Busan District Court-2016-Gu Partnership-2084 ( December 01, 2017)

It may not be deemed that a tax invoice issued to an alcoholic beverage distributor is not issued even if the tax invoice is false or supplied to consumers.

It is reasonable to see that the supply of alcoholic beverages was made to the Plaintiff through the alcoholic beverage distributor on behalf of the alcoholic beverage buyers on the basis of special relationship with the alcoholic beverage buyers or on the transportation convenience. Therefore, it cannot be deemed that the tax invoice issued by the Plaintiff to the alcoholic beverage distributor is false or supplied to the consumers, even if the tax invoice issued by the Plaintiff to the alcoholic beverage distributor was not issued.

Article 15 of the Liquor Tax Act: Suspension of Sale of Liquor

2017Nu24844 Revocation of a disposition of suspension of license

○○○ Incorporated Company

Head of △ District Office

June 22, 2018

July 20, 2018

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s disposition suspending the Plaintiff’s license on February 22, 2016 is revoked for one month.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The reasoning for this part of this Court is as stated in the corresponding part of the reasoning of the judgment of the court of first instance. Thus, it is accepted by Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the necessary transfer principle has been violated.

The defendant can not bring an action in this case without going through the adjudication of the administrative appeal, and the plaintiff's decision on the administrative appeal has not been made even at the time of closing argument. Thus, according to Article 18 (2) 1 of the Administrative Litigation Act, if no adjudication has been made even after 60 days have passed from the date of filing a request for administrative appeal, a revocation lawsuit may be brought without going through the adjudication of the administrative appeal. As seen earlier, the fact that the plaintiff filed an appeal on February 2016 is the same, and as long as the decision has not been made even until the time of closing argument after the lapse of 60 days from the date of closing argument, the lawsuit in this case does not

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff supplied alcoholic beverages to BB distribution under a contract with BB distribution and the BB distribution sold them to the consumers. The Plaintiff only transported and delivers alcoholic beverages directly to the consumers according to convenience, not to sell alcoholic beverages to the consumers. Therefore, it cannot be deemed that the Plaintiff issued a false tax invoice to BB distribution and did not issue a tax invoice even if the Plaintiff supplied goods to the consumers.

(2) The grounds for the disposition of suspending a license under Article 15(1)4 of the Liquor Tax Act are premised on the fact that a licensee of alcoholic beverages violated the Punishment of Tax Evaders Act. The Plaintiff only supplied alcoholic beverages under a contract with BB distribution and issued a tax invoice, and did not have any intention to evade any awareness or tax that the Plaintiff issued a false tax invoice. Thus, there was no intention to violate the Punishment of Tax Evaders Act.

(3) Article 3(1) of the “Public Notice of Delegation of Order Concerning the Transfer of Alcoholic Beverages” provides that a manufacturer of alcoholic beverages shall deliver alcoholic beverages only to a person who has received a certificate of alcoholic beverage sales license. As seen above, the Plaintiff cannot be deemed to have delivered alcoholic beverages to consumers. As such, the Plaintiff cannot be deemed to have violated the instant public notice, and even if the Plaintiff violated the said public notice, a disposition of suspension of license cannot be taken on the ground of such reason.

(4) Since the Plaintiff’s interest infringed by the instant disposition is too large, the instant disposition is an illegal disposition that deviates from and abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) First, we examine whether the Plaintiff issued a false tax invoice as if the Plaintiff directly sold alcoholic beverages to consumers other than BB distribution, and issued a false tax invoice to BB distribution as if it had been shipped out of alcoholic beverages, and whether the Plaintiff did not issue a tax invoice to consumers.

(A) In addition to the respective descriptions of Nos. 1, 11, 18, and 21 of the aforementioned evidence and the overall purport of the pleading, the following facts are recognized:

① Article 4 of the Agreement on the Supply of Alcoholic Beverages between the Plaintiff and the BB Distribution provides that “A (the Plaintiff refers to “B distribution; hereinafter the same shall apply) shall supply B products to B (BB distribution; hereinafter the same shall apply) at the producer’s shipment price. B shall freely determine the sales price of the products A to the extent that it does not go against normal commercial practices.” Meanwhile, Article 5(1)4 provides that “A may request B to cooperate in advertising and sales promotion activities to improve the image of the products.”

