The restaurant business of cooking and selling food within a large retailer’s place of business constitutes a restaurant business.

Inasmuch as the Korean Standard Industrial Classification does not provide entertainment facilities as an essential requirement, a restaurant business constitutes a restaurant business because food is cooked and sold even if no entertainment facility exists in the place of business of a large retailer.

Article 4 of the Enforcement Decree of the Value-Added Tax Act

2015Guhap65780

○ ○

○ Head of Tax Office and 10

December 18, 2015

April 1, 2016

1. Refusal of an application for rectification of value-added tax stated in the [Attachment 1] List in the Plaintiff’s Disposition List

All disposition shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On May 1, 2011, the Plaintiff was established as a personnel division of ○○○ Large Scale Sales Store (hereinafter “○○○○”) and operated retail discount store business by establishing a domestic ○○ Branch (hereinafter “each branch”) as of September 2014.

B. The Plaintiff was supplied with agricultural products, livestock products, fishery products, and forest products exempt from value-added tax, and prepared food such as Kim Beded, bed, sweed, and fin at each location (hereinafter “instant food”) and offered them to the selling stand and sold to the customers.

C. Article 17(3) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter “former Value-Added Tax Act”) and the enforcement of the former Value-Added Tax Act with respect to the value-added tax on the instant food from No. 1 to 2011 to 2013.

Decree (amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter referred to as "former Value-Added Tax Act")

Value-added tax shall be 2/100 pursuant to Article 62 (1) 3, etc. of the Enforcement Decree (hereinafter referred to as the "Enforcement Decree"), respectively.

Report and payment was made.

D. The plaintiff's industrial activities that prepared and sold the food of this case (hereinafter "the industrial activities of this case") fall under the restaurant business, and thus, the defendant filed a request for correction of each value-added tax stated in the "Contents of Disposition" table on the ground that Article 62 (1) 1 (b) of the former Enforcement Decree of the Value-Added Tax Act should apply 6/106 of the deduction rate of the constructive purchase tax amount as stipulated in Article 62 (1) 1 (b) of the former Enforcement Decree of the Value-Added Tax Act, but the defendants rejected the request on each notification date of the above table (hereinafter "the disposition of this case").

each entry and the whole purport of the pleading; hereinafter the same shall apply)

2. Related statutes;

Attached Form 2 shall be as stated in the relevant statutes.

3. Whether the instant disposition is lawful

(a) Facts of recognition;

1) The Plaintiff predicted the customer’s demand and prepared the instant food in a kitchen located immediately behind the sales stand, and offered the instant food to the sales stand for each unit of small packaging, and offered it to the customer for purchase. In 2014, the sales volume of the Plaintiff’s sales on the final consumer out of the Plaintiff’s sales on cash receipt issued during the year 2014 is 97% based on the number of occasions as indicated below, and 94% based on the amount as indicated below.

2) The Plaintiff’s clock, frying, etc., located in each branch store building and the clocks outside the clocks around the clocks are equipped with the contact facilities such as table table, chairs, water-take equipment, water reservoir, and clocks (hereinafter “instant contact facilities”), and the general customers can use these contact facilities without any restriction.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

B. Article 62(1) of the former Enforcement Decree of the Value-Added Tax Act and Article 84(1) of the Enforcement Decree of the Value-Added Tax Act provide for the calculation of the amount for which a certain portion of the value of tax-free agricultural and fishery products can be deducted as the input tax amount. Meanwhile, Article 1(3) of the former Enforcement Decree of the Value-Added Tax Act and Article 4(1) of the Enforcement Decree of the Value-Added Tax Act provide that the classification of the business of supplying goods shall follow the Korean Standard Industrial Classification as of the starting date of the taxable period publicly notified by the Commissioner of the Statistics Korea. The Korean Standard Industrial Classification (Korea Standard Industrial Classification No. 2007-53 of Dec. 28, 2007) provides that the food restaurant (561) which is ordered to be used directly within the Gu or the delivery and provision of the food directly by the customer without the passenger facility is included in the category of the company and the school food restaurant (2016.561).

C. In light of the following circumstances and the contents and purport of relevant Acts and subordinate statutes, it is reasonable to deem that the instant industrial activities constituted a restaurant business in light of the aforementioned facts and the purport of the entire arguments.

① The Plaintiff directly prepared the instant food and sold it in small packages. In light of the Plaintiff’s sales ratio to the final consumer out of the sales amount, most of the instant food and beverage were sold to the final consumer.

