Examination Other 2009-007 (2009.04.10)

In the case of eating, eating and drinking, it is subject to the individual consumption tax.

It is reasonable to view that the main place was operated only by singing, but it was deemed that the entertainment tavern business license was granted, the property tax was imposed heavy, and the credit card sales per case are higher than other singings.

1. The plaintiff's claim is dismissed.

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

The Defendant limited to December 1, 2008 against the Plaintiff:

(a)special consumption tax of 5,789,170 won and education tax of 1,213,270 won for June 2004;

(b)the special consumption tax of December 2004 28,163,010 won and the education tax of 6,114,330 won;

(c) fully revoke the imposition of the special consumption tax of 29,045,100 won and the education tax of 6,540,790 won and each disposition of imposition on June 2005.

1. Circumstances of the disposition;

A. On May 3, 2004, the Plaintiff operated an entertainment drinking club with a license from May 10, 2004 to June 13, 2005, as a trade name, "CC No. 2802-3 Afra, 202, Jung-gu, Incheon, Jung-gu, Seoul (hereinafter "the main office of this case").

B. On December 1, 2008, the Defendant imposed the special consumption tax and the education tax on the above eating, eating, drinking, and drinking at the main point of this case, as stated in the purport of the claim, on the ground that the Plaintiff did not report or pay the special consumption tax even though the Plaintiff provided entertainment, eating, and drinking at the main point of this case, which is the special consumption tax, (hereinafter referred to as "the disposition of this case"). Meanwhile, as the special consumption tax was amended by Act No. 8829 on December 31, 2007 by Act No. 8829 on December 31, 2007, the special consumption tax has changed its name as the individual consumption tax, and hereinafter referred to as "individual consumption tax and the individual consumption tax").

C. The Plaintiff appealed and filed a request for review on February 12, 2009, but was dismissed on April 10, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 4, Gap evidence 5-l to 3, Eul evidence 3-5, the purport of the whole pleadings

2. Whether the disposition of this case is legitimate

A. The plaintiff's assertion

The plaintiff asserts that since the main points of this case were operated only by singing, it does not constitute entertainment drinking and eating as well as entertainment drinking and drinking.

(b) Related statutes;

It is as shown in the attached Table related statutes.

B. Determination

1) The Plaintiff also seeks revocation of the imposition of education tax along with individual consumption tax. The education tax is imposed on a taxpayer of individual consumption tax under the Education Tax Act, so if the imposition of individual consumption tax is unlawful, the imposition of education tax is illegal as a matter of course, so the imposition of education tax is determined only on the imposition

2) According to Article 1(1) of the Individual Consumption Tax Act (amended by Act No. 9259 of Dec. 26, 2008), the individual consumption tax provides that "the admission to a specific goods or a specific place and entertainment and eating at a specific place" shall be imposed. According to Article 1(4) of the same Act, "the entertainment drinking house" provides that "the entertainment drinking house is one of the specific places where the individual consumption tax is imposed in relation to entertainment and eating." Article 7 subparagraph 8(d) of the Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 21676 of Aug. 6, 2009) provides that an entertainment bar mainly prepares and sells alcoholic beverages, which is a business where entertainment workers may be employed for entertainment or entertainment facilities may be installed, and customers may singing or dance music.

Therefore, it is reasonable to view the instant main points as constituting entertainment tavern in light of the following: (a) the Plaintiff obtained permission to operate an entertainment tavern business for the main points of this case as seen earlier; and (b) the Plaintiff’s certificate No. 3-6 on the main points of this case was found to have imposed property tax imposed on the main points of this case as an entertainment tavern building since 2004; and (c) the main points of this case are deemed to fall under entertainment tavern.

Furthermore, as to whether the Plaintiff engaged in entertainment, eating, and drinking at the main point of this case, the following circumstances acknowledged by each description of subparagraph 3-3, subparagraph 4, 7, 8, and 9 are as follows: (i) the Plaintiff advertised for the offer of entertainment workers through the Internet and leaflet; (ii) approximately KRW 270,000,000,000, which is the average credit card sales of the Plaintiff’s credit card sales of the mobile line that provided entertainment, eating, and drinking at the main point of this case after the Plaintiff’s closure of business; (iii) while there is a big difference between KRW 30,00,000,000, which is the average credit card sales of the Plaintiff’s credit card sales of the instant main point of this case, and (iv) approximately KRW 884,494,569, which is the average credit card sales of the Plaintiff’s sales of alcoholic beverages from May 204 to June 205, the Plaintiff accepted the Plaintiff’s assertion of entertainment and drinking mainly from the main point of this case.

3) In addition, the Plaintiff asserts that the imposition of the individual consumption tax by not later than three years after the CD closure violates the principle of retroactive taxation prohibition. However, the Plaintiff’s business activity was already subject to the individual consumption tax in the taxable period of the instant disposition, and is not subject to the individual consumption tax ex post facto. (2) Although the Plaintiff’s business activity did not know that it constitutes the subject of the individual consumption tax, such circumstance does not affect the establishment of the tax liability in the instant disposition, the Plaintiff’s above assertion is rejected.

3. Conclusion

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