Whether the right to purchase tax-free petroleum has been transferred to another person and the year to which the penalty provisions apply.

Even if the right to purchase tax-free petroleum was transferred to another person, if the above act was done before January 1, 2002, there is no provision that allows collection of the reduced or exempted tax amount, etc., and thus, the disposition of imposition in 2001 among the dispositions of imposition was made without any legal basis.

Article 106 (Exemption, etc. of Value-Added Tax)

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

Although examining all of the records of this case and the judgment of the court below and the grounds of appeal, the argument of the appellant's grounds of appeal cannot be accepted pursuant to Article 4 of the Act on Special Cases Concerning the Procedure of Appeal. Therefore, the appeal is dismissed pursuant to Article 5 of the Act, and it is so decided as per Disposition by

[Seoul High Court 2006Nu28491 ( June 27, 2007)]

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

피고가 2005. 2. 4. 원고에게 한 별지 부가가치세표 기재 각 부가가치세 합계 25,097,890원, 별지 교통세표 기재 각 교통세 합계 96,329,100원, 별지 교츅세표 기재 각 교육세 합계 12,780,690원의 각 부과처분을 취소한다.

2. Purport of appeal

A. The plaintiff shall revoke the part against the plaintiff in the judgment of the court of first instance. Each disposition of imposition of KRW 22,691,130 in aggregate of each value-added tax listed in the attached Table 3 through (7) of the attached Table of Value-Added Tax, and KRW 88,729,100 in aggregate of each traffic tax listed in the attached Table 7 through 31 of the attached Table of Value-Added Tax, and KRW 11,640,690 in aggregate of each education tax listed in the attached Table of Education Tax Table of

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to that part is dismissed.

1. Details of the disposition;

A. From 2001, the Plaintiff had been operating livestock consignment business with the trade name of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ farm, starting from livestock raisers into a sternity, and used a heating device for the combined use of the livestock industry such as light oil and oil for the purpose of guiding and heating, the Plaintiff obtained the right to purchase tax-free petroleum from the ○ Agricultural Cooperative,

B. However, in 201 as indicated below, the Plaintiff obtained a tax-free petroleum purchase right of 44,000 L, and delivered it to purchase 44,000 L, and from 2002 to 350,600 L, the Plaintiff obtained a tax-free petroleum purchase right of 350,600 L, and delivered 270,600 L, which he purchased and delivered to sell 10,000 L, which he purchased 270,60 L, and delivered to sell 70,00 L, etc. for the remaining 70,000 L, to offset the credit purchase right of 0,500 L, which is against the ○○○ Gas.

Business year

Oils listed in the duty-free petroleum purchase right

Oil actually purchased

Transit (l)

Light oil (l)

Transit (l)

Light oil (l)

201

44,000

10,000

0

54,000

202

128,600

0

4,000

124,600

2003

140,000

0

4,000

86,000

204

82,000

0

2,000

60,000

Consolidateds

394,600

10,000

10,000

324,600

C. Accordingly, on February 4, 2005, the Defendant issued each of the instant dispositions to correct and notify value-added tax, traffic tax, and education tax as indicated in the attached Table, traffic tax, and education tax, on the ground that the Plaintiff transferred the tax-free petroleum purchase rights, etc. received by the Plaintiff, and the petroleum products supplied by the said tax-free petroleum purchase rights, etc. were used for purposes other than farming and fishing.

[Ground of Recognition] Facts without dispute, Gap evidence 1-1 through 38, Gap evidence 2, 3, Eul evidence 1-1 through 7, Eul evidence 2-1 through 24, 26 through 32, Eul evidence 3-1 through 4, Eul evidence 4-1, 2, and 3, and the purport of the whole pleadings

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff issued the right to purchase tax-free petroleum on 324,60l and purchased it for agricultural purposes, all the purchased oil was used for agricultural purposes. ① It does not fall under the case of transferring the tax-free petroleum purchase right, etc. to another person or using it for purposes other than farming or fishing purposes, etc. under Article 106-2(5) of the Restriction of Special Taxation Act. ② Even if it falls under this case, the provision imposing an amount equivalent to the reduced or exempted tax amount on the transfer, etc. of the right to purchase tax-free petroleum was effective on January 1, 2002, the provision imposing an amount equivalent to the reduced or exempted tax amount on the transfer, etc. of the right to purchase tax-free petroleum was enforced from January 1, 202, each of the value-added taxes listed in paragraphs 1 and 2 of the attached Table 1,406,760 won on the ground of transfer, etc. of the right to purchase tax-free petroleum listed in the attached Table 1 through 6,600 won on each traffic tax table 1 through each of this case.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Determination as to each of the dispositions of this case in 201

(A) The Plaintiff’s act of selling the duty-free petroleum to the ○○○ gas station and purchasing light oil constitutes a case where the Plaintiff transferred the duty-free petroleum purchase right to another person.

(B) As seen in the relevant Acts and subordinate statutes, the reduction or exemption of value-added tax, etc. on petroleum products supplied or released until December 31, 2001 under Article 106(1)7 and Article 111(3) of the Restriction of Special Taxation Act before the amendment by Act No. 6297, Dec. 29, 200; the reduction or exemption of value-added tax, etc. on petroleum products supplied or released after January 1, 2002 under Article 106-2(1) of the Restriction of Special Taxation Act after the amendment by Act No. 6538, Dec. 29, 2000; Article 106-2(1) of the Restriction of Special Taxation Act (amended by Act No. 6297, Dec. 1, 200; Article 106(1)7 and Article 111-2 of the former Restriction of Special Taxation Act (amended by Act No. 1065, Mar. 16, 2002>

(C) However, Article 106-2(5) of the Restriction of Special Taxation Act, which provides for the collection of an amount equivalent to the abated or exempted tax and additional tax in the case of transferring the delivered tax-free petroleum purchase right to another person, was newly established on December 29, 2001 by Act No. 6538 of Dec. 29, 2001 and was enforced on January 1, 2002 pursuant to Article 1 of the Addenda to the above amended Act, and there was no provision providing for the above additional collection for agricultural petroleum products supplied or taken out until December 31, 201.

(D) In full view of the above relevant laws and regulations, even if the Plaintiff transferred the right to purchase tax-free petroleum delivered to another person, if the above act was done before January 1, 2002, there is no ground for collecting the reduced or exempted tax amount, etc., and thus, each disposition of tax imposition in the year 2001 among the dispositions of this case was made without legal basis, and thus

(E) The defendant asserts that Article 113 (1) of the Restriction of Special Taxation Act is a provision on the basis of additional collection. However, the above provision cannot be applied to cases where a duty-free petroleum purchase right delivered is transferred to another person, since it is not applicable to cases where the duty-free petroleum is not used for the intended purpose or is transferred within a certain period of time.

(2) Determination on the remaining dispositions of imposition of each of the instant dispositions

(A) As seen earlier, the Plaintiff’s act of delivering the right to purchase the duty-free petroleum to ○○○ gas station and purchasing the same constitutes a case where the Plaintiff transferred the right to purchase the duty-free petroleum to another person, and the act of delivering the duty-free petroleum upon the condition that the credit purchase amount to ○○ gas station is offset.

(B) In addition, according to Article 106-2(5)1 of the Restriction of Special Taxation Act, in the case of transferring the tax-free petroleum purchase right, the sum of the amount equivalent to the value-added tax, the special consumption tax, the traffic tax, the education tax, and the driving tax in the event that the petroleum is supplied by the tax-free petroleum purchase right at the time of transfer, and the amount equivalent to 10/100 of the above amount shall be additionally collected. In such a case, even if the tax-free petroleum purchase right to 270,60l is issued and the same quantity of oil has been purchased, the amount of the additional tax shall be calculated based on the amount equivalent to the reduced or exempted tax amount of 270,60l, which is the difference after deducting the reduced or exempted amount of

(C) Therefore, we cannot accept the Plaintiff’s assertion that each of the instant dispositions is unlawful on a different premise.

4. Conclusion

Therefore, the plaintiff's claim against each disposition of imposition of 201 among the disposition of this case is well-grounded, and the remaining claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in this conclusion, it is dismissed in all of the plaintiff and the defendant's appeal. It is so decided as per Disposition.

Related Acts and subordinate statutes

Article 106 of the Restriction of Special Taxation Act (amended by Act No. 6297 of Dec. 29, 2000)

(1) The supply of goods or services falling under any of the following subparagraphs shall be exempted from the value-added tax. In this case, the provisions of subparagraphs 1 through 3 and 9 shall apply only to the portion supplied not later than December 31, 2003, and the provisions of subparagraphs 7 and 8 shall apply only to the portion supplied not later than December 31, 200 for those provided for in the provisions of subparagraph 6 and those provided for in the provisions of subparagraphs 7 and 8:

7. Petroleum products for agriculture or fishery as prescribed by the Presidential Decree.

Article 111 of the Restriction of Special Taxation Act (amended by Act No. 6297 of Dec. 29, 2000) is exempted from special consumption tax or traffic tax on petroleum products

