Changwon District Court 2014Guhap357 (No. 18, 2014)

The individual consumption tax borne by petroleum manufacturers in purchasing exempted oil is included in necessary expenses.

It is reasonable to view that individual consumption tax, etc. corresponding to the refund of this case borne by the Plaintiff, etc. while purchasing tax-free oil from petroleum manufacturers is included in necessary expenses pursuant to Article 55 subparagraph 1 of the Enforcement Decree

Article 55 of the Enforcement Decree of Income Tax Act

(C)The revocation of the disposition of revocation of a corrective leave 2014Nu1178

The two AA

1. The director of the Suwon Tax Office; and

Changwon District Court Decision 2014Guhap357 Decided July 18, 2014

May 13, 2015

June 10, 2015

1. Revocation of a judgment of the first instance;

2. On June 4, 2013, the head of the tax office’s disposition of correction or provisional payment for OOO and additional tax OOOO on the amount of global income tax paid in 2010 and 2011 is revoked.

3. The head of the Suwon Tax Office’s decision on September 3, 2013 that was made to the largest BB of the designated parties on September 3, 2013 is revoked all the corrective and provisional disposition on the OOO won and additional tax that was paid for the global income tax return in 2010.

4. The total costs of the lawsuit shall be borne by the Defendants.

same as the entry.

1. Details of the disposition;

A. The Plaintiff (designated parties; hereinafter referred to as “Plaintiffs”) and the Selection BB (hereinafter referred to as “PB”) are limited to “Plaintiffs, etc.”, and when the Plaintiff and the lowest BB together exist, the Plaintiff, etc. (hereinafter referred to as “Plaintiffs, etc.”) operate oil wholesale and retail business, such as duty-free oil, under the trade name of “OOOIC oil station” in OO-Eup, and the Plaintiff, etc. were joint operators of 50% shares by 2010, respectively, and the Plaintiff is a sole operator from 2011.

B. According to the Busan Regional Tax Office’s audit and inspection records of the Board of Audit and Inspection, the Defendants notified the Plaintiff, etc. of the fact that the Plaintiff, etc., sold tax-free oil in 2010 and 201, and the total amount of the individual consumption tax, traffic, energy, environment tax, education tax, and driving tax (hereinafter “the individual consumption tax, etc.”) refunded to the Plaintiff, etc. (hereinafter “the instant refund”) did not add it to the tax base of global income tax in 2010 and 2011, and reported the return of the amount of the refund to the Plaintiff, etc., and the Plaintiff, etc., reported the return of the return of the return of the amount of the refund to the Plaintiff, etc. on March 22, 2013, adding it to the total amount of income in 2010 and 2011.

C. On May 31, 2013, the Plaintiff filed a request for correction against the head of the tax office of Suwon for the total amount of OOO and additional tax paid for global income tax in 2010, OOO and additional tax OOO, OOO and additional tax paid for global income tax in 2011, and BB filed a request for correction against the head of the tax office of Suwon Tax on July 11, 2013 for the total amount of OOO and additional tax paid for global income tax in 2010.

D. On June 4, 2013, the director of the tax office of the defendant Kim Young-sea stated that the Plaintiff, etc., and the director of the tax office of the Suwon-si, on September 3, 2013, the director of the tax office, issued a provisional corrective disposition (hereinafter collectively referred to as the “instant disposition”). The reason is that the Plaintiff, etc., should deduct the instant refund from the necessary expenses (sales cost) in 2010 and 2011, without reflecting it, filed an under-reported comprehensive income tax without reflecting it.

E. The Plaintiff et al. appealed for a trial to the Tax Tribunal, but the claims were all dismissed on November 27, 2013.

Facts that there is no dispute over recognition, Gap evidence 1-1 through 6, Gap evidence 2-1, 2-2, Gap evidence 7-1, 2, and Eul evidence 1, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

Article 26 (10) of the Income Tax Act provides that "the amount of tax refunded to a petroleum retailer pursuant to Article 106-2 (2) of the Restriction of Special Taxation Act shall not be included in the total amount of income when calculating the amount of income in the relevant taxable period." Furthermore, the plaintiff, etc. falls under the public opinion, and the plaintiff, etc. provided tax-free oil to farmers, fishermen, etc., and the amount of tax reduced or exempted directly refunded by the person liable to notify the income tax return by the National Tax Service, trust the explanation, and accordingly, reported

Nevertheless, the Defendants notified the Plaintiff, etc. of the instant refund money to be included in the global income tax base in 2010 and 201, based on the established rule that the amount of tax-free oil reduced or exempted shall not be included in gross income and necessary expenses, and the Plaintiff, etc. paid the instant revised return without any need to be included in the global income tax base in 2010 and 201.

Unless there is a cause attributable to the Plaintiff, etc. in the revised report of this case, the revised report of this case should be corrected in accordance with the above laws and regulations, but the refusal by the Defendants violates the principle of no taxation without law and the principle of good faith, which is the large principle of national tax imposition. Therefore, the disposition of this case

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 24 of the former Income Tax Act (amended by Act No. 12153, Jan. 1, 2014; hereinafter the same) provides that "the total amount of income of a resident shall be the sum of the amounts received or received in the pertinent taxable period." Article 27 provides that "the necessary matters concerning the scope and calculation of the total amount of income shall be prescribed by Presidential Decree." Article 27 provides that "the amount to be included in the necessary expenses in calculating the business income shall be the sum of expenses corresponding to the total amount of income in the pertinent taxable period, which is generally accepted, and Article 33 provides that the amount that is not included in the necessary expenses in calculating the

On the other hand, the Enforcement Decree of the Income Tax Act specifically prescribes the scope and calculation of total revenue and necessary expenses in Articles 51 through 114.

In full view of the structure and contents of the relevant provisions of the former Income Tax Act, it is reasonable to view that business income, which is the tax base of income tax for a business operator, shall be calculated by deducting necessary expenses from the total amount of income calculated under the former Income Tax Act and the Enforcement Decree of the Income Tax Act, and that the necessary expenses to be deducted shall not be explicitly included in necessary expenses under Article 33 of the former Income Tax Act, which

2) In addition, Article 51 subparag. 3 of the Enforcement Decree of the Income Tax Act provides that the returned amount of tax, such as a customs refund, shall be included in the total amount of income when calculating the total amount of income generated from business. Thus, in cases where a petroleum retailer supplies petroleum to farmers, fishermen, etc. pursuant to Article 106-2 of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 201) and receives a reduction or exemption of individual consumption tax, etc., it shall be included in the total amount of income pursuant to the same provision, but the amount of tax refunded by a petroleum retailer pursuant to Article 26 of the former Income Tax Act Article 106-2(2) of the Restriction of Special Taxation Act shall not be included in the total amount of income when calculating the amount

Meanwhile, Article 55 of the Enforcement Decree of the Income Tax Act provides that the purchase price of the raw materials for the goods sold and the incidental expenses (subparagraph 1), and taxes and public charges related to the business (subparagraph 8) shall be included in necessary expenses. The individual consumption tax, etc. borne by a petroleum retailer in the course of purchasing a duty-free petroleum from a petroleum retailer shall be included in necessary expenses pursuant to subparagraph 1, if the petroleum retailer accounts for it including the purchase price, and the individual consumption tax, etc. borne by the petroleum retailer in the course of accounting, shall be included in necessary expenses pursuant to subparagraph 8, and the individual consumption tax, etc

3) The fact that the plaintiff et al. purchased tax-free oil from petroleum manufacturers and dealt with accounting including individual consumption tax, etc. corresponding to the refund of this case including the sales cost can be acknowledged by each entry of evidence Nos. 3, 4, and 5. In light of the above relevant provisions, it is reasonable to deem that individual consumption tax, etc. corresponding to the refund of this case borne by the plaintiff et al. in the course of purchasing tax-free oil from petroleum manufacturers should be included in necessary expenses pursuant to Article 5 subparagraph 1 of the Enforcement Decree of the Income Tax Act (the necessary expenses prescribed in the above provision are listed as examples of necessary expenses recognized under Article 27 of the former Income Tax Act, and therefore, the requirement of "generally accepted expenses" is naturally satisfied.

Therefore, the Plaintiff, etc. did not include the instant refund in the gross income in 2010 and 2011, but included the individual consumption tax, etc. corresponding to the instant refund in the necessary expenses in 2010 and 2011, and the return and payment of the comprehensive income tax in 2010 and 2011 is lawful in accordance with the relevant provisions.

Therefore, according to the Defendants’ notice of revised return, the instant refund amount was added to the gross income in 2010 and 2011, and the instant revised return and payment of the Plaintiff, etc., who filed the comprehensive income tax is unlawful. Ultimately, the Defendants’ disposition rejecting the request for correction against the illegal revised return of the Plaintiff, etc. is unlawful (as long as the instant disposition is deemed unlawful as it is deemed unlawful, the Plaintiff’s assertion of violation of the principle of trust and good faith is not separately determined).

3. Conclusion

Therefore, the claim of the plaintiff et al. shall be accepted in its reasoning, and the judgment of the court of first instance which differs from this conclusion shall be revoked, and all of the dispositions of this case shall be revoked, and it shall be so decided as per Disposition.