Daejeon District Court-2014-Gu Partnership-104093 ( November 18, 2015)

Whether it is eligible for exemption from tobacco consumption tax

Since special-use tobacco exempted from tobacco consumption tax is supplied for export exempted from tobacco consumption tax, it is exempt from tobacco consumption tax.

Article 49 of the Local Tax Act

2015Nu13879. Requests for disposition, such as imposition of value-added tax

주식회사 XXXX

Daejeon Head of the District Tax Office

Daejeon District Court 2015Guhap104093 ( November 18, 2015)

June 8, 2016

August 8, 2016

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

On January 6, 2014, the Defendant revoked the disposition of imposition of value-added tax of 689,517,730 won for the first term portion of 2009, value-added tax of 2009, value-added tax of 226,585,240 won for the second term portion of 2010, value-added tax of 274,214,030 won for the second term portion of 2010, value-added tax of 706,063,130 won for the second term portion of 2011, value-added tax of 950,245,340 won for the second term portion of 201, value-added tax of 20,110,767,690 won for the second term of 2012, and of 3,032,731,050 won for the second term portion of value-added tax for 2012.

2. Purport of appeal

A. The plaintiff

Of the judgment of the first instance court, the part against the plaintiff shall be revoked. The defendant against the plaintiff on January 6, 2014 is limited to that against the plaintiff:

Of the imposition disposition of value-added tax of KRW 689,517,730 for a period of one year in 2009, 243,74,519 for 243,74,519 for 209, 150,797,883 for 209, 274,214,030 for 22 years in the imposition disposition of value-added tax for 2 years in 2010, 96,934,661 for 2 years in the imposition disposition of KRW 274,214,030 for 2 years in the imposition disposition of value-added tax for

Of the imposition of KRW 706,063, 130, KRW 249,593,319, and KRW 335,91,731 in the imposition of KRW 950,245,340 in the imposition of KRW 2,110,767,690 in the imposition of KRW 746,156,380 in the imposition of KRW 2,110,767,690 in the first year of 2012, and KRW 1,032,731,050 in the imposition of KRW 3,032,731,050 in the second year of 2012, shall be revoked, respectively.

B. Defendant

In the judgment of the first instance court against the defendant, the part of the judgment against the defendant shall be revoked, and the plaintiff's claim

The dismissal is dismissed.

1. Quotation of judgment of the first instance;

The court's explanation on the instant case shall be from Nos. 5 to 10 of the court's decision of the first instance.

Except for amendments to the 18th sentence as follows, it is identical to the entry of the reasoning of the judgment of the first instance, and thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts to be corrected;

Part 9. Parts 5 to 18 pages 5

2) Whether tobacco consumption tax, etc. is included in the tax base

A) Relevant provisions

The former Local Tax Act (Amended by Act No. 13427, Jul. 27, 2015; hereinafter referred to as the "Gu Local Tax Act")

1) Article 49 of the Tax Act ("Tax Act") provides that a producer shall use tobacco for tobacco taken out of a place of production.

. is liable to pay the tax (paragraph 1), and after taking out the duty-free tobacco under Article 54, for that purpose.

1) The former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010) enters into force on January 1, 2011; thus, the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010); however, the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010) applies to any disposition of value-added tax imposed on the second part of the instant disposition.

3. Article 225(1) of the Act on 31. 31. The producer is obligated to pay tobacco consumption tax on the tobacco shipped out of the manufacturing place. Paragraph 5 of the same Article, after taking out the duty-free tobacco under Article 232, and selling and selling it without using it for that purpose.

Notwithstanding the provisions of paragraphs (1) through (4), where sales, consumption, or other disposition is taken, a person who has taken such disposition shall be deemed a person liable for duty payment of tobacco consumption tax, and Article 232 (1) shall be exempted from tobacco consumption tax where a manufacturer or import distributor provides tobacco for the following purposes:

C. In addition, Article 54(1) of the former Local Tax Act provides that "where a manufacturer or import-distributor provides tobacco for any of the following purposes, he/she shall be exempted from tobacco consumption tax, and each of them shall be exempted from tobacco consumption tax, if the manufacturer or import-distributor provides the tobacco for any of the following purposes, notwithstanding the provisions of paragraphs (1) through (4)." In addition, Article 54(1) of the former Local Tax Act provides that "in cases where the manufacturer or import-distributor provides the tobacco for any of the following purposes, he/she shall be exempted from tobacco consumption tax."

