment place as provided by the Individual Consumption Tax Act.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Article 1(1) of the former Individual Consumption Tax Act (amended by Act No. 11601, Jan. 1, 2013; hereinafter "the Individual Consumption Tax Act") provides that "the individual consumption tax shall be imposed on specific goods, admission to a specific place, eating, drinking, and drinking at a specific place, and business activities at a specific place." Paragraph (4) of the same Article provides that "the place where individual consumption tax is imposed on taxable entertainment places and their tax rates shall be as follows: 10/10 of entertainment bars, foreigner-only entertainment restaurants, and other similar places." Paragraph (12) of the same Article provides that "persons engaged in entertainment and eating business" means entertainment and drinking facilities installed at entertainment entertainment places or other similar places under Article 2(3) of the Enforcement Decree of the former Enforcement Decree of the Individual Consumption Tax Act (amended by Presidential Decree No. 25197, Feb. 21, 2014; Presidential Decree No. 22013, Feb. 3, 2014>

2) The issue of this case is whether the workplace of this case constitutes a taxable entertainment place, which is the place subject to the individual consumption tax under the individual consumption tax Act, and when comprehensively considering each of the above provisions, whether the workplace constitutes a taxable entertainment place, i.e., a business of cooking and selling alcoholic beverages, i., a business of cooking and selling entertainment facilities, and customers are permitted to sing or dance, i.e., a business of cooking and selling alcoholic beverages, i., a business of mainly cooking and selling alcoholic beverages, ii a business of installing entertainment facilities, i.e., a business of employing entertainment workers, or a business of installing entertainment facilities, 3 customers are allowed to singing or dance, and the reasons for recognizing the above dispositions and the following circumstances are considered to be considered to fall under the place subject to the individual consumption tax, which is the place subject to the imposition of the individual consumption tax, as stipulated in the above provisions.

① The instant place of business is installed on the underground floor of the instant building. The area of the 1st floor of the instant building is 00.0 square meters, and there is a heavy floor of 00.0 square meters in the underground floor of the instant building. The 1st underground floor is installed with stage, sound equipment, special lighting, bar, dance, and kitchen facilities, and the middle floor is equipped with 00 strings (so-called VIP) (On the other hand, Nonparty 00.0 square meters in the underground floor of the instant building is operated on the trade name of ○○○○○○○○, but as examined thereafter, the entire area of the instant place of business is considered to have been operated as a single place of business connected with the instant place of business, and the entire area of the instant place of business is 00 square meters in the total area of 00 square meters in the instant place of business, excluding the foregoing 00 square meters).

② The sales of the instant place of business consisting of admission fees, alcoholic beverages, and the sales proceeds of the instant place of business. Admission fees were KRW 00,000 on the ordinary day, KRW 00,00 on the weekend, and KRW 00,000 on the weekend. The sales of both alcoholic beverages were confirmed to have been KRW 00,000,000, and KRW 00,000,000 were imposed on the use of VIPs. The additional charges for KRW 00,00 or KRW 00,00 are deemed to have been imposed on the use of VIPs. The sales of the instant place of business after the preparation by the customers of the instant place of business.

③ The pre-business operator of the instant business was Nonparty ○○○, and ○○○ had operated the same method of business as the Plaintiff’s instant business from October 0, 00 to October 0, 000. However, ○○○ also reported the instant business to the effect that the instant business was a general restaurant. However, on the ground that the head of ○○○○ on October 0, 000, the head of ○○○ issued an order to repair facilities on the ground that the instant business was in violation of the Food Sanitation Act, such as “the installation of an entertainment drinking hall outside the entertainment drinking house” on the ground that ○○○ violated the Food Sanitation Act on the ground that ○○ violated the Food Sanitation Act again on the ground that ○○○ violated the business suspension period on October 1, 00, the penalty surcharge was imposed in lieu of the Plaintiff’s business suspension period on the ground that ○○○ violated the Food Sanitation Act on the same ground (hereinafter “the instant penalty surcharge was reduced to the head of ○○”).

④ From Oct. 0, 000 to Oct. 1, 000, the Defendant (○○○○○○○) was sentenced to a fine of KRW 0 million at the ○○○ District Court on the first floor of the instant building (hereinafter “instant building”). From Oct. 1, 2000 to Oct. 1, 200, the Defendant (○○○○○○○○) installed stage, lighting, and sound equipment on the first floor of the instant building without obtaining an entertainment tavern business license from the competent Gu office, and provided money from many unspecified customers so that they can drink and dance. Accordingly, the Defendant was sentenced to a punishment of KRW 1 million at the ○○○ District Court on the charge of committing an act of selling entertainment tavern business without permission (hereinafter “○○○○”). From Oct. 1, 2000, ○○○○ workplace used a signboard with the instant workplace, and did not make the overall payment of the entrance fee to each of the instant workplaces, it appears that the entire establishment did not exist.

In full view of the above circumstances, it can be evaluated that ① selling alcoholic beverages at the instant place of business is mainly alcoholic beverages, ② customers entering the instant place of business using 'entertainment facilities' such as stage, sound equipment, special lighting, and entertainment facilities, ③ simultaneously with the consumption of alcoholic beverages, and ③ entertainment and entertainment for dancing in music. Accordingly, the instant place of business seems to fall under the so-called "sports and entertainment place" subject to the Individual Consumption Tax Act, which is stipulated as taxable objects in the Individual Consumption Tax Act.

