Suwon District Court 201Guhap4003, 17 April 2012

Early High Court Decision 201J 1443 ( October 27, 2011)

In the case of a change in the grounds for the imposition of the special consumption tax originally in the proceeding, it does not violate the principle of prohibition of speech.

The subject matter of a taxation disposition lawsuit is the objective existence of the tax amount determined by the tax authorities, and the tax authorities can submit new data that can support the legitimacy of the tax base or tax amount recognized by the relevant disposition until the closing of arguments in the court of fact-finding during the course of the lawsuit or exchange and change the reasons to the extent that the identity of the disposition

Article 18 of the Framework Act on National Taxes

2012Nu1270 Revocation of imposition of special consumption tax, etc.

AA

Head of Namyang District Tax Office

Suwon District Court Decision 201Guhap4003 Decided April 17, 2012

July 23, 2013

August 30, 2013

1. The plaintiff's appeal and the changed plaintiff's claim are all dismissed.

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

The judgment of the first instance shall be revoked.

On September 1, 2011, the Defendant revoked the imposition of special consumption tax and its additional tax and individual consumption tax as shown in attached Form 2, and the imposition of individual consumption tax and its additional tax on January 2, 2013, and the Defendant’s imposition of education tax and its additional tax on the Plaintiff on January 2, 2013,

[Plaintiff changed the claim for the imposition of education tax and its additional tax in the trial as above, and on the other hand, the Plaintiff stated the date of the disposition of the special consumption tax, its additional tax, and the individual consumption tax and its additional tax as of January 2, 2013, but it is a clerical error in September 1, 201)

1. Special consumption tax, individual consumption tax, and education tax;

The following facts shall be admitted in full consideration of the overall purport of the arguments between the Parties or between the Parties, and between the evidence A 1 to 23, evidence A 6, and evidence B 2, 3, and 13, and evidence B 1 to 23 of evidence B 6:

〇 원고는 2006. 12. 14.부터 2010. 8. 31.까지 OOO시 OO동 638-1 BB타워 9층에서 'CCC'이라는 상호로 유흥주점(이하 '이 사건 유흥주점'이라 한다)을 운영하였다.

〇 피고는 2011. 1. 12. 이 사건 유흥주점이 「특별소비세」 및 「개별소비세법」 소정의 과세유흥장소에 해당한다는 이유로 원고에 대하여 특별소비세 및 개별소비세와 교육세 합계 OOOO원을 부과하였다.

〇 피고는 조세심판원의 재조사 결정에 따라 위 부과 처분을 경정하여， 2011. 9. 1 원고에 대하여 별지1 기재와 같이 2006년 12월분부터 2009년 12월분까지의 특별소비세와 그 가산세，개별소비세와 그 가산세，교육세와 그 가산세 합계 OOOO원을 부과하였다.

〇 피고는 위 부과 처분의 고지서 출력오류에 따라 당심에서 2013. 1. 2. 위 부과 처분 중 교육세와 그 가산세 부분을 별지2 기재와 같이 경정하였다.

2. The plaintiff's assertion

On February 3, 1997, the National Tax Service imposed individual consumption tax only when the place of business is more than 40 square meters in the City area in the first-stage entertainment tavern promotion plan, and on April 9, 1999, the Seoul metropolitan area was 35 square meters or more in the second-stage entertainment tavern promotion plan (the second-stage entertainment tavern promotion plan) and 40 square meters or more in other Si areas. Accordingly, the non-taxation practices that are not subject to individual consumption tax, etc. were widely accepted for general taxpayers and the tax interpretation of tax-related Acts was adopted.

“Although the area of the instant entertainment tavern operated by the Plaintiff is about 22.1 square meters (72.96 square meters), the Defendant deemed the instant entertainment tavern as a taxable entertainment place under the above promotion plan, the Defendant rendered the instant disposition by deeming the instant entertainment tavern as a taxable entertainment place. The Defendant violated the principle of administrative self-regulation as a retroactive taxation, disregarding non-taxation practices, and thus, does not comply with the principle of tax equality. The Defendant issued individual consumption tax on the ground that the actual business area of the instant entertainment tavern was above the standard area under the above promotion plan, and then, issued a special consumption tax on the ground that it was found appropriate for the head of the tax office to impose tax even if the actual business area of the instant entertainment tavern fell short of the standard size under the above promotion plan, the Defendant’s attempt to justify the instant disposition violates the principle of speech, and it was in violation of the principle of prohibition, even if △△△△, and the Plaintiff was not aware of the fact that the instant entertainment tavern was subject to the imposition of individual consumption tax before the Defendant’s disposition.” The portion of the instant disposition is unlawful.

A. Relevant statutes

(1) Article 1 of the Special Consumption Tax Act (amended by Act No. 8829, Dec. 31, 2007) provides that the special consumption tax shall be imposed on admission to a specific place of goods and entertainment, eating and drinking at a specific place (Paragraph (1)), and the special consumption tax shall be imposed on the place where the special consumption tax is imposed on the entertainment drinking and drinking for △△△△△△ (hereinafter referred to as "taxable entertainment place"), and the place where the special consumption tax is imposed on the entertainment drinking and drinking for foreigners exclusive, entertainment restaurants and other similar places (hereinafter referred to as "taxable entertainment place"), and the tax rate shall be 10/100 of the charge for entertainment and eating, and the special consumption tax shall be imposed upon the operator of the taxable entertainment place by the end of the following month (Article 9 and Article 10).

(2) Similar to Article 1 of the Individual Consumption Tax Act, Article 1 of the Individual Consumption Tax Act provides that the individual consumption tax shall be imposed on specific water, admission to a specific place, and entertainment, eating and drinking at a specific place (Paragraph 1), and the place where the individual consumption tax is imposed on the entertainment drinking and drinking at △△△△ (hereinafter referred to as “the taxable entertainment place”) shall be provided for entertainment drinking, foreigner-only entertainment restaurants, and other similar places. The tax rate is 10/100 of the fee for entertainment and eating (Paragraph 4), and the special consumption tax shall be imposed on the operators of the taxable entertainment places, such as the Special Consumption Tax Act, on a monthly basis.

After that, the Individual Consumption Tax Act, amended by Act No. 9259 on December 26, 2008, stating the number of persons at each taxable entertainment place, and the amount of tax to be exempted, deducted, paid, etc. by each type of taxable entertainment place, shall be submitted to the head of the tax office having jurisdiction over the taxable entertainment place by the 25th day of the month following the quarter in which the day on which the entertainment and food was performed falls, and the individual consumption tax was paid thereafter, as amended by Act No. 10404 on December 27, 2010, the Individual Consumption Tax Act, amended by Act No. 10404 on December 27, 201, submitted to the head of the tax office having jurisdiction over the taxable entertainment place a written declaration stating the number of persons at each taxable entertainment place, calculated amount, exempted, deducted, deducted,

(b) Plans for promoting the normal taxation of entertainment taverns;

(1) On February 3, 1997, the National Tax Service established a plan for the first phase promotion of taxation of entertainment tavern No. 1 (hereinafter referred to as the “first phase promotion plan”) (hereinafter referred to as the “first phase promotion plan”). The purport was that, in a case where the special consumption tax is imposed on a business establishment licensed for entertainment tavern in a lump sum regardless of the size, it is highly shock that the business establishment is faced with difficulties in living, and thus, it is first determined the scope of taxable object by region and scale, and the tax is imposed on a business establishment falling short of the scope, and the tax is imposed on a business establishment by step, and the tax is imposed on a business establishment by step to facilitate smooth execution by relaxing administrative problems following the temporary expansion

In the first-stage promotion plan, the special consumption tax is imposed on a business operator who is deemed appropriate for tax assessment by the head of the tax office, who employs entertainment workers or operates entertainment tavern business in a Metropolitan City or more, 35 square meters in a Si or more, 40 square meters in a Si or more in a Gun, and 45 square meters in a Gun, and who fails to meet the standard size.

(2) Since March 1, 1999, the National Tax Service established a plan for promoting the normal taxation of entertainment taverns in the second phase (hereinafter referred to as the "second phase implementation plan") as of April 9, 199, since it is necessary to adjust the standard size for business operators who were deferred taxation in the first phase implementation plan and to strengthen taxation management for related business establishments, such as permission for night business and cancellation of the regulation for permission for entertainment tavern business from March 1, 199.

The second stage promotion plan is to be imposed when it is deemed appropriate for the head of a tax office to confirm eating and drinking, even in cases where the area of a place of business subject to special consumption tax is at least 30 square meters in Metropolitan Cities, 40 or more in entertainment bars, and 35 or more in entertainment bars in the metropolitan area, and the actual size is below the standard size.

C. Whether the principle of administrative self-regulation is violated

(1) The so-called administrative rules or internal guidelines issued by a superior administrative agency to a subordinate administrative agency on the basis of the principles of equality or the principles of statutory interpretation and application are generally effective only within the administrative organization, and do not have external binding force, and thus, the administrative disposition is not immediately unlawful merely because it violates it. However, if the administrative rules, which are the rules for the exercise of discretionary power, have been enforced as prescribed by those rules, have been enforced, and administrative practices have been carried out, then the administrative agency is under self-detained in relation to the other party in accordance with the principle of equality or the principle of trust protection. In such a case, barring any special circumstance, any disposition violating such rules is an illegal disposition that deviates from and abused its discretionary power (see Supreme Court Decision 2009Du7967, Dec. 24, 2009).

In addition, the principle of trust and good faith or the principle of retroactive taxation prohibition provided by Article 18(3) of the Framework Act on National Taxes shall be applied only to cases where there are special circumstances in which the protection of taxpayer's trust is deemed to correspond to justice even if the principle of legality is sacrificeed, and the interpretation of the tax-related Act or the practice of national tax administration generally accepted by the taxpayer under the provision refers to a wrongful interpretation or practice that is accepted by a general taxpayer who is not a specific taxpayer without objection to the extent that it is not unreasonable for the taxpayer to trust such interpretation or practice, and it cannot be deemed that such interpretation or practice exists solely on the fact that there has been a public opinion on the standard of interpretation of the tax-related Act, and the burden of proof for such interpretation or practice exists in the taxpayer (see, e.g., Supreme Court Decision 2005Du2858, Jun. 29, 2006).

(2) As seen earlier, the subject and tax rate of the special consumption tax and the individual consumption tax are specified by law, and are not delegated to the Enforcement Decree or the Enforcement Rule, etc. with respect to the subject matter excluded therefrom. In principle, entertainment taverns under the Special Consumption Tax Act and the Individual Consumption Tax Act are all subject to taxation, and the taxpayer should report and pay it. As such, the Plaintiff, who provided entertainment and food services while running an entertainment drinking house in the instant case, is obligated to report and pay the special consumption tax and the individual consumption tax by himself.

(3) Meanwhile, the National Tax Service’s first and second stages promotion plan cited by the Plaintiff is not a conditional special consumption tax and individual consumption tax on entertainment taverns under the internal guidelines established by the National Tax Service for the taxation and simplification of the special consumption tax and the individual consumption tax on entertainment taverns, but a small-scale entrepreneur whose impact is less than a certain size expected to be high, such as difficulty in living due to the comprehensive imposition of the special consumption tax and the individual consumption tax on entertainment taverns, prior to the imposition of the special consumption tax and the individual consumption tax on entertainment taverns, is not a conditional non-taxable practice as claimed by the Plaintiff. Therefore, it cannot be said that the first and second stages promotion plan form a non-taxable practice as claimed by the Plaintiff.

(4) In addition, considering the following facts, the Plaintiff’s 2, 3, 4, 7, 4, and 7, and 7 through 12 (including household numbers) were indicated as follows: “The Plaintiff’s 2, 9, and 9-1, 3, and 9-1, 6, 7, and 9, 7, 6, 9, 6, 6, 7, and 9, 9, 7, 6, 6, 9, 6, 9, 6, 9, 6, 9, 6, 9, 6, 9, 6, 9, 6, 9, 9, 6, 9, 6, 9, 9, 9, 6, 9, 9, 6, 7, and 9, 1,000, 9, 7, and 9, 6,0000, 6,000, 9,000, 2,00.

