Daegu District Court-2018-Gu Partnership-20506 ( October 26, 2018)

The plaintiff who is an operator of the bus cooperative's cafeteria shall be a business operator prescribed by the Value-Added Tax Act.

The plaintiff who is an operator of the bus cooperative's cafeteria is a business operator prescribed by the Value-Added Tax Act, and the plaintiff's income is regarded as business income and imposed tax accordingly.

2018Nu5049 Revocation of Disposition of Imposition, Such as Value-Added Tax

- Appellants

IsaA

BB Director of the Tax Office

October 26, 2018

2019.03.08

oly 2019.19

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed;

2. The plaintiff's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

Defendant limited to the Plaintiff on September 1, 2016

(a) Each disposition of imposing value-added tax of KRW 00,00,000 for the first year of 2012, value-added tax of KRW 00,000,000 for the second year of 2012, value-added tax of KRW 00,000,000 for the first year of 2013, value-added tax of KRW 00,000,000 for the second year of 2013, value-added tax of KRW 00,000 for the first year of 2014, and value-added tax of KRW 00,000 for the second year of 2014 (including additional tax); and

(b) Each disposition of global income tax of KRW 0,000,000 in 2012, global income tax of KRW 0,000,000 in 2013, and global income tax of KRW 0,000,000 in 2014 (including additional tax), shall be revoked.

2. The plaintiff's purport of appeal

The judgment of the first instance shall be modified as stated in the purport of the claim.

3. The defendant's purport of appeal

Paragraph (1) shall apply.

1. Details of the disposition;

The following facts may be acknowledged according to each statement of Gap evidence No. 1, and Eul evidence No. 1, 2000,000,000,000,000,0000,000,000,000,0000,0000,0000,0000,0000,000, or 0,0000,000,000, which was the amount of additional tax imposed upon the tax base returned in the taxable period, and the purport of all pleadings No. 1, Eul evidence No. 1, and Eul evidence No. 1 through 4 (including branch numbers where no special indication is made; hereinafter the same shall apply).

A. The plaintiff's status

1) On March 1, 200, the Plaintiff registered his/her business by designating his/her trade name as a cafeteria, a type of business as a cafeteria, and a cafeteria, and operated the cafeteria.

2) A restaurant operated by the Plaintiff (hereinafter referred to as “instant restaurant”) is a restaurant designated by ○○ Metropolitan City Bus Transport Business Association Co., Ltd. (hereinafter referred to as “○○ Bus Association”) to provide meals to licensed operators.

B. Imposition of value-added tax by the defendant

1) The Plaintiff did not file a value-added tax and comprehensive income tax on KRW 00,000,000 on the total value of food services supplied to bus drivers when filing a value-added tax and global income tax return from 2012 to 2014.

2) From October 0, 2016 to October 0 of the next year, the Defendant confirmed the site of the instant restaurant, and determined that the Plaintiff omitted the return and payment of value-added tax and global income tax even though the Plaintiff supplied bus drivers with food services.

3) Accordingly, on October 0, 2016, the Defendant calculated by adding value-added tax as shown in the following Table 1 to the Plaintiff:

As shown in [Attachment 2], the total amount of global income tax of KRW 00,000,000 (including additional tax) was corrected and notified (hereinafter collectively referred to as "the disposition in this case").

(c) Procedures of the previous trial;

On October 00, 2016, the Plaintiff appealed against the instant disposition, and filed an appeal with the Tax Tribunal. However, on October 00, 2017, the appeal was dismissed.

(d) Relevant statutes;

The statutes related to the disposition of this case are as shown in the attached Form 2.

2. The plaintiff's assertion

The disposition of this case shall be revoked on the following grounds of illegality:

A. In that sense, the Plaintiff’s bus company affiliated with the ○○ bus association actually provided food services to its drivers under his command and supervision while providing food services to its drivers, and does not independently provide food services to its drivers, etc. depending on their own account and responsibility, and thus does not constitute “business operator” under the Value-Added Tax Act and the former Income Tax Act. Thus, the instant disposition is unlawful.

