Suwon District Court 2008Guhap4850 ( October 20, 2009)

Whether a notification disposition related to the violation of the order of alcoholic beverage trade is illegal

Even if the criminal judgment did not operate a brokerage business, but did not commit the crime of tax evasion, the crime of notification constitutes the crime of unlicensed sales of alcoholic beverages and the crime of violating the duty to issue tax invoices, so the notification disposition is lawful.

1. The part against the defendant in the judgment of the first instance against the Republic of Korea shall be revoked;

2. The plaintiff's claim against the defendant Republic of Korea is dismissed.

3. The plaintiff's appeal against the defendant Goyang Tax Office is dismissed.

4. The plaintiff bears the total costs of litigation between the plaintiff and the defendant Republic of Korea, and the costs of appeal against the defendant Goyang Tax Office are borne by the above defendant.

1. Purport of claim

On December 11, 2002, the director of the Highyang Tax Office confirms that each imposition disposition of global income tax and value-added tax on attached Form 1, which was made against the Plaintiff on December 11, 2002, is null and void. The Defendant Republic of Korea pays to the Plaintiff the amount calculated at the rate of 5% per annum from October 12, 2007 to the delivery date of the copy of the complaint of this case, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

The director of the Goyang Tax Office: He/she shall cancel the part against which the judgment of the court of first instance was rendered, and dismiss the plaintiff's claim corresponding

Republic of Korea: as stated in paragraphs (1) and (2) above.

1. Details of the disposition;

A. The Plaintiff operated Scam Market in Gyeyang-gu Seoul Metropolitan City AAdong 137-1.

B. The director of the Seoul Regional Tax Office notified Defendant 1 that the Plaintiff purchased non-material alcoholic beverages from August 16, 2002 to November 30, 2002. After confirming that the Plaintiff purchased non-material alcoholic beverages from mm alcohol, etc., he/she then sold them to the intermediate wholesalers or retailers and received a total of 13 years sales from 197, 30, 197, 296, 30, 197, 197, 49, 297, 296, 30, 30, 197, 197, 296, 30, 197, 197, 30, 197, 197, 206, 30, 197, 294, 397, 294, 205, 197, 197, 396, 197, 294.

C. On the other hand, on the other hand, on December 26, 2002, the head of the high-sea tax office notified the Plaintiff of the payment of the amount equivalent to the penalty amount of KRW 133,401,340 in accordance with Article 8(1), Article 11-2(1) and (2) of the Punishment of Tax Evaders Act, and Article 9(1) of the Procedure for the Punishment of Tax Evaders Act as to the suspected sales of alcoholic beverages without issuing a tax invoice, while operating the unlicensed liquor wholesale business (hereinafter “instant notification disposition”), and the Plaintiff paid the amount equivalent to the penalty amount in accordance with the above notification disposition.

[Grounds for Recognition: Evidence No. 4, Evidence No. 1, No. 2, and No. 1, 2]

2. Relevant statutes;

Attached Acts and subordinate statutes.

3. Whether the instant disposition is null and void

A. The parties' assertion

(1) The plaintiff's assertion

The plaintiff asserts that the disposition of this case issued by the head of Goyang Tax Office on the premise that the plaintiff, while operating the Smarket from around 1997 to 2001, only obtained only a considerable amount of revenue from commission by mediating the trading of alcoholic beverages between a large alcoholic beverage distributor and a retailer, without any fact that he operated the alcoholic beverage wholesale business, was in violation of the principle of substantial taxation, and thus, it is unlawful in violation of the principle of substantial taxation and its defect becomes null and void due to its gross and clearness.

(2) Defendant Goyang Tax Office’s assertion

The above defendant asserts that the plaintiff's argument that the disposition of this case is null and void, since the plaintiff's business constitutes an alcoholic beverage wholesaler, even if the plaintiff merely mediated the sale and purchase of alcoholic beverages at the time, but did not operate an alcoholic beverage wholesaler, the head of the High Military Tax Office deemed the plaintiff as an alcoholic beverage wholesaler and issued the disposition of this case in accordance with the result of the tax investigation of the plaintiff as a result of the tax investigation of the plaintiff, and it cannot be objectively clear when the defect is based on the average public official's judgment with ordinary attention and interest. Thus, the plaintiff's argument that the disposition of this case is void just because it is not justified.

