Incheon District Court-2015-Gu 53903 ( December 08, 2017)

Whether an additional tax may be imposed on the grounds that there is a defect in the procedures for issuing a delivery order even if duty-free oil is normally used without illegal distribution.

The imposition of additional tax provided for in the Restriction of Special Taxation Act is applicable to failure to comply with the procedures related to oil supply business. However, the burden of proof on this is the tax authority.

Article 106 of the Restriction of Special Taxation Act, reduction, exemption, etc. of value-added tax, etc. for petroleum products for agriculture, forestry, fishery and coastal passenger ships

Seoul High Court-2018-Nu-32189 ( August 16, 2019)

ProfessorO

O Head of tax office

.01.30

1.The judgment of the first instance, including the claims modified by this Court, shall be modified as follows:

A. 1) The part that exceeds the amount stated in the column of “justifiable tax amount” among the dispositions of imposition of additional tax listed in the separate sheet No. 18 through No. 37 and the dispositions of imposition No. 54 listed in the separate sheet No. 2, which Defendant ○○ Head of the tax office imposed on the Plaintiff Seocho Industrial Cooperative;

2) Of each disposition of imposition of penalty tax listed in the separate sheet Nos. 55,56, and each disposition of imposition of penalty tax listed in the separate sheet No. 57 and 65, the part exceeding the amount stated in the separate sheet “justifiable tax amount” column as stated in the separate sheet No. 2, which Defendant ○○ Head of the tax office imposed on the Plaintiff

3) The part that exceeds the amount stated in the column of “justifiable amount of tax in the same list” among the dispositions of imposition of additional tax listed in the separate sheet No. 66 through No. 89 and the dispositions of imposition of No. 114 listed in the separate sheet No. 2, which was imposed by the head of ○○ Tax Office on the

4) The tax office’s disposition of imposing additional tax on the Plaintiff △△ Industrial Cooperative listed in the separate sheet Nos. 115 through 118, 125, and each disposition of imposing additional tax as stated in the separate sheet No. 119 through 124, and 128, the same list “justifiable tax amount” as indicated in the separate sheet No. 2, shall be revoked.

B. All of the claims against the director of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of the headquarters of

2. Of the total litigation costs, the part arising between the Plaintiff’s insurance cooperative and the Defendant’s director of the tax office at Southern Industrial Cooperative, which is the Plaintiff, shall be borne by the said Plaintiff; 2/3 of the part arising between the Plaintiff’s insurance cooperative and the Defendant’s director of the tax office at ○○○○; and 1/2 of the remainder arising between the Plaintiff’s insurance cooperative and the Defendant’s director of the tax office at ○○○○○. The remainder shall be borne by the said Plaintiff; 1/2 of the part arising between the Plaintiff’s insurance cooperative and the Defendant’s director of the tax office at ○○○○; the remainder shall be borne by the said Plaintiff; and 1/4 of the part arising between the Plaintiff’s insurance cooperative and the Defendant’s director of the tax office at ○○○○; and the remainder shall be borne by the said Plaintiff; and the head of the tax office at

1. Quotation of judgment of the first instance;

The reasons for this Court concerning this case are as stated in the reasons for the judgment of the court of first instance, except for the partial dismissal of the judgment of the court of first instance or the addition of some contents, so the meaning of the summary language used in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter referred to as "the meaning of the summary language used in this case is as stated in the judgment of the court of first instance, and the "attached Form 2" in the attached Form 3 of the judgment of the court of first instance shall be as stated in the attached Form 3, and the "attached Form 3-Related Acts and subordinate statutes" shall be as stated in the attached Form 3, and the "attached Form

2. Parts used or added;

The attached list 2 under the attached Table 2 below the 5th list shall be placed in "attached Form 3 list", and the part of "attached Form 1." from the last day to the 6th day of the attached table shall be placed in "attached Form 1." and the imposition of each value-added tax and the imposition of traffic, energy, environment tax and education tax shall be made in the attached Table 1."

Part 6. The following shall be added to the 7th page:

“A disposition, etc. for partial re-revision by the head of the ○○ Tax Office.

