Ulsan District Court 2010Guhap744, 2011.06

Cho High Court Decision 2008Da2626 ( December 15, 2009)

Whether the act of collecting traffic tax, etc. violates the principle of self-responsibility under the Constitution

The disposition of this case is to collect the traffic tax that was already paid by the Plaintiff on the ground that the Plaintiff, who was the shipping-out of the taxable goods, was using the traffic tax for agriculture, and that the pertinent goods were not carried in for agriculture and that the traffic tax was leaked. This cannot be deemed to violate the principle of self-responsibility under the Constitution, since the traffic tax was imposed on the Plaintiff.

Article 9(1) of the Traffic Tax Act

2011Nu2422 Revocation of revocation of disposition imposing traffic tax, etc.

XX Stock Company

Head of Ulsan District Tax Office and one other

Ulsan District Court Decision 2010Guhap744 decided June 15, 201

June 20, 2012

August 22, 2012

1. Of the judgment of the court of first instance, the part against the defendants exceeding the scope to be revoked below shall be revoked, and the plaintiff's claim against the defendants falling under the revoked part shall be dismissed.

A. On April 9, 2008, the head of Ulsan District Tax Office revokes the imposition of the traffic tax of KRW 00,00, the education tax of KRW 00, the special consumption tax of KRW 00, the special consumption tax of KRW 000, the education tax of KRW 000, the education tax of KRW 00, the special consumption tax of KRW 00, the education tax of KRW 00, the education tax of KRW 00, the special consumption tax of KRW 00, the education tax of KRW 00, the education tax of KRW 00, the special consumption tax of KRW 00, the education tax of KRW 00, the special consumption tax of KRW 00, the special consumption tax of KRW 00, the education tax of KRW 00, the special consumption tax of KRW 00, the special consumption tax of KRW 00, and the amount of education tax of KRW 00, the amount of education tax of which are imposed.

B. Defendant Ulsan Metropolitan City Head of Ulsan Metropolitan City, the Plaintiff:

Each disposition of imposition of driving tax of 000 won on April 15, 2008 exceeds 00 won, and the portion of driving tax of 00 won on November 24, 2008 exceeding 00 won shall be revoked.

2. The defendants' remaining appeals are dismissed, respectively.

3. 2/3 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

1. Purport of claim

Each disposition of imposition of 00 won in total, 00 won in education tax, 000 won in total, and 000 won in driving tax on the part of the Defendants on the Plaintiff as shown in the attached Table 2. List, shall be revoked in entirety, including traffic, energy, and environment tax (including traffic, energy and environment tax).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Details of the disposition;

A. The Plaintiff sold petroleum products to the head of Ulsan District Tax Office after fixing petroleum products with the purpose of manufacturing and selling petroleum products, and sold petroleum products after fixing crude oil, and had reported and paid the traffic tax (the name was changed to traffic, energy, and environment tax since January 1, 2007; hereinafter referred to as "traffic tax"), special consumption tax (the name was changed to the individual consumption tax since 2008; hereinafter referred to as "special consumption tax"), education tax, and driving tax on the supply to the head of Ulsan District Tax Office (hereinafter referred to as "traffic tax, etc.") and the education tax, and the head of Ulsan District Gun with the head of Ulsan District Office (hereinafter referred to as "traffic tax, etc."), respectively.

(b) Procedures for supplying duty-free petroleum and procedures for settlement;

1) The reduction or exemption system for petroleum products such as agriculture under Article 106-2 of the Restriction of Special Taxation Act and its relevant provisions is a tax-free system that sells oil from the beginning at an oil supplier to farmers, etc. not a zero-rate system, but supplies oil purchased at the dutiable value to farmers, etc. at the tax-free price, and then adjusts the amount of tax ex post according to the procedure set by the Commissioner of the National Tax Service. The specific procedure

2) In the above process, the Plaintiff oil refining company, such as the Plaintiff, supplied its agents or directly to gas stations as the dutiable value, and supplied gas stations to farmers, etc. at the free price, and thereafter, oil stations, such as the Plaintiff, via the agencies or directly settle accounts with the gas stations as much as the amount refunded by the tax authorities has been refunded.

(c) distribution, etc. of certificates of supply of duty-free petroleum altered;

1) As to the extent that the Plaintiff supplied the oil to farmers, etc. for tax-free purposes, such as agriculture, etc., through the aforementioned procedures, either via the agency or directly supplying the oil to the gas station, the Plaintiff was entitled to traffic tax, etc., and settled accounts in the gas station to the same extent. As above, one of the gas stations was 10 gas stations, etc.

2) However, through a special audit of the Board of Audit and Inspection’s “the operational status of the tax-free oil supply system” established from May 2007 to September 2007, 10 gas stations, etc. traded through the Plaintiff and its agencies, 10 gas stations, such as light energy gas stations traded through the Plaintiff and its agencies, changed and revised their certificate of tax-free oil supply under the name of the head of the local agricultural cooperative from September 2003 to May 2007, thereby making the amount supplied to the farmers for agricultural purposes lower than the actual amount supplied to the farmers for agricultural purposes, and without supplying for agricultural tax-free oil (i.e., the amount supplied to the above gas stations through the Plaintiff’s agency, but did not bring them into the farmers by supplying for others). It was revealed that the Plaintiff had the Plaintiff refund traffic tax, etc., and settled the amount so.

D. Disposition by the Defendants and the Plaintiff’s appeal process

1) Accordingly, the Defendants’ failure to satisfy the requirements for exemption from taxation and there is an error or omission in the content of the declaration with respect to the portion of the wrong declaration for agricultural use exemption oil, as shown in [Attachment 2] 1: 1: 1: 1: 1: 1: 2; 2003. 1; 2. 2. 2. 2. 1:

Based on Article 9(1) of the former Traffic Tax Act (amended by Act No. 8138 of Dec. 30, 2006) or Article 9(1) of the former Traffic and Energy and Environment Tax Act (amended by Act No. 8138 of Dec. 30, 2006), the portion of the special consumption tax should be determined based on Article 11(1) of the former Special Consumption Tax Act (amended by Act No. 8829 of Dec. 31, 2007; hereinafter referred to as the "former Special Consumption Tax Act"); Article 10(3) of the former Education Tax Act (amended by Act No. 8137 of Dec. 30, 2006); Article 10(3) of the former Local Tax Act (amended by Act No. 829 of Dec. 31, 2007; hereinafter referred to as the "former Local Tax Act") (amended by Act No. 8136 of Dec. 16, 2007).

2) The Plaintiff filed a request for a trial with the Tax Tribunal. The Tax Tribunal decided to revoke the portion of penalty tax for unfaithful return among the above dispositions. Accordingly, the Defendants also made a disposition of reduction or correction as stated in the attached Table 2. The details of the disposition of imposition, such as traffic tax remaining after the reduction or correction, are as shown in the attached Table 2. (hereinafter referred to as "each disposition of imposition, such as traffic tax remaining after the reduction or correction"), as stated in the attached Table 2.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 12, Eul evidence Nos. 1 through 3 (including each number; hereinafter the same shall apply), each of the testimonys No. Ga and 0B of the first instance court and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The parties' assertion

1) The plaintiff's assertion

The Defendants made each of the instant dispositions in accordance with Article 9(1) of the former Traffic Tax Act and Article 11(1) of the former Special Consumption Tax Act, which is unlawful for the following reasons.

A) As in the instant case, in a case where the amount of traffic tax is calculated by forging a certificate of tax-free oil supply and making an illegal refund, Article 9(1) of the former Traffic Tax Act, Article 11(1) of the former Special Consumption Tax Act does not apply, but Article 113(3) of the former Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 30, 2006) or Article 113(3) of the former Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007) of the former Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007), Article 17(8) of the former Traffic Tax Act, Article 20(7) of the former Special Consumption Tax Act shall apply mutatis mutandis to the case where the traffic tax, etc. is calculated by forging the certificate of tax-free oil supply, and thus, the disposition of this case is unlawful as it did not bear any responsibility against the Plaintiff.

B) In addition, based on Article 9(1) of the former Traffic Tax Act and Article 11(1) of the former Special Consumption Tax Act, the number of traffic tax, etc. refunded from the Plaintiff who is not negligent or responsible for illegal distribution of tax-free petroleum for agriculture violates the principle of self-responsibility under the Constitution.

C) Even if the traffic tax, etc. is presumed to be imposed on the Plaintiff, there are justifiable grounds that do not err by neglecting the Plaintiff’s obligation. Therefore, the Defendants’ imposition of additional tax is unlawful.

2) The assertion by the director of the Ulsan District Tax Office

A) The person liable to pay traffic tax, etc. is a tax by filing a monthly tax return along with an application for refund, such as traffic tax. Accordingly, since the tax base and amount of tax payable by the person liable to pay traffic tax are determined as the amount obtained by subtracting the amount of refund, etc. from the calculated tax, the tax authority need not separately verify whether the application for refund, such as the traffic tax, satisfies the requirements for refund. If the error or omission was verified in the taxpayer’s tax base and amount of tax return, the tax authority may rectify the amount of tax amount erroneously reported, such as the tax by other tax return method, regardless of whether the Plaintiff’s intentional or negligent involvement, as well as the tax amount by other tax authorities, pursuant to Article 9(1) of the former Traffic Tax Act and Article 11(1) of the former Special Consumption Tax Act. Accordingly, each of the instant dispositions are lawful since the error or omission of tax refund arising from the Plaintiff’s return on the basis of the certificate of tax-free petroleum supply, which was subsequently corrected and collected pursuant to

B) The Plaintiff performed its duty to report the tax base, including the instant traffic tax, under its own responsibility, and corrected the relevant tax amount due to error in the details of the report, and thus, cannot be deemed as going against the principle of self-responsibility. In addition, the certificate of tax-free petroleum supply is a document that can be easily prepared if the official seal of the head of the NACF, which is affixed to the lower end, is forged without any separate misappropriation and alteration function. However, the certificate of tax-free petroleum supply is legitimate to impose traffic tax, special consumption tax, and education tax, including additional tax due to the nonperformance of payment, on the right upper end of the document, if it is forged, to prevent the reissuance, double issuance, etc. by allocating serial numbers, to have the recipient sign and seal on the issuance ledger, and to have the person in charge of issuance keep and manage the oil by verifying the quantity of oil by kind. Therefore, the Plaintiff

C) In addition, the penalty tax imposed on the Plaintiff is the penalty tax for unfaithful payment added by multiplying the unpaid period of time by the number of days elapsed and the interest rate, and the nature of the interest for arrears is included. Therefore, it is legitimate to impose the penalty tax for insincere payment on the Plaintiff.

3) Defendant Ulsan Metropolitan City’s assertion

In Article 196-16 of the former Local Tax Act, a taxpayer of driving tax stipulates as a taxpayer under Article 3 of the former Traffic Tax Act, and Article 29 of the same Act stipulates the time when the liability for payment of driving tax comes into existence, and Article 197-17 of the same Act stipulates the tax base of driving tax as traffic tax. Therefore, it is legitimate to impose driving tax according to the notice of traffic tax imposition by the head of Ulsan Tax Office.

B. Relevant statutes

Attached Form 3. The entry in the relevant statutes are as follows.

(c) Fact of recognition;

(i) the process of operating the agricultural exempted milk system;

For the purpose of supporting the economic stability of agricultural and fishing villages, special provisions that exempt the traffic tax, etc. on oil used for agriculture and fishing purposes were newly established and amended several times by the amendment of Act No. 6297 of Dec. 29, 2000. With respect to this case, the provisions of Article 106-2 of the former Restriction of Special Taxation Act (referring to the previous Act before amended by Act No. 6297 of Dec. 30, 2006 and the previous Act before amended by Act No. 8493 of Jun. 1, 2007) are prescribed by the Presidential Decree, and the special provisions on the application of value-added tax and exemption on the zero-rate tax rate for the agricultural, livestock, forestry and petroleum products (hereinafter referred to as the "special provisions on tax exemption") were enacted, and Article 27 of the special provisions on tax exemption were again delegated to the National Tax Service, such as the procedures for the supply of tax exemption certificates and the procedures for the issuance of tax exemption certificates, and were enacted by the National Tax Service.

