2015Guhap65780 Revocation of a disposition rejecting rectification

Co., Ltd. 000

1. Vice-head of a tax office;

2. The director of the regional tax office.

3. The director of the Daegu Tax Office.

4. The director of the East capital office.

5. The director of the competent tax office.

6. The director of the Jinju Tax Office.

Delivery of Litigation Performers

7. The director of the Seongbuk-do tax office.

8. The director of the Seodaemun Tax Office.

9. The director of the radio wave tax office.

10. Gender-Dong Head of tax office;

11. Head of the competent tax office;

Defendant 3, 11’s rank of a litigation performer

The defendants' litigation performer Kim Jong-ray

December 18, 2015

April 1, 2016

1. The Defendants’ refusal to file an application for rectification of each value-added tax stated in the Schedule 1, which is attached to the Plaintiff, shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

The order is as set forth in the text.

1. Details of the disposition;

A. On May 1, 201, the Plaintiff was established as a personnel division of ○○○ Large Scale Sales Store, Inc., and established 151 branches in Korea as of September 2014 (hereinafter “each branch”) and operated retail retail retail retail business.

B. The Plaintiff supplied agricultural products, livestock products, fishery products, and forest products exempt from value-added tax, and offered food, such as gedbed Kim, bedbed, and fins, at each branch (hereinafter “instant food”) to the seller, and sold to customers.

C. The Plaintiff reported and paid the input tax deduction rate for the value-added tax on the instant food from No. 1 to No. 2013 to No. 2013 pursuant to Article 17(3) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter “former Value-Added Tax Act”) and Article 62(1)3 of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter “former Enforcement Decree”).

D. The plaintiff's industrial activity that prepared and sold the food of this case (hereinafter "the industrial activity of this case") constitutes the restaurant business of this case. Thus, the plaintiff's request for correction of each value-added tax stated in the attached Table 1's disposition of this case was made against the defendants on the ground that Article 62 (1) 1 (b) of the former Enforcement Decree of the Value-Added Tax Act should apply 6/100 of the constructive purchase tax deduction rate as stipulated in Article 62 (1) 1 (b), etc. of the former Enforcement Decree of the Value-Added Tax Act. The defendants refused the request on each notification date of this case (hereinafter "the disposition of this case").

[Grounds for Recognition] Each entry of Gap evidence Nos. 4 through 6 (including branch numbers; hereinafter the same shall apply), and the purport of the whole pleadings

2. Related Acts and subordinate statutes;

Attached Form 2 is as shown in the relevant statutes.

3. Whether the instant disposition is lawful

A. Facts of recognition

1) The Plaintiff predicted the customer’s demand and prepared this case’s food in the kitchen located immediately behind the sales stand, and prepared it on a small packing unit, and offered it to the sales stand. In 2014, the sales volume of the Plaintiff’s sales to the highest end consumer out of the Plaintiff’s sales of cash receipts issued during the year 2014 is 97% based on the number of occasions as indicated below, and 94% for the amount to be generated.

2) The Plaintiff’s number of fry, frying, etc., located in each branch store building

A person shall be appointed.

The entertainment facilities such as table table, chairs, water-take equipment, water reservoir, and poke (hereinafter referred to as the "the entertainment facilities of this case") are installed around the FOPC, and the general public can use these entertainment facilities without any restriction.

【Ground for recognition】 Facts without dispute, entry of Gap evidence 1 to 3, the purport of the whole pleadings

B. Article 62(1) of the former Enforcement Decree of the Value-Added Tax Act and Article 84(1) of the Enforcement Decree of the Value-Added Tax Act provide for the calculation of the amount for which a certain portion of the value of tax-free agricultural and fishery products can be deducted as the input tax amount. Article 1(3) of the former Enforcement Decree of the Value-Added Tax Act and Article 4(1) of the Enforcement Decree of the Value-Added Tax Act provide that the classification of the business that supplies goods shall follow the Korean Standard Industrial Classification as of the starting date of the relevant taxable period publicly notified by the Commissioner of the Statistics Korea. The Korean Standard Industrial Classification (No. 2007-53 of December 28, 207) provides that the restaurant (561) provides 1) food restaurant with an order to directly participate in the business within the Gu and provides 6) food restaurant with an order to provide 5) food restaurant with an order to directly participate in the business, and 1) food restaurant with an order to provide 6).

C. In light of the above facts and the contents and purport of the relevant laws and regulations, it is reasonable to view that the industrial activities of this case are harmful to the restaurant business in light of the following facts and the purport of the entire arguments.

① The Plaintiff directly prepared the instant food and sold it in small packages. In light of the Plaintiff’s sales ratio to the final consumer out of the Plaintiff’s sales amount, most of the said food and beverage were sold to the final consumer.

② Although entertainment facilities are not located immediately front of the instant food sales stand, the customer who purchased the instant food may, if desired, take food of this case without any restriction by using the instant entertainment facilities installed by the Plaintiff within the same building. Even if it is possible to take food after setting the value of food, it cannot be viewed as any factor affecting the industrial classification.

In most cases, even if customers bring about food on a package without using a entertainment facility due to the characteristics of the place of discount, as long as they have a entertainment facility in this case, it cannot be viewed that the issue of actual use of the customer is not the requirements of the restaurant business, and accordingly, whether the food store is a food store business.

또한 원고가 이 사건 음식물에 대하여 접객시설을 갖추지 못한 것으로 보더라 도 , 한국표준산업분류 실무 적용을 위한 분류설명서 4 . 의 [ 4 - 3 ] 개요 ( 2 ) ③항이 ' 접객 시설 없이 고객이 주문한 특정음식을 즉시 소비할 수 있는 상태로 직접 조리하여 고객 에게 제공 ( 배달 ) 하는 경우 ' 를 음식점업으로 보고 있고 , 이를 간략히 ' 접객시설 ( X ) , 고객 이 주문한 음식을 직접 조리제공 ( 배달 ) ⇒ 음식점 ' 으로 표시하고 있는 점에 비추어 보 면 , 접객시설을 갖추지 않은 경우라도 고객으로부터 주문받은 음식을 직접 조리하여 제공하는 경우에는 음식점업에 해당하는 것으로 볼 수 있다 . 한국표준산업분류도 ' 즉석 식의 빵 , 케익 , 생과자 등을 직접 구워서 일반 소비자에게 판매 ' 하는 산업활동은 ' 제과 점업 ( 56191 ) , ' 피자 , 햄버거 , 샌드위치 , 토스트 및 유사 음식을 직접 조리하여 일반소비 자에게 판매 ' 하는 산업활동은 ' 피자 , 햄버거 , 샌드위치 및 유사 음식점업 ( 56192 ) 으로서 음식점업에 해당하는 것으로 규정하고 있다 .

② Most of the cases where the Plaintiff prepared and kept the instant food prior to receiving pre-sale orders from the customers are placed in a sales stand. However, it can be deemed that the customer expressed his/her intent by purchasing the instant food by selecting him/her, and the content of the industrial classification does not provide for the pre-sale of orders and cooking. The same does not apply to the case where a general restaurant prepared and kept food in advance by predicting the demand of the day in the day, and immediately delivered it to the customer when he/she delivered the food, and even if the remaining food was kept, there is no ground to view that this would have an impact on the classification of industrial activities.

③ At the time of the commencement of cooking and selling of the instant food, the Plaintiff reported its business from the head of the competent local government to run a resting restaurant business among food service businesses under the Food Sanitation Act.

④ The Korea Standard Industrial Classification (10798) provides that the case of retailing the city of food-using city(s) and the case of retailing the city of food-using city(s), Kim(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s) and(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s) and(s)(s)(s)(s)(s)(s)(s)..

In addition, the classification statement for the application of the Korea Standard Industrial Classification practice states that the case of "purchase and sale of food for immediate consumption without entertainment facilities" is classified as the case of "sale by directly cooking Do and retail, and food for immediate consumption, and supplying them to restaurants, retailers and other business entities." Since the Plaintiff directly prepares the food of this case and sells it to general consumers, it does not fall under each of the above items. There is no reason to regard the industrial activities of this case as other business under the Korea Standard Industrial Classification.

④ Even if the purport of the preferential treatment of the deduction rate for the restaurant business among the constructive purchase tax deduction rate was for the relaxation of the burden of value-added tax on the field of the small restaurant business, such legislative intent cannot exceed the interpretation of the statutes.

7. The Korean Standard Industrial Classification is classified into “B” other restaurant business (56199) and other restaurant business (56199). Even if there is no classification of restaurant business that sets out the same type of industrial activities as the instant industrial activities, it is natural to regard “at least other restaurant business” as falling under “at least other restaurant business.

D. Accordingly, the instant disposition issued on a different premise is unlawful.

4. Conclusion

The plaintiff's claim against the defendants is justified, and all of them are accepted.

Judges - Kim National Cemetery

Judges Kim Young-young

Judges Maap-man

Attached Table 1

Details of the disposition of this case

A person shall be appointed.

A person shall be appointed.

Attached Table 2

Related Acts and subordinate statutes

/ former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013)

Article 17 (Amount of Tax to be Paid)

(3) Where an entrepreneur imposes a tax on the supply of goods or services produced by using agricultural products, livestock products, fishery products, or forest products (hereinafter referred to as "tax-free agricultural products, etc.") that have been supplied with value-added tax exempted as their raw materials, an amount calculated as prescribed by Presidential Decree may be deducted, as its input tax amount, from the supply of such goods or services (excluding the case of being exempt from value-added tax pursuant to Article 12 (4); and the case of applying zero-rate tax pursuant to Article 11).

/ Value-Added Tax Act

Article 42 (Special Cases concerning Fictitious Purchase Tax Credit for Agricultural Products, etc.)

(1) Where an entrepreneur imposes value-added tax on the supply of goods or services produced or processed with agricultural products, livestock products, fishery products, or forestry products (hereinafter referred to as "tax-free agricultural products, etc.") that have been supplied or imported after being exempted from value-added tax pursuant to Article 26 (1) 1 or subparagraph 1 of Article 27 as their raw materials (excluding cases where the supply of goods or services is subject to zero-rate tax after waiver of tax exemption pursuant to Article 28) (excluding cases where the supply of tax-free agricultural products, etc. is subject to zero-rate tax after waiver of tax exemption pursuant to Article 28), an

(2) Paragraph (1) shall apply only where a business operator submits to the head of a tax office having jurisdiction over the place of tax payment documents evidencing that he/she has been supplied with tax-free agricultural products, etc., as prescribed by Presidential Decree

(1) Enforcement Decree of the former Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013)

Article 1 (Scope of Goods)

(3) The classification of business supplying goods shall be based on the Korean standard industry classification as of the starting date of the relevant taxable period publicly notified by the Commissioner of the Statistics Korea.

Article 62 (Calculation of Deemed Input Tax Amount)

(1) The amount of input tax that may be deducted as the input tax pursuant to Article 17 (3) of the Act shall be the amount calculated by multiplying the value of agricultural, livestock, fishery, or forest products supplied with the exemption of value-added tax by the rate in the following subparagraphs:

1. The restaurant business: The rate classified as follows:

(a) [The operator of a taxable entertaining place under Article 1 (4) of the Individual Consumption Tax Act (hereinafter referred to as "operator of a taxable entertaining place"): 4/104;

(b) A business operator who runs a restaurant, other than an operator of a taxable pleasure place: 6/106 (in cases of a personal business operator, 2/108); Manufacturing business (limited to small and medium enterprises and individual business operators under Article 2 of the Enforcement Decree of the Restriction of Special Taxation Act): 4/104;

3. Business other than those as referred to in subparagraphs 1 and 2: 2/100.

(1) Enforcement Decree of the former Value-Added Tax Act (amended by Presidential Decree No. 24359, Feb. 15, 2013)

Article 62 (Calculation of Deemed Input Tax Amount)

(1) The amount that may be deducted as the input tax amount pursuant to the provisions of Article 17 (3) of the Act shall be the amount calculated by multiplying the value of agricultural products, livestock products, fishery products, or forest products supplied with the exemption of value-added tax (including those that have undergone the primary processing provided for in Article 28 (1), those referred to in subparagraphs of paragraph (2) of the same Article, and salt provided; hereinafter referred to as "tax-free agricultural products, etc.") by the following rates

1. The restaurant business: The rate classified as follows:

(a) Operators of taxable entertaining places under Article 1 (4) of the Individual Consumption Tax Act (hereinafter referred to as "operator of taxable entertaining places"): 4/104;

(b) A business operator who runs a restaurant, other than an operator of a taxable pleasure place: 6/106 (2/108 in the case of an individual business operator; 2/100 in the case of a business operator; and

(1) Enforcement Decree of the former Value-Added Tax Act (amended by Presidential Decree No. 23595, Feb. 2, 2012)

Article 62 (Calculation of Deemed Input Tax Amount)

(1) The amount that may be deducted as the input tax amount pursuant to the provisions of Article 17 (3) of the Act shall be the amount calculated by multiplying the value of agricultural products, livestock products, fishery products, or forest products supplied with the exemption of value-added tax (including those that have undergone the primary processing provided for in Article 28 (1), those referred to in subparagraphs of paragraph (2) of the same Article, and salt provided; hereinafter referred to as "tax-free agricultural products, etc.") by the following rates

1. The restaurant business: 3/103: Provided, That the tax-free agricultural products, etc. supplied by the operator of a taxable entertainment place under Article 1 (4) of the Individual Consumption Tax Act (hereinafter referred to as "operator of a taxable entertainment place") by no later than December 31, 2012 shall be 4/104, and the tax-free agricultural products, etc. supplied by the operator of a taxable entertainment place other than the operator of a taxable entertainment place by no later than December 31, 2012 shall be 6/106 (8/100, in cases of a private entrepreneur);

2. Business other than that under subparagraph 1: 2/102.

【Enforcement Decree of the Value-Added Tax Act

Article 4 (Classification of Services)

(1) The classification of business supplying goods or services shall be in accordance with the Korean Standard Industrial Classification as of the starting date of the relevant taxable period publicly announced by the Commissioner of the Statistics Korea.

Article 84 (Calculation of Fictitious Purchase Tax Amount)

(1) An amount that may be deducted as an input tax amount pursuant to Article 42 (1) of the Act shall be the amount calculated by multiplying the value of the farm products, livestock products, fishery products, or forest products (including those that have undergone the primary processing under Article 34 (1), those under the subparagraphs of Article 34 (2), and salt under the subparagraphs of paragraph (2) of the same Article; hereinafter referred to as "tax-free agricultural products, etc.") supplied with the goods exempted from value-added tax by the rate classified as follows:

A person shall be appointed.

1. A restaurant business: 4/104 of a taxable entertaining place under Article 1 (4) of the Individual Consumption Tax Act;

T Manager

(b) 8/108 of the businessmen who operate a restaurant, other than those under item (a).

Co., Ltd.

* Doz. +

(c) 6/100 of the business operators operating a restaurant, other than those under item (a).

Other business operators

2. Manufacturing business (small and medium enterprises under Article 2 of the Enforcement Decree of the Restriction of Special Taxation Act and 4/104.

Only private entrepreneurs)

m. Korean Standard Industrial Classification (Public Notice No. 2007 - 53 of the Statistics Korea on December 28, 2007)

1. Total novel;

3. Summary of the Standard Industrial Classification;

(f) Determination of industries of statistical units;

2) Method of industrial determination

A) The industrial activities of a production unit shall be determined on the basis of the type of the main industrial activities (goods and services sold or offered) conducted by that production unit. These main industrial activities shall be determined on the basis of the size of the value added (amount) to the output (goods or services), but if it is impracticable to measure the value added (amount) but it shall be determined on the basis of the output. The principle of the application of industrial classification

1) The production unit must be classified into items most accurately explained, taking into account not only output but also inputs and production processes.

2) The multiple activity units shall be first determined accurately at the highest level of classification (alternative classification), and shall be successively determined by sub-committees, sub-committees, sub-committees, and sub-classifications.

3) If an industrial activity is combined, it must be classified according to the principal activity of the activity unit.

II. Description. Description and Contents Explanations

C Manufacturing (10 to 33)

107 Other food manufacturing industry

1071 Manufacturing business of rice tea, bread and stoves

The term "business of manufacturing rice tea, rice tea, bread, and other beer products" means industrial activities of manufacturing various fruits, including cococon products, grains, stoves, and stoves, and stoves.

10712 Bridges manufacturing industry

The term "brecogn" means the industrial activities of manufacturing bregnating, bregnating, and bregn

(To example)

· Case manufacturing and macking manufacture

· manufacture of beer products (new vessels, freezings)

· Manufacturing of breathes

Except as otherwise provided for in paragraph (1).

In other words, the production of breabb and sales to the end consumer (56191)

· Brecing brecing or mixing brecing brecing, and manufacture of reflectors (10613)

1079 Other food manufacturing industry

It refers to coffee and tea, two parts, and similar food, ginseng food, health functional foods, and other unclassified food activities.

10798 Urban community and food cooking and food manufacturing business

An industrial activity that manufactures food for food use by mixing and mixing various materials, such as meat, vegetables, and grains, refers to an industrial activity that manufactures food for food use, Kimbed, sweed, sweed, sweed, and other food use sculptures. It also includes a business entity that continuously prepares, transports, and supplies food for a certain period at a separate place, with special facilities for manufacturing a large quantity of group meal meals.

Examples:

· Manufacture of urban village,

· Manufacturing of bamboo used

· Article 1 of meals for collective meal services (excluding cafeterias);

Except as otherwise provided for in paragraph (1).

· Cyrified food manufacturing made of pots, such as grains (10793)

· An annual meal service (5612 or 5613) operated a cafeteria with guest facilities or supplied at a specific event site;

In the case of retailing to end-consumers of city and Kim Gedb, directly cooked (561)

Lodging and restaurant business (5 to 56)

1. Summary.

This sub-classification includes accommodation and restaurant businesses.

(b) The restaurant business;

It means activities of running a restaurant, restaurant, simple-type hall, camera, tea, tea store, main store, drinking store, and an industrial activity of operating an independent restaurant. It also includes cases where a person directly delivers (providing) the client, or provides food by cooking and cooking the specified food of the client at a place that the client wants, without a entertainment facility.

(i) provide customers with accommodation and cooking food for immediate consumption;

- include industrial activities that operate a cafeteria under a contract with a company or any institution such as a company.

(ii) provide customers with food purchased with entertainment facilities in a condition that they can be immediately consumed.

3) If, without a guest facility, the customer directly prepares and provides (delivery) the customer with the customer with the order in a state in which the customer can immediately consume the specific food;

-including industrial activities, which directly create breabbling, breath, etc. and sell to the general consumers without guest facilities.

(iv)at the time of an individual event without a entertainment facility, directly cooking and providing foods to be consumed on a business trip at that place;

U.S.

2. Relation to other industries;

(a) 46 or 47 "in the case of purchase and sale of food without accommodation facilities"

(b) "10" in cases where he/she directly manufactures foods that can be consumed immediately and supplies them to restaurants and distributors;

56 The restaurant and the principal store business

The operation of restaurants that prepare and provide food for direct consumption within the Gu is an industrial activity and an industrial activity that sells alcoholic beverages, teas, and non- alcoholic beverages with entertainment facilities. In addition, it includes an industrial activity that directly prepares and delivers food ordered by the customer without entertainment facilities, or prepares and provides food ordered by the customer by making a business trip at an event such as annual conference hall.

Exclusion

· Meal-providing activities combined with accommodation (5590)

In the case of operating directly a cafeteria in a railroad transport enterprise (4910)

· Where only cook is supplied (75120)

When cooking and supplying food to wholesale and retail companies (10798)

· Where a large quantity of meals for group meals are prepared in a separate place under a contract with an institution of a company, etc. and transported and supplied during the agreed period (10798)

561 restaurant business

It refers to the operation of restaurants that prepare and provide ordered food for direct consumption within the Gu, or the delivery industry that directly prepares and provides food ordered by customers without a guest facility. This includes the operation of a cafeteria which prepares and provides food under a contract with an institution such as a meeting company or a school.