(b) Fact of recognition;

(1) From January 1, 1997 to February 2001, the Plaintiff entered the proposal to purchase alcoholic beverages at a price lower than the market price from the employees, etc. of the supplier of alcoholic beverages such as BBcom, etc., the Plaintiff has been engaged in a transaction in the form of payment of the said alcoholic beverage price to the seller, instead of obtaining profits equivalent to KRW 100,000 to KRW 150,000 per vehicle from the supplier’s employees, etc., by informing the seller or retailer who has maintained his/her ordinary transactional relationship, confirm his/her intent to purchase the alcoholic beverages, received the alcoholic beverages from the seller’s employees, etc., and confirmed the details of the alcoholic beverages in the borrowed account, and then received alcoholic beverages from the supplier’s employees, etc., and transported alcoholic beverages to the purchaser at the pre-determined location, and instead

(2) A large amount of alcoholic beverages amounting to KRW 71.426 billion paid to the Plaintiff’s foregoing teaization during the pertinent transaction period. However, the Plaintiff employed only one driver to operate a business without a warehouse. The Plaintiff operated a business without a warehouse. The said purchase scheme and the distribution of alcoholic beverages was all the same day, and inventory did not occur.

(3) The ex-factory price of alcoholic beverages was determined and there was no room for the Plaintiff to change the ex-factory price of alcoholic beverages. The Plaintiff’s KRW 100,000 or KRW 15,000,000 per vehicle was limited to KRW 15,00 or KRW 150,000,000 or KRW 150,000,00 per vehicle.

(4) If the Plaintiff traded as an independent business entity in light of the aforementioned transaction amount and size, it would have been necessary to obtain a considerable amount of business funds for the purchase of alcoholic beverages. However, there was no property or income to the extent that the Plaintiff would raise such business funds, and the motive that the Plaintiff had been engaged in an alcoholic beverage intermediary sales business, which is disadvantageous to the Plaintiff, was aimed at making a living.

(5) Meanwhile, on May 9, 2005, the Plaintiff was indicted for violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) and the Punishment of Tax Evaders Act, on the suspicion that he/she evaded taxes of KRW 9,027,94,98 in total due to his/her failure to pay and pay value-added tax and income tax from 1997 to 2001 on the grounds that he/she received non-data from alcoholic beverage suppliers and operated alcoholic beverage wholesale business by selling alcoholic beverages to retail stores, without entering the details of purchase and sales in the books.

(6) On July 19, 2006, the court of first instance sentenced the plaintiff not guilty on the grounds of lack of evidence as to the above facts charged on the premise that the plaintiff operated the liquor wholesale business as an independent project undertaker and obtained income. The prosecutor appealed and appealed on June 7, 2007 (Seoul High Court 2006No1559), but the appeal was dismissed on June 7, 2007 (Seoul High Court 2006No1559), and the Supreme Court also filed an appeal by the prosecutor on October 11, 2007, respectively, and the judgment of the court of first instance became final and conclusive.

[Grounds for Recognition: Gap's evidence Nos. 7, 10, 11, Eul's evidence Nos. 7 through 10 (including paper numbers), Gap's testimony and the purport of the whole pleadings]

C. Determination

According to the above facts, when the plaintiff received an order to determine the kinds and quantities of alcoholic beverages from the supplier's employees, etc. under the prior agreement on the purchase price with the supplier's employees, and if the price was paid in advance to the borrowed account opened by the plaintiff, the plaintiff shall contact the supplier's employees and deliver the goods to the supplier's employees at a certain place, and gain profits equivalent to the difference between the purchase price and the sale price in the process. In full view of the above methods of determining the supply price and the sale price of alcoholic beverages, the methods of receiving and paying the goods, the methods of receiving and paying the goods, the methods of receiving and paying the price, the Plaintiff's profits compared to the transaction amount, the number of the plaintiff's business-related facilities or employees, and the number of the plaintiff's assets and revenues, etc., the plaintiff's supply of alcoholic beverages to the above supplier's employees is a so-called unregistered transaction whose role as a broker in the demand price in the middle, and it seems that the plaintiff was a real sales agent without any license.