"Business of cooking and selling alcoholic beverages" as stipulated in the Enforcement Decree of the Food Sanitation Act means a business of cooking and selling alcoholic beverages, which should be interpreted as a business of selling alcoholic beverages at the same time through historical and systematic methodology. The place of business of this case is merely providing a day-to-day week, etc. which need not be cooked while selling alcoholic beverages (see Evidence A 5), and there is no cooking, so the place of business of this case does not constitute a taxable entertainment place (see Evidence 5 of this case). However, the plaintiff argued to the purport that the place of business of this case does not constitute a taxable entertainment place, i.e., the business of cooking and selling alcoholic beverages as stipulated in the above Enforcement Decree of the Food Sanitation Act, which allows customers to sing or dance, and it constitutes a business of selling alcoholic beverages as alcoholic beverages and cooking alcoholic beverages, and it does not constitute a business of selling alcoholic beverages or dance, and the plaintiff's assertion to the purport that the place of business of this case constitutes a business of selling entertainment bars or dancing, and it does not constitute a public performance entertainment entertainment place of this case.

However, even after examining the images of Gap evidence 6, the public performance is set up from 5 p.m. to 5 p.m., and some public performances are allowed to be admitted to minors, and the organizer of a separate public performance planning company, which is not the place of business of this case, is allowed to sell for example through its separate website, or leaves all after the public performance is completed. Thus, the place of business of this case is not mainly used as a performance hall, but it is always used as a "guse to freely dance while drinking by customers," and it seems that the place of business of this case is limited to leasing a locked space at a certain date prior to the operation of a club to another public performance planning company.

Meanwhile, according to Gap evidence Nos. 21 through 24 and Gap evidence Nos. 20, it appears that there exists a contribution team employed by the workplace of this case. They appear to work at the workplace of this case during the operating hours of the workplace of this case, and they appears to have offered some performances by inviting performers during the operating hours of the workplace of this case. However, the materials presented to the effect that the plaintiff employed the contribution company are not the taxable period of the disposition of this case but the materials of 2015, which are not irrelevant to the legality of the disposition of this case. ② The plaintiff asserted that the business establishment of this case had concluded an employment contract with the workplace of this case, as examined later, was the DJ or raper to stimulate customers' interest in the process of operating the club of this case. ③ The plaintiff's assertion itself does not seem to have its principal meaning in the performance hall of this case, ③ The size of the stage of this case in the workplace of this case was about 0% of the entire performance area of this case.

5) In addition, the Plaintiff asserts to the effect that the instant place of business constitutes not an entertainment tavern but a sound cultural space and a tourist destination, and thus does not fall under the imposition of individual consumption tax.

However, as seen earlier, if a place of business is actually similar to an entertainment drinking house under the Enforcement Decree of the Food Sanitation Act (i.e., a place of business that conducts an entertainment drinking house, i.e., a place of business that is subject to individual consumption tax, and whether it constitutes a sound cultural space or a tourist destination, is irrelevant to the imposition of individual consumption tax, and ② In addition to the overall purport of the images and arguments of the evidence No. 9 on the facts of recognition and the grounds for recognition as known, the instant place of business is a so-called so-called ○○ club located near the ○ University, and the instant place of business is a so-called “non-so-called club,” in which both men and women are running a business in the form of so-called “non-so-called, in which they enjoy an act of drinking while drinking and dance with their entire bodies,” and even if considering the legislative intent of the Individual Consumption Tax Act, it cannot be interpreted as a “decent cultural space or a sound tourist space” on the ground that it is not subject to individual consumption tax.

6) principal purpose of the Individual Consumption Tax Act is to restrain the consumption of dead value. The Plaintiff asserts that admission fees paid by the visitors visiting the instant workplace are KRW 00,000 to KRW 00,000, and the prices of alcoholic beverages and beverages sold within the instant workplace are mainly KRW 0,000, and the price of safe value is mainly KRW 00,000, and the average sales per transaction amount is KRW 00,000 and KRW 00,000. Thus, the Plaintiff’s place of business where the average sales per transaction amount is KRW 00,000 cannot be deemed to be a place where dead value consumption is conducted, and thus, it cannot be deemed to be a taxable entertainment place (Evidence A 19).

However, in light of the fact that the instant place of business sells drinking beverages in addition to drinking water, and in the case of VIP seat, even if the average sales amount is within KRW 00,00,00, it cannot be said that there was no consumption of personal consumption. ② As seen earlier, if the place of business actually similar to entertainment tavern under the Enforcement Decree of the Food Sanitation Act is a taxable entertainment place, i.e., a taxable entertainment place, it is subject to the individual consumption tax. ③ Since the object of taxation of the Individual Consumption Tax Act includes not only private goods but also private goods such as guns for hunting, small automobiles, oil, etc., and so it cannot be interpreted that it is not subject to the individual consumption tax solely on the ground that the average sales amount is a small amount, and thus, the Plaintiff’s assertion on this part cannot be accepted (the Plaintiff’s so-called “○○ club” is a new entertainment phenomenon, and thus, it should be interpreted differently from the existing entertainment entertainment bars. However, it should be interpreted as a whole to the purport that it should be treated differently.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.