early 209 Heavy2544 ( October 12, 2009)

Counseling of public officials related to imposing individual consumption tax on entertainment establishments and application of the principle of good faith.

Even if the public official in charge has given the reply that the project is not subject to the imposition of the individual consumption tax, the disposition imposing the individual consumption tax and the education tax on the project is justifiable because the public official in charge may not indicate the public opinion.

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

○ Kim

The Director of Incheon Tax Office

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The disposition taken by the defendant against the plaintiff on October 1, 2008 on the attached list shall be revoked.

1. Circumstances of dispositions;

A. From July 4, 2007, the Plaintiff is operating an entertainment drinking house (hereinafter “instant place of business”) with the trade name of ○○○○○○-dong 132-3 underground floor, ○○○-dong 132, 132.

B. The Defendant confirmed that the instant establishment was subject to the special consumption tax, but did not report the tax base of the special consumption tax (the name of the special consumption tax was changed to the individual consumption tax because the Special Consumption Tax Act was amended by Act No. 8829, Dec. 31, 2007; hereinafter referred to as "individual consumption tax") and ordered the Plaintiff to return and pay the special consumption tax after the deadline for the tax base of the individual consumption tax on June 30, 2008, but the Plaintiff did not pay the individual consumption tax.

C. Accordingly, the Defendant issued a disposition of imposition on October 1, 2008 in the attached list (hereinafter referred to as “instant disposition of imposition”).

D. On June 29, 2009, the Plaintiff filed a tax appeal against the instant disposition. On October 12, 2009, the Tax Tribunal dismissed the request.

[Ground of recognition] Facts without any dispute, Gap's evidence 1-1-1, Gap's evidence 3, Eul's evidence 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff did not report the individual consumption tax when he succeeded to the business of this case from AA, and when the plaintiff visited the defendant's office to make business registration, the public official in charge confirmed that the above main points are not subject to the individual consumption tax, but recorded as non-taxation in the defendant's computer records, and did not report the individual consumption tax. However, on July 16, 2008, the defendant sent a notice to change the business place of this case to the taxable entertainment place which is subject to the individual consumption tax, and to report and pay the individual consumption tax, and then issued the notice to the tax imposition of this case is unlawful.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) The principle of trust and good faith as provided by Article 15 of the Framework Act on National Taxes is a legal principle that does not infringe on the interests of the other party acting in trust in his/her speech and behavior. To apply the principle of trust and good faith to the acts of the tax authority in tax law, the tax authority should name the public opinion that is the subject of trust of the taxpayer. The tax authority’s above statement of opinion is justifiable and trust of the tax authority does not cause the taxpayer to be responsible for the failure of the taxpayer. After that, the tax authority’s disposition contrary to the above statement of opinion, thereby infringing on the taxpayer’s interest (see Supreme Court Decision 88Nu8937, Nov. 2

2) First of all, as to whether there was a Defendant’s public opinion expression, each statement of evidence Nos. 1, 2, 2-2, 7-1 through 6, and 8 of evidence Nos. 1, 2-2, 7-1 through 6, and 8 of the evidence Nos. 8 may be acknowledged that the Defendant had been exempt from individual consumption tax and education tax on the computer inside the Defendant’s internal management (the Plaintiff asserted that it was not subject to individual consumption tax by the Defendant’s public official official, but there is no evidence to support this). However, it is difficult to view that the Defendant issued the Plaintiff a public opinion of non-taxation on the instant individual consumption tax and education tax.

3) Even though the Plaintiff responded from the Defendant’s public official in charge that the instant workplace was exempt from taxation, according to the above legal doctrine, the Plaintiff did not have any cause attributable to the Plaintiff, who trusted that the said statement of opinion was justifiable. In full view of the overall purport of the pleadings in the statement Nos. 7-1 through 6, and No. 8, the Defendant may acknowledge the fact that the instant workplace was reported as value-added tax as an entertainment drinking house from October 25, 2007 to January 25, 2010. Under the relevant laws and regulations, the entertainment drinking house is imposed with individual consumption tax and education tax, and thus, the Plaintiff cannot be said to have any cause attributable to the Plaintiff’s trust in the instant workplace as a non-taxation of individual consumption tax and education tax.

d)In addition, in order to establish the good faith principle and non-taxable practice provided for in Articles 15 and 18, paragraph 3 of the Framework Act on National Taxes, there should be an objective fact that the tax authorities have not imposed taxes on certain matters for a long time, and there should be an intent not to impose taxes on them under any special circumstance even though the tax authorities are aware that they could impose taxes on these matters (see Supreme Court Decision 90Nu10384, Jul. 27, 1993

However, comprehensively taking account of the overall purport of the arguments in evidence Nos. 1, 2, 2, 3, and 4, the defendant demanded the head of ○○○○○○○ to reply to the list of entertainment taverns operating or running a business from July 1, 2007 to May 31, 2008 pursuant to Article 17 and 18 (Evidence No. 2) of the Regulation on the Management of Individual Consumption Tax Act. The defendant received the list of entertainment taverns including the place of business from the head of ○○○○○○○○○○ on June 10, 2008. The defendant received the list of entertainment taverns including the place of business in this case. ② The defendant confirmed that the plaintiff did not report the individual consumption tax even though compared to the list of entertainment taverns and the company that reported the individual consumption tax to the defendant, and therefore, the defendant did not have any intent not impose any tax on the plaintiff under any special circumstances.

5) Accordingly, the instant disposition is a legitimate disposition that does not violate the principle of good faith, and the Plaintiff’s assertion is without merit.

3.In conclusion

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