Changwon District Court 2015-Gu Joint-23611 ( November 28, 2018)

Whether the duty-free oil has been actually distributed or not is not included in the requirements for the imposition of penalty tax.

Since the instant disposition cannot be deemed to constitute a case where efforts have been made to prevent the illegal distribution of tax-free oil substantially, the instant disposition is legitimate.

Paragraph (11) 2, such as reduction or exemption of agriculture, forestry, etc. under Article 106-2 of the Restriction of Special Taxation Act

(C)The revocation of the disposition imposing value-added tax, etc.

AAAA Association, other than 5

CC Head of the tax office, DD Head of the tax office, EE Head of the tax office

Busan District Court 2017Guhap2128

March 20, 2019

April 17, 2019

1. All appeals filed by the plaintiffs are dismissed.

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

1. Purport of claim

The disposition imposing additional tax as stated in the attached Table 1 that the Defendants issued against the Plaintiffs shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The disposition imposing additional tax as stated in the attached Form that the Defendants made against the Plaintiffs is revoked.

1. Quotation of judgment of the first instance;

The reasoning of this court's explanation on this case is as stated in the reasoning of the judgment of the first instance except for adding the judgment on the matters alleged by the plaintiffs, which are emphasized by the plaintiffs in the trial, as stated in Paragraph (2). Thus, the grounds of appeal by the plaintiffs are accepted pursuant to Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (the grounds of appeal by the plaintiffs are not significantly different from the allegations in the first instance court, and the fact-finding and judgment of the first instance

2. Additional determination

A. The plaintiffs' assertion

The plaintiff AAAAA, BBB, and each "Plaintiff BB BB union" (hereinafter referred to as "Plaintiff AAAC"), asserts to the purport that the additional tax imposition disposition should be revoked on the grounds that the Defendants issued the order of release in the name of the fishermen departing from the Republic of Korea, among the additional tax imposition disposition imposed on the plaintiff AAAC and BB union, on the part of the fishermen's power of attorney and copy of the identity card of the person who left the Republic of Korea from the Republic of Korea and his/her mandatory, and documents confirming the recent fisheries.

B. Determination

On the other hand, Article 18 of the former Guidelines for Supply Management exceptionally allows the delegation of the authority to take over duty-free petroleum in extenuating circumstances. Accordingly, Article 23 of the former Guidelines for Business provides that the reason why fishermen may delegate the authority to take over duty-free petroleum and the scope of the mandatory holder shall be restricted. Article 35(2) and (6) of the same Guidelines provides that when an association, which is a management agency of duty-free petroleum, issues a notice of shipment to the mandatory holder, it shall confirm the power of delegation (not less than three months for the delegation period) or family relation certificate, and attach a copy of the identification card of the delegated person to the back of the notice of shipment. Article 35(3) of the same Guidelines provides that when the association supplies duty-free petroleum to fishermen, it shall be required to submit a certificate of perjury or a certificate of trade in fishery products, or a certificate of vessel entry and departure report confirming the fact of fisheries to prevent illegal outflow.

Examining each of the above former supply management guidelines and the contents and purport of the former business guidelines, it is deemed that the association, a management agency of tax-free petroleum, received and kept the above documents including delegated documents when issuing a written order for shipment to a mandatary, is the minimum procedure corresponding to the management of tax-free petroleum to prevent illegal distribution to persons other than fishermen. Therefore, if a cooperative issues a written order for shipment in the name of a fisherman who left Korea from the Republic of Korea, whether the cooperative has failed to manage the tax-free petroleum shall be determined only in the form of "whether the cooperative keeps the delegated documents, etc. prescribed in the former business guidelines" rather than by "whether the cooperative keeps the documents, etc. related to the delegation." Thus, whether the association directly prepares the power of attorney, whether the authorized person is a person with the status prescribed in Article 23 subparagraph 3 of the former business guidelines, whether the authorized person has been recognized as having been actually engaged in preventing illegal distribution of tax-free petroleum."

In light of the above legal principles, we examine the case back to the case.

