Incheon District Court 2009Guu2768 ( October 13, 2010)

Review Other 2009-0024 (209.06.09)

The procedures for approval of tax exemption shall be implemented even if the shipper of the goods shipped out as conditional tax exemption re-out;

In order for a shipper of the goods shipped out as conditional tax exemption to obtain conditional tax exemption again, the requirements for tax exemption approval under the Individual Consumption Tax Act are equally met, and this is also the same in case where a vehicle for rent-a-car business, which is conditional duty-free goods, is taken out again following business transfer.

2010Nu16020 Revocation of revocation of imposition of individual consumption tax

1.New A2.MaximumB

○ Head of tax office

Incheon District Court Decision 2009Guhap2768 Decided May 13, 2010

1. All appeals by the plaintiffs are filed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the court of first instance is revoked. The defendant's imposition of individual consumption tax of April 15, 2009 1,630,570, individual consumption tax of July 2008 1,868,570, individual consumption tax of July 2008, individual consumption tax of October 3, 2008, individual consumption tax of October 12,13,760, individual consumption tax of October 2008, individual consumption tax of 815,280, individual consumption tax of April 2008, individual consumption tax of 934,280, individual consumption tax of August 200, individual consumption tax of 1,88,180, individual consumption tax of 6,056,80, individual consumption tax of 208, individual consumption tax of 208, and individual consumption tax of 6,05,80, and individual consumption tax of 80,008.

1. Details of the disposition;

A. AArenk Co., Ltd. (hereinafter referred to as “Arenk”) did not newly and pay the individual consumption tax for the 149 vehicles transferred within five years from the date of entry into the vehicle, which was brought into Korea as conditional tax exemption under the Individual Consumption Tax Act, from January 2002 to December 2007, and transferred within five years from the date of entry into the vehicle.

B. Accordingly, on March 2, 2009, the Defendant imposed individual consumption tax and education tax of April 2, 2008 on the 49 vehicles transferred at the headquarters of AArenk on March 2, 2009, and imposed individual consumption tax of April 2, 2008, individual consumption tax of July 3, 2023,59, individual consumption tax of July 2008, and individual consumption tax of August 2008, and education tax of 6,110,660, individual consumption tax of October 208, and individual consumption tax of 19,601,58, and individual consumption tax of October 208, and individual consumption tax of 19,601,58, respectively. However, AArenk was not paid each.

B. Accordingly, on April 15, 2009, the defendant deemed that the plaintiffs are oligopolistic shareholders of AArenk under Article 39 of the Framework Act on National Taxes, and imposed individual consumption tax as stated in the purport of the claim and appeal against the plaintiffs (hereinafter referred to as "the disposition in this case"). The plaintiffs dissatisfied with the disposition in this case and filed a request for review on April 28, 2009, but received each decision of dismissal on June 9, 2009.

[Ground of recognition] Facts without dispute, Gap's 2, 3, 5, 6 evidence, Eul's 1, 2, 7 evidence (including each number), Eul's 4-3 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs asserted that the disposition of this case was unlawful since the plaintiffs' transfer of AArenk to △△△△ is a comprehensive transfer of car rental enterprises and thus it cannot be deemed that they transferred a vehicle brought into the country as conditional tax exemption. Thus, even if they did not go through separate procedures for approval of tax exemption, they are not subject to individual consumption tax even if they did not go through separate procedures for approval of tax exemption, the plaintiffs are aware that the tax authorities are automatically notified upon the transfer of the vehicle. The plaintiffs transferred 202 vehicles to 53 vehicles, which they were transferred without notice of tax payment, and only the defendants issued the disposition of this case by taking into account the issue of the non-performance of the procedure for approval of tax exemption for some vehicles, and only the sanctions such as the imposition of administrative fines on non-performance of the procedure for approval of tax exemption can achieve its administrative purpose.

B. Relevant statutes

The entries in the attached statutes are as follows.

(c) Fact of recognition;

(1) The Plaintiff’s representative director of AArenk and the 30,000 shares issued by AArenk were owned by 18,00 shares, and the Plaintiff’s largestB is the auditor of AArenk and the 9,000 shares of AArenk.

(2) While promoting a business plan to take over the existing car rental company and establish the car rental company, △△△△△ Co., Ltd. (hereinafter referred to as △△△△△△△ Co., Ltd.), he decided to take over the AArenk and requested the AArenk to inspect the assets and liabilities of the AArenk. After having inspected the assets and liabilities of AArenk, △△△△△ Co., Ltd. (hereinafter referred to as △△△△△△△△ Co., Ltd.) divided the assets

(3) around July 1, 2008, △△ Self-Governing Province concluded a contract with AArenk under the name of the said company for the following terms: (a) the name of the new car rental company was set out as a group of the name of the new car rental company, △△△△△, which is called a “business acquisition agreement with AArenk”

(4) Afterwards, AArenk sold 104 306 306 30 306 302 302 202 202 300 300 300 300 300 300 300 300 300 300 30 300 30 300 30 300 30 30 300 30 300 30 40 40

(5) On October 1, 2008, AArenk entered into a contract on the transfer of the assets and liabilities of AArenk under the title of the “property acquisition agreement” with △△ Dorenkk, a mutual change in the name of △△△△△, a corporation on October 1, 2008 (hereinafter “instant transfer agreement”). The main content of the instant transfer agreement is as follows.

(6) In accordance with the instant contract, AArenk transferred assets and liabilities subject to the instant transfer, electric employees, branches of 117R, and business networks to △ Rentalk on June 29, 2009, and made a report on discontinuance of business on June 29, 2009, and paid a value-added tax of KRW 300 million by issuing a tax invoice on the amount of vehicle sales. Furthermore, △△ Rentalk’s purchase of “business assets” subject to the instant transfer report on the early refund of value-added tax, thereby having received a refund of KRW 54,8130,00.

(7) On October 7, 2008, △△ Car reported on the transfer and acquisition (the entire) of rent-a-car business to Chicago Viewing. However, △△△ Self-employed was determined to have concluded an asset acquisition contract, such as clearly divided items to be excluded from the transfer at the time of acquisition, and concluding a separate management consulting contract, with respect to the inquiry about whether △△ self-employed's transfer and acquisition of business, and Plaintiff New A had received KRW 30 million and worked as management adviser from △△ Car.

(8) Meanwhile, the instant transfer of a vehicle transferred from the head office of AYcar to △△enek is part of the vehicle transferred within five years from the date of entry from among the vehicles brought into Korea as conditional tax exemption under the Individual Consumption Tax Act from January 2002 to December 2007, which was transferred within five years from the date of entry. AArenk reported that the instant disposition was made on January 2009, where the Plaintiff did not go through the procedure of approval of exemption under the Individual Consumption Tax Act.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 8, 9, 12, 14 through 17, Eul evidence Nos. 6, 8, 9, 12, and 14 (including each number), witness A of the first instance court, witness A of the second instance court, witness Nos. 1 and 14, the purpose of the entire pleadings, as a whole.

D. Determination

(1) Whether the transfer of comprehensive business constitutes a tax-free object

The term “general business transfer” refers to replacing only a manager while maintaining the identity of the business by comprehensively transferring physical, human, rights, and obligations, including business property by workplace. First of all, the acquisition of the instant vehicle is examined as to whether the transfer under the contract constitutes a comprehensive business transfer, and as to the testimony and fact-finding inquiry reply on each part of EAA and EBB at the time of the first instance trial, and there is no other evidence to acknowledge it as it is difficult to believe it as it is, in light of the following various circumstances, and there is no other evidence to acknowledge it. Rather, the following circumstances shown in the present argument, namely, ① the subject of the instant transfer was selected as one with asset value or as an essential for the automobile rental business, ② the vehicle that had no asset value before entering into the instant contract, ② the title of the contract was changed from the “business transfer” to the “business transfer contract,” and thus, △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△’s transfer of assets and liabilities to be excluded from the obligation obligation.

The Plaintiff’s assertion that this case’s acquisition by transfer is a comprehensive business transfer, even if it is deemed necessary to conduct strict follow-up management, such as confirming and checking the implementation of tax exemption conditions, in the case of conditional tax exemption approval, it is necessary for the tax authorities to take the relevant goods out of Korea due to the transfer of business. ② In the case of the Value-Added Tax Act, it is necessary to take the procedures for granting tax exemption for follow-up management, and there is no special provision for tax policy as a matter of principle, unless the transfer of business is viewed as the supply of goods, and there is no specific provision for not deeming the transfer of business as the case of the transfer of business under Article 18(4) of the Individual Consumption Tax Act. ③ In the case of comprehensive transfer, acquisition by transfer or merger of a rent-a-car company under the former part of the Individual Consumption Tax Act, it shall not be deemed that the vehicle brought into Korea is transferred as conditional tax exemption. However, in light of the fact that the above common rule is merely 00 prescribed for the internal business rules of the individual consumption tax authorities to take them out of Korea for the same purpose as follows.

Conditional tax exemption provided for in Article 18 of the Individual Consumption Tax Act provides the relevant goods with a benefit of tax exemption on condition that the said goods continue to be provided for a special purpose as prescribed by statutes. In light of the fact that it is necessary for the taxation authority to take certain procedural regulatory measures to confirm and check whether such conditions are implemented, and that such procedural regulations are recognized as they are at the time of the exemption of the relevant individual consumption tax in case a shipper ships the relevant goods back to the same use as the said goods are carried out, the said conditional tax exemption system must be equally implemented the requirements for the exemption procedure provided for in Article 18(1) through (3) of the Individual Consumption Tax Act for a shipper to take out the goods shipped out as conditional tax while receiving conditional tax exemption (see, e.g., Supreme Court Decisions 92Nu1245, Sept. 24, 1993; 2005Du10644, Apr. 26, 2007).

With respect to this case, the fact that the health team and AArencar transferred a vehicle carried in as conditional duty-free goods to △△-free car and failed to implement the procedure for granting tax exemption under the Individual Consumption Tax Act is as seen earlier. As such, AArencar is obligated to pay individual consumption tax on the said transferred vehicle, and unless it is paid, the Plaintiffs, an oligopolistic shareholder, who is AArencar, should pay the individual consumption tax. Furthermore, when the Plaintiffs reported the transfer of the vehicle, they should consider that the notification was made to the tax authority automatically, and reported the re-transfer after the instant disposition, or the fact that only the Defendant was imposed in the tax office under the jurisdiction of the Central and Medium Regional Tax Office (in the case of 53 vehicles that were terminated without a notice of payment among the 202 vehicles transferred by the Plaintiff, it shall not be deemed that the instant disposition was deviating from and abused by discretionary authority. Accordingly, the Plaintiffs

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and all appeals by the plaintiffs are dismissed. It is so decided as per Disposition.