early 2010 Heavy2494 ( October 01, 2010)

If the individual consumption tax is not imposed, no refund of the individual consumption tax shall be made.

Since a person who has paid the individual consumption tax on goods is an automobile manufacturer, and a person who bears the individual consumption tax is a person who has paid the individual consumption tax to automobile manufacturers at the time of purchasing the goods of this case, it is reasonable to deem that the Plaintiff who did not bear the individual consumption tax cannot receive a refund of the individual consumption

Article 1 of the Individual Consumption Tax Act

2011Guhap52 Revocation of Disposition Rejecting Refund of Individual Consumption Tax, etc.

AAES Co., Ltd.

Head of Suwon Tax Office

January 12, 2012

February 21, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s refusal to refund KRW 7,919,367 of individual consumption tax for April 29, 2009 and KRW 2,375,810 of education tax for the Plaintiff on April 29, 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff purchased 10 vehicles within accommodation from ParkCC and 9 other (hereinafter “PCC, etc.”) between October 22, 2009 and November 24, 2009, as a corporation that 0Odong 0, Jung-gu, Incheon, 00, operated vehicle export and import business on the first floor of the 00 BB logistics, and exported the instant goods from October 31, 2009 to December 5, 2009.

B. Around February 2010, the Plaintiff filed an application with the Defendant for refund of KRW 7,919,367 of individual consumption tax for the fourth quarter of 2009 and KRW 2,375,810 of education tax for the instant goods. However, the Defendant, on April 29, 2010, deemed that the instant goods were not subject to the refund of individual consumption tax since the Plaintiff purchased them from consumers or vehicle stores and exported them.

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on July 26, 2010, but was dismissed on October 1, 2010.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 15, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

(1) The Plaintiff purchased the instant goods from a car manufacturer, etc. within the date or several days from the date of purchase from the car manufacturer, and the individual consumption tax already paid for the instant goods was included in the purchase price, and the instant goods were merely registered and cancelled in the form of a vehicle under the provisions of the Automobile Management Act, and they were actually exported from a new lane. Accordingly, the Plaintiff constitutes a person who actually bears the individual consumption tax, and thus, is subject to a refund of the individual consumption tax,

(2) From 2004 to 2009, the Defendant paid individual consumption tax, etc. to automobile traders, including the Plaintiff, at the time of exporting automobiles in the above manner. Thus, the instant disposition goes against the principle of trust protection.

B. Relevant statutes

It is as shown in the attached Form.

C. (1) Judgment (1) Legal doctrine

The Individual Consumption Tax Act imposes individual consumption tax on passenger automobiles (Article 1(2)3 of the Act); and Article 3 of the Act provides that a person who manufactures and takes out a passenger car shall be liable to pay individual consumption tax (Article 1(2)3 of the Act); however, a final consumer who actually consumes goods subject to individual consumption tax bears the individual consumption tax; however, for convenience in tax payment, a person who manufactures and takes out taxable goods is liable to pay individual consumption tax at the time of carrying out the taxable goods after being paid the individual consumption tax from a purchaser of the taxable goods. In addition, where the individual consumption tax is exported, Article 20(2) of the Act provides that a person who has already paid the individual consumption tax shall provide the price competitiveness by reducing the tax burden on the goods subject to individual consumption tax and a person who has requested a refund of the individual consumption tax shall jointly file an application for the relevant individual consumption tax with the person who has actually paid the individual consumption tax or the head of the competent tax office who has already paid the individual consumption tax (Article 34(2)4 of the Enforcement Decree of the Act).

(2) Determination as to a claim

According to the aforementioned evidence, since an automobile manufacturer orders a domestic agency not to export new cars to an automobile exporter for reasons of protection of foreign agency, A/S problems, etc., it is practically impossible for the automobile manufacturer to purchase and export automobiles directly from the automobile manufacturer company. Accordingly, the Plaintiff purchased new cars from an individual or automobile manufacturer company within several days from the automobile manufacturer company to purchase cars, etc. The instant goods are de facto different from the manufacturer's declaration completion certificate. However, the Plaintiff’s entry in the export declaration certificate was more than the manufacturer's name column (USD CAR) and the Plaintiff purchased the instant goods than the price paid by the automobile manufacturer for the individual consumption tax or the individual consumption tax, etc. However, even if the Plaintiff paid the individual consumption tax and the individual consumption tax to the automobile manufacturer, etc., the Plaintiff cannot be seen as having been subject to imposition of the individual consumption tax or the individual consumption tax without taxation for the purpose of the Enforcement Decree of the Individual Consumption Tax Act and the provision of the Individual Consumption Tax Act, and the Plaintiff cannot be seen as having paid the individual consumption tax or the individual consumption tax for the goods.

(2) Judgment on the 2 note

The principle of good faith or the principle of respect for tax practices provided for in Article 18(3) of the Framework Act on National Taxes may only apply to cases where there are special circumstances deemed that the protection of taxpayers’ good faith is consistent with the concept of justice even if they sacrifice the principle of legality. Interpretation of tax-related Acts or practices generally accepted by taxpayers under the above provision refers to cases where, although erroneous interpretation or practices are not a specific taxpayer, it is unreasonable for taxpayers to have accepted such erroneous interpretation or practices as legitimate, and to trust such practices. The burden of proving the existence of such interpretation or practices is the taxpayer, who is the assertion (see, e.g., Supreme Court Decision 91Nu13670, Sept. 8, 1992). Furthermore, in order to apply the principle of good faith to the acts of the tax authorities in tax-related legal relations, the tax authority should subsequently indicate public opinion that is subject to trust, and thus, the tax authorities should not have any specific intent to protect taxpayers, such as those that the disposition should not be established within a certain period of 90 square meters.

In full view of the respective descriptions and arguments stated in Gap evidence Nos. 17, 18, 19, and 20 (including additional numbers), the defendant refunded the individual consumption tax to the plaintiff three times in 2009, and the defendant also refunded the individual consumption tax to the company such as DDR, etc. for the above automobile export (it is recognized that there is no evidence to prove that the defendant had refunded the individual consumption tax to the plaintiff since 2004). This appears to have occurred due to the defendant's erroneous interpretation of the law, and it is insufficient to recognize that the tax authority did not impose tax, or that the interpretation of the tax law has formed trust by generally accepted by the taxpayer. Thus, it is not sufficient to conclude that the disposition of this case was in violation of the principle of good faith or the principle of trust protection. 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.