1) Before the joint bus assignment system was implemented in 1990, a bus company started from the bus company's garage exclusively for a specific bus route, and it returned to the bus again. As such, even though the bus company was able to operate the bus directly from the bus, but after the joint bus assignment system was implemented, it became difficult for a specific bus company to directly operate the cafeteria at one bus. Accordingly, it became difficult for the bus company to directly operate the cafeteria at one bus. Accordingly, ○○ bus union established pursuant to Article 53 of the Passenger Transport Service Act designated various restaurants on each bus including the instant restaurant as a driving engineer, and operates it as a cafeteria in fact as before.

2) The bus companies belonging to the ○○ bus association did not directly receive the cost of food services from the pertinent drivers, but did not receive the cost of food services as welfare expenses for employees, and later receive the cost of transportation as one of the cost of transportation according to the final bus completion management system. Thus, the bus companies are providing drivers with food services for a fee through the restaurant at the end of the bus route.

Therefore, not the plaintiff but the bus companies belonging to the ○ bus cooperative, which provide food services to bus drivers.

3) In order for the Plaintiff to provide bus drivers with food services in the instant restaurant, he/she shall submit a letter of practice on the operation of the restaurant, such as meal time, quality control, cook’s uniform, clean condition, maintenance of cooling and heating facilities, etc., to the ○○ bus cooperative, and comply with it. The Plaintiff unilaterally accepted the price determined and notified by the ○○ bus cooperative without any authority to determine and negotiate food prices. The Plaintiff’s income is not determined depending on the performance and performance of the business, but is uniformly determined according to the number of bus vehicles and drivers of the bus company. Accordingly, the Plaintiff merely provided food services to bus drivers under the strict direction and supervision of the overall operation of the restaurant by the ○○ bus cooperative, not by the instant restaurant.

B. Even if the Plaintiff is considered as a taxpayer under the Value-Added Tax Act, the instant disposition is unlawful since the food services supplied by the Plaintiff through the instant restaurant fall under the subject of value-added tax exemption under Article 106(1)2 of the Restriction of Special Taxation Act in that it constitutes the following point.

1) According to Article 106(1)2 of the Restriction of Special Taxation Act and Article 106(1)06 of the Enforcement Decree of the Restriction of Special Taxation Act, the operator of a route passenger transport business under the Passenger Transport Service Act shall be exempt from value-added tax on food services (limited to food services) supplied by the operator of a route passenger transport business under the Passenger Transport Service Act by directly operating a restaurant within the Gu of the relevant business establishment for the purpose of welfare of his employees. According to General Rule 106-14 of the Restriction of Special Taxation Act (i.e., base date 106-0-5), the operator shall include the facility premises of a facility, such as a dormitory and storage, related to the relevant business, even if the operator of a route passenger transport business under the Passenger Transport Service Act jointly operates a single within the premises of a place of business, etc

2) Each bus company belonging to the ○○ bus association shall jointly bear the costs of meals for drivers incurred in the instant restaurant in a method that calculates the amount to be borne by each company in accordance with the joint transport agreement between the bus transportation business operators of the ○○ Metropolitan City by calculating the amount to be borne by each company according to the degree of use by each company. The end point of the bus route in which the instant restaurant is located is a space used by each bus company for bus stops and maintenance of route buses and for waiting and rest of drivers. Thus, each bus company constitutes a facility related to the business of a route passenger transport business operator and constitutes a place of business.

3) The instant restaurant that the Plaintiff works was originally a restaurant operated directly by individual bus companies on the bus, but the introduction of the joint bus allocation system led to the joint bus transportation of several bus companies on one bus route, and the individual bus companies operated the bus restaurant at the end of the bus route and jointly bear the expenses. As such, the separate bus companies operated by the individual bus companies prior to the implementation of the joint bus allocation system only changed the form of a cafeteria operated jointly by several bus companies using each bus site from the cafeteria operated by the individual bus companies on the bus route to the cafeteria operated jointly by the individual bus companies.

C. Among the disposition of this case, the imposition of additional tax is limited to the Plaintiff’s failure to pay taxes on the following grounds: (a) whether the Plaintiff is a taxpayer under the Value-Added Tax Act; and (b) whether there is a conflict of opinion in the interpretation of tax law; and (c) thus, it is unlawful.

1) The Tax Tribunal rendered a decision to judge whether the Plaintiff is liable to pay value-added tax on food services supplied while operating the instant restaurant through the Decision 2016Gu1166 dated June 7, 2016 and the Decision 2016Gu1167 dated the same day. As such, there was a conflict of opinion as to whether the Plaintiff is liable to pay value-added tax on food services supplied while operating the instant restaurant.

2) Since the Commissioner of the National Tax Service or the head of the competent tax office, ○○ Metropolitan City, bus cooperatives, etc. began to provide food services to bus drivers in the same premises as the Plaintiff, there has been no guidance or tax guidance on the tax return for several hundreds of years since the commencement of the provision of food services to bus drivers.

3) It is too harsh to impose penalty taxes on the Plaintiff on the following grounds: (a) the Plaintiff’s low academic background, such as the Plaintiff, and the low-income group’s cafeteria operator did not voluntarily report the fact that they are subject to taxation;

3. Whether the instant disposition is lawful

(a) Facts of recognition;

In full view of each of the above evidence, Gap evidence Nos. 1 through 13, Eul evidence Nos. 1 through 5 (including each of the above numbers) and the whole purport of the pleadings, the following facts are recognized:

1) From the first period (from January 1 to June 30) of 2012 to the second period (from July 1 to December 31, 2014) of 2014, the details of the proceeds from supply, the reported amount of sales, etc. received by the Plaintiff while operating the instant restaurant are as follows (attached 3).

[Attachment 3] The current status of sales and reporting of the instant restaurant (unit: Won)

2) According to the collective agreement in 2015 concluded between the ○○ bus union and the ○○ bus trade union (referring to a trade union consisting of bus drivers operated in the ○○ Metropolitan City; hereinafter “trade union”), the ○ bus union shall provide the members of the trade union with daily meal services free of charge in purely welfare aspects, and ② in any case, the meal services provided free of charge shall not be regarded as wages, and ③ actively endeavor to improve the quality of meal services of designated drivers and restaurants, and to supervise and supervise restaurants.

3) The Plaintiff did not enter into an employment contract with ○○ bus cooperative or each bus company. However, ○○ bus cooperative prepared and delivered a letter (hereinafter “instant letter”) with the following contents, and operated the instant restaurant.

The plaintiff will faithfully observe the following matters concerning the operation of the ○○○ bus driver’s designated restaurant, and will not raise an objection against any measure taken by the ○○ bus cooperative, if the failure to perform the duties is a civil petition filed by the driver and the trade union:

1. Practical matters;

(a) To ensure that all civil petitions for the quality of meals do not occur;

(b) Food rights shall not be exchanged for cash or goods other than meal services provided.

(c) pay attention individually to the purchase of food materials and to the storage of food materials so that food poisoning accidents do not occur;

(d)Operation a weekly standard meal system for the improvement of the quality of meals;

(e)ensure that the restaurant employees wear sanitary uniforms (including hats);

(f)ensure that a restaurant inside and outside (including a terminal floor) and a toilet are kept clean at all times, and complete heating and cooling facilities in the restaurant;

(g)The cost of excreta collection and the cost of garbage disposal generated inside and outside the restaurant shall be borne by the relevant restaurant;

(h)ensure that no cost does not occur between drivers and cafeteria employees in relation to the quality, kind of meals, etc.;

(i) The hours of providing meals (04:50 to 21:00) shall be strictly maintained;

2. Where there is a request for improvement from the ○○ bus branch in relation to the above matters, it shall be immediately improved: Provided, That where a civil petition for the quality and hygiene of meals is repeated or improvement is not made, no objection shall be raised against the reduction of the meal cost of the ○○ bus association, the termination of a designated restaurant, etc.

3. With respect to ○○ bus termination or termination of a designated restaurant or reduction of the number of meals due to changes in the business plan of the ○○ bus, etc., no objection shall be raised, such as a demand for facility expenses, etc., and no objection shall be raised against the adjustment of the prices of meals of the ○○ bus cooperative.

4) The distribution system of transportation revenues under Article 4(1)(i) of the Urban bus completion management, which ○○ Metropolitan City has been in force since 2006, is as follows:

[Afforestation] A system for allocating transportation revenues under a completed permanent system

In other words, ① urban bus transportation business operators shall jointly manage transportation revenues by entering into a joint transportation agreement between business operators, ② joint management of such revenues shall take charge of the revenue joint management business council within the ○○ bus cooperative; ③ the above conference allocates transportation revenues to transport business operators according to the result of the settlement of the standard transportation cost approved by the ○ Metropolitan City, and ④ in the event of a shortage of transportation revenues, ○○ Metropolitan City shall pay financial support funds upon the request of the transport business operators.

5) The procedures for the settlement and payment of meal costs to a restaurant designated by the ○○ bus association, including the instant restaurant, are as follows.

1) The completion management system refers to a system that ○○ Metropolitan City provides financial support to trucking business operators for shortage of revenues in order to provide stable and improved services, such as free transfer and rapid adjustment of routes, in the form of a mixture of public and private sector systems of urban buses, with the ownership and operation of urban buses.

○○○ Metropolitan City bus carriers’ joint transport service agreements

14. Rent, expenses incurred in manufacturing a driving plate, and expenses incurred in raising drivers shall be borne jointly, and the amount to be borne by each company shall be calculated by the number of commercial vehicles of the companies calculated by calculating the amount to be borne by one company based on the number of completion-based systems implemented;

amount to be borne by each company = Total expenses/1,561 ¡¿ the number of commercial vehicles for each company

A) Each bus company shall provide its bus drivers with the right of meals (the route and the name of its bus company) according to operating hours.

B) The price per meal ticket is determined by an agreement between the bus company and the trade union. The ○○ Metropolitan City recognized the amount of food ticket usage as the standard transport cost based on the agreement between the city bus and provided financial support accordingly (the unit price for food ticket usage shall be differentiated according to the number of vehicles used to maintain equity among the restaurant restaurants) in accordance with the guidelines for calculation and settlement of the standard transport cost of the city bus.

C) A bus driver shall be provided with meals by submitting a ticket at a restaurant at the end point or the end point of the bus route during the bus operation.

D) A restaurant operator, including the Plaintiff, submitted food rights received from bus drivers to the ○○ bus cooperative twice a month, and the ○ bus cooperative shall pay the meal costs in proportion to the amount of food rights used to the restaurant operators once a month.

E) Pursuant to the ○○ bus transport agreement, the ○○ bus cooperative determined the meal cost for each bus company based on the degree of use by each bus driver belonging to each bus company according to the ○○○ Metropolitan City bus transport service agreement as follows: ② issued a tax invoice after deducting the amount from the standard transport cost to be paid to each bus company; ③ each bus company processed the amount to be paid to each bus company in the account of personnel expenses, welfare expenses, etc.

6) Specific facilities, use, etc. of the instant restaurant are as follows.

A) The instant restaurant is located within the place of business (00, 000, 000, 000, 000, and 000, and 5 urban bus routes, including 00, 000 and 000) of 00 buses Co., Ltd. (hereinafter “00 buses”).

B) The building and site of the instant restaurant are owned by all 000 buses.

C) The Plaintiff: 000 buses, 00 transportations, and 00 teachings in the instant restaurant.

The bus drivers belonging to 7 bus companies such as Tong, 00 buses, 00 transportation corporations, 00 transportation corporations, 00 passengers, etc. provide meals to the bus drivers belonging to 7 bus companies.

D) The instant restaurant supplied approximately KRW 240 per day average of 1-day meals among 36 driver restaurants located at the ○○ Metropolitan City bus depots or the 36 driver’s restaurants located at the ○○ Metropolitan City bus or the wheel, (i) approximately KRW 80,000 per day (= KRW 708,000 per day average of sales (= KRW 2,950 x 240).

E) On the signboard of the instant restaurant, an article cafeteria(tobacco) is written on the signboard of the instant restaurant, and the appearance of the restaurant is not indicated with a me new plate or a separate trade name. The inside of the restaurant is equipped with six 4 mebbles on a size of 10 square meters.

F) At the instant restaurant, one employee, other than the Plaintiff, has been employed in the main restaurant. The Plaintiff paid daily wages to his employees since 2012, and reported the details of withholding to the Defendant.

G) In the instant restaurant, tobacco is sold, and other cash purchases such as alcoholic beverages and beverages are not confirmed in addition to tobacco. The outside of the restaurant is a beverage and coffee plate.

H) The ○ bus cooperative sent detailed operational guidelines on the quality, sanitary conditions, etc. of meals to the Plaintiff several times as follows.

No. 1320, Apr. 28, 2015>

○ The time in which group meals are provided with more weather as reported by the recent media.

The collective food poisoning accident occurred in the mother school.

○ Each point of view that food poisoning accidents occur frequently in a restaurant for each driver;

Haseh and thorough implementation of the following matters shall be due to food poisonings:

In order to prevent the occurrence of driver's occurrence, the driver will take full responsibility for the management of the restaurant.

○ Preparation of continuous measures for the prevention of food poisoning accidents

- The purchase, storage, and cooking of food materials shall maintain the new guidance and clean condition, and the prohibition of absolute use of food materials, the expiration of the circulation period,

-a network of caution not to reuse drivers’ civil complaints on meal quality or the food support provided;

○ Food, inside and outside the kitchen, and toilets shall be maintained clean at all times.

- In particular, from time to time in the case of toilets, the relief and cleaning of pests;

○ At all times, the features of the restaurant employees shall be decent, and cautioned to ensure that there does not occur any vision between drivers and employees of the restaurant.

○ Food rights shall not be absolutely exchanged and used for cash or goods other than the provision of meals.

○ Compliance with the hours of providing meals from 05:0 to 21:00

- In particular, there is no need to ensure that there is no case of closing the cafeteria prior to 21:00 even though there is a driver who has not been meal.

○ thorough operation, etc. of air conditioners in a restaurant

7) The ○○ bus cooperative asked ○○○○ Office of the Regional Employment and Labor Office about whether the operator of the restaurant constitutes an employee under his/her jurisdiction, and the main contents of the reply are as follows.

○○○ bus cooperatives and meal facility operators did not directly conclude a direct employment contract, and only "written notes on the operation of designated restaurants" related to the operation of meal facilities were prepared and entrusted with operation.

○○ bus unions have a meal facility operator not only set working hours but also operate independently without direct and specific work instructions.

The ○○ bus union does not pay the ○ bus union fixedly, and has all income generated by the operator, etc., which is characterized by fees rather than wages under the Labor Standards Act.

In full view of ○○ bus cooperatives and meal facility operators, it is reasonable to regard ○ bus cooperatives and meal facility operators as the relationship in which they independently conduct the business rather than the relationship in which they provide labor and receive wages in the subordinate relationship with use.

Therefore, it is difficult to regard the meal facility operator as an employee under the Labor Standards Act, and the provisions of the Labor Standards Act do not apply to the case that is not an employee.

B. Whether the Plaintiff constitutes a taxpayer

1) Relevant legal principles

According to Article 4 of the Value-Added Tax Act, value-added tax is levied on goods or services conducted by a business entity.

According to Article 3 (1) of the Enforcement Decree of the Value-Added Tax Act, services under Article 2 (2) of the Value-Added Tax Act are all services and activities falling under any of the following subparagraphs, other than goods, which have property value, including restaurant business (title 2) and other personal service business (title 12).

Article 2 subparag. 3 of the Value-Added Tax Act provides that a person who independently supplies goods or services for business purposes is liable for value-added tax, regardless of whether it is for profit-making purposes. Here, a person who independently supplies goods or services for business purposes refers to a person who provides goods or services for continuous and repeated intent in the form of business to create a value-added (see, e.g., Supreme Court Decision 98Du16705, Sept. 17, 199). According to Article 32(1) of the Value-Added Tax Act, where an entrepreneur registered as a taxpayer supplies goods or services, a tax invoice shall be issued to the person who receives the goods or services. The "person who receives services" refers to a person who receives services due to contractual or legal grounds. Thus, when determining who is a "person who receives services" due to contractual grounds, the parties and terms of the contract that causes the provision of services, the supply of services is made for anyone, and the payment relationship of prices shall be taken into consideration (see, e.g., Supreme Court Decision 2016Du3167.

2) Determination

In providing food services to bus drivers through the instant restaurant, it is reasonable to view that the Plaintiff, even though he/she is somewhat subordinate to other operators, such as ○ bus cooperatives, etc., in a social and economic aspect, considering the following circumstances revealed in the above recognition, it is reasonable to view that the Plaintiff provided goods or services with a business form to the extent that it can create added value and has continued to provide goods or services with continuous and repeated intent. Therefore, the Plaintiff’s assertion falls under “business operator” under Article 2 subparag. 3 of the Value-Added Tax Act, and thus, is without merit.

