Board of Audit and Inspection ( Board of Audit and Inspection, 201.29)

In principle, entertainment taverns under the Individual Consumption Tax Act are subject to all taxation.

Objects and rates of individual consumption tax are specified in Acts, and they are not delegated to the Enforcement Decree or the Enforcement Rules, etc. concerning the objects to be excluded therefrom. In principle, entertainment taverns under the Individual Consumption Tax Act are subject to both.

Article 1 of the Individual Consumption Tax Act

2011Revocation of revocation of imposition of individual consumption tax, etc.

XX

Head of Namyang District Tax Office

June 26, 2012

September 18, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of the individual consumption tax, etc. against the Plaintiff on January 7, 2011 is revoked.

1. Details of the disposition;

A. On September 15, 2005, the Plaintiff started running an entertainment tavern business (hereinafter referred to as “the entertainment tavern business in this case”) under the trade name, “O on December 17, 2005,” a part of the 2nd floor of the building located in XX 325-9 located in the Gyeonggi-gu Yang-gun.

B. On January 7, 201, the Defendant issued the instant disposition imposing a total of 000 won (including additional tax) for the Plaintiff on the grounds that the instant entertainment tavern constitutes a special consumption tax (the name of the special consumption tax was changed to the individual consumption tax as the Special Consumption Tax Act was amended by Act No. 8829, Dec. 31, 2007; hereinafter referred to as “individual consumption tax”) (including the individual consumption tax and education tax paid from December 2005 to December 2009) on the grounds that the instant entertainment tavern constituted a taxable entertainment place.

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 5 (including virtual number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Defendant issued the instant disposition under the premise that the area of the instant entertainment tavern is not less than 45 square meters, but excluding 78.54 square meters used as a warehouse among the entertainment taverns in the instant case, the area of the instant entertainment tavern is not more than 142.22 square meters, and thus, the instant disposition was unlawful on a different premise.

2) Even if the area of the entertainment drinking house of this case is less than 45 square meters, the defendant asserts that the "where entertainment drinking is confirmed and the head of a tax office deems it appropriate to impose the tax" (hereinafter "the grounds for exception of this case"), the individual consumption tax can be imposed and the disposition of this case constitutes such cases. However, since this does not have the identity of the grounds for the defendant's previous disposition, the defendant

3) ① According to the National Tax Service’s “the second stage entertainment tavern promotion plan” (hereinafter “the second stage promotion plan”) as of April 9, 1999, it is stipulated that individual consumption tax shall not be imposed on entertainment taverns of less than 45 square meters in Gun areas. Thus, this constitutes a public opinion list subject to trust protection. ② The Defendant’s failure to impose individual consumption tax on entertainment taverns of less than 45 square meters in accordance with the second stage promotion plan was a non-taxable practice, and ③ the Defendant’s public official provided administrative guidance to the Plaintiff in accordance with the second stage promotion plan. Accordingly, the instant disposition contrary thereto is unlawful against the principle of trust protection.

4) Since the Defendant did not impose individual consumption tax on other entertainment taverns of less than 45 square meters, the instant disposition is unlawful against the principle of equality.

5) The Defendant issued the instant disposition under the premise that the tax base is a total of 000 won (hereinafter “instant tax base”), but excludes service charges of 000 won which amount to 46% out of the total sales amount, the tax base of the instant disposition should be 000 won.

6) The Plaintiff did not pay the individual consumption tax without negligence by reliance on the two-stage promotion plan and non-taxation practices thereunder. As such, at least the penalty tax in the instant disposition is unlawful.

B. Relevant statutes

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

C. Determination

1) Whether the defendant can assert the ground for exception of this case as the ground for disposition of this case

Since the subject matter of a taxation disposition lawsuit is objective existence of the tax amount determined by the tax authority, the tax authority may submit new data that can support the legitimacy of the tax base or amount of tax recognized in the relevant disposition, or exchange and change the reason to the extent that the identity of the disposition is maintained, and it does not necessarily mean that the tax authority can determine the legitimacy of the disposition by only the data at the time of the disposition or claim only the reasons at the time of the disposition (see, e.g., Supreme Court Decision 2001Du1994, Oct. 11, 2002).

In the instant case, even though the Defendant did not initially take the grounds for the exception in this case as alleged by the Plaintiff, it is within the scope of maintaining the identity of the disposition, and thus, it cannot be deemed that there was any error of law regarding the exceptional grounds as one of the grounds for the disposition in this case in determining the legitimacy of the disposition in this case.

Therefore, this part of the plaintiff's assertion is without merit.