Sales to the crew of deep-sea fishing vessels (No. 4), and boarding of aircraft or passenger ships operating on international routes;

Sale of visitors(No. 5) is defined as "sale of visitors."

On the other hand, Article 14 (2) of the Framework Act on National Taxes provides for the calculation of tax bases under tax laws.

or form of such transaction, regardless of the name or form of such transaction; or

The principle of substantial taxation is declared by stipulating ".........."

B) Determination

(1) Facts and evidence as seen earlier, and evidence Nos. 3 and 5 (if any, numbered)

Each entry may include the following circumstances that may be known by adding to the whole purport of the pleading:

In full view of all, the instant transaction between the Plaintiff and the key trading company is a “foreign vessel crew member, etc.”

Inasmuch as the sale of tobacco for ‘export' takes out the issue of tobacco for ‘export' rather than for ‘export', the former local area

It is reasonable to deem that tobacco consumption tax is exempted to the Plaintiff pursuant to Article 54 (1) 1 of the Tax Act.

Unlike this, the disposition of this case, which included the tobacco consumption tax, etc. in the base of value-added tax, is unlawful, based on the judgment that the plaintiff reported the key tobacco as "for overseas service crew members" and supplied it to the key trader as "export" other than its use, which is not exempted from the tobacco consumption tax. This part of the plaintiff's assertion has merit.

(A) The Plaintiff reported the shipment to the 'commercial use for the crew of the ocean-going ship, but actually reported the shipment.

Ro has delivered the issue tobacco to the key trading entity for export;

Under the substance over form principle, the Plaintiff’s delivery of special purpose tobacco to the key trading company for export.

It is reasonable to see that it falls under Article 54 (1) 1 of the former Local Tax Act.

(B) For this, the Defendant reported on the shipment of the tobacco to the ocean-going crew members for sale, etc., but actually delivered the tobacco for export to the major trading company as long as it was delivered for export.

(1) If the property is disposed of for any purpose other than the original purpose under Article 54 of the former Local Tax Act;

The Plaintiff asserts to the effect that tobacco consumption tax is imposed on the Plaintiff pursuant to the legal provisions of this case.

However, the legal provision of this case does not use the duty-free tobacco under Article 54 for the purpose of "after being taken out" and does not sell, sell, consume, or otherwise dispose of it.

(2) The duty to pay taxes is clearly defined, and the duty to pay taxes shall be reported for the purpose of tax exemption.

It can not be seen as "taking out only by itself" if it is taken out for other tax-free purposes.

In this case, it is difficult to deem that it is permitted in violation of the principle of strict interpretation based on the principle of no taxation without law beyond the scope of interpreting the language and text.

The key tobacco is whether the substance of the transaction in this case is "export" or the form thereof is "foreign airline crew."

Tax-free tobacco under Article 54 of the former Local Tax Act, regardless of whether it is for sale or use for the manufacture;

Since the Plaintiff provided such duty-free tobacco to the key trading company, after release.

Whether the Plaintiff, a manufacturer of the key tobacco, participates in the domestic distribution of the key tobacco and is equivalent to the disposal entity of the key tobacco

Unless there are special circumstances, such as that it may be viewed as above, the plaintiff, only if taken out, shall do so.

The tobacco consumption tax shall be imposed by asking the responsibility for any disposition other than the use made at the subsequent stage.

It goes against the language and text of the legal provision of this case (by the literal interpretation of the legal provision of this case)

Do, the legal provision of this case does not use it for the relevant purpose after the release of duty-free tobacco.

Where a disposition is made, it shall be stipulated that the subject of such disposition is liable to pay tobacco consumption tax.

It is reasonable to interpret in this chapter.)

Furthermore, it is difficult to view that Aa was involved in the distribution of the tobacco at issue in light of the contents of the relevant criminal judgment against Aa, who is an employee of the Plaintiff. Even if Aa was partially involved in the distribution of the tobacco at issue, such circumstance alone is insufficient to recognize the status of the Defendant as corresponding to the disposition subject to the disposition regarding the disposition other than the tax-free use after the removal

The argument is without merit (this case's decision). The defendant's liability to the manufacturer is against the principle of self-responsibility unless there are special circumstances, such as the reason attributable to the manufacturer with respect to the disposition other than the use that was made after the decision of the Constitutional Court 2002Hun-Ga27 delivered on June 24, 2004 (hereinafter "the decision of this case"), and it is possible to impose tobacco consumption tax, etc. if it is acknowledged that the reason for the plaintiff's entry into the Republic of Korea is attributable to the plaintiff in relation to the disposition other than the purpose of use." The plaintiff's reason is attributable to the plaintiff, and it is also argued as a preliminary reason. However, as long as the legal provision of this case was newly established after the above decision of this case, the reason is insufficient, and the status corresponding to the disposition subject with respect to the disposition other than the purpose of use should be required as above. Therefore, the defendant's above assertion is without merit).

