October 5, 2016

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

A. The Plaintiff, a corporation operating an information and communications business, etc., and filed a value-added tax return from January 201 to January 2014, 201, upon entering into an obligatory use agreement with the Plaintiff for a certain period of time, and filed a return on the tax base including penalty received from the terminated users even though they were given a discount on mobile telephone charges, Internet telecommunications charges, and Internet telecommunications terminal, etc.

B. On July 25, 2014, the Plaintiff filed a claim for rectification with the Defendant for the refund of value-added tax of KRW 723,145,973,973 on KRW 7,957,243,904 for a penalty for breach of contract for the first term portion in 201. On November 10, 2014, the Defendant refunded the entire amount of the claim for rectification to the Plaintiff.

C. On November 19, 2014, the Plaintiff filed a claim for correction with the Defendant for the refund of KRW 17,180,889,46 in total amount of value-added tax on KRW 189,005,630,252 from February 19, 2011 to February 2013 (the details are as shown in attached Table 2). On January 27, 2015, the Defendant: (a) on the ground that the penalty calculated on the basis of the discount of mobile or Internet telecommunications charges or the rate by mix, etc. is a penalty for which value-added tax was imposed without a request for correction; (b) on the ground that the penalty is not subject to value-added tax on the ground that it constitutes a penalty for which value-added tax was imposed without a request for correction; (c) on the ground that the Defendant did not receive a specific amount of discount from KRW 17,084,744,710 from the supply of Internet communications services based on the agreement on the supply of goods at KRW 1516,715.

D. On January 29, 2015, the Plaintiff rejected the Plaintiff’s request for correction on the ground that: (a) the Plaintiff’s request for correction was made for the amount of value-added tax of KRW 5,185,737,086 on the aggregate of the value-added tax on KRW 57,048,837,82 based on the discount amount of mobile telephone charges or the Internet communications charges or the amount of the discount amount of the Internet communications charges or the amount of the rent, etc. (services 2; hereinafter the same shall apply); and (b) on March 31, 2015, the Defendant rejected the Plaintiff’s request for correction on the ground that “the penalty calculated based on the discount amount of mobile telephone charges or the Internet communications charges or the amount of the discount amount of the rent, etc. (services 2,048,837,87,000,000 won” (hereinafter referred to as “2 rejection disposition”); and (c) the first rejection disposition and the first disposition are referred to as “each of the instant case’s 3081,5836,587.

E. The Plaintiff dissatisfied with each of the instant dispositions and filed a request for examination on April 20, 2015, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request for examination on July 21, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3 through 8, Gap evidence No. 9-1 and 2, the purport of the whole pleadings

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

A. The plaintiff's assertion

The instant amount is not a price for the supply of goods or services, but a penalty for breach of contract by a user, and thus does not constitute value-added tax objects. Each of the instant dispositions made on different premise is unlawful.

(b) Related statutes;

Attached Table 3 shall be as stated in the relevant statutes.

(c) Fact of recognition;

1) The Plaintiff has entered into an agreement with the user of mobile phone services, under which the user agrees to use the mobile phone service for a certain period of time (a agreed period), to discount the cost of the mobile phone terminal and part of the mobile phone rates, etc., and if the user agrees to terminate the mobile phone in violation of the agreement within the agreed period, he/she shall receive a certain amount of penalty, and (2) where the user agrees to use it for a certain period of time between the user of the Internet telecommunications service and the user of the Internet telecommunications service, he/she shall provide free gifts (such as merchandise couponss or bicycles) or discount part of the rent, etc. for the terminal, such as the Internet fee and fee and the stop method, and if the user terminates the mobile phone service even during the agreed period of time, he/she shall receive a certain amount of penalty

2) 원고가 이동전화 서비스 이용자로부터 작성·제출받는 이동전화가입신청서 양식(갑 제1호증의 1 내지 3)에는 “약정기간 내 해지(중략) 시 위약금이 발생하며, 단말기 및 요금할인에 대한 위약금을 납부하셔야 합니다.” 또는 “요금할인이 제공되는 요금제 이용 고객은 약정기간 동안 요금할인을 제공받으며, 약정기간 내 해지 및 할인 프로그램 가입이 불가한 요금제로 변경시 할인반환금이 발생할 수 있습니다.”라고 기재되어 있고, 그 중 요금 할인 관련 주3) 위약금 은 ‘요금할인 받은 총 금액 × {(약정일수 - 사용일수)/약정일수}’, ‘∑{약정 이용기간별 총 할인금액 × (1 - 약정 이용기간별 할인반환금 주4) 할인율) }(통합요금의 경우)’의 방식으로 산정하도록 되어 있다.

