Cho High Court Decision 2014Du0704 (O1.08)

The instant place of business constitutes a taxable entertainment place and thus subject to imposition of individual consumption tax.

Since the instant place of business sells alcoholic beverages and customers use 'entertainment facilities' such as stage and sound equipment, special lighting, and strawing facilities, etc., the instant place of business is deemed to have engaged in entertainment and food activity to dance in line with music at the same time as alcoholic beverages are consumed. Therefore, it is deemed that the instant place of business is a taxable entertainment place and is subject to individual consumption tax.

2015Guhap4761 Revocation of Disposition of Imposing individual consumption tax

KimA

○ Head of tax office

October 22, 2015

November 19, 2015

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the Plaintiff

Cheong-gu Office

The sum of individual consumption tax and education tax stated in the separate sheet against the plaintiff on April 12, 2013 by the defendant

The imposition of OO members (including additional duties) shall be revoked.

1. Details of the disposition;

A. The plaintiff was "the building of this case" on the 6th floor above the OOdong OOdong OO-dong OO-dong Seoul Metropolitan Government (hereinafter "OO-dong building").

C) Of approximately 643.8 square meters of underground floors and middle floor 757.7 square meters, “CoO (hereinafter “instant place of business”) is limited to “the instant place of business.”

(c)shall operate a business with the trade name of "types and business attitudes as food and aquaculture" and operate a business;

The operation was carried out (the opening of April 10, 2009, the closing of October 27, 201).

B. ○○○ regional tax office was the representative of the instant workplace from January 10, 2013 to February 18, 2013.

After conducting a consolidated investigation on individual taxes against the plaintiff, the instant establishment is in the Individual Consumption Tax Act.

Since it constitutes a taxable entertainment place prescribed in this case, the fee for entertainment and food incurred at the place of business in this case

The Defendant notified the Defendant of taxation data to the effect that the individual consumption tax should be imposed, and the above notification was made.

Pursuant to the notification, the defendant on April 12, 2013, as shown in the attached Form, shall be from April 2009 to 2011, as stated in the plaintiff.

The total amount of individual consumption tax and education tax (including each additional tax) in October of each year was determined and high underground.

C. (hereinafter referred to as the "disposition of this case").

C. On January 9, 2014, the Plaintiff was dissatisfied with the instant disposition and filed an objection with the Tax Tribunal.

When the request for the purchase was rejected on January 8, 2015 (the written decision of dismissal is delivered to the Plaintiff after January 15, 2015).

The defendant seems to have reached the month, and the defendant is not dissatisfied with this point), which is dissatisfied with this, and April 10, 2015.

The instant lawsuit was filed.

[Ground for Recognition: Facts without dispute, Gap evidence 1, 2, 17, Eul evidence 1, all pleadings

[Purpose]

2. The assertion and judgment

A. The plaintiff's assertion

① The instant place of business does not sell food after cooking; ② The instant place of business is public.

State that the holding and viewing of performances is the main place and customers are dancing or singing;

(3) The average consumption of customers in the workplace of this case does not exceed 30,000 won.

In small amounts, 4. The so-called "red red clubs, such as the instant place of business," various music and performances;

The role of a sound cultural space that facilitates exchange and creates new music and performance culture;

Considering the fact that the instant establishment is a taxable entertainment place under the Individual Consumption Tax Act.

No action shall be deemed to constitute a lawsuit.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) The former Individual Consumption Tax Act (amended by Act No. 11120, Dec. 31, 201; hereinafter referred to as “individual consumption tax”).

1) Article 1(1) of the Consumption Tax Act provides that individual consumption tax shall be imposed on specific goods and specific places.

Baging, eating, eating, and drinking at specific places, and at specific places;

It provides that business activities shall be imposed upon business activities, and Paragraph (4) of the same Article provides that "for taxable pleasure places and their places shall be imposed.

The place where the individual consumption tax is imposed on the rate of entertainment, eating and drinking (the taxable pleasure place) and the individual consumption tax;

The tax rate shall be as follows: Amusement taverns, amusement restaurants exclusively for foreigners, and other places similar thereto:

The term "10/100 of the fee for entertainment and food" is defined as "10/100 of the fee for entertainment and food," and Paragraph 12 of the same

The matters necessary for the determination of entertainment, eating, and drinking are authorized to be prescribed by Presidential Decree;

The former Enforcement Decree of the Individual Consumption Tax Act (amended by Presidential Decree No. 25197, Feb. 21, 2014) delegated by the former Enforcement Decree

(B) Article 2(3) of the Act refers to "other similar places" under Article 1(4) of the Act.