In addition, the former Ministry of Agriculture and Forestry, which was designated as a supervisory agency of the agricultural tax-free petroleum system by the special provisions on the above-mentioned tax-free petroleum, has been operating the agricultural tax-free petroleum system by setting up the internal rules of the "Rules for the Supply of Tax-Free Petroleum for Agricultural Machinery".

2) Procedures for issuing certificates of supply of duty-free petroleum

Before computerization of the duty-free petroleum management system at the Agricultural Cooperatives Federation, the Korean Agricultural Cooperatives issued a certificate of supply to the local agricultural cooperatives that issued the duty-free petroleum purchase right after receiving the duty-free petroleum business license from farmers in the gas station.

In addition, after computerization of the tax-free petroleum management system on January 1, 2002, if local agricultural cooperatives choose the right to purchase tax-free petroleum granted to farmers by computer from local agricultural cooperatives, the quantity and the amount of supply are automatically aggregated and serial numbers are automatically assigned to prevent double publication.

(iii)the illegal circulation of duty-free petroleum due to the above and alteration of a certificate of duty-free petroleum supply and the audit results by the Board of Audit and Inspection.

As seen above, while the Board of Audit and Inspection operated the tax-free petroleum supply system for agriculture, etc. based on the aforementioned relevant laws and regulations, it was revealed that the tax-free petroleum was illegally distributed for agriculture, etc. as a result of the special audit conducted by the Board of Audit and Inspection by suggesting and altering a certificate of tax-free petroleum supply. In this regard, the request for disposition of tax-free petroleum for agriculture, etc. by the Board of Audit and Inspection published in May 20

(The following measures are omitted):

3) Progress of amendment, etc. of statutes

A) According to the special audit by the Board of Audit and Inspection, Article 106-2(2) of the Restriction of Special Taxation Act amended on December 31, 2007 allows petroleum retailers, such as gas stations, to file an application for refund of duty-free oil through oil refineries. Article 106-2(12) of the Restriction of Special Taxation Act newly established on December 26, 2008 allows petroleum retailers to estimate traffic tax, etc. in cases where a petroleum retailer, such as gas stations, distributes tax-free petroleum unlawfully.

As a result, a petroleum retailer, such as gas stations, can apply for the refund of traffic tax, etc. directly to a petroleum retailer, such as oil stations, which had been stipulated that only the Plaintiff would make an application for refund of traffic tax, etc. In addition, in cases where a petroleum retailer, such as oil stations, distributes tax-free oil unlawfully, the number of taxes and additional taxes can be collected against the petroleum retailer, such as gas stations, regardless of the reasons therefor.

B) The Board of Audit and Inspection filed a charge of fraud, etc. on the ground that even if a certificate of supply of duty-free petroleum was forged during the process of tax-free petroleum reduction and exemption, the said certificate of supply of duty-free petroleum was forged, the said agricultural cooperative’s storage that issues a certificate of supply of duty-free petroleum was forged, and that it was impossible to verify and confirm each other, thereby illegally distributing duty-free petroleum. Meanwhile, according to the records of the Board of Audit and Inspection, the tax authority improved the system such as the issuance of a certificate of supply, thereby allowing the current status of supply of duty-free petroleum to be disclosed in real-time computer

4) The Plaintiff received a certificate of tax-free petroleum supply in the name of the president of the agricultural cooperative in the territory of the head of the agricultural cooperative in the Republic of Korea with a total of KRW 1,000 per annum issued by the agricultural cooperative in the Republic of Korea, which is found to have been forged later, is only 0.3% as a whole, based on the

[Ground of recognition] Facts without dispute, Gap evidence 4, 5, Eul evidence 9, the purport of the whole pleadings

D. Determination

1) Whether a disposition-based statute is applied

A) First of all, the relevant provisions of the former Traffic Tax Act or the former Special Consumption Tax Act (Article 17(8)(or Article 15(2)) and Article 20(7)(or Article 18(2) of the former Special Consumption Tax Act) shall apply mutatis mutandis to the legal relationship that permits the deduction and refund of traffic tax, etc. on the same ground as the instant case, under Article 113(3) of the former Restriction of Special Taxation Act, and Article 9(1) of the former Traffic Tax Act and Article 11(1) of the former Special Consumption Tax Act, which are the grounds for each disposition of the instant case, are not applicable to whether each disposition of the instant case is unlawful.

