Em-Muilil Co., Ltd. (Attorneys Kim Su-soo et al., Counsel for the plaintiff-appellant)

Head of Ulsan District Office

December 5, 2008

Ulsan District Court Decision 2007Guhap3040 Decided April 30, 2008

1. The part of the judgment of the first instance against the defendant shall be revoked.

2. The plaintiff's claim corresponding to the above revoked part is dismissed.

3. The plaintiff's appeal is dismissed.

4. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s imposition of traffic tax of KRW 3,962,86,670 on December 21, 2005 and KRW 4,970,131,30 on the aggregate of KRW 4,970,130 on education tax, KRW 497,030,360 on education tax, and value-added tax of KRW 447,234,270 on the list of the disposition imposing the Plaintiff on the Plaintiff.

2. Purport of appeal

A. The Plaintiff’s portion of the first instance judgment against the Plaintiff is revoked. In the disposition imposing traffic tax, the imposition of either KRW 3,012,325,640 out of KRW 3,962,86,670, and KRW 451,845,780 out of KRW 497,030,360 of the education tax, and KRW 311,826,00 of the value-added tax out of KRW 447,234,270 shall be revoked.

(b) Defendant: It is as ordered;

1. Details of the disposition;

The following facts may be recognized by adding up the whole purport of the pleadings to each entry of evidence A1-1 to 17, evidence A-3, and evidence A-4.

A. The Plaintiff, a oil refining company, was an enterprise supplying oil to an overseas navigation vessel, and was refunded traffic tax, education tax, etc. (hereinafter “traffic tax, etc.”) already paid on the transit 11,952,894 liter (hereinafter “instant oil”) that was taken out for the purpose of using it to an overseas navigation vessel through Twitn Co., Ltd. (hereinafter “Creinn”) from April 15, 2003 to May 31, 2004.

B. However, the Defendant: (a) received a false request for fuel order from the Plaintiff; and (b) did not actually use it for an overseas navigation vessel; (c) on the ground that Article 17 of the Traffic Tax Act (amended by Act No. 7576 of July 8, 2005; hereinafter the same shall apply) does not constitute a requirement for refund; (b) on December 21, 2005, 3,962,86,670 won (including additional tax 301,230,560, 649, 330, 470, 470 won for additional tax payment; and (c) on the ground that there were 300,000 won for additional tax (including additional tax on negligent tax returns, 45,580 won); (c) 497,030, 360 won for additional tax; and (d) 2531,204,2757,2751, etc. of the Enforcement Decree of the Plaintiff’s tax base for additional tax return.

C. On March 14, 2006, the Plaintiff dissatisfied with the instant disposition and filed a request for a national tax adjudication on March 14, 2006, but the said request was dismissed on August 20, 2007.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Plaintiff: (a) in receipt of a written request for fuel launch from Cmain, believed that Cmain will be used for an overseas navigation vessel; and (b) sold the instant oil to Cmarin; (c) however, since Cmarin purchased and delivered oil from the Plaintiff illegally used it for any purpose other than for an overseas navigation vessel, traffic tax, etc. refunded in cases where exempted oil was not used for a specified purpose shall be collected from the person who did not use the pertinent goods for the specified purpose pursuant to Article 17(8) of the Traffic Tax Act and Article 24(5) of the Enforcement Decree of the Traffic Tax Act (amended by Presidential Decree No. 18941, Jul. 8, 2005; hereinafter the same). The traffic tax, etc. refunded from Cmain, an illegal user, should be collected; and (d) the traffic tax, etc. refunded from value-added tax base should be deducted; and (e) the Plaintiff did not have any authority and obligation to manage and supervise whether the oil was supplied to an overseas navigation vessel without such authority.

(2) Even if the Plaintiff was liable to pay the traffic tax, etc. refunded to the Plaintiff, the Plaintiff was a bona fide trading partner who was unaware of the illegal removal of the instant oil, and the Plaintiff was merely a refund of the customs collector’s certificate of shipment (loading) and traffic tax, etc. on the goods subject to refund that the vessel oil supplier supplied to an overseas navigation vessel. Therefore, the imposition of additional tax is unlawful since there was no cause attributable

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are not disputed between the parties, or acknowledged by considering the following facts: Gap evidence 2 through Eul evidence 5, Eul evidence 1, Eul evidence 2-1 through 14, Eul evidence 3-1, 2, 3, Eul evidence 4, Eul evidence 5, Eul evidence 6-1, 2, Eul evidence 8, and non-party 1's testimony of non-party 1 in the court of first instance.