The term "place of business actually similar to entertainment taverns under the Enforcement Decree of the Act" means a place where business is operated.

The former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 24454, Mar. 23, 2013).

Article 21 of the Enforcement Decree of the Food Sanitation Act (hereinafter referred to as the "Enforcement Decree of the Food Sanitation Act") provides for the detailed types of direct entertainment business under subparagraph 8.

The business of cooking and selling alcoholic beverages as an alcoholic beverage in the category of entertainment bar business under item (d).

A person engaged in entertainment may employ workers or install entertainment facilities, and customers may sing or dance;

The trend is defined as "business that is allowed to conduct", and Article 22 (2) of the Enforcement Decree of the same Act provides "21".

entertainment facilities in subparagraph 8 (d) of this section shall be provided to workers engaged in entertainment or customers so that they can enjoy dancing.

A dance hall is defined as "......"

2) The key issue of the instant case is the subject of imposition of individual consumption tax under the Individual Consumption Tax Act.

Whether it constitutes 'the taxable pleasure place', which is the subject of 'the taxable pleasure place', and considering the above provisions comprehensively, the division

Whether the workplace constitutes a taxable entertainment place or not prescribed by the Enforcement Decree of the Food Act.

Entertainment workers who prepare and sell alcoholic beverages as an entertainment drinking business, i.e., a business of cooking and selling alcoholic beverages.

agency or entertainment facility, and customers are allowed to sing or dance;

Whether the business is ‘business', that is, ① the business of cooking and selling mainly alcoholic beverages, ② the business of employing entertainment workers.

(3) Acts by customers to sing or dance are permitted.

shall be determined on the basis of whether it is an applicable business, and the reasons for the above disposition and its seal

Statements Nos. 2 through 7 and the purpose of the entire pleadings and images of Gap evidence No. 7

In addition, in full view of the following circumstances known to the workplace of this case, the above provisions apply to the workplace of this case

Entertainment bars prescribed by the Act, which are ultimately subject to the imposition of individual consumption tax, fall under taxable entertainment bars.

It is judged that it will be done.

① The instant place of business is installed on the first floor of the instant building, and the site of the instant building is located on the first floor.

The area of the lower 1st floor is 547.4 square meters, and there is a middle floor of 210.3 square meters in the underground floor, and the land is located.

De-1st floor: Stage and sound equipment, special lighting, sar, dancing, and kitchen facilities;

In the middle floor, more than 10 tables (VIP) are installed on the middle floor. (On the other hand, VIPs are installed on the other hand:

For the portion of 113.9 square meters on the underground floor, the place of business (hereinafter referred to as 'CoO') is called 'CoO' in the name of the non-party A.

The place of business was operated, but the subsequent review was conducted to connect the place of business of this case.

all of them are deemed to have been operated as a single place of business, and the entire section of the workplace in this case

It is about 643.8 square meters, excluding the area of the above Cununununun Project site).

(2) Sales of the instant place of business shall consist of admission fees, sales of alcoholic beverages, liquor, liquor, etc.

J. An entrance fee was KRW 10,000 on the ordinary day, KRW 15,00 on the weekend, and KRW 120,000 on the weekend. From KRW 120,00 in the case of two alcoholic beverages

150,000 won is confirmed to have been sold and if VIPs are used, 2.10,000 to 3.10,000 won shall be added.

It seems that the fee was imposed, and the customer prepared by the workplace of this case is examined.

It can be confirmed that the instant plant sells alcoholic beverages and dances.

③ The Plaintiff’s place of business in this case at ○○○ City O-gu Office (hereinafter “O-gu Office”).

Although the business was reported to the effect that it is a restaurant, the head of the OO on October 30, 2009.

The Plaintiff’s violation of the Food Sanitation Act, such as “establishment of dancing halls other than entertainment bars”, etc.

Due to the same reason, the Plaintiff again violated the Food Sanitation Act for the same reason.

on February 1, 2010, a penalty surcharge of KRW 20,40,000 in lieu of one month of business suspension was imposed on February 1, 2010

The plaintiff shall be subject to reduction of 10,320,00 won on October 7, 2010, and the plaintiff shall be subject to reduction of 10,000 won prior to the imposition of the penalty surcharge.

A statement to the head of the Gu that "I have established a dance hall at the place of the instant business."

The letter was submitted.

④ Under the first floor of the instant building, thisA, operated by the CoO’s workplace, is the Defendant (A).

The jurisdiction shall be over a store with 113.9 square meters of the underground floor of the instant building from August 26, 2011 to January 21, 2012.

The Gu office shall install stage, lighting and sound equipment without obtaining permission to conduct an entertainment drinking house business.

and then, it may receive money from many unspecified customers and have them drink and dance;

In addition, the Defendant was engaged in an entertainment drinking house business without permission. It is a criminal fact that "the Defendant was engaged in an entertainment drinking house business without permission."

The District Court was sentenced to a fine of KRW 4 million on May 10, 2012 (201 High Court 2547).

(2) In the case, the CoO's place of business is the same signboard as the place of business of this case.

(b) there are no barriers to distinguish each place of business, and in paying admission fees, there are no barriers to distinguish each place of business;

IOO places of business and the place of business of this case, as shown without distinction of the Do;

A club may be assessed as being operated at the place of business.

In full view of the above circumstances, ① the sales of the instant workplace are alcoholic beverages mainly from the instant workplace;

(2) The customers admitted to the instant place of business shall have stage and sound equipment, special lighting, ice equipment, etc.

The term "entertainment facility" has been used, and the term "entertainment facility" has been used, and 3 has been danced at the same time as consumption of alcoholic beverages.

It can be evaluated that the place of business of this case was a so-called so-called "gun club".

It seems that the taxable entertainment place, which is defined as taxable object in the consumption tax law, falls under the taxable entertainment place.

3) As to this, the Plaintiff’s alcoholic beverages as stipulated in the Enforcement Decree of the Food Sanitation Act.

The term "business of cooking and selling" is a practice in legislation, which is a historical and systematic methodology.

It is interpreted that the sale of alcoholic beverages at the same time should be the business of cooking food.

of this case, the place of business of this case does not require cooking while selling alcoholic beverages.

No. 5) of this case, since food was not cooked (see Evidence 5 of this case), the workplace of this case.

It argues to the effect that it does not constitute this taxable entertainment place, but the enforcement decree of the above food sanitation crime

The business of cooking and selling alcoholic beverages as 's entertainment bar', i.e., the business of cooking and selling alcoholic beverages by customers.

The term "business in which drinking or dancing is permitted" means the business in which alcoholic beverages are sold and incidental to them, and cooking and selling them such as food, etc., and customers are sing or dancing.

“Business permitted to engage in an entertainment tavern business” does not necessarily mean to the effect that “business permitted to engage in entertainment tavern business” is an entertainment tavern business, “food”, and “business” should be sold by cooking.

The plaintiff's assertion in this part is not acceptable. The plaintiff's assertion in this part is not acceptable.

4) In addition, the Plaintiff used the instant place of business as “a performance place” rather than a place for dancing.

Many customers visited the workplace of this case for the purpose of viewing performances, and taxable oil.

Party A’s assertion to the effect that it does not constitute a place of interest, and as such, Party A’s evidence

Note 24 and each video (the publicly performed posters and photographs, etc. at the time of public performance) with Evidence 6, 16, and 20

of this chapter.

However, even upon examining the images of Gap evidence 6, the performances are from 5 p.m. to 5 p.m.

and, in the case of some performances, minors are also entitled to enter, and the organizer shall:

A separate public performance planning company other than the instant place of business, through its separate website

The phrase "I," stating, "I, after the completion of the performance, leave all," that I will be able to do so.

Since the workplace of this case is not mainly used as a performance hall, customers are able to drink.

Ma. A club which is used for free dancing was used on a regular basis, and on a certain date other than on a particular date.

It is merely a loan of a locked space to a performance planning company at the time of running the club business.

I seem to appear.

On the other hand, according to the descriptions of Gap evidence 21 to 24 and the images of Gap evidence 20, the letter of this case

It appears that there is a contribution from the place of business itself, and that there is a contribution from the place of business in this case

It appears that the workplace of this case will work in the workplace of this case, and the workplace of this case itself.

It appears that some performances have been performed by inviting performers during the operating hours; however, ① the won

Materials presented to the effect that high-priced contribution was employed shall be subject to the disposition of this case.

Materials of 2015, rather than materials between them, which are irrelevant to the legality of the instant disposition

The contributions alleged by the Plaintiff to have concluded an employment contract with the instant workplace are shown as follows:

Then, as examined later, customers in the course of operating the instant place of business in the form of “gal clubs”

As DJ or raper to stimulate their interest, it seems to have its principal meaning in its performance itself.

(3) The size of performance stage in the instant place of business, even according to the Plaintiff’s assertion itself, shall be the area of performance stage.

4% of the total area of the instant place of business, and the subsequent review is conducted in comparison thereto.

As seen in the instant workplace, customers are engaged in entertainment by dancing at almost every part of the instant workplace.

As seen above, even if part of the performance was performed during the operating hours of the instant workplace, the instant workplace was eventually performed.

It cannot be said that the instant establishment was mainly used as a performance hall.

5) In addition, the Plaintiff’s instant business place is not an entertainment drinking house, but a “decent cultural space” and tourism.

It argues to the effect that it does not fall under the imposition of individual consumption tax, since it falls under “place”.

(1) However, as seen earlier, entertainment taverns and de facto care under the Enforcement Decree of the Food Sanitation Act.

The object of imposition of the individual consumption tax, if the place where the business is operated, that is, a taxable pleasure place.

Whether the concept of ‘ sound cultural space' or ‘tourist destination' is subject to the imposition of individual consumption tax.

as to whether or not there is an irrelevant circumstance, ② as to the facts of recognition as examined by the public, and evidence No. 9 on the grounds of such recognition

In addition to the overall purport of video and oral argument, the instant place of business is located near the Ouniversity.

The so-called "red club" is a so-called red club, in which both men and women agree to obtain the entire place of business.

It is so called that they enjoy an act of breaking into one another in a fast state by drinking and dancing alcohol.

It appears that the person is operating the business in the form of ‘non-non-fuse club'(B).

In this regard, a large number of customers seems to have been admitted for the purpose of these acts, and the outlines

Even in consideration of the purpose of legislation of the Special Consumption Tax Act, such a form of business is "decent cultural space" or

It can not be interpreted that it is not subject to the individual consumption tax on the ground of ‘tourist destination'.

6) Zak u300 Furthermore, the Plaintiff’s most important purpose of the Individual Consumption Tax Act is to restrain the consumption of salutical consumption.

The entrance fee paid by the customers visiting the instant workplace is KRW 10,000.

15,000 won, and the price of alcoholic beverages and beverages sold within the place of business of this case is 5,000 won mainly

It is inside and outside of Korea, and the price of Ansan is mainly 20,000 won and the average sales per case sold are approximately 25,000.

The place of business inside and outside the country can not be seen as the place of consumption of the goods, and thus, the taxable entertainment place is eventually a taxable entertainment place.

I asserts to the effect that it cannot be said to be “A” (No. 19).

(1) However, the instant plant sells alcoholic beverages in addition to drinking water, and VIPs

in the case of section 2.10,00 to KRW 3.10,000, in view of the collection of separate charges

For example, even if the average sales of the individual sales are 25,000 won or less, the consumption of the individual sales did not occur.

(2) An entertainment tavern and a physician under the Enforcement Decree of the Food Sanitation Act as seen earlier.

The imposition of the individual consumption tax, if the place of business similar to the actual place of business is a taxable pleasure place.

(3) Hunting guns for hunting as well as sporesses in taxable objects of the Individual Consumption Tax Act;

Since articles that can not be regarded as a safry, such as small automobiles, oil, etc. are also included in each sheet;

It can be interpreted that the average amount of withdrawal is not subject to the individual consumption tax solely because it is a small amount.

Therefore, the plaintiff's assertion on this part cannot be accepted (the plaintiff is further so-called).

The term "red club" is a new entertainment form and cultural phenomenon, and it is different from the existing entertainment drinking club.

Although it is argued to the effect that it should be treated, it is individual in light of the reasons mentioned above.

For the non-taxation of consumption tax, it is interpreted that a separate legislation should be avoided.

3. Conclusion

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