(영문) 대구지방법원 2015.1.30.선고 2014구합21686 판결

1. The Defendant’s imposition of penalty tax of KRW 334, 581, 380 and penalty tax of KRW 723,075, and value-added tax of KRW 120 shall be revoked on June 27, 2013.

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

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. In accordance with Article 89(1)1 of the former Customs Act (amended by Act No. 11602, Jan. 1, 2013; hereinafter the same) and Article 35 of the former Enforcement Rule of the Customs Act (amended by Ordinance of the Ministry of Strategy and Finance No. 337, Feb. 23, 2013; hereinafter the same shall apply), the Plaintiff imported aircraft parts from GermanyO, pursuant to Article 89(1)1 of the former Customs Act and Article 35

Article 12 (2) 15 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter the same) and Article 46 (8) of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24683, Jun. 28, 2013; hereinafter the same) have been exempted from value-added tax.

B. Since July 1, 2011, the Free Trade Agreement between the Republic of Korea and the European Union and its Member States (hereinafter referred to as “Korea-EU FTA”) entered into force, there was a ground provision that the Plaintiff may apply taxes free of charge, not customs reduction or exemption to the parts, etc. imported from ○○○○. Accordingly, on July 1, 2011, the Plaintiff requested the Plaintiff to send a certain phrase for the exporter’s filing an origin declaration on invoice, etc. [The Plaintiff] to apply the above conventional tariff (tariff) to foreign transaction partners including ○○○, etc. on July 1, 2011.

C. However, the OO sent to the Plaintiff a invoice, which erroneously states the customs certification number of OO as if it were the customs certification number of the approved exporter even though it was not an approved exporter subject to conventional tariffs under the EU FTA.

D. The Plaintiff filed an application for the application of conventional tariffs under Article 10 of the former Act on Special Cases of the Customs Act for the Implementation of Free Trade Agreements (amended by Act No. 11612, Jan. 1, 2013; hereinafter referred to as the “FTA”), and filed an application for the reduction or exemption of conventional tariffs under Article 89(1)1 of the former Customs Act with respect to 941 among the total imported goods from OO on July 1, 201 to February 17, 2013, and 138 items imported from July 1, 201 to November 9, 201, as follows:

On August 1, 2012, the Convention applies only for the ex post facto application of conventional tariffs (tariff duty) and filed an application for ex post application for the application of conventional tariffs (tariff duty-free) and for the reduction of or exemption from customs duties for the remaining 63 items (goods B). ② With respect to 250 items imported from November 10, 201 to July 3, 201, only the application for conventional tariffs (tariff duty-free) was filed at the time of filing an import declaration; ③ 53 items imported from July 4, 201 to February 17, 2013, both the application for the application of conventional tariffs (tariff duty-free) and the application for the reduction or exemption of customs duties for the imbalanced items at the time of filing an import declaration.

E. On April 10 to May 30, 2013, the Defendant confirmed that the Plaintiff applied for conventional tariffs pursuant to the EU FTA - even if not an approved exporter subject to conventional tariffs, on June 27, 2013, the Defendant notified the Plaintiff of the result of a written verification of importation. Of the issues, ① 2,049, 346, 572 won and additional tariffs 335, 289, 79, 79, 79, 793 won, and 50, 205, 30, 206, 205, 30, 207, 205, 30, 206, 30, 306, 205, 30, 306, 306, 205, 306, 205, 306, 206, 306, 207, 206, 207.

G. On July 1, 2013, the Plaintiff issued the instant disposition, pursuant to Article 112(2)1 of the Enforcement Decree of the Customs Act, on July 1, 2013, where five days have not passed since the date of the instant disposition, the Plaintiff filed an application for reduction and exemption based on Article 89(1)1 of the former Customs Act as to the principal tax of customs duties, and Article 12(2)15 of the former Value-Added Tax Act as to the principal tax of value-added tax, and the Defendant fully refunded the said principal tax and the principal

H. The Plaintiff dissatisfied with the instant disposition and filed an appeal on September 24, 2013, but the Tax Tribunal dismissed the disposition on April 4, 2014.

【Uncontentious facts, Gap’s evidence 1 through 5, 7, Eul’s evidence 1, 2, 4 through 7 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The Plaintiff’s assertion 1) Additional tax is a means to enforce the obligation to report and pay the principal tax, so it can be recognized only on the premise of the existence of the principal tax. As long as the total amount of the principal tax is refunded according to an application for refund of ex post facto reduction and exemption, the additional tax and value-added tax constitute additional tax that are not the principal tax, and thus, the instant disposition is unlawful.

B) In the case of the instant penalty tax, Article 42(1) of the Customs Act provides that “In short of the amount of customs duties” as the requirement for imposing penalty tax. As long as the principal tax is reduced or exempted upon an application for ex post facto reduction or exemption, as long as the amount of the principal tax is so reduced or exempted, the instant disposition on imposition of penalty tax in this part is unlawful since it did not meet

C) In the case of the instant value-added tax: (a) Korea; (b) whether conventional tariffs are applied in accordance with the EU FTA; and (c) both are exempt from the principal value-added tax pursuant to Article 12(2)15 of the former Value-Added Tax Act, regardless of whether the goods are subject to reduction of or exemption from customs duties; and (d) the Plaintiff is illegal to impose value-added tax regardless of whether it is an approved exporter, on the ground that the Plaintiff did

D) In the case of additional customs duties, “justifiable cause” should be interpreted more broadly than national tax additional duties, and as a ground for imposing additional duties arises within the scope of ○○○○○○○○, a third party, within the scope of liability, the Plaintiff should be deemed to have no possibility to expect the Plaintiff to perform the duty. The key goods ①, ③ the inherent duty exemption of customs duties and the goods subject to the application of the value-added tax exemption, so the degree of the duty of care required for the Plaintiff should be deemed to be much lower than ordinary cases. OO was a company exporting aircraft parts, etc. to the world, which was no longer reliable for OOO to believe that it was qualified as an approved exporter and performed duties properly. In light of the fact that the Plaintiff believed the erroneous administrative guidance by the tax authority, the Plaintiff only applied for conventional tariffs pursuant to the EU FTA, and did not apply for reduction or exemption of customs duties, it should be deemed that there was justifiable cause for the Plaintiff’s failure to perform duties.

E) The instant disposition was unlawful since each calculation basis of the additional duty and value-added tax, the basis for calculation thereof, etc. are not clearly specified.

2) The Defendant’s assertion constitutes a liability to pay national taxes, which is separate tax items from the principal tax, to be added.

In light of the following: (a) a tax liability is established independently; (b) the tax liability is finalized when the government determines the tax base and the amount of the tax; and (c) the Plaintiff is merely subject to the reduction of the principal tax ex post facto, and thus, the tax liability of this case has already been established lawfully and effectively at the time of imposition; (b) thus, it cannot be deemed that there is no principal tax or ex post facto illegal; and (c) where there is no amount of the principal tax calculated, penalty tax can be imposed and collected independently even if there is no amount of the principal tax calculated, unless there is any special provision, such as imposition and collection of penalty tax.

B) It is obvious that there was a shortage of customs duties at the time of the instant disposition. If there is a ground provision on the imposition of customs duties and additional duties in accordance with the Plaintiff’s assertion on additional duties, it would be difficult to accept the conclusion that the tax authority should expect the Plaintiff to file an application for reduction and exemption in the future and should not impose additional duties.

C) Since additional tax is a sanction against nonperformance of the duty to cooperate under tax-related Acts, it cannot be said that the state of violation of the law, such as failure to comply with the duty to cooperate immediately due to the fact that the application of the VAT exemption is based on the same provision. Therefore, even if the Plaintiff’s exemption from the duty to cooperate after the Plaintiff’s ex post facto reduction of or exemption from the value-added tax on the application of conventional tariffs, the Plaintiff’s breach of duty

D) In light of the following: (a) whether an exporter is eligible for conventional tariffs as an approved exporter ought to be confirmed by the importer; (b) whether the exporter is determined by the administrative guidance of the public official in charge; and (c) whether the case of receiving conventional tariffs and receiving reduction or exemption of customs duties on a balanced tariff item differs depending on the special tax for rural development; (d) the degree of duty of care cannot be deemed much lower than that of ordinary cases; and (d) the Plaintiff cannot be deemed to have justifiable grounds for nonperformance of duty.

E) In order for the Defendant to impose a tax on the instant case, the penalty tax on each imported goods must be calculated on a daily basis. As such, a considerable period of time has to be required to prepare and notify the Plaintiff of an individual tax payment notice. However, the Plaintiff’s demand was made to cooperate with the Plaintiff before July 1, 2013 so that the disposition can be completed, and directly calculated the penalty tax amount and the basis for calculation was clearly understood by communicating with the Defendant, and thus, it constitutes a case where it is evident that the taxpayer does not have any impediment to determining whether to object to the instant disposition and filing an appeal.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Determination

1) Relation between principal and additional taxes

Article 8-1 of the former Enforcement Decree of the Corporate Tax Act provides for a kind of tax imposed on the goods for which taxes are imposed without any justifiable reason; Article 8-1 of the former Enforcement Decree of the Corporate Tax Act provides for the amount of principal tax to be collected along with the amount of principal tax for the convenience of collection procedures; Article 8-1 of the former Enforcement Decree of the Corporate Tax Act provides for various Acts and subordinate statutes including where the amount of principal tax is calculated regardless of the amount of principal tax; Article 8-1 of the former Enforcement Decree of the Corporate Tax Act provides for separate taxation for the legal nature of the principal tax and the amount of individual tax to be collected; Article 6-1 of the latter Enforcement Decree of the Corporate Tax Act provides for the amount of non-reported tax base for each item of the automobile (including cases where there is no amount of principal tax or tax payable for each item of the automobile): Article 6-1 of the latter Enforcement Decree of the Corporate Tax Act provides for separate taxation for the amount of individual tax payable; Article 8-1 of the latter Enforcement Decree of the Corporate Tax Act provides for the amount of non-reported tax;

Meanwhile, Article 42(1) of the former Customs Act provides that when the head of a customs office collects deficient customs duties pursuant to Article 38-3(1) or (4), he/she shall collect the aggregate of the following amounts as the penalty tax: "10/100 of the relevant shortage of customs duties" (Article 47-4(1)1) and "the relevant shortage of customs duties 】 the period from the day following the original payment deadline to the date a declaration is filed or a notice is served on the date a declaration is filed or a notice is served on the duty payment 】 (Article 47-3(1)2 of the former Framework Act on National Taxes provides that where a taxpayer files a return on the tax base of national taxes under the tax-related Acts by the statutory deadline for filing a return, an amount equivalent to 10/100 of the amount of the under-reported tax and the over-reported amount of the tax shall be the penalty tax, and Article 47-4(1)1 of the same Act provides that "where a taxpayer fails to pay national taxes by the due date or under tax-related amount 】 the due date of voluntary payment 】

B) As to the instant case, the Defendant imposed customs duties of KRW 2,049, 347, 110 and additional duties of KRW 334,581, 380 and KRW 335,521,880 and additional duties of KRW 723,075,120 on the Plaintiff’s key goods ①, and KRW 32,049, 347, 110 and KRW 334, 581, 935, 521, and additional duties of KRW 723,075, and 120 on the Defendant. Since then, pursuant to Article 112(1)1 of the Enforcement Decree of the Customs Act, the Plaintiff filed an application for ex post facto reduction or exemption of customs duties of KRW 2,049, 347, 110 and KRW 2,935, 521, and 880 on the imported goods.

Article 42(1) of the former Customs Act provides that the penalty tax shall be calculated on the basis of the amount of tax payable by stipulating that the amount equivalent to 10/100 of the relevant shortage of customs duties and the amount calculated by multiplying the relevant shortage of customs duties by the number of delayed days and a certain interest rate shall be collected as the penalty tax, 4. Article 47-3(1)2 of the former Framework Act on National Taxes provides that the amount equivalent to 10/100 of the underreported amount of customs duties shall be the penalty tax in the case of underreporting of value-added tax, and that the penalty tax shall be calculated on the basis of the amount of

In light of the following: (a) in relation to goods ①; (c) in accordance with Article 42(1) of the former Customs Act and Article 47-3(1)2 of the former Framework Act on National Taxes, the pertinent disposition was made by calculating the additional duty and the additional tax; (b) in accordance with the Plaintiff’s application for ex post facto reduction or exemption; and (c) in view of the fact that the Defendant fully reduced or exempted the key goods ①; and (c) in granting a reduction or exemption of the principal tax and the additional tax on the relevant goods; (b) inasmuch as there is no amount of the Plaintiff’s tax payable, it is reasonable to deem that there is no additional tax pursuant to Article 42(1) of the former Customs Act and Article 47-3(1)2 of the former Framework Act on National Taxes

C) As to this, the Defendant alleged that the disposition of this case, which was lawful upon the existence of the principal tax payable at the time of the disposition, cannot be deemed unlawful ex post due to the full exemption of the principal tax upon the application for ex post facto reduction or exemption. However, there is no ground to view the effect of ex post reduction or exemption upon the application for ex post reduction or exemption under Article 112(2)1 of the Enforcement Decree of the Customs Act differently from the effect of ex post reduction or exemption under Article 112(1) of the Enforcement Decree of the Customs Act. The key goods (i), and (iii) related customs and value-added tax were lawful at

In addition, the defendant asserts that the obligation to pay the additional tax of this case, which was already determined at the time of the disposition of this case, cannot be extinguished due to ex post facto reduction or exemption application, etc. However, it is merely a concept under the tax procedure law that the tax authority can commence the execution procedure, and it cannot be deemed that the determination of the tax obligation affects any legal relationship between the taxpayer and the tax authority. Since Article 112(2)1 of the Enforcement Decree of the Customs Act explicitly prescribes an application for reduction or exemption after the notice of imposition and notice, the defendant's above assertion cannot be accepted.

3) Sub-decisions

Therefore, the instant disposition should be revoked as it is unlawful without examining the remainder of the Plaintiff’s remaining arguments.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.