2011Nu397 Revocation of Disposition Rejecting Tax Refund

A

Law Firm 000,000

Attorney 000

Head of Namgu Tax Office

Litigation performers 000

Daegu District Court Decision 2010Guhap858 Decided January 19, 201

May 27, 2011

oly 22, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's disposition rejecting the refund of value-added tax against the plaintiff on April 24, 2009 is revoked. 2. purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff purchased and exported used cars under the trade name of 100, and from January 2009 to February 2, 2009, purchased 45 cars from B and 28 and exported them to foreign countries. The Plaintiff filed an early refund return of value-added tax on KRW 19,597,688, and value-added tax on KRW 31,193,263, 50, 50,790, and 951, respectively, on January 1, 2009, all of the exported cars constituted “used goods” under Article 108 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010).

B. On April 24, 2009, the Defendant: (a) on the 45 vehicles of the above 45 vehicles, the 29 vehicles (hereinafter referred to as “the instant vehicles”) were not purchased from individuals; (b) on the 37,547,342 won of the waste resources input tax for the instant automatic vehicles, deeming that the Plaintiff purchased new vehicles from the automatic manufacturers and exported them; and (c) excluded the Plaintiff from the special case of deduction of the value-added tax amount on waste resources, etc. under the Restriction of Special Taxation Act; (d) on the 50,790,951 won of the value-added tax refund tax amount requested by the Plaintiff, the Defendant decided to refund only 13,243,609 won among the 50,790,951 won, and rejected the application for refund for the 37,547

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on May 25, 2009, but was dismissed on December 16, 2009.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 1, Eul evidence 1, 3, 8, 9 (each number);

Each entry, including number, hereinafter the same shall apply) of the whole

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The instant automobiles constitute used cars clearly in accordance with the detailed rules of the used cars defined as used cars for the purpose of subparagraph 5 of Article 2 of the former Automobile Management Act (amended by Act No. 5104, Dec. 29, 1995; hereinafter referred to as the “former Automobile Management Act”) and Rule 108-10 (4) 2 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010) and constitutes used cars. Thus, the instant automobiles constitute special examples of deduction of the input tax amount for recycled waste resources, etc. under Article 108 (1) of the former Restriction of Special Taxation Act and Article 110 (4) 2 of the former Enforcement Decree of the Restriction of Special Taxation Act.

(B) Accordingly, the disposition of this case by the Defendant should be revoked in an unlawful manner.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

(1) The Plaintiff, a relative, B, and 28 persons (hereinafter referred to as “B, etc.”) entered into a sales contract with the automobile manufacturer company on his personal name, made the automobile price by the personal card, and transferred the vehicle price directly to the card company and the automobile manufacturer on the date of shipment (the same person as the settlement date).

(2) The instant automobiles were delivered to the Plaintiff before the first registrant B, etc. was actually delivered and exported, and were cancelled on the day or within three days after the initial registration of the vehicle.

(3) On April 17, 2009, at the time of the Defendant’s tax investigation, the Plaintiff asked the Plaintiff to purchase the instant automatic vehicles from the automobile manufacturer company, and then again took the form of purchasing the instant automobile as a used vehicle for hearing the instant vehicles from B, etc., and then, on January 2009 and February 2, 2009, prepared a confirmation document that the value-added tax was deducted from the waste resources input tax amount, and submitted it to the tax non-resident.

(4) The history of the relevant laws and regulations relating to the crime of recycled waste resources and used goods subject to deduction of input tax amount related to value-added tax is as follows.

- Article 58-2 (3) 8 of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 13804 of Dec. 31, 1992): Paragraph 3 (8) of Article 58-2 of the Automobile Management Act for the first time provision

- Automobile Management Act (wholly amended by Act No. 5104 of Dec. 29, 1995): The definition of "motor vehicles" under Article 2 subparagraph 5 of the former Automobile Management Act is deleted.

Article 110 (4) 8 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17034 of Dec. 29, 2000): Change from the used cars under the former Automobile Management Act to the automobile under the Automobile Management Act (limited to used cars).

- Used cars among the motor vehicles under the Automobile Management Act (amended by Presidential Decree No. 22037, Feb. 18, 2010): Article 110(4)2 of the Enforcement Decree of the Restriction of Special Taxation Act: Used cars among the motor vehicles under the Motor Vehicle Management Act: Provided, That where used cars are shipped into and out of used cars, the period from the date of manufacture indicated in the register of motor vehicles under Article 8 of the Decree on the Registration of Motor Vehicles to the date of export declaration stated in the registration of motor vehicles to the date of import declaration under Article 32 of the same Decree is less than one year,

[Reasons for Recognition] Facts without dispute, Eul's entry in the evidence Nos. 2, 4.5.6, 7 and the purport of the whole pleadings

D. Determination

(1) The purport of the system that deducts the constructive purchase tax amount of recycled waste resources, including recycled waste resources, from the output tax amount under Article 108 of the former Restriction of Special Taxation Act is to facilitate the collection of recyclable resources and used goods, facilitate recycling, and promote environmental conservation by deducting a certain amount of the purchase price in the case where an entrepreneur collects and sells recyclable resources and used goods from simplified taxable persons or general public who cannot issue a tax invoice by deducting a certain amount of the purchase price from the input tax amount. Under the principle of no taxation without law, the tax law should be strictly interpreted even if it is a provision on the requirements for tax reduction or exemption (see, e.g., Supreme Court Decisions 907Du97, Jul. 9, 1991; 98Du1512, Feb. 23, 2001).

(2) As seen earlier, Article 2 subparag. 5 of the former Automobile Management Act provides that "the term "motor vehicle" means a motor vehicle from a person who manufactured, assembled, or imported a motor vehicle to the time it is practically impossible to maintain its performance from the time of its acquisition by legal act or provisions of law." However, as the Automobile Management Act was amended by Act No. 5104 on December 29, 1995, the part concerning the definition of the used motor vehicle was deleted. Therefore, unless the meaning of "motor vehicle" is separately provided at the time of the Plaintiff's declaration of value-added tax and under the current Automobile Management Act, the issue of whether the term "motor vehicle" constitutes a "motor vehicle" subject to deduction of the constructive purchase tax amount under the former Act on Special Cases concerning the Taxation of Taxes should be determined individually and strictly in consideration of the purpose of the aforementioned system, and it cannot be deemed that it constitutes a "motor vehicle" subject to deduction of the immediate constructive purchase tax from the time of acquisition by a motor vehicle manufacturer only under the former Automobile Management Act.

(3) In light of the amendment process and contents of the above related Acts and subordinate statutes, it seems that the current Enforcement Decree of the Act on the Regulation of Reduction and Exemption of Taxes and the Enforcement Decree of the Restriction of Special Taxation provide that the benefit of the special taxation system on the deduction of input tax amount for recycled waste resources, etc. as stipulated in Article 108 of the Restriction of Special Taxation Act should be seen as the time when a person who manufactured, assembled, or imported a vehicle acquires an automobile from a person who manufactured, assembled, or imported a vehicle," which violates the original purpose of the above system, the Act on the Regulation of Special Taxation and the Restriction of Special Taxation provides that the method of immediate purchase by mediating another person for the purpose of deducting the constructive purchase tax amount under the Restriction of Special Taxation Act, even if the person actually purchases the automobile purchased from the automobile manufacturer before using it.

(4) In the instant case, while exporting new vehicles to the instant vehicles purchased and exported by the Plaintiff while carrying them in form, it goes against the purport of the aforementioned special scheme for the deduction of the input tax amount of value-added tax on recycled waste resources, etc., and thus, the instant automobiles purchased and exported by the Plaintiff do not constitute a "motor vehicle" under the former Restriction of Special Taxation Act, and the Defendant’s disposition of this case is lawful.

As alleged by the Plaintiff, the provision of the General Rules of the Restriction of Special Taxation, which is only an internal rule of the administrative agency, seems to have been the same provision as to used cars under the Automobile Management Act. As the former Automobile Management Act was amended by Act No. 5104 on December 29, 1995, as seen earlier, the provision concerning used cars was deleted, and the above General Rules stated as the "high-end automobile under the Automobile Management Act" under Article 110 (4) 8 of the Enforcement Decree of the Restriction of Special Taxation Act. The former Enforcement Decree of the Restriction of Special Taxation Act, which was amended by Presidential Decree No. 17034 on December 29, 200, is the same as mentioned above. Thus, it is difficult to view that the above General Rules also apply to used cars of the Enforcement Decree of the Restriction of Special Taxation Act, which was amended by Presidential Decree No. 17034, Dec. 29, 200; 20000>

3. Conclusion

The plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, and the plaintiff's claim is revoked and dismissed.

Kim Chang-soo (Presiding Judge)

Kim Gyeong-Gyeong

Free of Interest

Relevant statutes

Restriction of Special Taxation Act (Amended by Act No. 9921, Jan. 1, 2010)

Article 108 (Special Cases concerning Deduction of Value-Added Tax Amount for Recycled Recycling Resources, etc.)

(1) The State, local governments, or other business operators prescribed by Presidential Decree who collect waste resources and used goods for recycling purposes.

From a person who acquired waste resources and used goods for recycling purposes by no later than December 31, 2009, and manufactures or processes them.