D. Violation of the nomenclature doctrine

It is recognized that the plaintiff, the defendant, at the beginning, imposed the special consumption tax and the individual consumption tax on the ground that the actual business area of the plaintiff is more than the basic area, but the head of the tax office deems it appropriate to impose the tax even if the actual size falls short of the standard size, it is possible to impose the tax, and according to the statement of the evidence No. A, the defendant asserts that it violates the principle of gold-Ban, and according to the statement of the evidence No. 9, the defendant sent the notice of prior notice of taxation of the audit results to the plaintiff on August 16, 2010, stating "the imposition of the individual consumption tax (the individual consumption tax

However, the subject matter of a lawsuit seeking revocation of a tax disposition is the objective existence of the tax amount determined by the tax authorities, and the tax authorities may submit new data that can support the legitimacy of the tax base or amount of tax recognized in the relevant disposition, or exchange and change the reason within the scope that maintains the identity of the disposition, and it does not allow only the data at the time of the disposition to determine the legality of the disposition or to assert only the reasons for the disposition at the time of the disposition (see, e.g., Supreme Court Decision 2001Du1994, Oct. 11, 2002). Furthermore, the Defendant’s reason for disposition is a taxable entertainment place under the Special Consumption Tax Act and the Individual Consumption Tax Act as seen earlier, and the Plaintiff’s business area is not included in the grounds for disposition. Accordingly, the Plaintiff’s aforementioned assertion is not well-grounded.

E. Whether the principle of tax equality is violated

In addition, according to the decision-making cases by the National Tax Service and the Tax Tribunal submitted by the Defendant, the case where the tax office actively imposes the special consumption tax and the individual consumption tax on a business establishment less than the area specified in the first and second stages promotion plan is considerably known, and it is difficult to recognize that the entries in the evidence Nos. 5 and 8 alone violate the principle of tax equality, and there is no evidence to acknowledge that the defendant's disposition is in violation of the principle of tax equality. Accordingly, this part of the plaintiff's assertion is without merit.

F. Whether part of additional tax is illegal

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 as prescribed by the Act in cases where a taxpayer violates a duty to report and pay taxes, etc. under the law without justifiable grounds, and it is unreasonable for the taxpayer to be unaware of such duty. Thus, unless there are justifiable grounds to believe that it is unreasonable for the taxpayer to be able to properly present the duty or to expect the party to fulfill the duty, it is unreasonable to assume that the taxpayer is not aware of the duty.

Since the subject and tax rate of the special consumption tax and the individual consumption tax are specified by Acts and are not delegated to the Enforcement Decree, the Enforcement Decree, the Enforcement Rule, etc. of the Special Consumption Tax Act and the Individual Consumption Tax Act, all entertainment taverns under the Special Consumption Tax Act and the Individual Consumption Tax Act are subject to taxation, and they provide that the taxpayer should report and pay it by himself, and that there is no non-taxable practice that does not impose any condition special consumption tax and the individual consumption tax on entertainment bars of less than 35 or less than 40 square meters located in the Seoul Metropolitan area as a result of the first and second stages promotion plan, and therefore, it is difficult to view that there is a justifiable reason that it is not attributable to the failure to fulfill the duty to report and pay the special consumption tax and the individual consumption tax because it is erroneous that the non-taxable practice was formed due to the first and second stages promotion plan. Accordingly, the Plaintiff’

4. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition imposing the special consumption tax, its additional tax, the individual consumption tax and its additional tax against the plaintiff is without merit, and the defendant's claim seeking the cancellation of the disposition imposing the education tax and its additional tax is without merit.

Therefore, the plaintiff's appeal is dismissed, and the changed claim is also dismissed, and it is so decided as per Disposition.