Asian Aviation Co., Ltd. (Law Firm Sejong, Attorneys Kim Hyun-jin et al., Counsel for the plaintiff-appellant)

Head of Daegu Customs Office (Law Firm LLC, Attorneys Kang Hun-gu, Counsel for defendant-appellant)

August 21, 2015

Daegu District Court Decision 2014Guhap21686 Decided January 30, 2015

1. The defendant's appeal is dismissed.

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

1. Claim: The Defendant’s imposition of penalty tax of KRW 334,581,380 and penalty tax of KRW 723,075,120 against the Plaintiff on June 27, 2013 shall be revoked, respectively.

2. Purport of appeal: Revocation of the judgment of the first instance. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation of this case is as follows: (a) the term "not later than the date immediately preceding" in the judgment of the court of first instance shall be read as "not later than the date immediately preceding"; (b) the term "1/100" in the second half shall be read as "1/100"; and (c) the defendant's assertion that the defendant emphasizes again in the trial of the court of first instance shall be the same as the reasons for the judgment of the court of first instance except for adding the judgment as described in the following (2). Therefore, it shall be cited as it is in accordance with Article 8(2) of the Administrative Litigation Act

2. Additional determination

A. The defendant's assertion

1) The Plaintiff filed an application for conventional tariff application with an autonomous certificate of origin issued by LHT, which is not in the position of an approved exporter, stating a wrong country of origin-certified exporter number, and thus was subject to conventional tariff application. This violates the duty to cooperate under the Korea-EU FTA, the former Act on Special Cases concerning Free Trade Agreements, and the Customs Act. As a result, the Plaintiff was unfairly exempted from the duty to cooperate in the application of conventional tariffs, and thus, the Plaintiff faithfully fulfilled the duty to report and pay value-added taxes, and such breach of duty is not extinguished or cured by the Plaintiff having filed an application for reduction or exemption under the Customs Act

2) Since the principal tax and the additional tax are different from the taxation requirements and are separately imposed with different legal nature, insofar as additional tax is not applied for separate reduction or exemption, the penalty tax is not naturally reduced or exempted on the ground that the principal tax has been reduced or exempted.

B. Determination

1) As to the first argument

Article 112 of the former Enforcement Decree of the Customs Act provides for the procedures, etc. for application for reduction of or exemption from customs duties, and Article 112(1) provides for “the method of submitting an application for reduction or exemption prior to the acceptance of an import declaration,” but Article 112(2) provides for “in cases where customs duties are collected pursuant to Article 39(2)(i) of the Customs Act, notwithstanding paragraph (1), the relevant payment notice may be submitted within five days from the date of receipt of the relevant payment notice, and in cases where an application for reduction or exemption is not submitted within five days from the date of acceptance of the import declaration, respectively, within 15 days from

However, even if LHT is not an approved exporter subject to conventional tariffs under the Korea-EU FTA, the Plaintiff applied for conventional tariffs for import of the disputed goods, but received notice of import verification result, customs duties, value-added taxes, and additional taxes from the Defendant, as stated in the reasoning of the judgment of the first instance court cited by the Defendant. However, in accordance with Article 112(2)1 of the former Enforcement Decree of the former Enforcement Decree of the Customs Act, within five days from the date the Plaintiff received the above notice of imposition according to the Defendant’s investigation, the Plaintiff made an application for reduction, exemption, and application for refund (application for reduction, exemption, etc. on the principal tax of customs duties) based on Article 89(1)15 of the former Enforcement Decree of the Customs Act as to the principal tax of customs duties, based on Article 12(2)15 of the former Enforcement Decree of the Value-Added Tax Act (application for reduction, exemption, etc. on the main tax of customs duties, etc.) and the Defendant also received the full reduction of customs duties and principal tax pursuant to the above provision.

Therefore, the plaintiff did not perform his duty with respect to the duty to report and pay reduced or exempted customs duties and value-added tax as above. Thus, the defendant's above assertion is without merit.

2) As to the second argument

In addition, while separate imposition of principal tax and additional tax are different in their legal nature, the issue of how to calculate and impose individual penalty tax in relation to the principal tax (e.g., in a case where there is no calculated or paid tax amount of principal tax, etc.) as stated in the reasoning of the judgment of the court of first instance cited by the court of first instance is the issue that should be determined according to the specific provisions of relevant applicable law of the penalty (see Supreme Court Decision 2005Du12725, Mar. 15, 2007, etc.).

However, Article 42(1) of the former Customs Act provides that “When the head of a customs office collects a shortage of customs duties pursuant to Article 38-3(1) or (4), he/she shall collect the aggregate of the following amounts as an additional tax: “10/100 of the shortage of customs duties” (Article 47-4(1)1) and “the relevant shortage of customs duties 】 the period from the day following the original due date for payment to the date of filing a revised return or the date of the duty payment notice 】 a certain interest rate (Article 47-3(1)2 of the former Framework Act on National Taxes (Article 47-3(1) of the former Framework Act on National Taxes).” Article 47-3(1)2 of the same Act provides that “where a taxpayer files a return on the tax base of a national tax under tax-related Acts by the statutory due date for filing a return, the amount equivalent to 10/100 of the underreported amount of the tax payable and the amount of the excess duty shall be the additional tax.”

In this case, as seen earlier, it is reasonable to view that there is no shortage of customs duties and value-added taxes due to the Defendant’s lawful ex post facto application for reduction or exemption of customs duties and value-added taxes on the goods at issue, and thus, the penalty tax under Article 42(1) of the former Customs Act and Articles 47-3(1)2 and 47-4(1)1 of the former Framework Act on National Taxes, which are calculated based on the amount of tax payable, do not exist regardless of whether the penalty tax has been separately applied for tax reduction or exemption.

Therefore, the defendant's above assertion is without merit.

3. Conclusion

Therefore, all of the plaintiff's claims are justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges, public officials (Presiding Judge) will be appointed in the future;