Appropriateness of the disposition of revocation of a comprehensive alcoholic beverage wholesale business license pursuant to the prohibition of such business

According to the facts of recognition, it is reasonable to deem that a general liquor wholesale business was operated as a partnership business, and since the violation ratio of duty to issue tax invoices exceeds 10%, the initial disposition is legitimate.

Article 15 of the Liquor Tax Act, Article 11-2 of the Punishment of Tax Evaders Act

1. The plaintiff's claim is dismissed.

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

The defendant's revocation disposition of revocation of comprehensive liquor wholesale business license against the plaintiff on October 16, 2006.

1. Details of the disposition;

A. On July 1, 1977, the Plaintiff obtained a comprehensive license for alcoholic beverage wholesale business from the Defendant (hereinafter “instant license”) and operated a liquor wholesale business.

B. The defendant conducted a tax investigation with the plaintiff from March 22, 2006 to April 18, 2006, based on which the plaintiff sold alcoholic beverages and did not issue a tax invoice (hereinafter referred to as "unprocessed data"). (2) The plaintiff made a transaction that issued a processed tax invoice as if he sold alcoholic beverages without any sale of alcoholic beverages (hereinafter referred to as "processed transaction") and the amount is KRW 450,482,00 in 203, 200, 617,763,000 in 204, 111, 715,00 in 205, and notified the plaintiff of the result of the tax investigation on April 28, 2006 that the value-added tax shall be 26,304,420 won in 206.

C. On May 30, 2006, the Plaintiff filed a request for pre-assessment review as to the notice of the results of the above tax investigation, and on July 10, 2006, a decision of reinvestigation was made.

D. After re-auditing the Plaintiff’s non-data and processing transaction amount, the Defendant notified that the amount of non-data and disguised processing transaction amount should be calculated on September 1, 2006 and the amount of value-added tax should be adjusted to KRW 23,683,603. The Plaintiff rendered a business partnership with ○○○, ○○, and ○○○ (hereinafter “○○, etc.”) during the period from December 29, 200 to December 28, 2003; ② from February 2, 2003 to February 2, 2005, the Defendant issued a hearing on June 21, 2006, and then revoked the Plaintiff’s license on October 13, 2006 on the ground that Article 15(1)4 of the Liquor Tax Act was revoked (hereinafter “instant disposition”).

Unit: 100

Classification

1, 2003

203.2

100 1. 1

204.2

1, 2005

2, 2005

Amount reported

2,536,319

2,447,670

90,461

1,417,514

1,835,509

2,236,000

Type and Amount of violation

Non-data

72,373

97,699

76,215

156,626

233,596

208,109

Definite Transactions

11,469

168,941

89,603

183,168

263,527

256,552

Total

183,842

266,640

165,818

39,794

497,123

464,661

The ratio of violation (total/amount reported)

7.24%

10.89%

16.74%

23.97%

27.08%

20.78%

E. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal on October 23, 2006, but was dismissed on February 20, 2008.

F. Meanwhile, the Plaintiff was indicted for committing the crime of violating the Punishment of Tax Evaders Act as follows in relation to the issuance of false tax invoices and transaction of non-data among the facts stated in the above sub-paragraph (d) above. On December 6, 2007, the first instance court (○○ District Court 2007No1386) was convicted and appealed, and the appeal was pending at the appellate court (○○ District Court 2007No1386).

[Attachment]

Defendant ○○○○○○○○○○, ○○○○○○, a representative director of ○○○○○○○, and Defendant ○○○○, a corporation established for the purpose of an alcoholic beverage wholesale business,

1. Defendant 1 ○○

A. From January 3, 2003 to June 28, 2003, the company supplied the price of 13,203,000 won to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and did not issue a tax invoice from that time to December 31, 2005, and did not issue a tax invoice for the supply price of alcoholic beverages worthing to KRW 753,397,03,03;

B. Around January 3, 2003, the company of this case: (a) provided alcoholic beverages to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○; (b) provided a tax invoice of KRW 47,273, and delivered the said tax invoice to ○○○○○○○○○○○○○

2. The Defendant ○○○○○○○○○, a representative of the Defendant, does not deliver a tax invoice even when the ○○○○○ supplied alcoholic beverages equivalent to the total value of KRW 753,397,03 as above with respect to its business, and rather delivers a total amount of KRW 753,419,559, in total, without supplying goods or services.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 3, 8, Eul evidence Nos. 1 and 8, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Although the representative director of the Plaintiff Company prepared a partnership agreement with ○○, etc. in relation to the borrowing of funds, he did not actually engage in the partnership business with ○○, etc.

(2) The Defendant calculated the rate of delivery of non-data and processing transaction and issued the instant disposition. The Plaintiff’s actual transaction without properly delivering a tax invoice from January 1, 2003 to February 2, 2005 is limited to KRW 758,932,00 as follows. Since the Plaintiff issued a tax invoice to other companies as much as the Plaintiff did not receive the tax invoice from the actual supplier of the goods, the amount of non-data and processing transaction is consistent with the amount of the non-data and processing transaction. In such a case, if the amount of the violation is calculated by adding up the amount of the violation to the amount of each violation, it is unlawful as it results in the double calculation of the amount of the same sales. If the Plaintiff’s violation is not calculated double, the amount of violation of the tax invoice issued constitutes less than 10% of the total sales of the Plaintiff,

Unit: 100

Classification

1, 2003

203.2

100 1. 1

204.2

1, 2005

2, 2005

Amount reported

2,536,319

2,447,670

90,461

1,417,514

1,835,509

2,236,000

Type and Amount of violation

Non-data

72,373

97,699

75,222

139,148

181,325

193,265

Definite Transactions

As above;

As above;

As above;

As above;

As above;

As above;

Violations Ratio (Amount of non-material / Reported Amount)

2.85%

3.99%

7.59%

9.81% by mass

9.87%

8.64%

(b) Related statutes;

/ Liquor Tax Act

Article 15 (Suspension of Sales of Alcoholic Beverages, etc.)

(2) The head of the competent tax office shall cancel a license when a person who has obtained a sales business license falls under any of the following subparagraphs:

4. Where the amount of violation of duties to issue the tax invoices under Article 11-2 (1), (2) or (4) of the Punishment of Tax Evaders Act by taxation period under the Value-Added Tax Act, exceeds 10/100 of the gross sales of alcoholic beverages or the gross purchases of alcoholic beverages;

10. Where he runs the business in partnership with others.

m. Punishment of Tax Evaders

Article 11-2 (Violation, etc. of Duty to Issue Tax Invoice)

(1) Where a person liable to prepare and deliver a tax invoice under the provisions of the Value-Added Tax Act and a person liable to submit a tax invoice by buyer to the Government falls under any of the following subparagraphs, he/she shall be punished by imprisonment for not more than one year or by a fine not exceeding twice

1. Where he/she has not issued a tax invoice or issued a false tax invoice;

(4) Any person who commits an act falling under any of the following subparagraphs without supplying goods or services under the provisions of the Value-Added Tax Act shall be punished by imprisonment for not more than three years, or by a fine equivalent to not more than twice the amount of tax calculated by applying the tax rate of value-added tax to the supply value entered in the relevant tax invoice and invoice, or the sale and purchase value entered in the list

1. Issuing or receiving the tax invoice under the provisions of the Value-Added Tax Act;

(c) Fact of recognition;

(1) Nonparty 1, as the representative director of the Plaintiff, managed the Plaintiff Company and agreed to work as the Plaintiff Company on December 28, 200 between ○○○○ and the Plaintiff Company. However, on December 29, 2000 to December 28, 2000, the contract term of the Plaintiff-based contract was set at KRW 130,000,000, and KRW 1:100,000. The ○○○○ invested approximately KRW 152,00,000 in the Plaintiff Company.

(2) As of January 31, 2004, the above ○○○ and ○○○○ upon the expiration of the operating period of the business is calculated to assess the assets of the Plaintiff Company as KRW 97,484,385 as of December 31, 2004, and its liabilities as KRW 127,101.510 as of KRW 127,10, and to pay KRW 7,400 each by ○○ and ○○○, etc., in consideration of the above four advance payments and bank balance, the balance is calculated as KRW 64,801,301, and the balance is calculated as of KRW 64,801 in consideration of the above four advance payments and bank balance. ② The balance is collected from the Plaintiff Company and brought to ○○○○, and KRW 30,500 as of December 31, 200, ○○, etc., was divided into KRW 305,000.

(3) After doing so, ○○○○ et al. filed an application for provisional seizure and provisional seizure of corporeal movables against the Plaintiff, as ○○○ did not settle the remaining amount after paying the corporate tax and the value-added tax.

(4) On May 7, 2001, a passbook was opened in the name of ○○○○○○○○○○○○○○○○○○ on the ○○ Bank, and several passbooks were opened in the name of ○○○○○○ during the same business period, such as payment of the Plaintiff’s salary in the passbook, and the Plaintiff’s corporate tax, employee’s salary, etc. were deposited.

[Ground of recognition] Evidence No. 10-3, Evidence Nos. 2 through 5, and 12, and the purport of the whole pleadings

D. Determination

(1) Whether the enterprise is in partnership

In full view of the fact that the Plaintiff borrowed money from ○○○ only from ○○○ and did not operate a partnership business, but it is not enough to recognize the Plaintiff’s evidence No. 10-1 only, and that the Plaintiff evaluated the Plaintiff’s property and settled the Plaintiff’s profit by evaluating the Plaintiff’s property, and that the Plaintiff’s corporate tax, employees’ benefits, etc. were paid in the passbook in the name of ○○○○○○○○○, it is reasonable to deem that the Plaintiff himself operated a comprehensive liquor wholesale business in accordance with the instant license by providing the existing human and material resources and distributing profits by receiving additional investments from ○○○○○○○.

(2) Breach of duty ratio

Article 11-2 (1) of the Punishment of Tax Evaders Act provides that a license holder shall cancel his license when the amount of violation of duty to issue a tax invoice under Article 11-2 (1), (2) or (4) of the former Punishment of Tax Evaders Act is 10% or more of the total sales amount of alcoholic beverages or the total purchases amount of alcoholic beverages under Article 11-2 (1) of the former Punishment of Tax Evaders Act. Article 11-2 (4) of the Punishment of Tax Evaders Act provides that the person who is obliged to prepare and deliver a tax invoice under the Value-Added Tax Act shall be punished in cases where the person fails to issue a tax invoice or makes a false statement in the tax invoice. Article 11-2 (1) of the same Act provides that the person who has issued or received a tax invoice without supplying goods or services under the Value-Added Tax Act shall be punished in addition to the total purchases amount of alcoholic beverages under Article 11-2 (1) and (4) of the same Act shall be punished in cases where the amount of new tax invoice is not issued in excess or more than 10% of the total purchases amount.

Furthermore, considering whether the ratio of the Plaintiff’s violation does not exceed 10%, even if the amount of the Plaintiff’s violation is calculated as claimed by the Plaintiff, the ratio exceeds 10%.

Unit: 100

Classification

1, 2003

203.2

100 1. 1

204.2

1, 2005

2, 2005

Amount reported

2,536,319

2,447,670

90,461

1,417,514

1,835,509

2,236,000

Type and Amount of violation

Non-data

72,373

97,699

75,222

139,148

181,325

193,265

Definite Transactions

72,373

97,699

75,222

139,148

181,325

193,265

Total

144,746

195,398

150,444

278,296

362,650

386,530

The ratio of violation (total/amount reported)

5.7%

7.98%

15.19%

19.63%

19.76%

17.29%

(3) Sub-decisions

Thus, the plaintiff's assertion is without merit, and the disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed.