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(영문) 의정부지방법원 2018. 10. 18. 선고 2018구합635 판결
이 사건 주류면허취소처분에 관한 원고주장은 타당하지 아니함[국승]
Title

The plaintiff's assertion on the disposition of revocation of alcoholic beverage licenses of this case is not reasonable.

Summary

The issuance of a tax invoice to a person who is supplied with yy business partners with respect to the alcoholic beverages supplied by the plaintiff to yy constitutes the issuance of a false tax invoice or a false tax invoice.

Related statutes

Liquor Tax Act Article 15 (Suspension of Sales of Alcoholic Beverages, etc.)

Cases

The revocation of a license for alcoholic beverage sales business shall be revoked by the Government District Court 2018Guhap635

Plaintiff

O distribution corporation

Defendant

O Head of tax office

Conclusion of Pleadings

2018.20

Imposition of Judgment

October 18, 2018

Text

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

On December 8, 2017, the Defendant’s revocation disposition on the revocation of alcoholic beverage sales license against the Plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. On June 5, 2006, the Plaintiff had been engaged in alcoholic beverage wholesale business after obtaining a license for alcoholic beverage brokerage business on the sales outlet of wwwq 261-11 from the Defendant on June 5, 2006.

B. The Defendant issued a false tax invoice from 2013 to 2016 to rrrrr agency (hereinafter referred to as “o agency”), t design, and yy (hereinafter referred to as “yy”), on the grounds that the Plaintiff violated Article 10(1)1 of the Punishment of Tax Evaders Act, on the ground that the Plaintiff did not issue a tax invoice for each of the above companies and instead did not issue a false tax invoice for the total amount of KRW 3,98,707,968; and that the Plaintiff violated Article 10(1)15 of the Punishment of Tax Evaders Act (hereinafter referred to as “uuulcoc department store (hereinafter referred to as “uuul”), ttop planning, ii market, and existing business partners, etc.; or that the Plaintiff violated Article 10(1)1 and 25(1)1 of the Punishment of Tax Evaders Act.

C. The Plaintiff appealed and filed a request for examination, but the Commissioner of the National Tax Service on December 29, 2017

The request for review was dismissed.

[Ground of recognition] Facts without dispute, Gap 1, 3, 4, 7, 8, Eul 1 through 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The purport of the plaintiff's assertion

1) Defect in the tax investigation

The investigator in charge of the tax investigation against the plaintiff did not sufficiently explain the suspicion of the investigation to the plaintiff, did not provide the plaintiff with an opportunity to properly explain, and had the plaintiff's representative finished the tax investigation on the line that cancels the license for alcoholic beverage sales business and had the above representative induce the plaintiff to make a false statement. Therefore, since the tax investigation against the plaintiff is illegal, the disposition of this case is also unlawful.

2) Parts related to theo agency

The Plaintiff fulfilled its duty of care as a party to a transaction, including the Plaintiff’s business registration certificate of Pu Puu Pull, the license for alcoholic beverage sales, and the payment for alcoholic beverage sales card. The Plaintiff did not know that the actual supplier was a sub-agency, and there was no choice but to think that the Plaintiff was a recipient of Puuull. Therefore, there is a justifiable reason for the Plaintiff to issue a tax invoice with the Plaintiff as a person who is supplied with Puu Pu Pu

3) The Plaintiff in the part related to thet design was requested to supply alcoholic beverages from the t design to the PP upon receipt of a request for the supply of alcoholic beverages, and the Plaintiff demanded the PP a business registration certificate and a certificate of alcoholic beverage sales. The PP supplied alcoholic beverages first to the Plaintiff, and issued and settled a tax invoice at that time to bring about a license for alcoholic beverage sales, and thereafter has been holding a business registration certificate and a certificate of alcoholic beverage sales in the name of Ttto Planning. As such, the Plaintiff fulfilled its duty of care as a party to the transaction. The Plaintiff was unaware of the fact that the actual supplier was t design, and the Plaintiff was bound to be considered to be the recipient of Ttop planning. Accordingly, there was justifiable reason for the Plaintiff to issue a tax invoice to the recipient of Ttop planning instead of the Ttop design.

4) Part related to y

From January 2015, the Plaintiff began with yy business from 2016 to July 8, 2016, and finally took over y business from y business. However, in cases of taking over a customer between y business entities between y business entities, the transferor’s transaction partner refuses to conclude a supply contract with the transferee or makes an unreasonable demand such as paying premiums to the transferee. Accordingly, for the smooth acquisition of the transaction partner, the Plaintiff was dispatched to y business employees over a period of at least one year from January 2015 to y business, and the Plaintiff continued to supply the Plaintiff’s alcoholic beverages to y business partners by directly delivering the Plaintiff’s alcoholic beverages to y business partners and supply the Plaintiff’s alcoholic beverages to y business partners. Accordingly, the other party who supplied y business is not y business partners, and the Plaintiff is not obligated to issue a tax invoice by y business entity, and it does not constitute a false tax invoice or a false tax invoice issued by y business entity.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the defective assertion of tax investigation

According to the overall purport of the Plaintiff’s evidence Nos. 7 and 13 and the entire arguments, the Plaintiff’s representative sss and accounting staff ddd are informed of the content of the investigation and provided with an opportunity to speak if there is any difference in opinion after being subject to a tax investigation by a regional tax office. The entries of evidence No. 24 are insufficient to recognize that the investigator in charge knew the Plaintiff’s representative as alleged by the Plaintiff, and there is no other evidence to acknowledge it. Therefore, it is difficult to deem that there is a defect in the instant tax investigation. Accordingly, the Plaintiff’s assertion on this part is without merit.

2) Unless special circumstances exist, such as that if a tax authority received a written confirmation from a taxpayer that a certain portion of a transaction is a processing transaction in the course of a tax investigation, the evidence of the written confirmation cannot be readily denied solely based on the evidence of the fact, barring special circumstances, such as where the written confirmation was forced against the intent of the person who prepared the document, or it is difficult to use it as a supporting material for the specific fact due to insufficient contents (see, e.g., Supreme Court Decision 2001Du2560, Dec. 6, 2002

In light of the overall purport of the statements and arguments stated in Gap evidence 8 through 10 and Eul evidence Nos. 7 and 8, the following circumstances revealed by the representative, i.e., the representative f, seat qm 28 Gagro 149 Gag, and Puul 28 Doo-ro 28 (oe 20-18) are different from the representative hhh, seat qq o-ro 20-18, and theff presented the plaintiff's business registration certificate and certificate of alcoholic beverage sales business. Thus, it seems that there were sufficient circumstances to suspect that the plaintiff was not a disguised business operator. However, in light of the fact that the plaintiff did not confirm the circumstances, the plaintiff's business place of uuul was operated for sale of daily necessities, such as electricity, electronic, main, and so on, and so on.

3) In light of the respective statements and arguments stated in Gap evidence Nos. 8, 12 through 14, Eul evidence Nos. 7, 9, and 10 (including serial numbers; hereinafter the same shall apply) as to the allegation relating to thet design, the following circumstances, which could have been known in light of the overall purport of each statement and argument, i.e., the representative of thet design andt T-to-t-t-t-t-to-t-t-t-to-t-t-t-t-t-p-p-p-p-p, but the location of the place of business is km x 26-1 and 26-1, kzzz-gu kk-si, it seems that the plaintiff could not have sufficiently known that thet-to-t-t-land supply of alcoholic beverage was a separate business entity, or that it was difficult for the plaintiff to find out that it was difficult for the plaintiff to have known that it was an alcoholic beverage seller to be supplied with thet-to-t-sale-market design.

4) As to the assertion on supply of alcoholic beverages to y

A) If an entrepreneur supplies goods or services (excluding the supply of goods or services exempt from value-added tax), a tax invoice must be issued to the person to whom the goods are supplied. Here, “person to whom the goods are supplied” refers to a person who receives goods, etc. on contractual or legal grounds. As such, when determining who is a person to whom the goods are supplied due to contractual grounds, all the circumstances, including the parties to the contract that causes the supply of the goods in question, how the goods are supplied, and how the payment is made for the goods, should be taken into account (see, e.g., Supreme Court Decision 2017Da265266, Dec. 28, 2017). Meanwhile, the meaning that the entries in the tax invoice are different from the facts. In light of the purport of Article 14(1) of the Framework Act on National Taxes, which provides that if the ownership of the goods or services is merely nominal and there is another person to whom the tax invoice actually belongs, the person to whom the tax invoice belongs shall be applied, regardless of the requisite entry between the parties to the goods or services, etc.

B) According to the statement of Evidence Nos. 16, 17, and 23 as to the instant case, if the Plaintiff took over 82 business partners from yy on January 8, 2015, the Plaintiff and yyy jointly manage the customers from January 2015 to July 2015, the Plaintiff’s supply of three delivery vehicles, three delivery employees, and one sales manager to the Plaintiff in order to ensure the stable transfer of its business partners, and the Plaintiff’s transfer of alcoholic beverages to 1-lane 2015 to 200 million won was completed by 1-lane 200, and the Plaintiff’s supply of alcoholic beverages to 200,000 won to the Plaintiff on the ground that there was no false tax invoice to 20,000 won to 20,000 won to 20,000 won to 1-6,000 won to 20,0000 won to 1-6,000,0000 won to 2.7.

However, in light of the following circumstances, i.e., y business partners’ orders for alcoholic beverages to be supplied by y business partners or y business partners’ employees, and y business partners’ supply of alcoholic beverages to y business partners’ employees, and y business partners’ knowledge that y business partners were involved in the above supply of alcoholic beverages. Thus, the above y business parties’ direct supply of alcoholic beverages and y business partners’ separate supply of alcoholic beverages was concluded between the Plaintiff and y business partners, and y business partners’ separate supply of alcoholic beverages. 2) If y business partners were to pay the price for the above alcoholic beverages under the above y business transaction agreement, and y business partners’ signature and seal were not known at the time of issuance of the tax invoice and 30 alcoholic beverages, it is difficult to view that the Plaintiff received the above y business transaction order from y business partners’ respective supply of alcoholic beverages to y business partners. Thus, the Plaintiff appears to have received the above y business agreement separately from y business partners’ supply of alcoholic beverages.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

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