(1) In general oil shipping flow for overseas navigation vessels, when the owner of an overseas navigation vessel entering a port in Korea makes a request for oil supply to the ship’s agent, the ship’s agent entrusts oil suppliers, such as stein, with the purchase of oil, and accordingly, stein send a fuel departure request to the oil refining company stating the kind and quantity of oil, name of the vessel, the place of supply, the payment method (cash), the delivery date, the agency, etc., the oil refining company issues a written consent to the request by ste. The terms and conditions of the above written consent are in accordance with the “marine oil supply terms”, which is a transaction general contract terms prepared and issued at the time of the first transaction between oil refineries and the oil refining company. Accordingly, oil refining company requests the oil service company (hereinafter “east Sea Oil”) and the oil service company, which is subject to the request for oil supply to the oil supplier prior to the first transaction with the oil refining company’s transfer of oil to the overseas navigation vessel through oil supply service company.

(2) In the case of an application for refund of general traffic tax, etc., if the captain or the head of an overseas navigation vessel issues a certificate of marine oil supply (FDR and the weak class of Fuel redelivery) that oil was brought into a ship after receiving the oil requested by the overseas navigation vessel, the oil provider shall submit the certificate to the oil company after being issued by the head of the competent customs office, and the oil company shall be entitled to refund the traffic tax, etc., for which it submitted the certificate of carrying-in (loading) of the goods subject to refund to the head of the competent customs office. However, since November 23, 1999, the above certificate of bringing-in (loading) of the goods subject to refund was omitted (business autonomous management, customs confirmation omitted) and then the documents were issued after being brought into a ship, and it shall not be directly confirmed and issued by the head of the competent customs office.

(3) In relation to the instant oil supply, the main contents of “the terms and conditions of marine oil supply,” which are the terms and conditions of the general contract between the seller and the purchaser, are as follows.

Article 1 (Avoidance of Marine Oil and Guarantee)

The maritime oil sold shall generally be the commercial class provided by the seller at the time and place of delivery. The buyer shall be solely responsible for the selection, acceptance, and use of the maritime oil, including the determination of compatibility with the maritime oil already used in the ship.

Article 2 (Quantities and Quality)

The quantity of maritime oil shall be measured and calculated in accordance with API/ASM-IP Petroleum Measurement Manual. The quantity of delivered oil shall be determined by the bundling measurement at the time of delivery of the ship, and the quantity so measured shall be final regardless of whether or not the buyer's vessel is measured.

Article 3 (Price)

Before the seller orders the seller and the buyer accepts the sale of the oil to the buyer and the seller accepts the seller's obligation to sell and purchase the oil, the price so agreed shall apply at the time of delivery to the buyer's vessel at the oil reservoir of the seller. If the buyer fails to receive the arrival or maritime oil within three days from the designated arrival date or changes the quantity above 20 per cent of the existing agreed quantity, the seller retains the right to review the contract price.

Article 5 (Name and Delivery)

The buyer shall notify the seller that the vessel has been prepared to receive the vessel at least 72 hours prior to the end of 72 hours. The delivery shall be made at the discretion of the seller, and the vessel shall be supplied as much as possible, depending on the circumstances and circumstances. The buyer shall be liable for the costs incurred to the seller by failure or refusal to receive in whole or in part the marine oil quantity which the seller has consented to.

(4) In order to supply oil to an overseas navigation vessel, the Plaintiff entered into a contract for oil supply services with the south Sea Water Supply Co., Ltd., and the main contents are as follows.

Article 3 (Delivery and Examination of Products)

① The east Maritime Oil shall be notified of the vessel oil supply plan designated by the Plaintiff, and accordingly the Plaintiff’s products (oil) shall be prepared to supply the Plaintiff’s products to foreign vessels. ② The Plaintiff’s products shall be delivered to the east Maritime Water supply ship at the shipment site designated by the Plaintiff or the Plaintiff, and the east Maritime Water Supply shall be supplied to the vessels designated by the Plaintiff in accordance with the east Maritime Water Supply Procedure (Attachment 1) for foreign vessels. ③ The east Maritime Water Supply shall purchase maritime cargo insurance with the Plaintiff’s beneficiary in order to prevent any damage or damage to the products, and shall submit the east Maritime Water Supply to the Plaintiff before the purchase of the securities for its confirmation. ④ The east Maritime Water Supply shall subscribe to maritime pollution insurance and obtain prior approval for the use of the Plaintiff’s products.

Article 5 (Limitation of Liability)

1. The products are transferred from the plaintiff to the South-west Maritime Oil at the time of passing through the connection point between the plaintiff's shipment equipment and the east Maritime Oil's speed takeover equipment. ② The South-west Maritime Oil is responsible for all compensation for marine pollution and damage related to the vessel's oil under this contract, and in any case does not cause any liability or disadvantage to the plaintiff.

Article 7 (Quality Control)

The plaintiff may inspect the facilities of Dongnam Sea Water in order to verify the suitability of the facilities of Dongnam Sea Water, and the Namnam Sea Water shall be corrected immediately upon the request of the plaintiff.

Article 8 (Keeping Records)

With respect to the services under this contract, the Gangnam Sea Water supply shall keep all relevant documents and records and shall always comply with the request of the plaintiff for inspection.

Article 12 (Compensation for Damages)

In order to perform damages, etc. arising in connection with the services under this Agreement, the Bank shall grant the Plaintiff the blank Promissory Notes with the official seal of the payment date and shall grant the Plaintiff the right to use the Promissory Notes.

Article 3(Delivery and Acceptance of Goods) Section 2 of the Contract. The main contents of the "Procedures for Urgency to Foreign Ships" are as follows:

4. Oil supply work;

① The Plaintiff shall deliver the products to the tank vessels prepared for the east Maritime Oil. The quantity at this time shall be on the basis of the quantity measured on the Plaintiff’s land tank or FLOW MET, and the east Maritime Oil shall be supplied to a foreign vessel. ② east Maritime Oil shall be supplied to a vessel designated by maintaining the quantity and quality of the products acquired from the Plaintiff at the time of acquisition. ③ east Maritime Water shall be supplied to the designated vessel at the time of acquisition. ③ east Maritime Water shall be notified the Plaintiff of the progress of the work. ④ east east Maritime Water shall be collected jointly with the vessel’s side of the water supply, and one disease shall be delivered to the vessel, and the remaining one disease shall be kept at the east Maritime Water.

5. Completion of milk supply;

The east-west Sea oil shall confirm and accept relevant documents, including the increase of the amount of the oil supplied from the oil supplied vessel (referring to the FDR and the certificate of the amount of the oil supplied at the sea).

6. The occurrence and confirmation of defects;

① In the event of any defect, such as a change in the plan for oil supply or a failure in oil supply, the east-nam Sea Oil shall immediately be notified to the Plaintiff and a statement accompanied by relevant documentary evidence shall be submitted to the Plaintiff within 48 hours. ② The Plaintiff shall thoroughly investigate the cause of the defect and find out its responsibility.

7. Submission of documents and reports;

The East and South Sea Oil shall submit to the Plaintiff a report on completion of oil supply, which is equipped with all the following documents related to vessel oil supply services, within three days of the completion of oil supply. The list of documents: volume increase (FDR), vessel supplies (FDR), vessel supplies and shipment permits, export cargo shipment limits, and other relevant documents.

(5) (A) As above, cran is a twit, the south Sea oil is the oil supplier, or the south Sea oil is the oil supplier who was requested by the plaintiff to provide the services of supplying the oil to an overseas navigation vessel, and the cranz charters the oil to be supplied from twits who owned the oil to be supplied to the overseas navigation vessel, and the cranz excluded it from the oil oil to be supplied to the East Sea oil and directly participated in the course of oil supply. For this reason, cranz has not only the status as a twiter, but also the status as a ship oil supplier. With respect to oil being supplied to an overseas navigation vessel by the plaintiff, the traffic tax can be easily refunded if it is submitted to the chief of the competent customs office on the basis of a maritime oil supply certificate issued by the captain of the overseas navigation vessel or the head of the competent customs office on the basis of the maritime oil supply certificate, and the cranz does not have any actual interest in the vessel, but also the employees of the above cran oil from the south Sea oil.