According to Article 113(3) of the former Restriction of Special Taxation Act, the collection of traffic tax which is deductible and refunded under paragraph (1) of the same Article shall apply mutatis mutandis to the relevant goods. Article 106-2(1) of the same Act provides that if the petroleum products under paragraph (2) of Article 106-2 of the former Restriction of Special Taxation Act are not used for the relevant purpose or are transferred within 5 years from the date of carrying them into the country as tax-free goods, the exempted tax amount shall be collected. In full view of this, Article 113(3) of the former Restriction of Special Taxation Act applies mutatis mutandis to the former Traffic Tax Act or the former Special Consumption Tax Act, it shall be limited to the case where the petroleum products under paragraph (2) of Article 106-2 of the same Act are not used for the same purpose or are transferred for the same purpose, and the "inbound" in this case means the case where the former Special Consumption Tax Act (amended by Act No. 7120, Dec. 30, 2006) or the former Special Consumption Tax Act (amended by Act No. 2017).

However, according to the above, Article 113(3) of the former Restriction of Special Taxation Act cannot be applied to the same case as the case in this case, and Article 17(8) of the former Traffic Tax Act (or Article 15(2) of the former Traffic Tax Act) and Article 20(7) of the former Special Consumption Tax Act (or Article 18(2) of the former Special Consumption Tax Act) cannot be applied to the case in this case.

[Other, according to Article 106-2 (12) of the former Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007), "the matters necessary for the tax amount reduced or exempted, the amount equivalent to the tax amount reduced or exempted, the additional tax amount, and the procedure for estimating the additional tax amount, etc. under paragraphs (5), (7) and (8) shall be prescribed by Presidential Decree", and accordingly, Article 21 (1) of the former Special Cases Concerning the Application of Value-Added Tax Rate and Tax Exemption, etc. (amended by Presidential Decree No. 20630 of Feb. 22, 2008) provides that the tax amount reduced or exempted under Article 106-2 (5) and (8) of the Act shall be presumed to be in accordance with the example of collecting national taxes (amended by Presidential Decree No. 1901 of Feb. 28, 2007) and Article 106-2 (5) of the Value-Added Tax Act shall not apply mutatis mutandis.

B) Next, the Defendant took each of the dispositions in this case based on Article 9(1) of the former Traffic Tax Act and Article 11(1) of the former Special Consumption Tax Act. As to the legal relationship in which traffic tax, etc. is deducted and refunded due to the same cause as the instant case, whether Article 9(1) of the former Traffic Tax Act and Article 11(1) of the former Special Consumption Tax Act can be applied (hereinafter the relevant provisions of the former Traffic Tax Act and the former Special Consumption Tax Act are almost the same in terms of its content and structure, barring any special circumstance, the former Traffic Tax Act shall be reviewed

First of all, Article 7 (1) of the former Traffic Tax Act provides that "the taxpayer shall submit to the head of the tax office having jurisdiction over the manufacturing place a return stating the quantity and price of the goods taken out from the manufacturing place each month, the amount of tax calculated, the amount of tax unpaid, the amount of tax exempted, the amount of tax refunded, the amount of tax paid, etc. by the end of the following month," and Article 9 (1) of the same Act provides that "the head of the tax office or customs office shall determine or correct the tax base and amount of tax if the return under the provisions of Article 7 is not

Under the principle of no taxation without law, the interpretation of tax laws shall be interpreted in accordance with the text of the law, and it shall not be permitted to interpret or analogically without any reasonable reason. In addition, if the text of the law itself consists of a relatively clear concept, any other interpretation method is no longer necessary or limited. Article 9(1) of the former Traffic Tax Act provides that the subject of the decision of correction shall be limited to the tax base and tax amount pursuant to the tax base, and the reasons for the decision of correction shall be limited to the cases where there are errors or omissions in the details of the return under Article 7. Meanwhile, Article 7(1) provides that the subject of the report shall be limited to the calculated tax amount, the unpaid tax amount, the exempted tax amount, the deducted tax amount, the refund tax amount, the refund tax amount or the amount of tax on the following month, or the amount of tax to be returned to the head of the competent tax office under Article 9(1) [Article 9(1) of the former Traffic Tax Act] and Article 9(1) of the latter Tax Act provides that the tax base and tax amount to be returned or corrected.

In this regard, the plaintiff asserts that the procedure of refund of traffic tax should be separately decided by the tax authority in addition to the application for refund by the taxpayer, so it is irrelevant to the return of tax base under Article 7 of the Traffic Tax Act and the determination of tax liability accordingly, and therefore, it cannot be subject to the decision of correction under Article 9 of the Traffic Tax Act, and there should be separate provisions in the law in order to estimate the refund of traffic tax.

Therefore, the so-called "tax refund" means the tax amount to be refunded under each tax-related Act because the so-called legally paid or purified but the country has no justifiable reason to hold it thereafter. In particular, the tax refund under the Restriction of Special Taxation Act is due to a reduction or exemption recognized mainly for political reasons, and the issue of whether such tax refund occurs shall be determined by whether the requirements for refund under each tax-related Act are satisfied

Article 113(3) and (1) of the former Restriction of Special Taxation Act shall apply mutatis mutandis to the procedures for deduction and refund of the amount of tax accompanying the tax exemption system for petroleum products for agriculture under Article 106-2 of the same Act. The provisions applicable mutatis mutandis to the case in this case shall be Article 17(2) and (5) of the former Traffic Tax Act and Article 24 of the Enforcement Decree of the same Act. Accordingly, where the goods or raw materials for which traffic tax has already been paid or is yet payable fall under any of the following subparagraphs, the amount of tax already paid shall be refunded under the conditions as prescribed by the Presidential Decree. In this case, the person who intends to obtain deduction or refund under the provisions of paragraph (2) of the same Article shall prepare the documents as prescribed by the Presidential Decree and submit them to the head of the competent tax office within 6 months from the date on which the relevant cause occurs (Article 17(5) of the same Act). The person who intends to obtain deduction or refund of the amount of traffic tax after deducting the amount of tax already paid from the tax base under the provisions in this case from the latter:

In addition, even if the system of the former Traffic Tax Act is established, the application for refund is accompanied by the application for tax base return, and there is no provision that the head of a tax office shall determine the amount of tax to be refunded, and the plaintiff's assertion that the tax office should make a separate decision on the application for refund

Meanwhile, Article 51(1) of the Framework Act on National Taxes provides that the head of a tax office shall immediately determine the amount of refund as a national tax refund when there is a tax refund. However, the amount of refund is the amount of tax determined to be refunded under each tax-related Act because the country was lawfully paid or collected but no justifiable ground exists to hold thereafter. Therefore, even if the tax office did not make a refund decision, the amount of refund is immediately fixed according to the requirements for refund under each tax-related Act. Furthermore, the provision on the determination of national tax refund under Article 51 of the Framework Act on National Taxes provides for the procedures for refund of the tax authority as internal administrative procedure with regard to the national tax for which the tax payer’s claim for refund has already become final and conclusive, as alleged by the Plaintiff, even if the tax office separately determines the amount of refund as claimed by the Plaintiff, and

C) Therefore, the tax authority should be deemed to be able to collect the traffic tax refunded in the event of an error or omission in the amount of refundable traffic tax pursuant to Article 9(1) of the former Traffic Tax Act. Therefore, the Plaintiff’s assertion that the instant disposition was made without any grounds for disposition is without merit.