② At each time the instant specialty event is held, the Plaintiff sent a letter of cooperation to BB distribution to reduce sales prices or request cooperation in the issuance of receipts, such as tax invoices, by requesting cooperation from BB distribution. On the other hand, the Plaintiff informed its affiliate companies or partner companies of the fact of holding a pre-sale order, and requested BB distribution to proceed with specific alcoholic beverage sales procedures, such as issuance of receipts based on the details of the order. BB distribution omitted a usual liquor storage or inspection procedure, which is processed by the Plaintiff’s direct execution of the delivery of alcoholic beverages to the buyers of the pre-sale event, and issued a tax invoice by designating individual buyers as the supplier of the pre-sale order.

③ The Plaintiff’s employee in charge of alcoholic beverage sales received a credit card from an affiliated company or a partner company to make payments on behalf of the Plaintiff at the trading point of BB distribution or to receive cash payments from BB distribution. The Plaintiff stated that the Plaintiff’s employee in charge of alcoholic beverage supply and receipt was included in BB distribution even in the order form used by the Plaintiff to notify the affiliated company or partner company of the special event of alcoholic beverage sales.

④ From 2013 to 2014, BB distribution supplied alcoholic beverages equivalent to the Plaintiff’s total amount of KRW 406,252,000 from the Plaintiff’s Busan store in accordance with the Plaintiff’s special sales event, and sold them to consumers KRW 432,784,00 in total, thereby gaining profits from KRW 26,532,00.

(B) Article 9(1) of the Value-Added Tax Act provides that "the supply of goods, which are taxable subject to value-added tax, shall be delivered or transferred on the basis of all contractual or legal grounds."

On the other hand, since a contract does not necessarily have to take the form of a document, a contract is concluded only with implied or oral intent on essential matters or important matters, as the contract is concluded. However, under the premise that BB distribution is supplied alcoholic beverages from the Plaintiff (as to the supply price, the producer price is already stated in the transaction agreement). However, according to the Plaintiff’s express exercise intent, the Plaintiff’s application of discount price requested by the Plaintiff in selling them to consumers, and the fact that specific procedures necessary for the sale of alcoholic beverages, such as the issuance of tax invoices, are carried out in accordance with the order provided by the Plaintiff. Accordingly, it is sufficient to view that there was an implied or oral alcoholic beverage supply agreement between the Plaintiff and BB distribution.

In addition, as part of the Plaintiff’s advertising and sales promotional activities for the products, the Plaintiff could not engage in sales promotional activities like BB sales promotional activities without going through the Plaintiff’s affiliate or partner company. In addition, the Plaintiff may enjoy profits from the Plaintiff’s active advertising and sales promotional activities in favor of competition. On the other hand, BB distribution may gain profits from increasing sales by taking advantage of the Plaintiff’s active advertising and sales promotional activities, and thus, the interest between the Plaintiff and BB distribution conflicts with each other (Article 5(1)4 of the transaction agreement) (the Plaintiff’s duty to cooperate in BB distribution promotion activities for the Plaintiff’s advertising and sales promotional activities is stipulated in Article 5(1)4 of the transaction agreement). Moreover, the Plaintiff is unable to sell alcoholic beverages directly to consumers due to the regulation of related Acts and subordinate statutes, such as the Liquor Tax Act, without going through a seller of alcoholic beverages such as BB distribution, and the Plaintiff cannot be seen as having been able to receive the Plaintiff’s disguised distribution order from the Plaintiff’s affiliate or partner company, and received the disguised distribution trading process from B B.

Comprehensively taking account of these circumstances, it is reasonable to deem that the Plaintiff only engaged in the act of factually receiving orders and delivering orders in lieu of BB distribution on the basis of the special relationship with the alcoholic beverage buyers or the transportation convenience, and that the supply of alcoholic beverages was made to the Plaintiff through BB distribution. Therefore, it cannot be deemed that the Plaintiff did not issue a tax invoice even if the tax invoice issued to BB distribution was false or supplied to the consumers.

(2) Therefore, the instant disposition is unlawful without further examining the remainder of the Plaintiff’s assertion.

4. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed.