It is judged that it is not a wholesale business of alcoholic beverages but a sales business of alcoholic beverages.

Inasmuch as the criminal judgment became final and conclusive that only a large-scale alcoholic beverage distributor and retailer obtained revenue equivalent to the commission by mediating the act of selling alcoholic beverages in the course of the operation of the supermarket and that there was no operation of the alcoholic beverage wholesaler, the disposition of value-added tax imposed on the premise that the alcoholic beverage wholesaler was operated is illegal.

The contents of the decision shall be the same as attached.

Article 21 (Rectification of Value-Added Tax Act)

Article 69 (Method of Estimation and Revision)

1. On December 11, 2002, Defendant 1’s head of △△△ Tax Office confirms that each imposition of comprehensive income tax and each imposition of value-added tax on the Plaintiff is null and void.

2. Defendant Republic of Korea shall pay to the Plaintiff 13,401,340 won with 5% interest per annum from October 12, 2007 to December 19, 2008, and 20% interest per annum from the next day to the day of full payment.

3. The costs of lawsuit shall be borne by the Defendants.

4. Paragraph 2 can be provisionally executed.

same as the entry.

1. Circumstances of the disposition;

A. The Plaintiff is a person who operates Smarket in 137-1, Dong-dong, Do, △△-gu, △△△-si.

B. The director of ○○○○ Tax Office, around 2002, notified Defendant 1 to the head of △△△ Tax Office that the Plaintiff purchased non-material alcoholic beverages. As a result of the investigation into the Plaintiff from August 16, 200 to November 30, 202, the head of △△△△ Tax Office confirmed that the Plaintiff purchased non-material alcoholic beverages from ○○○ Co., Ltd. while operating the said Smarket, and then purchased non-material alcoholic beverages from ○○○○○, etc., 300, 197, 21(2)1 of the Value-Added Tax Act, 30, 197, 296, 39, 297, 296, 39, 197, 296, 396, 297, 197, 396, 197, 398, 294, 297, 397, 1985, 297

C. On the other hand, on December 26, 2002, the head of △△△ Tax Office notified the Plaintiff of the payment of the penalty amounting to KRW 133,401,340 under Article 8(1) of the Punishment of Tax Evaders Act, and Article 9(1) of the Procedure for the Punishment of Tax Evaders Act, as to the suspected charge that the Plaintiff sells alcoholic beverages without issuing a tax invoice, while running the sales business of unlicensed alcoholic beverages (hereinafter “instant notification disposition”), and the Plaintiff paid the amount equivalent to the penalty amount in accordance with the above notification disposition.

[Ground of recognition] Facts without dispute, Gap evidence 4, Eul evidence 1 to 9, Eul evidence 2-1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is null and void

A. The parties' assertion

1) Plaintiff’s principal

The Plaintiff’s disposition of this case by the head of △△ Tax Office, based on the premise that the Plaintiff, while operating the Smarket from around 1997 to around 2001, only obtained only a considerable amount of revenue from commission by mediating a transaction of alcoholic beverages between a large alcoholic beverage distributor and a retailer, without running the alcoholic beverage wholesale business. The instant disposition of this case by the head of △△△ Tax Office, based on the premise that the Plaintiff, while operating the alcoholic beverage wholesale business, obtained a considerable amount of revenue from the sales price, is

2) Defendant 1’s assertion

Even if the Plaintiff only mediated alcoholic beverage sales at the time and did not operate the alcoholic beverage wholesale business, Defendant △△ Head of the competent tax office, as a result of the Plaintiff’s tax investigation, shall operate the Plaintiff

1) According to Article 80(3) of the Income Tax Act and Article 80(3) of the Enforcement Decree of the same Act and Article 80(3)3 of the Enforcement Decree of the same Act, the pertinent disposition was taken in view of the determination of the amount of income by multiplying the amount of income by the standard income ratio. Thus, the Plaintiff’s assertion that the instant disposition is void automatically cannot be accepted, on the ground that its defect is objectively clear in the determination of an average public official with ordinary

(b) Related statutes;

Attached Form 2 shall be as shown in attached Form 2.