A) On February 28, 200, the Plaintiff applied for business registration as a general taxable business operator of value-added tax and received its business registration certificate. However, in order to operate a restaurant business which is a food service business, business registration must be conducted prior to the business license or business report, and where the business registration is cancelled, the business report may also be cancelled (see, e.g., Article 37(7) of the Food Sanitation Act). Since the business registration determines the subject of the responsibility of various administrative laws and regulations related to the operation of the instant restaurant, as long as the Plaintiff registered his/her business with his/her own intent and operated the instant restaurant, it should be deemed that the Plaintiff expressed his/her intention to become the subject of various administrative responsibilities as prescribed by the relevant laws and regulations, such as the Food Sanitation Act.

The plaintiff asserts that he inevitably registered his business in order to sell tobacco. However, in light of the fact that the plaintiff registered his business for the restaurant of this case by entering the type of business as "retail and cafeteria" rather than "retail and tobacco", and that the plaintiff reported and paid the value-added tax to the defendant during the first period to the second period from 2012 to 2014 and included part of the sales of the restaurant business other than tobacco sales in the reported sales, it is reasonable to view that the business registration of the restaurant of this case is for the restaurant of this case, and therefore, the plaintiff's above argument cannot be accepted.

B) The Plaintiff purchased food materials necessary for the operation of the instant restaurant on its own responsibility and account without involvement, direction, and supervision of the ○○ bus cooperative or its affiliated bus companies, employed employees to pay personnel expenses, and prepared or repaired internal facilities, fixtures, fixtures, etc. to the extent of the food ticket price presented by the ○ bus cooperative, and operated the instant restaurant independently. It was possible to adjust the quality and distribution route of food materials within the scope of the food ticket price presented by the ○ bus cooperative and increase or decrease the number of employees and personnel expenses.

C) On the grounds of the instant letter stating the contents agreed with the ○ bus association, the Plaintiff provided food to bus drivers employed by the members of the ○ bus association from the instant restaurant building (the building and site of the instant restaurant are owned by the ○○ bus association, a member of the ○○ bus association), which was permitted to use by the ○○ bus association, on the grounds of the instant letter. The cost of providing food was not cash but was received as a food ticket with the name of the bus company, but was submitted to the ○ bus association and received the cost of providing food from the ○○ bus association.

In full view of the facts that the Plaintiff entered into an agreement with the ○ bus cooperative, and the Plaintiff received food service from the ○ bus cooperative in accordance with each of the instant agreements, it is reasonable to deem that the Plaintiff performed the obligation to provide food to the bus drivers designated by the bus company, which is a member of the ○ bus cooperative, that is, the contractual obligation entered into with the ○○ bus cooperative, namely, the obligation to provide food to the bus drivers designated by the bus company. Thus, the Plaintiff supplied the service to the ○ bus cooperative as an assistant, not the performance assistant of the ○ bus cooperative, and the other party who traded the “supply of service” under Article 4(1) of the Value-Added Tax Act between the Plaintiff and the ○ bus cooperative, not the bus driver, but the ○○ bus cooperative.

D) According to each of the instant notes, the ○○ bus cooperative may require the Plaintiff to request the quality, sanitary integrity, etc. of meal above a certain level, and if that is not observed, it may put the Plaintiff at a disadvantage, such as a meal fee and the termination of the contract for a designated restaurant. However, such a requirement is merely a confirmation of the Plaintiff’s duty to comply with the Plaintiff as a trustee of a restaurant or a trustee entrusted with the provision of food services.

In addition, the fact that bus companies belonging to the ○ bus association include the amount equivalent to the cost of the food service as welfare expenses for the food service supplied to bus drivers through the instant restaurant, and then receive the cost of the service as one of the transportation cost later, is merely a bus driver or the payment entity of the service cost is a bus company.

C. Whether the restaurant business of this case is exempt from value-added tax

1) Relevant legal principles

In light of the principle of no taxation without law, or the requirements for non-taxation or tax reduction and exemption, the interpretation of tax laws and regulations shall be interpreted as the text of the law unless there are special circumstances, and it is not allowed to expand or analogically interpret without reasonable cause (see, e.g., Supreme Court Decisions 2005Du15021, Jul. 12, 2007; 2005Da19163, May 25, 2006).