(State 4)

3) The Plaintiff’s application form for subscription to the Internet communications service (Evidence 2 of A) that is prepared and submitted by the user of the Internet communications service states as follows: “The Plaintiff may cancel the contract period or refund the discounted premium at the time of failure to comply with the first contract period due to any cause attributable to the customer;” “At the time of termination within one year after the subscription, it may demand a refund of discounted premium for the premiums received at the time of subscription,” and among which, the penalty for the discount on the Internet charges and the arm’s length method may be paid: “(the number of months before the subscription ? the lapse of the contract period ? the discount rate for the use period - the discount rate for the period of less than one year - the period of use - the period of less than one year, and the period of the use discount for less than three years shall be less than one year; “The amount of the premium related to the provision of the premiums shall be less than two years x 12 months x 2 years x 2 years x 2 years x 12 years x 3 years x - the period of the agreement.

4) The terms and conditions of the Plaintiff’s terms and conditions (Evidence B and 3) include “where a customer fails to comply with the agreed contract period at the time of the initial subscription due to a cause attributable to the customer, he/she may claim the refund of the discounted amount,” and, in relation to the discount of fees, the term “a penalty shall be refunded at the time of termination within the contract period or within the additional contract period or the reduction of the contract period,” and the term “a penalty” and “a discount shall be refunded at the time of termination of the agreement within the agreed period,” and the term “a discount shall be paid at the time of termination of the agreement within the agreed period.” However, the amount of discount refund may not be known to the customer because it does not exceed the discounted amount through the absolute agreement. As such, the agreed person refunds part of the discount benefits received through the fee system, which is the agreed amount, and thus the agreed person does not cause any damage to the customer at all.”

5) Under the terms and conditions for the use of Internet communications services (No. 2) the Plaintiff provides that where a customer requests the change of a place of installation is unable to provide services, if the monthly short time occurred for at least 48 hours due to the Plaintiff’s responsible cause, “If the customer himself/herself is on active duty,” the contract may be terminated without refunding at a discount if he/she has no cause attributable to the user (Article 13(7)), “in the terms and conditions for the use of mobile telephone services (Article 13(3)),” the customer shall terminate the contract within 14 days from the date of new subscription due to the defective monetary quality of the call and return all the devices, “where the customer returns all the devices,” the penalty shall be exempted if he/she is not attributable to the user (Article 38).

[Reasons for Recognition] Evidence No. 1-3, Evidence No. 2, Evidence No. 1-4, Evidence No. 1-4, and the purport of the whole pleadings

D. Determination

1) Whether the instant amount constitutes the proceeds from supply of goods or services

A) Article 13(1) of the former Value-Added Tax Act (wholly amended by Act No. 11608, Jun. 7, 2013) provides that “The tax base of value-added tax on the supply of goods or services shall be the aggregate of the following values (hereinafter “value of goods”)” under subparagraph 1, and Paragraph (5) of the same Article provides that “in cases of receiving compensation in money, matters necessary for the calculation of the tax base other than those prescribed in paragraphs (1) through (4) shall be prescribed by Presidential Decree.” Article 48(1) of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013) provides that “The tax base of value-added tax shall not include the value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value.”

On the other hand, taxpayers may choose one of the several legal relationships while carrying out economic activities in order to achieve the same economic purpose, and the tax authorities shall respect the legal relationship chosen by the parties, except in extenuating circumstances. The issue of which transaction method is to be decided by themselves, taking into account the efficiency of the purpose, the degree of burden of related expenses, such as taxes, etc., and if they form a legal relationship by selecting a certain one, the contents and scope of taxes arising therefrom shall be decided individually in accordance with the legal relationship, and the ultimate goal of different transactions shall not be deemed to be the same as the substance, notwithstanding the difference in the legal form, or to be treated equally under the Tax Act (see Supreme Court Decision 200Du963, Aug. 21, 2001, etc.).

B) In the instant case, comprehensively taking account of the following circumstances revealed by adding up the purport of the entire arguments to the facts acknowledged in the Health Team, the preceding 1.3, and the above C, it is reasonable to deem the instant amount not to be subject to value-added tax, but to the penalty that the Plaintiff received from the party who violated the contract, rather than the proceeds from the supply of goods

(1) Under the Civil Act, penalty for breach of contract refers to the agreed money if a party promises to compensate for damages or agrees to impose a penalty for breach of contract in preparation for the failure of the party to perform his/her future obligation. The purpose of the contract is to provide penalty for breach of contract, if the amount of compensation for breach of contract is a private penalty due to the breach of contract by the party to the contract, it is divided into two cases where the scheduled amount of the compensation for breach of contract and the private penalty (compact penalty) are also two (e.g., this Decree, Civil Act II, taxing consul, 202

The Plaintiff made continuous investment in physical facilities (such as optical cable reclamation, server, and set-up of relay facilities such as e-mail, purchase of e-mail and sprink, etc., and installation of heavy meters), and human resources facilities (such as installation engineers, AS engineers, etc.) in order to provide the users of the Republic of Korea with a certain level of telecommunications services, and such investment costs are appropriated from the user’s profit (for a stable implementation of the project, the user and the user agree to use the user’s telecommunications services for a certain period of time). In addition, in a case where the user and the user agree to use the user’s telecommunications services for a certain period of time, the user is secured by concluding an agreement to discount part of the fee, etc., thereby inducing the user to use the user’s services for a long period of time. However, if the user terminates the agreement in the middle in violation of the agreed period, the Plaintiff as the user did not gain any profit to the amount of the service initially expected, and thus, to preserve the agreement, including the content of the user’s penalty for termination.