C. Determination

1) Facts of recognition

A) On May 9, 2005, the Plaintiff was indicted for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and a violation of the Punishment of Tax Evaders Act (Act No. 2005 53 on the Aggravated Punishment, etc. of Specific Crimes) on the grounds of the suspicion that the Plaintiff was evading taxes of KRW 9,027,94,98 in total due to the failure to pay and pay value-added tax and income tax from 1997 to 2001 by receiving non-data alcoholic beverages from liquor companies, including Do-dong, Seoul Special Metropolitan City, Do-dong, etc., and selling alcoholic beverages to retail stores, without entering the details of the purchase and sales in the account book.

B) On July 19, 2006, the court of first instance sentenced the plaintiff not guilty on the grounds of lack of evidence as to the above facts charged on the premise that the plaintiff operated the liquor wholesale business as an independent project undertaker and obtained income. The prosecutor appealed against this, but the ○ High Court dismissed the appeal as of June 7, 2007, No. 1559, and the Supreme Court dismissed the prosecutor's appeal as of October 11, 2007, and the above judgment became final and conclusive on the same day by dismissing the prosecutor's appeal as of October 2007.

[Ground of recognition] Facts without dispute, Gap evidence 7-1, 2, and 3-2, the purport of the whole pleadings

2) Determination

In a criminal trial, even if the facts are not bound by the fact-finding of the criminal trial, the facts established as the reason for the criminal trial, which became final and conclusive, are significant evidence. Thus, barring special circumstances where it is deemed difficult to adopt a criminal trial in light of other evidence submitted in the administrative trial, the facts inconsistent with this cannot be recognized (see, e.g., Supreme Court Decision 98Du10424, Nov. 26, 1999).

As seen earlier, the criminal judgment became final and conclusive that the Plaintiff, while operating Smarket from around 1997 to 2001, engaged in the sales of alcoholic beverages between a large alcoholic beverage distributor and a retail business operator, only obtained revenue equivalent to commission fees, and that there was no deficit in the sales business. There is no evidence to acknowledge that there is no special circumstance that it is difficult to adopt the above fact-finding with this court. Accordingly, the instant disposition imposing the sales tax based on the premise that the Plaintiff’s operation of the alcoholic beverage wholesale business was based on the sales price converted by multiplying the total profit ratio of the sales business type of alcoholic beverages by the total profit ratio of the sales business type of alcoholic beverages pursuant to Article 21(2)1 of the Value-Added Tax Act and Article 69(1)4 of the Enforcement Decree of the same Act is serious contrary to the principle of substantial taxation.

Furthermore, in light of the fact that ○○○○○, a public official belonging to the △△△ tax office, at the time of the tax investigation, cannot be deemed to have operated the liquor wholesale business in light of the size of the business facilities or the type of transaction (Evidence A 10), it is reasonable to view that the circumstance that the Plaintiff, at the time of the instant disposition, was sufficiently aware or could have sufficiently known, even based on the judgment of a public official with ordinary caution and interest, that the Plaintiff was engaged in the act of buying and selling alcoholic beverages, at the time of the instant disposition. Therefore, it is objectively apparent that the instant disposition is null and void because of its significant and apparent defect.

3. The amount equivalent to a fine paid according to a notification disposition shall be subject to a claim for restitution of unjust enrichment.

On December 26, 2002, Defendant 1, while operating the liquor wholesale business without a license, imposed the instant disposition on the charge of selling alcoholic beverages without issuing a tax invoice. The Plaintiff paid the amount equivalent to the above punishment pursuant to the above disposition. The Plaintiff was indicted as a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and a violation of the Punishment of Tax Evaders Act on May 9, 2005, but the court of first instance acquitted the Plaintiff for lack of evidence as to the above facts under the premise that the Plaintiff was operating the liquor wholesale business as an independent project proprietor, and the Plaintiff was not guilty for lack of evidence as to the above facts under the premise that the Plaintiff was able to obtain income by operating the liquor wholesale business. The appeal and appeal by the prosecutor were dismissed as of 2006No 15590, and the judgment became final and conclusive. Accordingly, the Plaintiff’s duty of notification on the premise that the Plaintiff operated the liquor wholesale business was material and white, and thus, the Plaintiff’s duty to return the Plaintiff’s unjust enrichment to the Plaintiff from 20130.

4. Conclusion

If so, the plaintiff's claim for interest case against the defendant is based on the reasoning, and it is judged the same as the order.