The power of attorney of some fishermen and a copy of the authorized person's identity as asserted by this person.

Even if the circumstances in custody are acknowledged, considering the following facts and circumstances acknowledged by adding the whole purport of the arguments to the respective statements in Gap evidence Nos. 7, 13 through 16 (including the number of pages), Eul evidence Nos. 6 and 7, it is reasonable to view that the plaintiff AAAB and the BB cooperation issued the delivery order without thoroughly verifying the existence of delegation relationship and recent fishery facts when issuing the delivery order under the name of the fishermen departing from the Republic of Korea. However, it is determined that they issued the delivery order without thoroughly verifying necessary evidentiary documents, such as the proxy or the mandatory identification card, operation certificate, etc., so it cannot be deemed that "the case where the plaintiff made every effort to prevent illegal distribution of exempted oil," and therefore, it is reasonable to deem that there was a lack of management in issuing the delivery order.

① Although the proviso to Article 35(2) of the former Guidelines for Business shall be presented within a maximum of three months, Plaintiff AAAC, BBC issued a shipment order to the mandatary who submitted a power of attorney that is not written at all on the date of preparation and attached identification cards, as seen in the power of attorney and attached identification cards, and it also issued a shipment order to the mandatary even in cases where it is possible for the mandatary to confirm that the status of the mandatary is not equivalent to that of Article 23(3) of the former Guidelines for Business by itself, because the power of attorney is written in the same person, as he/she finds in the power of attorney and attached identification cards.

② The proviso to Article 35(2) of the former Business Guidelines requires that a copy of the delegated person’s identification card be attached to the back of the “written order for delivery for urgent submission.” The written order for delivery is that the name and signature of the person to whom the receipt was confirmed be stated, and it can be confirmed whether the tax-free petroleum supplied in accordance with the written order for delivery is delivered to anyone in fact. However, even if the mandatory submits a copy of the identification card, it is impossible to confirm whether the mandatory has actually received the tax-free petroleum (i.e., the written order for delivery issued by the Plaintiff AAAAC and BBCC, without submitting the written order for delivery accompanied by the copy of the identification card, even if the mandatory submitted the copy of the identification card (i.e., the evidence No. 7-1 and 6).

It does not seem impossible to submit it).

③ Plaintiff AAAC and BBC have failed to submit particular data despite the Defendants’ request for verification data, and they submitted some delegations, copies of identification cards, etc. only after the lapse of two years from the date of the inspection of actual status of tax-free oil management (round September 2013) by the National Tax Service and from August 25, 2017, which was two years from the date of the instant lawsuit (round October 24, 2014). Moreover, as seen in the delegations and attachment certificates, some identification cards submitted were issued after the date of preparation of delegations or the date of additional tax imposition. Thus, it may be reasonable to deem that the delegations and copies of identification cards were retroactively written.

: Proxy and appended identification card - - Omitted

(4) When a cooperative issues a written order for shipment, it shall verify the fishermen's possession of vessels, etc. and their recent operation (including whether fishing operations) and specify the relevant vessels at the time of issuance of the written order for shipment, and obtain documents (such as a certificate of perjury or a certificate of confirmation of trade of fishery products or a report of entry into and departure from vessels, etc. which can prove the fact of sale of fishery products) to be submitted (Article 106-2(3) and (4) of the former Restriction of Special Taxation Act, Article 20(2) of the former Special Provisions, Article 15 of the former Rules of Supply Management, and Article 35(3) of the former Rules of Business. However, documents of the title "verification of whether or not fishing operations are conducted" attached to the documents related to delegation of overseas fishermen submitted by the Plaintiff AA cooperative and BB cooperative [including separate number Nos. 15 and 16 of the former Rules of Supply Management] are not written confirmation of whether fishing operations have been conducted or not at the time of issuance of the written order for shipment by the Plaintiff BA.

3. Conclusion

Therefore, the judgment of the first instance court is just and it is dismissed as the plaintiffs' appeal is without merit.

(2) The decision is delivered with the assent of all Justices.