National High Court Decision 2007J 5301 (Law No. 86.30)

Persons subject to traffic tax refunded due to illegal removal of oil shall be the shipper of the oil.

The Plaintiff was paid traffic tax, etc. even if the oil was illegally distributed before being supplied to an overseas navigation vessel, and the requirements for traffic tax, etc. refund were not satisfied. Before the oil in this case was supplied to an overseas navigation vessel normally, the shipper of the oil in this case was the Plaintiff.

The contents of the decision shall be the same as attached.

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of traffic tax of KRW 547,426,570 on June 1, 2007 against the Plaintiff and KRW 45,589,50 on education tax, and KRW 86,605,810 on June 15, 2007, imposition of KRW 86,605,81,00 on value-added tax of KRW 8,691,00 on June 22, 2007, and imposition of KRW 3,003,137,160 on KRW 259,414,730 on education tax of KRW 252,631,260 on September 1, 207, respectively, shall be revoked.

1. Circumstances of the disposition;

A. Esp ○○ U.S. Co., Ltd. (formerly, ○○ U.S. Co., Ltd.) was dissolved by absorbing the Plaintiff’s lawsuit administrator into the Plaintiff’s lawsuit administrator on February 5, 2008 (hereinafter collectively referred to as “Plaintiffs”).

B. From January 9, 2002 to October 31, 2003, the Plaintiff was refunded traffic tax and education tax (hereinafter “traffic tax, etc.”) already paid for the sale of the oil to an overseas navigation ship belonging to the ship ○○○○ (hereinafter “the oil in this case”) through 7,189,761 L (hereinafter “the oil in this case”) through her ship, which is the tamper and ship oil supplier, which is the knicker and ship oil supplier, t○er and tamper, and tamper and ship oil supplier.

C. As to this, the Defendant forged documents as if he/she received an order from the overseas navigation vessel, and illegally removed the oil of this case from the Plaintiff to the land intermediary wholesalers, etc. without oil supply to the overseas navigation vessel, and on the ground that the oil of this case does not actually be used for the overseas navigation vessel, the Defendant issued the Plaintiff a disposition of 450,000 won among the oil of this case (including additional tax) on June 1, 2007 under Article 17 of the former Traffic Tax Act (amended by Act No. 7576, Jul. 8, 2005; hereinafter referred to as the “Traffic Tax Act”), and issued a 36,426,570 won of traffic tax (including additional tax), 45,589,50 won of education tax (including additional tax) on June 15, 207, 2007 (including additional tax), 306,306,3700 won of value-added tax (including additional tax), 206,79,79,70610

D. The Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal, but the Tax Tribunal dismissed the said appeal on June 30, 2008.

[Reasons for Recognition] Unsatisfy, Evidence Nos. 5, 6, Evidence Nos. 1 to 6, 10 (including dismissed numbers), the purport of the entire pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

(1) Oil supplied to an overseas ship is not directly taken out or sold to the owner of an overseas ship, but sold to the owner of an overseas ship through the above company. Whether a ship oil supplier to the overseas ship ships is shipped to the head of the competent customs office. According to Article 17(8) of the Traffic Tax Act and Article 17(8) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 18941 of July 8, 2005, hereinafter referred to as the "Enforcement Decree"), the fixed number of the tax amount refunded shall be collected from the person who does not use the goods for the prescribed purpose. The person who does not use the goods for the prescribed purpose here refers to a dumna, which is the ship oil supplier that directly committed an unlawful act, so the defendant must make a full number of traffic tax, etc. refunded to dumna. Thus, the defendant did not have the authority or duty to manage and supervise the supply of oil to the plaintiff and did not know the fact of unlawful removal, as well as the traffic tax in this case, in violation of the principle of excessive responsibility and self-responsibility.

(2) Even if the Plaintiff is liable to pay traffic tax, etc. refunded to the Plaintiff, the Plaintiff is merely liable to pay traffic tax, etc., on the ground that the Plaintiff is merely a bona fide purchaser who did not bring the instant oil into the overseas navigation vessel but did not know that illegal distribution was made, and thus, the Plaintiff was aware of the entry in the certificate of entry (loading) confirmed by the head of the competent customs office and received traffic tax. Thus, it is unlawful to impose penalty tax on the Plaintiff

(b) Related statutes;

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

(1) In the case of a general oil release flow for an overseas navigation vessel, if the owner of an overseas navigation vessel requests a vessel’s oil supply to the vessel’s agency, the vessel’s agency entrusts oil supply to the oil refining company with the oil supply contract, and accordingly, if the oil refining company orders the oil refining company with the oil refining company, the oil refining company shall request oil supply to the oil refining service company for oil supply and take the oil out of the overseas navigation vessel through the oil refining service company.

In this case, the Plaintiff entered into a maritime oil supply service contract between oil supply service provider chain, referring to the oil supply of oil to overseas navigation vessels, which is the same as that of the same similar goods similar thereto, with the Plaintiff’s oil supply or the oil supply of petroleum products supplied or arranged by the Plaintiff to the vessels designated by the Plaintiff. According to the contract of oil tanker charter, the oil tanker supplier, which is the ship oil supplier, has to be charged with the oil supply inducement service provider of the instant oil, but in fact, the oil supply of oil was supplied to the overseas navigation vessel after having dried oil from the Plaintiff through the above charter.

(2) In the case of an application for refund of general traffic tax, etc., if the oil requested by an overseas navigation vessel was loaded in the overseas navigation vessel normally after receiving the oil, the representative of a oil refining company and the head of an overseas navigation vessel jointly signed by the head of an overseas navigation vessel to issue a certificate of oil supply (BDR, Bunker Dedelivery) and the certificate of carrying-in of the goods subject to refund issued by the head of the competent customs office, the oil supplying company shall submit the certificate to the oil refining company and submit the certificate to the oil refining company, and the oil refining company shall be entitled to the traffic tax, etc. paid after withdrawing the certificate of carrying-in of the goods subject to refund to the head of the competent customs office. However, since November 23, 1999, the certificate of carrying-in (loading) of the goods subject to refund was issued after the direct inspection system on the vessel supplies subject to refund of oil such as oil, etc. was carried in to the vessel through an ordinary inspection and the issuance of the goods directly by the head of the competent customs office.

(3) The main contents of the maritime oil supply service agreement entered into between the Plaintiff and the Maritime Corresponding oil supply in relation to the instant oil supply are as follows.

(4) With respect to the instant oil, the Plaintiff paid the traffic tax, etc. from the manufacturing place to the oil reservoir at the time of taking oil out of the manufacturing place, and thereafter took out the instant oil to the overseas navigation ship belonging to ○○ Port through Mackn Wnnnn Wnnnnnn WnnnnnnW from January 9, 2002 to October 31, 2003, and

(5) However, the fact is that: (a) the Plaintiff falsely prepared a request for ordering the instant oil from the overseas navigation ship with knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife, presented it to the Plaintiff; and (b) forged the certificate of oil supply as if the Plaintiff supplied the instant oil to the overseas navigation ship normally; and

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 7 to 12 (including each number), the purport of the whole pleadings

D. Determination

(1) Determination as to whether a person is not eligible for traffic tax, etc.

(A) Article 17(2)4 of the Traffic Tax Act provides that where the taxable goods for which the traffic tax is already paid are used to sail overseas a ship, the already paid tax amount shall be refunded. Article 17(8) of the same Act provides that when it is confirmed that the goods are not used to sail overseas a ship, the traffic tax shall be fixed, and Article 24(5) of the Enforcement Decree of the Traffic Tax Act provides that where Article 17(8) of the same Act provides that the goods concerned are not used for the prescribed purpose, the pertinent traffic tax shall be fixed from the person who did not use the goods in question for the prescribed purpose, and in the case of petroleum goods used to sail overseas a ship, Article 3(3) of the former Education Tax Act (amended by Act No. 7578 of Jul. 13, 2005) provides that the person liable to pay the traffic tax under the Traffic Tax Act shall be the person liable to pay the education tax, and Article 17 of the Traffic Tax Act shall apply mutatis mutandis to the refund of education tax.

Meanwhile, Article 15 (2) of the Traffic Tax Act and Article 23 (1) 3 of the Enforcement Decree of the same Act provide that the person subject to collection shall collect each traffic tax from the shipper or importer for oil used for overseas navigation vessels, if it is found that such oil was not used for the exempted purpose after being exempted from traffic tax. The difference between the time when the traffic tax is exempted and the time when the traffic tax is not used for the exempted purpose and the time when the tax is exempted or refunded and deducted for the reason that the goods were not used for the specified purpose is not used. Thus, in calculating the amount of the traffic tax exempted or refunded and deducted for the reason that the goods were not used for the exempted purpose, it does not appear that the two should be treated differently. Thus, it is reasonable to interpret that the person subject to refund under Article 17 (8) of the Traffic Tax Act and Article 24 (5) of the Enforcement Decree did not use the goods in question for the prescribed purpose of the traffic tax which is the object to be refunded to the overseas navigation vessel after being carried in.

Therefore, in order to be refunded traffic tax, etc. paid by the shipper or importer of the oil on the ground that the oil was used in the overseas navigation ship, the fact that the oil was carried in to the overseas navigation ship, which is the place where the oil was carried in, shall be proved, and if the oil was not carried in to the overseas navigation ship but used for other purposes, the shipper or importer who was paid traffic tax shall be eligible for the full number of traffic

(B) According to such legal principles, in order for the Plaintiff to be entitled to traffic tax, etc. on the instant oil, the Plaintiff must prove that the instant oil was carried in normally to an overseas navigation vessel as stated in the loading permit, and there is no evidence to acknowledge this. Rather, according to the facts acknowledged earlier, the instant oil was paid traffic tax, etc. despite the Plaintiff’s failure to meet the requirements for traffic tax refund as it was illegally distributed before the oil was supplied to an overseas navigation vessel, not being distributed illegally after the oil was normally shipped out from the Plaintiff and was supplied to the overseas navigation vessel. The Plaintiff is the Plaintiff until the instant oil satisfies the requirements for traffic refund as it was supplied normally to the overseas navigation vessel.

Therefore, the Plaintiff is subject to collection of traffic tax, etc. so long as traffic tax, etc. was refunded to the Plaintiff on condition that the requirements for refund of traffic tax, etc. on the instant oil are not met. Therefore, this part of the Plaintiff’s assertion on different premise is without merit, without further review.

(2) The Plaintiff asserts to the effect that the Plaintiff is not liable to compensate the Plaintiff because it proves that the instant oil was used as an oil-related storage facility for the navigation of the Republic of Korea by the head of the competent customs office, and the instant traffic tax was refunded. However, according to the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (amended by Act No. 8233 of January 11, 2007), the Plaintiff’s notice on the implementation of the Customs Duties, etc. on Raw Materials for Export (amended by the former Public Notice No. 2005-30 of Oct. 7, 2005) that the Plaintiff’s vessel owner is not liable to compensate the Plaintiff for the amount of the oil-related cargo-related cargo-related cargo-related cargo-related cargo-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods-related goods--related goods-related goods--related goods--------related goods----------related goods-related goods-

(2) Determination on the illegality of imposition of penalty tax

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, where a taxpayer violates various duties, such as a return and tax payment, without justifiable grounds, the taxpayer’s intentional or negligent act is not considered as administrative sanctions, as prescribed by the individual tax law: Provided, That where a taxpayer is not unaware of his/her duty or it is unreasonable for him/her to expect the fulfillment of his/her duty, etc., and there are justifiable grounds to believe that it is unreasonable for him/her to do so (see, e.g., Supreme Court Decisions 95Nu14602, May 16, 1997; 2004Du930, Nov. 25, 2005).

In this case, as seen earlier, the Plaintiff entered into a maritime oil supply service agreement between oil service provider, which provides or arranges the oil products supplied by the Plaintiff to the Plaintiff for the purpose of supplying oil to overseas navigation vessels. Maritime oil similar to the same type of oil, which the Plaintiff entered into a oil tanker charter contract with the ship designated by the Plaintiff. Under the maritime oil supply service agreement concluded with the Plaintiff, the oil supplier, who is the oil supplier. Under the maritime oil supply service agreement with the same class of oil, the same type of oil, etc., the same type of oil should be contacted with the ship owner from time to time prior to the implementation of oil and immediately notified the Plaintiff of the fact that it is difficult to view that the Plaintiff’s agent could not be exempt from liability to manage and supervise the oil of this case, and that the Plaintiff’s agent could not be exempt from liability to pay for the oil of this case, such as the Plaintiff’s certificate of non-performance of liability to pay for the oil of this case, and that the Plaintiff’s agent could not be exempt from liability to pay for the oil of this case to the captain of this case.

Therefore, the Plaintiff’s assertion that imposing penalty tax during the instant disposition is illegal is also without merit.

3. Conclusion

If so, the plaintiff's claim for objection case is without merit, so it is judged the same as the order.