2) Whether the Constitution violates the principle of self-responsibility under the Constitution

The former Traffic Tax Act provides that traffic tax shall be imposed on gasoline and substitute oil similar thereto (Article 2); Article 3 provides that the person who manufactures and takes out the goods shall be liable for tax payment (Article 7); and Article 7 provides that the person liable for tax payment shall file a return on the quantity and price (including the amount of refund tax) of the goods that are taken out from the manufacturing place each month; and Article 106-2 of the former Restriction of Special Taxation Act provides that traffic tax shall be reduced or exempted in cases where the farmer, farmer, etc. prescribed by the Presidential Decree falls under “those petroleum to be used in agriculture, forestry, or fisheries as prescribed by the Presidential Decree” (Article 106-2). Accordingly, according to the above provisions, the traffic tax shall meet the requirements of Article 106-2 of the former Restriction of Special Taxation Act to reduce or exempt traffic tax, and the person liable for tax

However, as to whether the traffic tax refunded by the Plaintiff satisfies the requirements of Article 106-2 of the former Restriction of Special Taxation Act, the Plaintiff issued a traffic tax refund from the Defendant along with a forged tax-free oil supply certificate submitted by the AA Energy Oil station, etc., and the fact that the Plaintiff was not entitled to traffic tax refund because the exempted oil paid to the Plaintiff was not used for agriculture and fishery purposes, and thus, the Defendant issued the instant disposition that allowed the traffic tax refund by the Defendant.

Therefore, the instant disposition is that the Plaintiff, who was the owner of the taxable goods, was exempted from the traffic tax on the ground that the pertinent goods were used for agriculture, collects the traffic tax that was not carried in to agriculture and that was confirmed to have been flown out, and thus, it does not violate the principle of self-responsibility under the Constitution (see Supreme Court Decision 2012Du6858, Jul. 12, 2012).

3) Whether there exists any justifiable ground for imposition of penalty tax

A) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed under the conditions as prescribed by individual tax laws in cases where a taxpayer violates various duties, such as a return and tax payment, without justifiable grounds, and thus, it is unreasonable for the taxpayer to be aware of such duties, and thus, it is unreasonable for the taxpayer to be reasonably present or to expect the performance of such duties to be carried out by the party concerned, etc., if there are justifiable grounds that make it difficult for the taxpayer to be aware of such duties (see, e.g., Supreme Court Decision 2003Du4089, Apr. 15, 2005).

Therefore, penalty tax in bad faith on the payment of the traffic tax, etc. in this case is a kind of administrative sanction to which the interest rate of 11% (=number of unpaid daysx (3/10,000) is applied higher than the civil interest rate for the amount of unpaid tax when the taxpayer was liable to pay the tax in good faith and neglected to perform his/her duties in order to secure it, and it cannot be deemed as having the nature of legal interest, such as additional dues.

B) In light of the above legal principles, in full view of the following circumstances, it is reasonable to deem that there is a justifiable reason not to charge the Plaintiff’s neglect of duty, i.e., the health team, the evidence mentioned above, and evidence Nos. 31 through 34, and the purport of the entire pleadings.

(1) The instant certificate of tax-free oil supply is issued in writing without the above and altered function to prevent the above and can be prepared on a computer, and if the official seal of the head of the local agricultural cooperative is forged and altered, it can be easily made on the certificate of supply. In the situation where there is no system to prevent illegal distribution, such as the traffic tax and the tax-free petroleum management authority, and the agricultural cooperative do not verify whether the petroleum products meet the requirements for tax exemption until the supply is illegally distributed, it seems difficult to hold the Plaintiff liable for the verification of whether the tax-free oil supply certificate was finally submitted to the Defendant and the tax-free petroleum management authority and the Plaintiff who was in charge of settling the amount refunded to the agent and the gas station, etc. (in this regard, the Commissioner of the National Tax Service revised the notice of tax-free oil on July 1, 2008, thereby sharing information on tax-free oil between the tax authority and the agricultural cooperative).