2) Determination

In order to become eligible for tax exemption under Article 106 (1) 2 of the Restriction of Special Taxation Act, the business operator of a business place of a route passenger transport business operator must operate a cafeteria directly or directly supply food services. As seen earlier, the Plaintiff supplied services to ○ bus cooperatives by independently operating the instant cafeteria as a contracting party, not the performance assistant of the ○○ bus association, and the Plaintiff is not a bus driver, but the other party who traded the ○ bus service under Article 4 (1) of the Value-Added Tax Act between the Plaintiff and the Plaintiff. Thus, the Plaintiff’s assertion on the premise that the Plaintiff is an internal cafeteria operator’s performance assistant is without merit.

D. Whether the part imposing additional tax is illegal among the disposition of this case

1) Relevant legal principles

Additional tax is an administrative sanction imposed as prescribed by the Act in cases where a taxpayer violates various duties, such as a report and tax payment, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, and where there exist justifiable grounds, it shall not be imposed (Article 48(1) of the Framework Act on National Taxes). Therefore, in cases where there exist justifiable grounds that make it impossible to criticize the taxpayer that he/she neglected to perform his/her duties due to a conflict of views in the interpretation of the tax law beyond a simple scope of land or a law beyond the scope of misunderstanding, etc. (see, e.g., Supreme Court Decision 2017Du36885, Jul. 11, 2017). Moreover, a taxpayer’s intentional or negligent act is not considered, and the land or mistake of the law does not constitute a justifiable ground (see, e.g., Supreme Court Decision 200Du1652, Feb. 8, 2002).

In light of the form and structure of the legal provision, “justifiable cause” under Article 48(1) of the Framework Act on National Taxes is understood as an exception provision that sets forth the requirements to exempt liability for additional tax, and in light of the fact that the taxpayer can easily know the existence of “justifiable cause,” while there is no “justifiable cause,” it is not possible to require the tax authority to prove that there is no “justifiable cause,” or that it is very unreasonable in terms of efficiency in dealing with large-scale taxation, it is reasonable to deem that the taxpayer has the burden of asserting and proving the “justifiable cause.”

2) Determination

According to the following circumstances, the Plaintiff’s assertion is without merit, since it is difficult to deem that the Plaintiff was unaware of the existence of value-added tax and global income tax liability, or there is a justifiable reason for failure

A) As seen earlier, the Plaintiff constitutes a business entity that independently supplies goods and services on business, and constitutes a “business entity” who is liable to pay taxes under the Value-Added Tax Act. Therefore, the Plaintiff’s intentional and negligent act regarding tax liability cannot be considered, and even if there is a legal basis or mistake, it does

B) If a tax-exempt entrepreneur who has no liability to pay taxes under the Value-Added Tax Act is registered as a business operator under the Income Tax Act and the Corporate Tax Act instead of registration of a business operator, and if the sales and income activities by the business are not carried out, there is no reason to report the sales, the Plaintiff registered the business as a general taxable person of value-added tax on February 20, 200 by making the type and category of the business of the instant restaurant as a "lor and cafeteria restaurant". From January 2, 2011 to February 2, 2013, the Plaintiff has reported the value-added tax continuously by continuously reporting the restaurant sales in the amount of 10,00 to 19,000 won.

C) In a case where the tax Tribunal made ex officio registration of a claimant who had operated an article restaurant at the end point of a route bus as a simplified taxable entrepreneur and decided and notified the value-added tax on the proceeds from supply of the food service, the Tax Tribunal has made a decision to revoke the said disposition of business registration and the notice of value-added tax (the Tax Tribunal Order 2016Gu1166 dated June 7, 2016, and the Tax Tribunal Order 2016Gu1167 dated June 7, 2016, etc.). This is related to cases where the claimant can be deemed to have received wage and salary income in a de facto subordinate relationship, such as the Plaintiff, and there is a difference between the cases where the claimant registered a business as a general taxable entrepreneur and operated a cafeteria independently, and therefore, it cannot be deemed that there was a conflict of opinion in the interpretation of tax law as to the Plaintiff’

In addition, it is difficult to view that the Plaintiff was either aware of value-added tax and global income tax liability for the supply of food services or legitimate grounds for failure to perform such tax liability on the sole basis that the Defendant did not impose value-added tax on a bus driver once prior to the instant disposition or provide administrative guidance to file a tax return, with respect to the provision of food services to bus drivers in the course of operating the instant restaurant.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and since the part against the defendant among the judgment of the court of first instance against the defendant is unfair with its conclusion different, it shall be revoked and the plaintiff's claim corresponding to the revoked part shall be dismissed as per Disposition.