Busan District Court-2016-Gu Partnership-21252 ( December 01, 2017)

It may not be deemed that a tax invoice issued to an alcoholic beverage distributor is not issued even if the tax invoice is false or supplied to consumers.

It is reasonable to see that the supply of alcoholic beverages was made to the Plaintiff through the alcoholic beverage distributor on behalf of the alcoholic beverage buyers on the basis of special relationship with the alcoholic beverage buyers or on the transportation convenience. Therefore, it cannot be deemed that the tax invoice issued by the Plaintiff to the alcoholic beverage distributor is false or supplied to the consumers, even if the tax invoice issued by the Plaintiff to the alcoholic beverage distributor was not issued.

Article 40 of the Liquor Tax Act: Order to Preserve Liquor Tax

2017Nu24851 Revocation of revocation of shipment reduction

○○○ Incorporated Company

Head of △ District Office

June 22, 2018

July 20, 2018

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant's disposition of reduction in delivery to the plaintiff on March 16, 2016 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The reasoning of the judgment of this court is that the part of the court of first instance provides that "The △△ Factory, a manufacturing factory of the plaintiff, shall be notified of the reduction of 50% of the shipment volume from March 28, 2016 to the time the decision of Busan District Court 2016Guhap20884 (hereinafter referred to as "the disposition of this case")" shall be that "the plaintiff shall reduce the shipment volume of 50% from March 28, 2016 to the time the decision of Busan District Court 2016Guhap2084 (hereinafter referred to as "the disposition of this case")" shall be that "6 3 to 8 5 - - as described in the following Paragraph (2) shall be cited as the reasoning of the judgment of the first instance except for the case where the plaintiff shall be used as described in Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

We examine whether the Plaintiff issued a false tax invoice as if the Plaintiff directly sold alcoholic beverages to consumers other than BB distribution, and then issued a false tax invoice to the BB distribution, and the Plaintiff did not issue a tax invoice to consumers.

A. The following facts are recognized in addition to the respective descriptions of evidence Nos. 1 through 5, 11 through 18, and the overall purport of the pleading.

① Article 4 of the Agreement on the Supply of Alcoholic Beverages between the Plaintiff and the BB Distribution provides that “A (the Plaintiff refers to “B distribution; hereinafter the same shall apply) shall supply B products to B (BB distribution; hereinafter the same shall apply) at the producer’s shipment price. B shall freely determine the sales price of the products A to the extent that it does not go against normal commercial practices.” Meanwhile, Article 5(1)4 provides that “A may request B to cooperate in advertising and sales promotion activities to improve the image of the products.”

② At each time the instant specialty event is held, the Plaintiff sent a letter of cooperation to BB distribution to reduce sales prices or request cooperation in the issuance of receipts, such as tax invoices, by requesting cooperation from BB distribution. On the other hand, the Plaintiff informed its affiliate companies or partner companies of the fact of holding a pre-sale order, and requested BB distribution to proceed with specific alcoholic beverage sales procedures, such as issuance of receipts based on the details of the order. BB distribution omitted a usual liquor storage or inspection procedure, which is processed by the Plaintiff’s direct execution of the delivery of alcoholic beverages to the buyers of the pre-sale event, and issued a tax invoice by designating individual buyers as the supplier of the pre-sale order.

③ The Plaintiff’s employee in charge of alcoholic beverage sales received a credit card from an affiliated company or a partner company to make payments on behalf of the Plaintiff at the trading point of BB distribution or to receive cash payments from BB distribution. The Plaintiff stated that the Plaintiff’s employee in charge of alcoholic beverage supply and receipt was included in BB distribution even in the order form used by the Plaintiff to notify the affiliated company or partner company of the special event of alcoholic beverage sales.

④ From 2013 to 2014, BB distribution supplied alcoholic beverages equivalent to the Plaintiff’s total amount of KRW 406,252,000 from the Plaintiff’s Busan store in accordance with the Plaintiff’s special sales event, and sold them to consumers KRW 432,784,00 in total, thereby gaining profits from KRW 26,532,00.

B. Article 9(1) of the Value-Added Tax Act provides that "the supply of goods, which are taxable subject to value-added tax, shall be delivered or transferred on the basis of all contractual or legal grounds."

On the other hand, since a contract does not necessarily have to take the form of a document, a contract is concluded only with implied or oral intent on essential matters or important matters, as the contract is concluded. However, under the premise that BB distribution is supplied alcoholic beverages from the Plaintiff (as to the supply price, the producer price is already stated in the transaction agreement). However, according to the Plaintiff’s express exercise intent, the Plaintiff’s application of discount price requested by the Plaintiff in selling them to consumers, and the fact that specific procedures necessary for the sale of alcoholic beverages, such as the issuance of tax invoices, are carried out in accordance with the order provided by the Plaintiff. Accordingly, it is sufficient to view that there was an implied or oral alcoholic beverage supply agreement between the Plaintiff and BB distribution.

In addition, as part of the Plaintiff’s advertising and sales promotional activities for the products, the Plaintiff could not engage in sales promotional activities like BB sales promotional activities without going through the Plaintiff’s affiliate or partner company. In addition, the Plaintiff may enjoy profits from the Plaintiff’s active advertising and sales promotional activities in favor of competition. On the other hand, BB distribution may gain profits from increasing sales by taking advantage of the Plaintiff’s active advertising and sales promotional activities, and thus, the interest between the Plaintiff and BB distribution conflicts with each other (Article 5(1)4 of the transaction agreement) (the Plaintiff’s duty to cooperate in BB distribution promotion activities for the Plaintiff’s advertising and sales promotional activities is stipulated in Article 5(1)4 of the transaction agreement). Moreover, the Plaintiff is unable to sell alcoholic beverages directly to consumers due to the regulation of related Acts and subordinate statutes, such as the Liquor Tax Act, without going through a seller of alcoholic beverages such as BB distribution, and the Plaintiff cannot be seen as having been able to receive the Plaintiff’s disguised distribution order from the Plaintiff’s affiliate or partner company, and received the disguised distribution trading process from B B.

Comprehensively taking account of these circumstances, it is reasonable to deem that the Plaintiff only engaged in the act of factually receiving orders and delivering orders in lieu of BB distribution on the basis of the special relationship with the alcoholic beverage buyers or the transportation convenience, and that the supply of alcoholic beverages was made to the Plaintiff through BB distribution. Therefore, it cannot be deemed that the Plaintiff did not issue a tax invoice even if the tax invoice issued to BB distribution was false or supplied to the consumers.

Therefore, the original disposition of this case is unlawful.

3. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed.