early 2009 prior 0446 ( October 12, 2009)

Fishing vessel business shall be subject to value-added tax.

The fishing vessel business that provides information on the fishing market by recruiting marine fishing passengers or has them fish on the ship using the fishing vessel shall be subject to value-added tax.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax against the Plaintiff on December 1, 2008 of KRW 16,070,080 for the first term of 2006, KRW 15,808,690 for the second term of 2006, KRW 17,83,760 for the second term of 207, KRW 33,680 for the second term of 2007, and KRW 83,393,240 for the second term of 2007.

1. Circumstances of dispositions;

A. On January 20, 2005, the Plaintiff is the retail and fishing time business, which is the value-added tax-free business type on July 16, 2007, and runs the fishing boat business under Article 2 of the Fishing Vessel Business Act, which provides that two fishing vessels under one’s own name, one fishing vessel under one’s spouse, one fishing vessel under one’s own name, and four fishing vessels under one’s own name to recruit and embark on the sea fishing passengers by using four fishing vessels, such as one fishing vessel under one’s own name.

B. The defendant conducted a tax investigation with the plaintiff from August 19, 2008 to September 1, 2009, and the above fishing vessel business is subject to value-added tax. However, the plaintiff's total amount of KRW 11,4390,00 for the taxable period of value-added tax from January 1, 2006 to December 2007 (the first period of 2006, KRW 295,840,000, KRW 303,360,000 for the second period of 206, KRW 287,920,00 for the first period of 207, KRW 215,760, KRW 7277, KRW 308, KRW 207, KRW 3086, KRW 2078, KRW 207, KRW 3086, KRW 207, KRW 2087, KRW 2008, KRW 3086,787,207.

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on February 2, 2009, but on May 12, 2009, the said appeal was dismissed.

[Ground of recognition] Unsatisfy, Gap evidence 1 to Gap evidence 6, Eul evidence 1 and Eul evidence 2 (including each number)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) The fishing vessel business is a kind of fishing activity in which a fisherman permitted to fish to increase the income of the fishermen are engaged in fishing on board a fishing vessel by guiding the fishermen on board a fishing boat at sea and fishing on board the boat. As such, the fishing vessel business is a kind of fishing activity that causes the grandchildren to fish only, the price received from the customers shall not be considered as the price for the service provided under the Value-Added Tax Act.

(2) Notwithstanding the fact that the value-added tax is exempted in cases where a large-scale fishing vessel is exempted, and the passenger transport service of an excursion ship and a ferry business operator is exempt from value-added tax, imposing value-added tax on a small-sized fishing vessel is not in line with the legislative intent of the Fishing Business Act. Even in cases of a vessel used for fishing purposes, the vessel is provided with duty-free oil pursuant to the Restriction of Special Taxation Act, such as a general fishing vessel. In light of the legislative intent of the aforementioned Act, it is reasonable to view that the fishing vessel business is subject to value-added tax

(3) The government encouraged the owners of small-sized fishing vessels to engage in fishing boats under the order of contributing to the increase of their income. It is in violation of the principle of good faith to impose value-added tax only on the plaintiffs, even though there is no taxation of value-added tax on the nation. In addition, under the situation where the government announced that the tax investigation on fishermen would be postponed due to oil spill accident in front of the ○○ sea, procedural errors were revealed in the tax investigation against the plaintiff.

(4) The Defendant issued the instant disposition based on the confirmation document (No. 4-1) and the status of departure (No. 4-2). The above confirmation document was prepared to mean that the Defendant’s public official stated separate account books and sales status. The above departure status is not prepared by the Plaintiff, but is prepared separately on the basis that the Defendant’s public official in charge of tax investigation stated “the purpose of departure” among the number of departure persons stated in the port report (Evidence No. 3) to manage the entry into and departure from a fishing vessel. In addition, the above entry on the departure report, which is the basis of the status of departure, is inappropriate for the captain, and thus, it cannot be an absolute material to distinguish the purpose of entry into and departure from the fishing vessel at the time, and return to the port after departure from the port to the weather. In addition, the above confirmation document does not have any choice but to take the cost of boarding depending on the distance, time, passenger number, passenger-friendly relationship with the passengers, and friendship benefits. It is based on the factual basis or the principle of substantial taxation.