Therefore, under Article 21(2)1 of the Value-Added Tax Act and Article 69(1)4 of the Enforcement Decree of the same Act, the disposition of this case, based on the premise that the plaintiff operated a liquor wholesale business, based on the sales price converted by multiplying the purchase price of alcoholic beverages by the gross profit ratio of the category of alcoholic beverage wholesale business, is serious, and it is reasonable to view that the plaintiff knew or could have known the situation that the business type of the plaintiff is the liquor brokerage business, even if based on the judgment of a public official with ordinary care and interest at the time of the disposition of this case, it is reasonable to view that the disposition of this case is void as a matter of course because the defect is serious

4. Determination on a claim for return of unjust enrichment equivalent to a fine paid according to a notice disposition

A. The plaintiff's assertion

The plaintiff's crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes falls under the case where the punishment and the fine are imposed concurrently, and thus cannot be the object of notification disposition applied only to the crime of violation of the Punishment of Tax Evaders Act to be punished by a fine or a minor fine. In addition, the notification disposition of this case constitutes a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) premised on the plaintiff's independent business operator's income by operating an alcoholic beverage wholesale business. As seen above, the plaintiff was indicted for the same crime and the verdict of not guilty became final and conclusive. Thus, the defect of the notification disposition of this case is serious. Thus, the plaintiff's defect of the notification disposition of this case constitutes unjust enrichment acquired without any legal cause. Thus, the defendant's Republic of Korea asserts that it should return it to the plaintiff.

(b) Fact of recognition;

According to the aforementioned evidence, the investigator of the Goyang Tax Office, who was in charge of tax investigation on the plaintiff, found that the tax evasion amount is at least 50 million won, and thus, the plaintiff violated the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 7767 of Dec. 29, 2005; hereinafter the same shall apply) and Article 8 (1) 1 and (2) of the former Punishment of Tax Evaders Act (amended by Act No. 7321 of Dec. 31, 2004; hereinafter the same shall apply), and found that the violation of Article 8 (1), 11-2 (1) and (2) of the former Punishment of Tax Evaders Act (amended by Act No. 1065 of Dec. 31, 200; hereinafter the same shall apply) was included in the category of 10 million won or more, and that the plaintiff violated the duty of notice No. 975,750 and 4066 won (including value-added tax) without permission for each of this case.

C. Determination

According to the above facts, the crime of the notification disposition of this case is a non-licensed alcoholic beverage sales crime and a violation of the duty to issue tax invoices, and the crime for which innocence became final after the indictment was filed for the crime of violation of the former Act on the Aggravated Punishment, etc. of Specific Crimes (tax) is the crime of tax evasion, and thus, the crime of the notification disposition of this case is different from each other. The crime of the notification of this case is lawful. Accordingly, it cannot be said that there is no legal ground for the plaintiff to pay the amount corresponding to the above punishment in accordance with the notification of this case. Furthermore, even if the fact of the crime of the notification of this case is based on the premise that the plaintiff was operating an alcoholic beverage brokerage business as an independent business operator, even if the defect is serious, the circumstance that the crime of the notification of this case is not guilty is based on the judgment of a public official with ordinary attention and understanding power at the time of the disposition of this case. Thus, the plaintiff's assertion against the defendant's Republic of

5. Conclusion

Therefore, the plaintiff's claim against the defendant Goyang Tax Office is justified, and the claim against the defendant is dismissed for lack of reason. The part against the defendant Goyang Tax Office in the judgment of the court of first instance as to the defendant Goyang Tax Office is just, but the part against the defendant's Republic of Korea is just. The part against the defendant's Republic of Korea in the judgment of the court of first instance is revoked, and the plaintiff's claim against the defendant is dismissed, and the part against the defendant Goyang Tax Office is just, and it is so decided as per Disposition.