(2) Although entertainment facilities are not located immediately front of the instant food sales stand, customers who have purchased them may take food of this case without any restriction using the instant entertainment facilities installed by the Plaintiff within the same building, if they wish to do so. Even if food is possible after the value of food, it cannot be viewed as an element affecting industrial classification.

할인마트라는 장소적 특성상 고객들이 접객시설을 이용하지 않고 포장된 이 사건 음식물을 집으로 가져가는 경우가 대부분이라고 하더라도, 이 사건 접객시설을 갖추고 있는 이상 고객의 실제 이용 여부는 음식점업의 요건이 아니므로 그에 따라 음식점업인지를 달리 볼 수 없다. 또한 원고가 이 사건 음식물에 대하여 접객시설을 갖추지 못한 것으로 보더라도, 한국표준산업분류 실무 적용을 위한 분류설명서 4.의 [4-3] 개요 (2) ③항이 '접객시설 없이 고객이 주문한 특정음식을 즉시 소비할 수 있는 상태로 직접 조리하여 고객에게 제공(배달)하는 경우'를 음식점업으로 보고 있고, 이를 간략히 '접객시설(��), 고객이 주문한 음식을 직접 조리제공(배달) ⇒ 음식점'으로 표시하고 있는 점에 비추어 보면, 접객시설을 갖추지 않은 경우라도 고객으로부터 주문받은 음식을 직접 조리하여 제공하는 경우에는 음식점업에 해당하는 것으로 볼 수 있다. 한국표준산업분류도 '즉석식의 빵, 케익, 생과자 등을 직접 구워서 일반 소비자에게 판매'하는 산업활동은 '제과점업'(56191), '피자, 햄버거, 샌드위치, 토스트 및 유사 음식을 직접 조리하여 일반소비자에게 판매'하는 산업활동은 '피자, 햄버거, 샌드위치 및 유사 음식점업'(56192)으로서음식점업에 해당하는 것으로 규정하고 있다.

② Most of the cases where the Plaintiff prepared the instant food prior to the receipt of pre-sale orders from customers, but the customer can be deemed to have expressed the intent of the order by directly selecting and purchasing the instant food, and the content of the industrial classification does not stipulate the post of the order and the cooking. The same cannot be deemed as the case where a pre-sale of food was made when the customer prepared the food by forecasting demand on the day, and even if the remaining food was kept in custody, there is no ground to deem that this would affect the industrial activity classification.

③ At the time of commencing cooking and selling the instant food, the Plaintiff reported to the head of the competent local government as engaging in resting restaurant business among food service businesses under the Food Sanitation Act.

④ The Korean Standard Industrial Classification (10798) provides that "urban village and food cooking and food cooking and food manufacturing business" (10798) refers to the industrial activities that manufacture food-using city, Kimbed city, spab, spawn, spawn and other food-using foods by mixing and mixing various materials such as meat, vegetables, and grains, and sells directly cooked city and Kimb to end-consumers" shall be excluded from the category of restaurant business (561). In other words, urban village, etc. falls under the manufacturing business, but directly cooked city, etc. falls under the manufacturing business, but it is difficult to regard it as the food manufacturing business of this case, which mainly sells to end-consumers in light of the above provisions. Moreover, since the Korea Standard Industrial Classification for the application of the Korean Standard Industrial Classification is not the case where "purchase and sale of food by purchasing food without guest facilities," and the case where the plaintiff directly prepares and sells food and food retail business of this case to each of the above general consumers, it is not the case where it is not the case that the plaintiff directly sells food and food retail business of this case.

(6) Even if the purport of giving preferential treatment to the deduction rate of the restaurant business among the deduction rate of the constructive purchase tax amount was for the relaxation of the burden of value-added tax on the small restaurant business industry, such legislative purport cannot be interpreted beyond the language and text of the statutes.

7. The Korean Standard Industrial Classification classifys 'other industrial activities that operate the restaurant' as 'other restaurant business (56199)'. Even if there is no classification of restaurant business that regulates the same type of industrial activities as the instant industrial activities, 'other restaurant business' is at least 'other restaurant business'.

It is natural to regard it as it is.

D. Therefore, the instant disposition issued on a different premise is unlawful.

4. Conclusion

The plaintiff's claim against the defendants is justified, and all of them are accepted.