(2) As seen earlier, according to the audit results by the Board of Audit and Inspection, even if forged a certificate of tax-free oil supply during the process of tax-free oil reduction and exemption, it is practically impossible to confirm the relevant agricultural cooperative storage that issued a certificate of tax-free oil supply with respect to the forgery, and this is also the Plaintiff who received a certificate of tax-free oil supply exceeding 100,000 annually in the name of the head of a local agricultural cooperative bank issued by approximately 1,000 local agricultural cooperatives across the country.

(3) Furthermore, there is no circumstance that the Plaintiff was involved in the above-mentioned and alteration of the certificate of tax-free oil supply. Furthermore, with respect to the amount of duty refunded on the basis of the above-mentioned and modified certificate of tax-free oil supply, the agency and the gas station had already been settled by the Plaintiff, and the Plaintiff had no benefit in relation to the amount of tax refund.

(4) In criminal cases similar to the forgery of the instant certificate of tax-free oil supply, the judgment of conviction was finalized on September 10, 2009 as to the facts charged of fraud against the gas station operator as the oil station operator by Supreme Court Decision 2009Do5795 on September 10, 2009. The Plaintiff, a oil station, could not be deemed to have engaged in, or assisted in, the crime of fraud by deceiving the gas station operator who forged the certificate of tax-free oil supply from the gas station operator.

(5) The Tax Tribunal rendered a decision to the effect that the disposition of imposition of penalty tax for failure to file a return should be revoked on the ground that there is a justifiable reason not to prove the Plaintiff’s failure to verify the forgery of the certificate of supply of duty-free oil. However, there is no reason to treat the penalty tax for failure to file a return differently as administrative sanctions such as penalty tax for failure to file a report. Furthermore, it is harsh to impose penalty tax for failure to file a return in the instant case where the Plaintiff did not gain any benefit by settling the amount of tax refunded to the Plaintiff in the relevant agency or the gas station.

C) As to this, the Defendants asserted that among the certificates of tax-free oil supply in this case, there were the names of agricultural cooperatives located outside the location of the gas station, and that since the gas stations that forged the certificates of tax-free oil supply were operated for this short period, if the Plaintiff paid little attention, the forgery of the certificates of tax-free oil supply can be confirmed.

According to the statement of evidence Nos. 10, 11, 14 through 19, 20 through 30, Eul's certificate of tax-free oil supply of this case, there are the names of agricultural stations located outside the location of gas stations, and some gas stations whose certificate of tax-free oil supply of this case can be acknowledged as a short-term period of not more than one year. Meanwhile, the following circumstances can be revealed by comprehensively considering the overall purport of the arguments as seen earlier: ① The supply of agricultural-free oil is mainly conducted by the supply of gas to a place necessary for agricultural free oil by putting the gas out of the zone of gas stations; ② the sale of gas outside the zone of gas stations can occur in normal transactions; ② the sale of 9 out of total 25 gas stations; and the distribution of 10 gas stations; and ③ the management and supervision of a specific gas station and a specific gas station, which were submitted to the Plaintiff, cannot be seen as being able to be able to be able to become able to become able to become able to become able to become able to become able to supply the Plaintiff.

4) Sub-determination

Therefore, the disposition of imposition of principal tax, such as the instant traffic tax, is lawful, and is unlawful. In light of each of the dispositions in this case, the part of imposition of additional tax is revoked on April 9, 2008 in excess of KRW 00, KRW 000, KRW 000, KRW 000, and KRW 000, KRW 000, and KRW 000, and KRW 00,000, KRW 00, which are imposed on the amount of traffic tax, KRW 00, special consumption tax, and KRW 00, KRW 00, KRW 00, and KRW 00, KRW 00, and KRW 00, KRW 100, and KRW 10,000, KRW 10,000, which are imposed on the amount of traffic tax, special consumption tax, and KRW 4,00,000, and KRW 1,008,00,00,000.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance is unfair with some different conclusions, the part of the appeal by the defendants against the defendants who ordered the revocation in excess of the above recognition scope among the judgment of the court of first instance shall be partially accepted and the plaintiff's claim against the defendants as to the revoked part shall be dismissed, and the remaining appeal by the defendants shall be dismissed as without merit. It is so decided as per Disposition.