Where supplying waste resources, the acquisition value of the waste resources shall be calculated by multiplying the waste resources by 6/106.

Amount calculated by multiplying the acquisition value of used goods by 10/110, and the Value-Added Tax Act for used goods.

An input tax amount may be deducted as an input tax amount from the output tax amount under Article 17 (1).

(4) In applying the provisions of paragraphs (1) and (2), an offender who collects recycled waste resources and used goods shall be punished.

The scope of the waste resources and used goods, the input tax deduction method, and other necessary matters shall be prescribed by the Presidential Decree.

The determination shall be determined.

Article 110 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17034, Dec. 29, 2000)

(1) For the purpose of Article 108 (1) of the Act, the term “other persons as prescribed by the Presidential Decree” means not operating the value-added tax taxable business

A person who does not engage in tax-free business (including cases of concurrently running a taxable business) and Article 25 of the Value-Added Tax Act

set forth in this section means a simplified taxable person.

(2) For the purpose of Article 108 (1) of the Act, the term “amount calculated as prescribed by the Presidential Decree” means recycled waste resources.

10/110 of the acquisition value of recycled waste resources and used goods (hereafter referred to as “recycled waste resources, etc.” in this Article) shall be multiplied by 10/110.

an amount calculated.

4. The shipment of used cars as referred to in paragraph (4) 8 shall be made by a trader who has reported in accordance with the provisions of Article 10 of the Foreign Trade Act:

section 10(b)(3).

(4) Scope of recycled waste resources, etc. eligible for input tax deduction under Article 108 of the Act shall be as follows:

same as this section.

8. Used automobiles under the Automobile Management Act; and

(1) Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17034, Dec. 29, 2000)

Article 110 (Special Cases concerning Deduction of Value-Added Tax Amount for Recycled Recycling Resources, etc.)

(1) The scope of an entrepreneur eligible for input tax deduction under Article 108 of the Act shall be as follows:

(4) Scope of recycled waste resources, etc. eligible for input tax deduction under Article 108 of the Act shall be as follows:

same as this section.

8. Automobiles under the Automobile Management Act (limited to used cars); and

(1) Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19321, Feb. 9, 2006)

Article 110 (Special Cases concerning Deduction of Value-Added Tax on Recycled Recycling Resources, etc.)

(4) The scope of business operators eligible for input tax deduction under Article 108 of the Act shall be as follows:

4. A person who exports used cars under paragraph (4) 8; and

(4) Recycled waste resources and used goods (hereafter in this Article, referred to as “recycled waste resources”) eligible for input tax deduction pursuant to Article 108 of the Act.

The scope of waste resources, etc. (hereinafter referred to as "waste resources, etc.") shall be as follows:

2. Used goods: Automobiles under the Automobile Management Act (limited to used cars); and

(1) Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010)

Article 110 (Special Cases concerning Deduction of Value-Added Tax on Recycled Recycling Resources, etc.)

(4) The scope of business operators eligible for input tax deduction under Article 108 of the Act shall be as follows:

4. A person who exports used cars under paragraph (4) 2; and

(4) Recycled waste resources and used cars eligible for input tax deduction under Article 108 of the Act (hereinafter referred to as "recycled waste resources and used cars").

The scope of recycling resources, etc. under this Article shall be as follows:

2. Used motor vehicles under the Motor Vehicle Management Act: Provided, That where used motor vehicles are exported;

From the date of manufacture entered in the register of automobiles under Article 8 of the Decree on Automobile Registration, Article 32 of the same Decree

The period until the date on which an export declaration is accepted is less than one year automatically as stated in the export declaration;

A vehicle shall be excluded.

Automobile Management Act (amended by Act No. 5104 of Dec. 29, 1995)

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term “automobile” means an instrument manufactured for the purpose of movement on land by an engine, or towing it;

An instrument manufactured for the purpose of moving on land: Provided, That those as prescribed by the Presidential Decree shall be excluded.

5. The term "motor vehicles" means manufacturing, assembling or assembling motor vehicles (excluding two-wheeled motor vehicles; hereafter the same shall apply in this subparagraph);

(2) from the time of the acquisition of a motor vehicle by law or in accordance with the provisions of law from the person who imported the motor vehicle

The term “automobile” means a vehicle that has not been actually maintained until it is impossible to maintain its performance.

4. Automobile Management Act (amended by Act No. 9449, Feb. 6, 2009)

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term “automobile” means an instrument manufactured for the purpose of movement on land by an engine, or towing it;

an instrument manufactured for the purpose of movement on land (hereinafter referred to as a "stowing motor vehicle"): Provided, That a substitute motor vehicle

Except as provided by Ordinance, the end of this Decree.