Petroleum products falling under any of the following subparagraphs shall be exempted from the special consumption tax or the traffic tax. In this case, petroleum products under subparagraph 2 shall apply only to those taken out of a manufacturing place or a bonded area not later than December 31, 2003, and petroleum products under subparagraphs 3 and 4 not later than December 31, 2000:

3. Petroleum products under Article 106 (1) 7.

Article 113 of the Restriction of Special Taxation Act (amended by Act No. 6297 of Dec. 29, 2000) (amended by Act No. 6297 of Dec. 29, 200)

(1) If the goods are not used for the intended purpose or are transferred within five years (in case of goods exempted from the special consumption tax under subparagraphs 7 through 10 of Article 109, the period determined by the Commissioner of the National Tax Service) from the date on which the goods are carried in as tax-free goods pursuant to Articles 109 through 111, the exempted tax

Article 106 of the Restriction of Special Taxation Act (amended by Presidential Decree No. 6297 of Dec. 29, 2000) (amended by Act No. 6538 of Dec. 29, 2001), Article 106 of the Restriction of Special Taxation Act, exemption from value-added tax, etc.

(1) The supply of goods or services falling under any of the following subparagraphs shall be exempted from the value-added tax. In this case, the provisions of subparagraphs 1 through 3 and 9 shall apply only to the portion supplied not later than December 31, 2003:

7. and 7. Deleted;

○ Abatement or exemption of value-added tax, etc. on petroleum products for farming, fishing, and coastal passenger ships under Article 106-2 of the Restriction of Special Taxation Act (amended by Presidential Decree No. 6297 of Dec. 29, 2000 and amended by Act No. 6538 of Dec. 29, 2001)

(1) As regards the petroleum products falling under any of the following subparagraphs, the tax amount equivalent to 75/100 of the value-added tax shall be abated or exempted under the conditions as prescribed by the Presidential Decree, limited to the portion supplied not later than December 31, 2003:

1. Petroleum for agriculture or fishery as prescribed by the Presidential Decree;

(2) As regards the petroleum products falling under any subparagraph of paragraph (1), the tax amount equivalent to 75/100 of the special consumption tax or traffic tax shall be reduced or exempted under the conditions as prescribed by the Presidential Decree for the portion taken out from a manufacturing place or bonded area not later than December 31, 2003.

Article 111 of the Restriction of Special Taxation Act (amended by Act No. 6297 of Dec. 29, 2000) is exempted from special consumption tax or traffic tax on petroleum products

Petroleum products falling under any of the following subparagraphs shall be exempted from the special consumption tax or the traffic tax. In this case, petroleum products under subparagraph 2 shall apply only to those taken out of a manufacturing place or a bonded area not later than December 31, 2003:

3. and 3. Deleted;

Article 113 of the Restriction of Special Taxation Act (amended by Act No. 6297 of Dec. 29, 2000) (amended by Act No. 6297 of Dec. 29, 200)

(1) If the petroleum products under Article 106-2 (2) and the water droughts under Articles 109 through 111 are not used for the intended purpose or are transferred within five years (the period determined by the Commissioner of the National Tax Service in case of goods exempted from the special consumption tax under subparagraphs 7, 8 and 13 of Article 109) from the date of carrying them into Korea as tax-free goods (including the cases where the taxes are reduced or exempted; hereafter referred to as "tax exemption" in this Article), the exempted tax amount shall be collected.

○ The enforcement date of Article 6297 and Article 1 of the Addenda No. 6297, Dec. 29, 2000

This Act shall enter into force on January 1, 2001: Provided, That the amended provisions of Articles 6, 72-2 (2) and 88-6 shall enter into force on the date of its promulgation, and the provisions of Article 72 (1) and (4) concerning donations shall enter into force on January 1, 2003, and the amended provisions of Article 106-2 shall enter into force on July 1, 2003, and the amended provisions of Articles 121-2 (9), 121-5 (1) 1, (2) 1 and (3) 3 shall enter into force on February 1, 201.

Cases of reduction or exemption of value-added tax, etc. on petroleum products under Article 6297 and Article 22 of the Addenda to ○○.

The amended provisions of Article 106-2 shall apply from the portion supplied or supplied for the first time after July 1, 2003, or the portion taken out from the manufacturing place or bonded area.

Special cases concerning tax exemption for petroleum products under Article 6297 and Article 30 of the Addenda to ○○.

(1) As for the petroleum products under the previous provisions of Article 106 (1) 7 and 8 and subparagraphs 3 and 4 of Article 111, the value-added tax, special consumption tax, and traffic tax shall be exempted only on the portion supplied or supplied until June 30, 203, or the portion taken out of a manufacturing place or bonded area.

(2) The provisions of the former Article 113 shall apply to the procedure, etc. for exemption of special consumption tax and traffic tax on petroleum products under paragraph (1).

Article 1 of the Addenda No. 6297 and the enforcement date of Article 1 of the Addenda (amended by Act No. 6538, Dec. 29, 2001)

This Act shall enter into force on January 1, 2001: Provided, That the amended provisions of Articles 6, 72-2 (2) and 88-6 shall enter into force on the date of its promulgation, the provisions of Article 72 (1) and (4) concerning donations shall enter into force on January 1, 2003, the amended provisions of Article 106-2 shall enter into force on January 1, 2002, and the amended provisions of Articles 121-2 (9), 121-5 (1) 1, (2) 1 and (3) 3 shall enter into force on February 1, 2001.

○ Addenda No. 6297, Article 22 of the Addenda (No. 6297, Dec. 29, 2000)

Articles 20 and 48 Deleted.

Article 6297, Article 30 of the Addenda to ○○.

Articles 20 and 48 Deleted.

○ Abatement or exemption of value-added tax, etc. on petroleum products for farming, fishing, and coastal passenger ships under Article 106-2 of the Restriction of Special Taxation Act (amended by Act No. 6538 of Dec. 29, 2001 and amended by Act No. 6538 of Dec. 11, 2002)

(1) As regards the petroleum products falling under any of the following subparagraphs, the value-added tax on the portion of supply, and the special consumption tax, traffic tax, education tax, and driving tax on the portion of carrying out of a manufacturing place or bonded area not later than June 30, 2003 shall be exempted under the conditions as prescribed by the Presidential Decree, and the amount equivalent to 75/100 of the value-added tax on the portion of supply, and of the special consumption tax, traffic tax, education tax, and driving tax on the portion of carrying out of a manufacturing place or bonded area from July 1, 2003 to December 31, 2003, shall be abated or exempted under

1. Petroleum products prescribed by Presidential Decree, which are to be used by agriculture or fishermen prescribed by Presidential Decree (hereafter referred to as "agriculture or fishermen" in this Article);

(2) In order for the farmers and fishermen to be supplied with petroleum products under paragraph (1) 1, they shall obtain tax-free petroleum purchase rights or delivery support certificates as prescribed by Presidential Decree (hereafter referred to as "tax-free petroleum purchase rights, etc." in this Article) from the Agricultural Cooperatives Act and the fisheries cooperatives under the Fisheries Cooperatives Act.

(5) The head of the competent tax office shall, where a farmer or fisherman transfers to another person the tax-free housing, etc. issued under paragraph (2) and the petroleum products supplied under such tax-free housing, etc., or uses them for purposes other than farming or fishing, additionally collect the amount calculated pursuant

1. Where transferring to another person the tax-free housing, etc., the aggregate of the amounts calculated under each of the following items:

(a) An amount equivalent to the abated or exempted tax amount of value-added tax, special consumption tax, traffic tax, education tax, and driving tax where petroleum products are supplied on the basis of tax refund, etc.;

(b) The additional tax equivalent to 10/100 of the amount equivalent to the abated or exempted tax amount under item (a);

2. Where supplied petroleum products are transferred to another person or are used for purposes other than farming or fishing, the aggregate of the amounts calculated pursuant to the following items:

(a) A tax amount reduced or exempted for value-added tax, special consumption tax, traffic tax, education tax, and driving tax on the relevant petroleum products;

(b) Additional tax equivalent to 10/100 of the abated or exempted tax amount under item (a); and

(10) Matters necessary for the procedures for the supply and management of petroleum under paragraphs (1) through (9), the methods and procedures for issuing tax refund, etc., and the tax amount reduced or exempted, the amount equivalent to reduction or exemption, and the procedures for additional collection,

○ The enforcement date of Article 6538 and Article 1 of the Addenda No. 6538, Dec. 29, 2001

This Act shall enter into force on January 1, 2002: Provided, That the amended provisions of Articles 5-2, 15 (1) and (2), 16 (3), 23 (1), 38 (3) through (5), 28-3, 45-2, 72 (2), 73-2 (1) 15, 74 (1) 12, 86-2 (10), 88-5 (2), 89 (1), 117 (1) 4 through 6, 10 and 18, 119 (1) 18 and 144 (2) shall enter into force on the date of its promulgation, the amended provisions of Articles 106-2 (3) and the former part of Article 106-2 (4) shall be excluded from the date of its promulgation, and the amended provisions of Article 106-12 (1) and the former part of Article 210-2 (3) and (4) shall be excluded from the date of February 16 and 210-10.

Article 2 of the Addenda (No. 6538, and Article 2 of the Addenda)

(3) The amended provisions of this Act concerning value-added tax shall apply to any portion of goods or services supplied or supplied for the first time after this Act enters into force.

(4) The amended provisions of this Act concerning the special consumption tax and traffic tax shall apply to the portion which is first taken out of the manufacturing place or bonded area or the import declaration thereof after this Act enters into force.

○ Abatement or exemption of value-added tax, etc. on petroleum products for agriculture, forestry, fishery and coastal passenger ships under Article 106-2 of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002)

(1) As regards the petroleum products falling under any of the following subparagraphs, the value-added tax on the portion of supply, and the special consumption tax, traffic tax, education tax, and driving tax on the portion of carrying out of a manufacturing place or bonded area not later than June 30, 2005 shall be exempted under the conditions as prescribed by the Presidential Decree, and the tax amount equivalent to 75/100 of the special consumption tax, traffic tax, education tax, and driving tax on the portion of supply from July 1, 2005 to December 31, 2005 and the portion of carrying out of a manufacturing place or bonded area shall be abated or exempted under the conditions as prescribed by the Presidential Decree

1. Petroleum products prescribed by Presidential Decree to be used by farmers, persons engaged in forestry, and fishermen prescribed by Presidential Decree (hereafter referred to as "farmers, fishermen, etc." in this Article) for agriculture, forestry, or fisheries;

(2) In order to be supplied with petroleum under paragraph (1) 1 by farmers, fishermen, etc., a tax-free petroleum purchase right or shipment support certificate as prescribed by Presidential Decree (hereafter referred to as "tax-free petroleum purchase right, etc." in this Article) shall be issued by the Agricultural Cooperatives Act, the Forestry Cooperatives Act, and the Fisheries Cooperatives under the Fisheries Cooperatives Act

(5) The head of the competent tax office shall, where a farmer or fisherman transfers to another person the tax-free housing, etc. issued under paragraph (2) and the petroleum products supplied under such tax-free housing, etc., or uses them for purposes other than for farming, forestry, and fishery, additionally collect the amount calculated pursuant to

1. Where transferring to another person the tax-free housing, etc., the aggregate of the amounts calculated under each of the following items:

(a) An amount equivalent to the abated or exempted tax amount of value-added tax, special consumption tax, traffic tax, education tax, and driving tax where petroleum products are supplied on the basis of tax refund, etc.;

(b) The additional tax equivalent to 10/100 of the amount equivalent to the abated or exempted tax amount under item (a);

2. Where supplied petroleum products are transferred to another person or are used for purposes other than farming, forestry and fishery, the sum of the amounts calculated pursuant to the following items:

(a) A tax amount reduced or exempted for value-added tax, special consumption tax, traffic tax, education tax, and driving tax on the relevant petroleum products;

(b) Additional tax equivalent to 10/100 of the abated or exempted tax amount under item (a); and

(11) Matters necessary for the procedures for supply and management of petroleum under paragraphs (1) through (10), the methods and procedures for issuing certificates, etc. of tax refund, etc. of tax abatement or exemption, amount equivalent to reduced or exempted taxes, procedures for additional collection, etc

○ The enforcement date of Article 6762 and Article 11 of the Addenda.

This Act shall enter into force on January 1, 2003: Provided, That the amended provisions of the proviso to Article 38-2 (3) 1, Articles 94 (4), 145 and 146 shall enter into force on the date of its promulgation, the amended provisions of Article 106-3 shall enter into force on July 1, 2003, and the amended provisions of Article 126-2 shall enter into force on December 1, 2002.

Article 20 of the Addenda (Article 6762), Article 20 of the Addenda to ○○ Tax Rate shall apply to the application, etc. of the zero tax rate of the value-added tax.

(1) The amended provisions concerning value-added tax in Articles 105 (2), 106-2 and 106-3 of this Act shall apply from the date on which an import declaration of any portion of goods or services supplied or supplied for the first time after this Act enters into force.

(2) The amended provisions concerning the special consumption tax and traffic tax in Article 106-2 shall apply from the first place of manufacturing or bonded area after this Act enters into force.