(C) Meanwhile, the defendant is entitled to the former Local Tax Act (amended by Act No. 6460 of April 7, 2001)

The provisions of Article 232(1) (hereinafter referred to as "unconstitutional provisions") among the provisions of Article 233-7(2)1.

Since the tobacco consumption tax is imposed along with the additional tax, it is unconstitutional.

The tobacco consumption tax and additional tax prescribed in the provisions shall be imposed in the form of tax on the disposition other than the use of exempted tobacco.

by imposing sanctions, it has a function to prevent future violations."

Based on the case of decision, the term "the corresponding use" of the legal provision of this case means "the reported use"; and

The legal provision of this case is different from the "use for which the shipment report was made" in the context of the "use for which the shipment report was made" itself.

The distribution order of tax-free tobacco shall be strictly imposed by denying the original tax-free benefits.

It argues that the regulation for management is a regulation for management.

(1) However, the instant decision case is that the producer is entitled to certain qualifications as prescribed by law.

To provide tobacco under a contract for the supply of special-use tobacco indicating that it is to the other party;

(2) Any disposition other than the purposes of use made at the subsequent stage

Manufacture of liability, unless there are special circumstances, such as the existence of causes attributable to the manufacturer with respect to the manufacture.

Although asking for a person is contrary to the principle of self-responsibility, the unconstitutional provision is against the manufacturer.

Tax imposed on a disposition other than the purpose of the supplied duty-free tobacco, regardless of whether it is attributable to the manufacturer;

For the convenience of the procedure only, tobacco consumption tax and additional tax shall be imposed on the manufacturer without conditions;

2. A person who accords with the purport of the decision of this case, which is contrary to the principle of self-responsibility.

The term "tax-free tobacco to be faithful to the principle of liability" is taken out, and sold and sold without being used for that purpose.

Article 25 (5) r of the former Local Tax Act (amended by Act No. 732 of Jan. 5, 2005) that the legal provision of this case was newly established as of Jan. 5, 2005 so that the disposal person can become a taxpayer of tobacco consumption tax and additional tax, and that the decision of this case is justified in the purport of the exemption system from taxation of tobacco for special purpose, and that the payment of tobacco provided for special purpose can be made if the tobacco is not used for the original purpose of this case, and that the purpose of this case should be determined on the basis of the manufacturer's report of release of tobacco.

(D) The defendant has the duty-free tobacco under Article 54 (1) of the former Local Tax Act for the purpose of taxation.

For purposes, the legal provision of this case does not constitute Article 54 (1) of the former Local Tax Act without the need to discuss it.

Since the legal provision of this case imposes tobacco consumption tax originally, the actual purpose of use is “tax exemption.”

It should be viewed as not giving tax exemption benefits in the case of different use from “the purpose of the report of removal”.

c) argument.

However, the duty-free tobacco under Article 54 (1) of the former Local Tax Act is used for the purpose of taxation.

In order to determine who is liable for tax payment, the law of this case must be bound to determine who is the taxpayer.

Since it is also the meaning of the existence of the legal provisions of this case in accordance with the provisions of this case, the law of this case

The defendant's argument that there is no need to discuss the rate clause is difficult to accept.

(E) The Defendant is strictly divided into the use of the tobacco for special use by the Tobacco Business Act; and

The purpose of the former Local Tax Act is the same as the Tobacco Business Act.

For purposes of prohibiting the release of duty-free tobacco from being used for other duty-free purposes;

The legal provisions of this case are stipulated in the legal provisions of this case. In addition, if the legal provisions of this case are not seen as such, a special warehouse

It is permitted to use the ship for any purpose other than that reported for removal of the ship under the Tobacco Business Act.

Since it is contrary to the purport, ‘unfair' asserts to the purport.

The former Tobacco Business Act (amended by Act No. 12269, Jan. 21, 2014; hereafter the same shall apply)

Article 19 (2) of the former Tobacco Business Act ("the former Tobacco Business Act") for special use under paragraph (1) of the same Article:

Section 28 of the same Act provides that no sale shall be made for purposes other than those of use.

In violation of this, if the tobacco for special use is sold for other purpose, it shall be punished by a fine for negligence not exceeding 2 million won, and Article 7 (1) of the Enforcement Decree of the Tobacco Business Act provides for the special purpose tobacco by classifying it in detail.

(1) However, the former Tobacco Business Act is an administrative regulation for maintaining order in the distribution of tobacco.

Meanwhile, the legislative purpose of the former Local Tax Act is to distinguish between the principle of no taxation without the law, the principle of substantial taxation, and the principle of taxation for the consumption country. ② The scope of the tax-free tobacco under the former Local Tax Act is inconsistent with the scope of the special purpose tobacco under the Tobacco Business Act. ③ The taxation principle for the consumption country refers to the country in which the goods or services are consumed. If the tobacco consumption tax is imposed under the legal provisions of this case on the grounds that the use of the goods or services consumed by any person is different from that of the report of release provided for export, it may be contrary to the above taxation principle for the consumption country. ④ According to the Defendant’s assertion that the transaction of the goods for export of the general taxable tobacco is exempt under Article 54(1)1 of the former Local Tax Act, it is difficult to regard the “special purpose for export” of the former Enforcement Decree as the duty-free tobacco under Article 54(1)7 of the Local Tax Act and Article 54(1)3 of the former Enforcement Decree of the Local Tax Act, which is separate from the tax-free tobacco for export purpose.

The order is a matter to be strictly regulated by the Tobacco Business Act, and 7 The defendant is a legal provision of this case

As amended by Act No. 13427 on July 24, 2015, Article 54(1) of the phrase "the relevant use" is amended.

The defendant's assertion is reasonable even if it was changed to the corresponding use according to the classification of each subparagraph.

The legal provision of this case, which is so amended, is also asserted as such, Article 2 of the Addenda to the above amended Act.

Accordingly, the defendant's assertion is also asserted to the effect that the first tax liability arises after July 24, 2015, and that the transaction in this case is not applicable to the transaction in this case, and there is no room to consider it. 8) The defendant's argument is reasonable on the grounds that the defendant's reply to questioning regarding whether to impose tobacco consumption tax (Evidence No. 5) by the Ministry of Security and Public Administration, and the reply to questioning by the Ministry of Government Legislation (No. 13-0426) on December 6, 2013. However, in light of the fact that the response to questioning by the administrative agency is merely an internal authoritative interpretation of the administrative agency and is not externally binding, it is difficult to accept

(f) The defendant, which is a document attached to the report of carrying out tobacco under Article 55 of the former Local Tax Act.

According to the table of the current status of drainage, etc., the use under each subparagraph of Article 54 (1) of the former Local Tax Act is distinguished;

The plaintiff is required to describe the issue, and the plaintiff has also classified and reported the issue tobacco as an out-going vessel, etc.

The imposition of tobacco consumption tax should be determined on the basis of each subparagraph of Article 54 (1) of the former Local Tax Act.

(c) asserts that “the matter” is;

However, the defendant's above assertion is a tax exemption provision and substantial taxation provision under Article 54 of the former Local Tax Act.

In spite of the principles, the taxpayer's internal documents and administrative procedures are subject to the transaction's over-tax exemption.

It is difficult to accept because it is not different from that to be determined by the addition.

(2) Meanwhile, the Defendant’s prior to the amendment of the former Value-Added Tax Act (amended by Act No. 11608, Jan. 1, 2013)

Article 13(1) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013); and Rule 13-48-2 of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Apr. 15, 2014); the Daejeon Metropolitan City Mayor imposes 38,005,239,960 won on the Plaintiff, including tobacco consumption tax, etc. on the issue of tobacco based on the legal provisions of this case, and imposes 38,005,239,960 won on the Plaintiff on the basis of the instant

The person who actually disposes of the tobacco other than the purpose of tax exemption is a major trading company.

There is a separate existence of the tobacco as the manufacturer of the issue tobacco, and it is only supplied for export purposes.

As seen earlier, that tobacco consumption tax, etc. cannot be imposed on the Plaintiff at issue

Ro. On the other premise, the first defendant's argument is without merit without further review.

3. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and b)

s) The claim shall be dismissed for lack of reason, and the judgment of the court of first instance shall be delivered with this conclusion and shall be justified.

The appeal by the plaintiff and the defendant is dismissed for the reason that the appeal is without merit.