2) Whether the principle of protection of trust violates the principle

The principle of respect for tax practices provided for in Article 18(3) of the Framework Act on National Taxes applies only to special circumstances where protection of taxpayer's trust is deemed consistent with the concept of justice, even if there is sacrifice of the principle of legality.

As seen in the relevant Acts and subordinate statutes, the object and rate of individual consumption tax are specified in the Acts and subordinate statutes, and they are not delegated to the Enforcement Decree or the Enforcement Rule of the Individual Consumption Tax Act, so in principle, entertainment taverns are all subject to taxation. Furthermore, since the individual consumption tax Act provides that the taxpayer should report and pay it, all entertainment tavern operators including the Plaintiff have the legal obligation to report and pay the individual consumption tax, etc.

The second stage promotion plan is established and implemented on the basis of the basic policy to alleviate the impact of entertainment tavern prior to the imposition of the individual consumption tax on entertainment tavern by the National Tax Service established and instructed to the first-class tax office in order to reduce the impact of entertainment tavern prior to the comprehensive imposition of the individual consumption tax on entertainment tavern. The purport of the plan is not not to impose an unconditional individual consumption tax on entertainment tavern with respect to less than 45 square meters located in the Gun area, but to relieve a small-scale entrepreneur whose impact is less than a certain scale such as difficulty in living, etc. prior to the comprehensive imposition of the individual consumption tax on entertainment tavern, the imposition of tax on it is deferred on it by the provisional measure to relieve a small-scale entrepreneur whose impact is less than a certain scale, but in light of all the circumstances such as the business method or sales size of the relevant entertainment tavern, it cannot be deemed as a tax-free business entity intending to protect its manager from the second stage promotion plan, and it cannot be deemed that there is no need for the head of the competent tax office to individually impose the individual consumption tax on the relevant entertainment tavern.

In addition, the Plaintiff asserted that public officials belonging to the Defendant issued a public statement of opinion to the effect that they will not impose individual consumption tax on entertainment taverns of 45 square meters. However, each statement of evidence Nos. 5, 7, 8, 10, 18, 19 (including virtual numbers) is insufficient to acknowledge the above assertion, and there is no other evidence to acknowledge it.

Therefore, the plaintiff's assertion on this part is without merit.

3) Whether the principle of equality is violated

The statement of evidence Nos. 11 through 15 (including paper numbers) alone is insufficient to recognize that other business establishments alleged by the plaintiff have the same conditions as the plaintiff in terms of sales, service charges, etc., and there is no other evidence to prove otherwise. Thus, the above evidence alone cannot be readily concluded that the disposition of this case is against the principle of equality. Accordingly, the plaintiff's assertion on this part is without merit.

4) Amount of the tax base of this case

The plaintiff asserts that the remaining tax standards of the sales from December 2, 2005 to December 2, 2009, excluding service charges, do not exceed 000 won.

In full view of the purport of each statement in Eul evidence Nos. 1 (including additional numbers), even in the case of the remaining 00 won (including the amount included in the period from January 1, 2008 to June 30, 2008), the amount reported by the plaintiff as the amount of value-added tax among the tax base of this case shall be excluded from the tax base of individual consumption tax only under Article 2 (1) 11 of the former Enforcement Decree of the Individual Consumption Tax Act (amended by Presidential Decree No. 22031, Feb. 18, 2010), since there is no evidence to prove that the amount was actually paid to the employee, it cannot be deemed that there is an error of law that the defendant has made the full amount of 00 won as the tax base of this case.

Therefore, the plaintiff's assertion on this part is without merit.

5) Whether the portion of additional tax is lawful

In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under the tax law is an administrative sanction imposed under the conditions as prescribed by the Act in cases where a taxpayer violates a return, tax liability, etc. as prescribed by the Act without any justifiable reason, and thus, it is unreasonable for the taxpayer to be aware of his/her duty. Thus, unless there are justifiable grounds to believe that it is unreasonable for the taxpayer to be aware of his/her duty, or that it is unreasonable for him/her to expect the fulfillment of his/her duty, the additional tax under the tax law should be imposed for nonperformance of tax obligation

In principle, since the subject and rate of individual consumption tax are stipulated in Acts and are not delegated to the Enforcement Decree or the Enforcement Rule, etc. concerning the objects to be excluded, entertainment taverns under the Individual Consumption Tax Act are all subject to taxation. Furthermore, the Act stipulates that the relevant taxpayer should report and pay it by himself, and as seen earlier, the two-stage implementation plan does not form a non-taxable practice that does not impose any condition on entertainment taverns of less than 45 square meters located in the military area. Therefore, it is difficult to view that there is a justifiable reason that the Plaintiff cannot be attributable to the failure to report and pay the individual consumption tax by misunderstanding that the non-taxable practice has been formed due to the second-stage implementation plan.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.