(5) The Plaintiff was aware of the fishing vessel business as being exempted from value-added tax, and did not know that there was no prior pre-announcement that it is subject to value-added tax, and other fishing vessel proprietor paid value-added tax. In light of the above circumstances, it is reasonable to revoke the penalty tax portion for the first period of January 2006, 4,236,428 won, and 3,674,296 won for the second period of February 2006, 2006, and 6,316,964 won for the second period of 2007, and 11,126,179 won for the second period of 207.

(b) Related statutes;

It is as shown in the attached Form.

C. Facts of recognition

(1) On July 21, 2004, the Plaintiff was engaged in the fishery business upon commencement of the fishery business from ○○○ Gun fishery permit. From around 2006, the Plaintiff opened the Internet homepage, which was called “Doi, Doi,” and recruited marine fishing passengers by advertising the fishing business, and the above Internet homepage was published as KRW 10,000 for each person, KRW 80,000 for the remote sea, and KRW 110,000 for the inshore (in April 2008, KRW 110,000 for the remote sea, KRW 90,000 for the inshore and KRW 90,00 for the inshore). On January 18, 2008, the Plaintiff notified the head of ○○ Gun to deposit the reservation money into an account in the name of the Plaintiff.

(2) During the 2nd VAT taxable period from the first to the second 2007, the Plaintiff operated the fishing vessel business by using four fishing vessels registered in the names of the Plaintiff and his family members to board the sea fishing market and guide them to the fishing, or by allowing them to fish on board. The departure of the fishing vessel from the port was made by preparing a report on entry into and departure from the fishing vessel (Evidence 3) and a list of passengers to the ○○ Maritime Police Station, before the Plaintiff’s captain departs from the port, before the departure, the police officer instructed the passengers to leave the port of the vessel and confirmed the boarding vessel and opened the departure of the vessel, and the police officer entered the time of entry into and departure from the fishing vessel and the number of persons on board in the port of entry (Evidence 13) in the port of entry (Evidence 13).

(3) At the time of the Defendant’s tax investigation, the Plaintiff did not submit a book to verify the number of passengers engaged in fishing and their sales while operating the fishing vessel business as above. Accordingly, the Defendant’s public official in charge of tax investigation calculated the value-added tax base by the following procedure and method as follows, when it was difficult to accurately calculate the amount of income for each taxable period of value-added tax for which the Plaintiff did not report and pay.

(A) First, ○○○ Maritime Police Station stated the date and time of entry into and departure from port (Evidence No. 3) and the entry into and departure from port (Evidence No. 13) under the Plaintiff’s name in the ○○ Maritime Police Station box (Evidence No. 13), and the name and the number of persons who filed a report, etc., the Defendant’s public official responsible for the Defendant’s tax investigation determined the number of fishing passengers, except for the Plaintiff’s assertion that the entry into and departure from port was cancelled due to bad weather and refund of the fee upon taking into account the time of entry into and departure from port, among the remaining days of entry into and departure from port (Evidence No. 4-2). Such adjustment is the status of departure from port (No. 4-2).

(B) Meanwhile, considering the Plaintiff’s assertion that there was a discount on group fees and a discount on the frequency of use, etc. in the above fishing port entry report, the Defendant’s public official responsible for tax investigation deemed that the above fishing passengers had engaged in inshore fishing in favor of the Plaintiff as much as possible, and calculated the Plaintiff’s revenue by multiplying the number of the number of the passengers engaged in inshore fishing calculated under (a) by KRW 80,000,000 received in the inshore fishing rate.

(C) The above departure status (No. 4-2) was originally prepared by the public official in charge of the Defendant’s tax investigation in the form of X-cell file using a computer, but this was also conducted by the Plaintiff and the Plaintiff’s tax agent, after reviewing the contents of the Plaintiff’s family members, after reviewing the number of persons and withdrawal of operation, etc., the Defendant’s public official required correction of individual items to reflect the contents of the correction, and then revised again by reflecting it.