5611 General restaurant business

The term "industrial activities" means industrial activities of cooking and providing various kinds of regularly, such as Chinese-style and daily-style, heavy-style, book-type and other industrial activities of operating a foreign restaurant business.

Exclusion

· Activities of providing simple food, such as skins, sand site, etc. (5619)

Where a mobile restaurant is operated regardless of food type, etc. (56132)

· In the case of operating an institutional cafeteria (56120)

- Business trip food services (56131)

5612 Institutional cafeterias

5613 Business trips and food transportation

At the same time of events, such as the annual conference hall, it shall include the industrial activities to provide food services and the industrial activities to operate a mobile restaurant without a fixed restaurant facility.

5619 Other restaurant business

정식을 제외한 피자 , 햄버거 , 샌드위치 , 분식류 , 스낵품 및 기타 유사식품 등을 조리하여 소비자에게 제 공하는 음식점을 운영하는 산업활동을 말한다 .

56191 Point business

In other words, it refers to an industrial activity that directly provides breath, breath, breath, etc. to general consumers and sells breath, etc. or directly consumes bread, breath, etc. purchased with a guest facility. It includes cases where rice rice is provided with a hotel facility.

Examples:

· Sub-sections (in other words, stone-type)

·Wedro divate (the restaurant form)

Except as otherwise provided for in paragraph (1).

· Purchasing bread, breath, etc. without guest facilities and selling them to general consumers (47)

56192 Tamba, hamba, sandd location and similar restaurant business

He/she shall refer to the industrial activities that he/she sells to the general consumers by directly cooking saber, sandd location, earth and similar food.

Examples:

- Hadern - Feld Specialized Point, hambber Specialized Point, and Tarst Specialized Point

56193 Kink's specialty

An industrial activity that operates a dental specialty, such as Yangdodin and dyddin.

Examples:

- Yang Modin specialty

· Dr. Dydin’s specialty

Except as otherwise provided for in paragraph (1).

· Classification in accordance with the principal industrial activities where alcoholic beverages and skins are sold together;

56194 Sectoral and Kim Fabric Points

김밥 , 만두 , 찐빵 , 라면 , 떡볶이 등의 간이음식을 조리하여 제공하는 음식점을 운영하는 산업활동을 말한 다 .

Examples.

Manb Points

· If the applicant is a professional store

5619 Other restaurant business

It refers to other industrial activities that operate restaurants, not otherwise classified.

/ A classification statement for the application of the Korean Standard Industrial Classification

4. Wholesale and retail business (G), transportation business (H), lodging and restaurant business (H);

[4 - 3] Lodging and restaurant business (1)

i.e. summary

(2) The restaurant business: the business of operating a restaurant, food store, simple restaurant, camera, tea store, theater and restaurant store with a restaurant facility for direct consumption in the Gu and operating an independent restaurant.

(1) Where it provides customers with food and drink which can be immediately consumed with guest accommodation facilities.

* include industrial activities that operate a cafeteria under contract with a company, etc.

(2) Where the food purchased with entertainment facilities is provided to customers in a state where it can be immediately consumed.

(3) Where a customer prepares directly in a state where he/she is able to immediately consume any specific food ordered by him/her without any entertainment facility and provides the customer with the service.

* Industrial activities, including industrial activities, which directly create breabb and brea and sell to general consumers without guest facilities

(4) A competition in which food for consumption is prepared and supplied directly after a business trip is made at an individual event without guest facilities (time) at the relevant place.

A person shall be appointed.

(4) Matters to be considered at the time of classifying standardized terms and conditions, which are directly cooked and provided for consumption, at the time of individual events without guest facilities (time).

(1) In the case of purchase and sale of food without accommodation, “46 or 47”

(2) In the case of directly manufacturing foods that can be promptly consumed and supplying them to restaurants and distributors, “10” end.