On November 24, 2016, the head of the tax office at ○○○ Tax Office re-revisions the imposition of additional tax on each traffic, energy, environment tax, and education tax listed in attached Table 1 Nos. 18 through 53, 55 through 64, 66 through 113 on the attached Table No. 2 List No. 18, 19, 21, 22, 24, and 25 on the Plaintiff △△△ (the imposition disposition listed in attached Table No. 2 No. 40, 41, 92, and 93 is subject to the correction of the amount of reduction) (hereinafter referred to as “each of the dispositions of imposition of additional tax” in the attached Table No. 2 List No. 40, 41, 92, and 93).

Note 6 8-9 [Based on Recognition] add “each entry of Category B Nos. 19-21.”

The "attached Form 2" in attached Form 5 shall be referred to as "attached Form 3", the "attached Form 3" in attached Form 9 shall be referred to as "attached Form 3", and the "attached Form 4" in attached Form 13 in attached Form 19 shall be referred to as "attached Form 4".

Part 20. The following shall be added to the second page:

The plaintiffs asserted that "the case of failure to verify the relevant evidence documents" under Article 106-2 (11) 2 of the former Restriction of Special Taxation Act means the case of failure to verify the copy of the sales documents or the ship entry and departure declaration, and that it cannot be deemed that the plaintiffs violated some of the business guidelines that are more strengthened than the relevant regulations and caused the poor management of the duty-free oil.

However, it cannot be deemed that the procedures for issuing a written order for delivery by the mandatory in this case and taking over tax-free petroleum are more strict in accordance with the supply management guidelines and business guidelines for fishermen themselves, as originally prescribed by the former Restriction of Special Taxation Act and the special provisions. Moreover, even if the business guidelines merely provide detailed matters necessary for the supply and follow-up management of tax-free petroleum, insofar as the business guidelines are objectively reasonable in terms of the methods and procedures for the supply and follow-up management of tax-free petroleum by specifying the upper standards, the agency responsible for managing tax-free petroleum, such as the plaintiffs, should comply with the above standards and supply and manage tax-free petroleum, so the business guidelines can be considered as detailed criteria for determining whether there is a poor management (see, e.g., Supreme Court Decision 2015Du2864, Jul. 11, 2017). Therefore, the aforementioned Plaintiffs’ assertion cannot be accepted.

The 20th parallels 3 to 22th parallels shall be followed as follows:

Where an order for delivery is issued to a fishermen departing from Korea (3) (the act of issuing each order for delivery written by the plaintiffs listed in [Attachment 3 1 to 180].

(A) According to the above evidence, the head of ○○○ Tax Office imposed additional tax on the issuing of each shipment order listed in the separate sheet Nos. 3 Nos. 1 through 6 of the annexed sheet Nos. 2, 55, and 65 of the Plaintiff △△△△, the director of the tax office, upon the issuance of each shipment order listed in the annexed sheet Nos. 3, 7, and 16 of the annexed sheet No. 3, the Plaintiff △△, the director of the tax office, imposed additional tax on the issuing of each shipment order listed in the annexed sheet No. 1 through 17, the annexed sheet No. 3, 17, and 63, the director of the tax office, the director of the tax office, the director of the tax office, the head of ○○ Tax office, the director of the tax office, and the head of the tax office, the director of the tax office, the director of the tax office, upon the issuance of each shipment order listed in the annexed sheet Nos. 2, 64 through 1114, and 12, respectively.

(B) First, of the above imposition of additional tax, ① the portion exceeding the amount stated in the "justifiable tax amount" column in the separate sheet as stated in the separate sheet No. 2 No. 18 through No. 37 on Defendant ○○○ Tax Office’s imposition of additional tax on Defendant ○○○ Tax Office’s terms and conditions of the imposition of additional tax, ② the amount exceeding the amount stated in the separate sheet No. 2 No. 55,56 on Defendant ○○ Tax Office’s imposition of additional tax, and the separate sheet No. 57,65 on Defendant ○○ Tax Office’s imposition of additional tax as stated in the separate sheet No. 2, No. 66 through 89 on Defendant ○○ Tax Office’s terms and conditions of imposition of additional tax as stated in the separate sheet No. 114, the period of imposition of additional tax as stated in the separate sheet No. 2, No. 115, 116, 125, or each of the above imposition imposition of additional tax as stated in the separate sheet No. 141,2.

(C) On the following grounds: (a) Whether the Plaintiffs were insolvent with regard to the imposition of additional tax as stated in subparagraph 1(b) above; (b) Party A’s 12-3; (c) Party B’s 13 through 15-2’s respective statements; (d) Party B’s submission of each of the following circumstances, i.e., the Plaintiff’s presentation of the power of attorney and the delegated person’s identification cards with regard to the issuance of each order for delivery listed in [Attachment 3 List 2 through 6]; (e) Party B’s submission of additional tax to Party B’s 10-3; (c) Party B’s submission of each of the following documents, excluding the Plaintiffs’ issuance of each order for delivery from Party B’s 7-16; (d) Party B’s submission of additional tax to Party B’s 9-1; and (e) Party B’s issuance of each order for delivery of additional tax to Party B’s 7-10-16; and (e) Party B’s submission of each order for delivery.

The list of Forms 11, 23, 1-2, and 4 referred to in the attached Table 2 shall be placed in "attached Form 3", and the following details shall be added to the 8th page of the 23th page:

In full view of the overall purport of the arguments in the evidence No. 10-5, No. 17, No. 22, and No. 24, the following facts are found: (a) the issuance of the delivery order in the name of the deceased farmer as shown in the No. 3 List No. 182 through No. 192 by the Plaintiff Gyeongsung was made between March 4, 2009 and May 30, 2009 and June 3, 2009 to June 5, 2009; (b) the issuance of the delivery order in the name of the deceased farmer was made on January 2009; and (c) the imposition disposition of additional tax was made on March 1, 2009 and May 26, 2009; and thus, (c) the imposition disposition of additional tax was unlawful; and (d) the imposition disposition of additional tax was made on May 26, 2009.

The list of Forms 9, 24, 3, and 5 of the 23th page and 5 shall be placed in "attached Form 3", and the following shall be added to the 9th page of the 24th page:

In light of the overall purport of the arguments in the evidence No. 10-5, No. 16, 22, and 24 of Eul, it is true that the plaintiff Gyeongsung issued a shipment order to the fishing vessel under the mooring as shown in the No. 3 List No. 181 on March 24, 2009. However, the defendant △△ District Tax Office imposed a traffic, energy, environment tax, and education tax on January 2009 on the issuance of the shipment order. Since the traffic, energy, environment tax, and education tax on the issuance of the above shipment order are the period of attribution in March 2009, the above imposition disposition of additional tax is unlawful because it misleads the time of attribution (as the above evidence No. 9-5, No. 22, and No. 22, there is no problem that the imposition of additional tax is imposed on the period of attribution in January 2009).

The 24th parallels 11 to 20 shall be followed as follows:

In relation to the order of release issued under the name of the fishermen overseas among the imposition of additional taxes listed in the separate sheet No. 2, ① the portion exceeding the amount stated in the separate sheet No. 2, No. 18 through No. 54 on Defendant ○○○○ Tax Office’s imposition of additional taxes on the Plaintiff ○○○ Tax Office and the same list of imposition of additional taxes as stated in the separate sheet No. 2, No. 55, and No. 57, and No. 65 of the separate sheet of imposition of additional taxes on Defendant ○○ Tax Office’s Plaintiff ○○ Tax Office’s Plaintiff ○○ Tax Office’s Plaintiff ○○ Tax Office’s imposition of additional taxes, ③ the portion exceeding the amount stated in the separate sheet No. 2, No. 66 through 89 of the separate sheet of imposition of additional taxes on Defendant ○○ Tax Office’s Plaintiff ○○ Tax Office’s Plaintiff ○○ Tax Office’s imposition of additional taxes, or each imposition of additional taxes exceeding the amount stated in the separate sheet No. 1, No. 1516 or 1516.

(2) In the case of the imposition of additional tax as stated in the separate sheet No. 2, except for the imposition of additional tax as stated in the above Paragraph (1), it is reasonable to deem that the pertinent written order of delivery was issued due to the plaintiffs' insolvency in management.

3. Conclusion

Therefore, the claim against the director of the tax office of ○○ and the claim against the director of the tax office of ○○, which is based on the grounds set forth in the above recognition. The claim against the director of the tax office of ○○ within the scope set forth in the above recognition. The remaining claims against the director of the tax office of △△△, which is the plaintiff, △△△, against the director of the tax office of ○○ and against the director of the tax office of △△△△△, which is the plaintiff, and the remaining claims against the defendant of △△△△△, which is the plaintiff △△△, are all groundless. The judgment of the court of first instance partially differs from this conclusion, and the judgment of the court of first instance, including the changed claims