(4) A public official in charge of the Defendant’s tax investigation requested the following written confirmation (No. 4-2) accompanied by the final revised departure status (No. 4-2). Before signing the said written confirmation, the Plaintiff asked the EA certified tax accountant of this case to ask him/her whether or not he/she will sign the written confirmation. He/she heard from this A to the purport that this would be signed on the grounds that the Plaintiff’s assertion was accepted by many of the Plaintiff’s assertions on the part of the Defendant, and signed it by means of sending his/her address, trade name, and name in the confirmation column.

[Ground of Recognition] Facts without dispute, each of the evidence mentioned above, Eul evidence 3 to Eul 14 (including each of the several numbers), witness LeeB, witness KimB, and literatureCC's testimony, the purport of the whole pleadings, and the purport of the whole pleadings

D. Determination

(1) Whether a fishing vessel business is subject to value-added tax

(A) The principle of strict interpretation derived from the principle of no taxation without law is applicable not only to the cases meeting the taxation requirements, but also to the cases meeting the requirements for non-taxation and tax reduction and exemption. As such, expanding or analogical interpretation of the requirements for non-taxation or tax exemption and exemption as favorable to the taxpayers without any justifiable reason causes a result contrary to the principle of fair taxation, which is the basic ideology of the tax law, and thus, it is not allowed (see, e.g., Supreme Court Decision 2005Da19163, May

(B) In this case, Article 7(1) of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) provides that services shall be provided or used for goods, facilities, or rights on the ship due to contractual or legal grounds, and Article 12 of the same Act (amended by Act No. 8826, Dec. 31, 2007) lists the objects of tax exemption only for the supply of specific goods or services and the class of specific goods. Article 2 subparag. 1 of the Fishing Vessel Business Act lists those who intend to capture and gather marine animals and plants on board the fishing vessel so that they can take income on the fishing vessel, or provide a series of services to capture and gather marine animals and plants on the boat of the fishing vessel, etc., and such business cannot be seen as being subject to tax exemption under the premise that the Plaintiff’s use of the fishing vessel business and the fishing vessel business cannot be seen as being subject to tax exemption under the premise that the Plaintiff’s use of the fishing vessel business and its facilities is clearly exempt.

(C) Meanwhile, the Plaintiff asserts that the full amount of the cost received from the fishing passengers is not subject to value-added tax. However, even if the fishing vessel business operator transported passengers to the place desired by passengers or to the place announced by the Plaintiff, and the Plaintiff’s act of leasing a vessel or fishing tackle so that passengers can fish, and the Plaintiff’s act of getting passengers to gather or capture fishery products can be divided, the price that the Plaintiff received from the fishing passengers does not receive by classifying the details by each act, and the above procedure is an indivisible element constituting the essence of the fishing vessel business, so it cannot be deemed that each act is subject to value-added tax and non-taxation. Accordingly, the Plaintiff’s assertion on this part cannot be accepted.

(2) Whether the object of taxation is contrary to the purport of the relevant laws and regulations

(가) 구 부가가치세법 제12조 제1항 제6호의 규정에 의하면, 유선사업자 또는 도선사업자가 제공하는 용역도 여객운송용역으로서 부가가치세 면제대상에 포함되나, 유선 및 도선사업법 제2조의 규정에 의하면 도선사업은 사람과 물건의 운송을 위한 것이 고, 유선사업의 개념에 어렵(魚獨)을 위하여 사람을 승선시키는 경우를 포함하고 있으나 유선사업은 관광 기타 유락을 위하여 승선시키는 모두를 포함하며 어렵(魚繼)은 유선사업의 주된 목적이 아니라 관광 기타 유락(遊樂)의 예시에 불과하다 할 것이고, 낚시어선업법 제3조는 낚시어선업에 대하여는 유선 및 도선사업법의 적용을 배제하고 있는바, 유선 및 도선사업과 낚시어선업은 그 성격 및 규율하는 법률의 입법취지가 각기 다르다고 할 것이므로 유선사업 및 도선사업이 부가가치세 면세대상이라고 하더라도 낚시어선업을 면세대상으로 규정하지 아니하였다 하여 형평의 원칙에 반한다고 할 수 없다. 또한 부가가치세는 거래의 상대방으로부터 징수하여 납부하는 것으로서 낚시어선업자가 본래부터 부담하여야 하는 것은 아니라는 점에 비추어 어가(練家)의 소득증대를 목적으로 하고 있는 낚시어선업법의 입법취지에 반한다고 할 수도 없다.

(B) Furthermore, as alleged by the Plaintiff, even if a vessel for the fishing vessel business is provided with duty-free oil pursuant to Article 106-2 of the former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006), it is merely a vessel for the fishing vessel business to manage and supervise the fishing vessel business and the general fishing vessel, or a vessel for the purpose of providing duty-free oil to provide policy support to the fishing vessel business, so long as the vessel is not included in the category of the fishing business, it cannot be deemed that the Plaintiff is entitled to value-added tax exemption.

(C) Therefore, the Plaintiff’s assertion on this part is without merit.

(3) Whether the instant disposition goes against the good faith principle

(A) If the principle of good faith or non-taxation practices prescribed in Articles 15 (1) and 18 (3) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010) are established with respect to the tax and law acts of the tax authorities, it shall be interpreted that there is an objective fact that a taxpayer has not been imposed on certain matters over a long-term period of time, and that the tax authorities should have known that they are able to impose taxes on certain matters and that such intent would be expressed externally and explicitly or implicitly. The phrase "an interpretation of the tax law or practice in national tax administration" under Article 18 (3) of the same Act means, even if erroneous interpretation or practice is accepted by a general taxpayer, who is not a specific taxpayer, and thus, it is unreasonable to prove that the taxpayer does not have any burden of proof to the other party or to have relied on such interpretation or practice (see, e.g., Supreme Court Decision 200Du82015, Apr. 1, 20197).

(B) Therefore, in light of the above legal principles, there is no evidence to acknowledge that the disposition in this case is contrary to the good faith principle or the trust protection principle, and there is no other fishing vessel proprietor prior to the disposition in this case against the Plaintiff as alleged by the Plaintiff, and even if the disposition in this case against the Plaintiff was the first case, it cannot be deemed that there was a public opinion about the tax authorities’ non-taxation. Furthermore, the burden of proof as to the existence of non-taxation practice exists on the Plaintiff, who is the claimant, and the Defendant did not submit the data that there was a taxation case against the fishing vessel proprietor before the Plaintiff, it cannot be presumed that there was a need to presume or prove that the assertion is against the Defendant, which is the other party. Thus, the Plaintiff’s assertion based on the premise of the existence of non-taxation practice in relation to the value-added tax on the fishing vessel proprietor cannot be accepted.

(C) On the other hand, when the National Tax Service announced that a withholding tax investigation was conducted by the National Tax Service, the defendant's tax investigation against the plaintiff was in violation of procedural law. Accordingly, according to each of the above evidence, at the time of the tax investigation against the plaintiff, there was a measure of suspending a regular tax investigation due to oil pollution damage to the plaintiff's ○○ area where the plaintiff's business was located. However, since the plaintiff's internal review was not a regular tax investigation but a specific suspicion of tax evasion, it can be acknowledged that the plaintiff's internal review and the fact that the tax investigation was conducted at the level of tax evasion upon the defendant's instructions from the National Tax Service, it is difficult to deem that there was any procedural procedural error in the tax investigation against the plaintiff, and even if there was a domestic procedural error, it should be determined by the existence of objective taxation requirements in principle, and even if there was any error in the tax investigation procedure, it cannot be deemed that the plaintiff's allegation was not a serious reason for revocation, and therefore, it cannot be viewed that the above disposition was not a reason for revocation.