(B) From April 15, 2003 to May 31, 2004, Crein presented to the Plaintiff a request for fuel emission with a number of 11,952,894 liters (the oil in this case) compared to the actual quantity of an overseas ship during the above period, while being entrusted with the purchase of 8,286 liter for maritime transit 5 (PING YG NO. 5) from Cambodia, an overseas navigation vessel, from Cambodia, to 31, 2004. The Plaintiff ordered the Plaintiff to withdraw from the overseas navigation vessel, a water supply service provider chain, any oil requested by Creinin.

(C) However, according to the charter contract entered into with the Namnam Sea oil, the Crein received the oil requested by the Plaintiff directly from the Plaintiff, and the overseas navigation ship supplied only the original consigned quantity, and the remaining (the oil in this case) supplied the oil illegally and sold it to the land intermediary wholesalers in the vicinity of the Busan Port (the non-party 2, the crop owner, who was involved in the illegal sale along with the croin, was paid the oil price to the croin at the investigative agency and received the crop from the croin, and submitted this crop to the Plaintiff’s employee, without any verification procedure, supplied the Plaintiff’s employee with the oil in this way, and there was no other unlawful distribution of the oil supplied by this method).

(D) Nevertheless, as the instant oil was supplied to an overseas ship, it forged a maritime oil supply confirmation certificate, etc. issued by the captain or the head of the agency as if it were supplied to the overseas ship (the Plaintiff asserts that smain, in collusion with the crew of an overseas ship, prepared two kinds of maritime oil supply confirmations based on the Plaintiff’s supply standard and the actual supply amount of the overseas ship). Based on this, smain issued a confirmation certificate of carrying-in (loading) of the instant oil brought into the ship from the head of the competent customs office, and submitted it to the Plaintiff via East-west oil. The Plaintiff submitted the confirmation certificate, etc. of bringing-in (loading) of the instant oil to the head of the competent tax office, and received a refund on the ground that the instant oil was taken out to the overseas ship from April 15, 2003 to May 31, 2004.

(E) Meren did not have been registered as a petroleum sales business, and there was no tax invoice issued by the Plaintiff on the instant oil from the Plaintiff.

(F) On July 1, 2005, the related persons such as the officers and employees of the Main with respect to the illegal removal of the oil of this case were sentenced to imprisonment with prison labor for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in the Busan District Court's Dong Branch branch branch, and on July 9, 2005, the above judgment became final and conclusive with the intention of the appeal period.

D. Determination

(1) As to the Plaintiff’s allegation No. 2. A. (1)

(A) Article 17(8) of the Traffic Tax Act provides that the traffic tax shall be collected in cases where oil taken out of an overseas ship is already paid with the traffic tax and refunded if it is found that such oil is not used for the prescribed purpose. Article 24(5) of the Enforcement Decree of the Traffic Tax Act provides that the traffic tax shall be collected from the “person who has not used the goods in question for the prescribed purpose” in cases falling under the provisions of Article 17(8) of the Traffic Tax Act.

(B) First, we examine the relationship with the Plaintiff.

The above facts revealed as follows: ① the Plaintiff did not issue and deliver a tax invoice under the Value-Added Tax Act with respect to the oil of this case to stein; ② stein is not a company registered for petroleum retail business; ③ the Plaintiff has ownership prior to the supply of the oil of this case to an overseas navigation ship; ④ there is no express oil sales contract between the Plaintiff and stein, or between stein and an overseas navigation ship with the seller as stein, and further, the Plaintiff’s purchaser claims that the oil of this case is stein, and the main contents of the above maritime oil supply condition that the Plaintiff’s purchaser is more than stein (e.g., it appears that the buyer is solely responsible for compatibility and use of the oil of this case with the oil of this case to stein; ② stein is not a company registered for oil retail business; ④ the Plaintiff’s purchase of the oil of this case’s oil of this case to stein and the Plaintiff’s purchase of the oil of this case to stein oil or the Plaintiff’s agent.

(C) Next, we examine the relationship between the Plaintiff and the South East Sea Water.