(4) Whether the instant disposition is against the basis of taxation and the principle of substantial taxation

(A) Generally, the burden of proof regarding the facts requiring taxation should be borne by the imposing authority in a tax proceeding. However, if the facts alleged in light of the empirical rule in a specific proceeding are revealed, it cannot be readily concluded that the other party is an unlawful disposition that fails to meet the taxation requirement unless the facts at issue are proven that the facts are not eligible for the application of the empirical rule (see, e.g., Supreme Court Decision 97Nu2429, Oct. 24, 1997). Furthermore, if the defendant, who is the imposing authority, proves that the legality of the pertinent disposition asserted by the imposing authority, can be reasonably acceptable, the disposition should be justified, and arguments and evidence inconsistent with the above reasonably acceptable evidence should be expressed that the other party, as the other party, should return to the Plaintiff responsible for the tax investigation (see, e.g., Supreme Court Decision 84Nu124, Jul. 24, 1984). In addition, if the tax authority prepared a confirmation document that a certain portion of tax transaction was processed from the taxpayer or received it from the originator, it cannot be easily proven (see, etc.).

(B) Based on the above legal principles, the above status of departure from the port of this case, which the defendant deemed as taxation data of the above facts, is based on the 13th certificate (Evidence No. 13) and the plaintiff's captain's entry and departure report (Evidence No. 3) prepared by the ocean police station, as seen earlier. The above record No. 3 is not only a public document prepared by police officers, but also a document prepared after checking the ship from port before departure and checking the name and number of passengers, and the above provision of entry report No. 3 is reliable. The above record No. 8852 of the Fishing Vessel Business Act (amended by Act No. 8852 of Feb. 29, 2008) is merely a separate statement of entry and departure from the above port of this case before the plaintiff's entry and departure from the port of this case, and it is hard for the plaintiff to reasonably conclude that the plaintiff's entry and departure from the port of this case had no other objective evidence that it had been prepared by the plaintiff's official in charge of inspection and inspection as stated in the above.

(C) Therefore, even though the burden of proof of dissenting facts against the rule of experience exists on the Plaintiff, the Plaintiff is only limited to the confirmation and departure status (No. 4-1, 2) that the Defendant is liable for the disposition of the instant disposition as the taxation data of the instant case, on the ground that the said data were prepared by the public official in charge of the Defendant’s tax investigation, and in fact, it is not possible to specifically state what errors are found in the factual part, and the opposing materials are not submitted.

(D) Ultimately, each of the above evidences that the Defendant’s disposition based on the instant disposition can be reasonably accepted in its contents and preparation procedures, and there is no other evidence to deem that each of the above evidences did not properly reflect the factual relations. Therefore, the Plaintiff’s assertion that the instant disposition violated the underlying taxation or the principle of substantial taxation is without merit.

(5) Whether there is a legitimate reason to exempt the portion of the disposition of this case from additional taxes

(A) 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 in accordance with the law if a taxpayer violates a return, tax liability, etc. as prescribed by the law without justifiable grounds, and the taxpayer’s intention and negligence is not considered, and the land or mistake of the law does not constitute a justifiable reason (see Supreme Court Decision 200Du1652, Feb. 8, 2002).

(B) In this case, in light of the fact that the Plaintiff had operated a taxable business for value-added tax between several years, the Plaintiff did not report revenues generated from the fishing vessel business as a tax-free revenue amount, the size, method, period, size of sales amount, etc. of the fishing vessel business operated by the Plaintiff, the Plaintiff cannot be deemed to have mistaken that the fishing vessel business was exempted from value-added tax. Even if the Plaintiff failed to pay value-added tax due to mistake as a business subject to value-added tax exemption, it cannot be recognized that there exists an interpretation or practice of the tax law that is subject to value-added tax exemption as seen earlier, and the purport and interpretation of other relevant statutes, including the Value-Added Tax Act, and the interpretation thereof, the Plaintiff’s interpretation of the above non-taxation cannot be deemed

(C) Therefore, the Plaintiff’s assertion on this part is without merit.

(6) Sub-committee

Therefore, the disposition of this case is legal, and there is no reason for the plaintiff's senior secretary.

3.In conclusion

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