As seen earlier, Dongnam Sea Water is an oil service provider that transports oil from the oil reservoir to the overseas navigation vessel according to the Plaintiff’s direction. According to the main contents of the oil supply service contract concluded with the Plaintiff, Dongnam Sea Water is supplied to the Plaintiff’s ship designated by the Plaintiff, the progress and results of the oil supply service work, the Plaintiff shall report it to the Plaintiff, and the Plaintiff shall submit an explanatory report to the Plaintiff if the oil is unpaid, and the Plaintiff may investigate the cause of the defect. In full view of these circumstances and the fact that the Plaintiff has ownership until the oil is brought into the overseas navigation vessel, the Plaintiff has the right to manage and supervise Dongnam Sea Oil, and it is reasonable to deem that the Plaintiff has no right to manage and supervise the oil in this case until it is supplied to the overseas navigation vessel through such right to manage and supervise it (the Plaintiff asserted that there is no right to manage and supervise the south Sea Water in relation to the oil supply, but this does not directly recognize that it does not directly recognize that the south Sea Water is managed and supervised.)

In this regard, according to Article 5 (1) of the oil supply service agreement entered into with the South-west Sea Oil and Article 5 (1) of the said agreement, the Plaintiff asserts that the Plaintiff is not responsible for the management and supervision of the South-west Sea Oil from the time when the Plaintiff ships the instant oil from the oil reservoir to the East-west Sea Oil at the time of passing through the connection point of the Plaintiff’s shipping equipment and the east-west Sea Oil's water supply equipment. However, the above provision merely aims to clarify the location of the responsibility for oil management between the Plaintiff and the South-west Sea Oil, and only by the above provision entered into between the parties, it cannot be deemed that all the authority and responsibility for oil management are transferred from the Plaintiff to the East-west Sea Oil at the time of passing through the above point.

(D) Under the above circumstances, if the relation between the Plaintiff Czeman and East Sea oil did not use the oil in the prescribed use (use of a foreign navigation vessel) prior to the entry into an overseas navigation vessel, and as seen earlier, the Plaintiff, who is in the position to manage the oil until it was supplied to an overseas navigation vessel, can easily be refunded traffic tax, etc. upon submission of only the certificate of carrying-in (loading) export goods issued by the head of the competent customs office through a document review, on the ground that the Plaintiff did not manage and supervise the instant oil properly supplied to the overseas navigation vessel ( long as the Plaintiff is responsible for the management and supervision of the South East Sea Oil, the Plaintiff’s error in the East Sea Oil that did not supervise the actual supply of the oil is also the Plaintiff’s responsibility). Accordingly, it is reasonable to deem that the Plaintiff is the Plaintiff who did not use the oil in the prescribed use.

It shall be collected from the plaintiff, and it shall be calculated including the traffic tax, etc. refunded when calculating the value-added tax base.

(2) As to the plaintiff 2. A. (2) argument

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, where a taxpayer violates various obligations, such as a return and tax payment, as prescribed by the tax law without justifiable grounds, the taxpayer’s intention and negligence are not considered as administrative sanctions. On the other hand, such sanctions cannot be imposed in cases where there are circumstances where a taxpayer is not aware of his/her duty, or where there are circumstances where it is unreasonable to expect the taxpayer to fulfill his/her duty, or where there are circumstances where it is unreasonable to expect the taxpayer to fulfill his/her duty, etc. (see Supreme Court Decision 2004Du930, Nov. 25, 2005, etc.).

As seen earlier, the certificate of carrying-in (loading) export goods issued and delivered by the head of the competent customs office in this case was omitted on November 23, 1999 and issued through the examination of documents. The oil of this case was illegally distributed for a considerable period of time, tax exemption for taxable oil, such as traffic tax, is an exceptional system that recognizes tax exemption under the premise that it satisfies all the tax exemption requirements prescribed by the law. Although the oil of this case was responsible for managing and supervising the Plaintiff before the oil of this case was supplied to an overseas ship, it is difficult to deem that there was a justifiable reason not to mislead the Plaintiff by neglecting its liability, even if the Plaintiff was negligent in taking into account the following circumstances: (a) the certificate of carrying-in (loading) export goods subject to refund issued and delivered by the head of the competent customs office, as alleged by the Plaintiff, was issued and the Plaintiff trusted the certificate.

(3) Therefore, the Plaintiff’s above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, the defendant's appeal is accepted and the part against the defendant is revoked, the plaintiff's claim corresponding to that part is dismissed, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Park Ho-dae (Presiding Judge)