Article 22(1) of the Civil Act provides that “A penalty shall be imposed on the Plaintiff at the time of a violation of the contract between the Plaintiff and the user” (see, e.g., Supreme Court en banc Decision 2006Da1248, Apr. 2, 2006). Article 2(1) of the Civil Act provides that “A penalty shall be imposed on the Plaintiff at the time of a violation of the contract term” (see, e.g., Supreme Court Decision 2006Da1148, Apr. 2, 2006).”

Applicant If the user agrees to use the service for a certain period (the agreed period), the intent of the party to the agreement to discount part of the rent for the terminal such as mobile phones, Internet communications charges and m or set-type gambling, and if the user terminates even if he/she violated the agreement within the agreed period, he/she shall make the user pay a certain amount of penalty, and the intention of the party to the agreement to change the value of the service or goods stipulated in the initial agreement to the amount increased to the penalty to be paid by the user at the time when the user terminates the agreement at the time of the termination of the agreement is too deemed, disregarding the legal form of the transaction chosen by the party, and it does not receive a full refund of the amount which the Plaintiff received as penalty as the penalty, as seen in the above ar.e., the Plaintiff did not receive a full refund of the amount which the Plaintiff received as the penalty, as seen in the above ar. Therefore, it is unfair in that it also results in the Plaintiff’s arbitrary selection of the fee system reported or authorized to the Minister of Science, ICT and Future Planning under Article 28 of Telecommunications Business Act.

(v) insofar as the fees discounted by the Plaintiff under certain supply terms and conditions are already excluded from the value of supply, it is reasonable to view that the supply price for telecommunications services, etc. provided by the Plaintiff is “in advance,” regardless of whether there was a violation of the user’s agreement,” and the user’s “the first payment” is also “the payment of the said fees at discount.” Therefore, the amount in excess should be deemed to have been paid separately from the original payment (the price for the goods or services provided) due to a violation of the agreement (the amount in this case is excluded from the value of supply as “the amount of discount directly reduced from the ordinary price according to the supply conditions when the goods or services are supplied) under Article 29(5)1 of the Value-Added Tax Act (the amount in this case was excluded from the value of supply, i.e., the Plaintiff was returned due to a violation of the user’s agreement, and the Defendant’s assertion that it is included in the original value of supply].

⑹ 요금할인액이 위약금 산정 요소 중 하나라거나, 위약금액의 산정방식을 정하고 있는 원고의 이용약관에 대하여 미래창조과학부장관에게 신고하거나 그 인가를 받아야 한다는 사정이 이 사건 금액의 위약금으로서의 법적 성격을 부인하는 근거가 될 수는 없다.

2) Determination on the assertion on non-founded grounds for filing a claim for rectification

The Defendant asserts that the tax base and tax amount entered in the original tax base return should be attested to exceed the tax base and tax amount to be reported under the tax laws, by putting out “the detailed amount by item of the penalty for which the initial tax return and the request for correction was filed,” and “the details of the settlement of the penalty for breach of duty, and evidence related thereto,” regarding each of the instant requests for correction.

However, the duty to investigate and confirm the tax base and tax amount stated in the tax base return to the defendant who is the tax office upon request for reduction or correction (see, e.g., Supreme Court Decision 2002Du9261, Aug. 16, 2004), Gap evidence 13-3, Gap evidence 14 through 16-17-1, and Gap evidence 18-2, and the whole purport of arguments regarding the amount of the above tax base and tax amount to be reported under tax-related Acts. On November 19, 2014, the plaintiff selected the defendant 189,05,05,000 won for the total amount of 170,000 won to 25,000 won for the above tax base and tax amount to be reported, and the plaintiff's request for correction and correction from the above tax-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related law-related authority-related legal-related authority-related authority.

3) Each of the dispositions of this case is unlawful and thus must be revoked.

3. Conclusion

The plaintiff's claim is justified, and it is so decided as per Disposition.

[Attachment]

Judges Choi Jin-young (Presiding Judge)

Judges are unable to sign and affix a seal on a birth leave;

1) The amount calculated by multiplying the value-added tax amount that the Defendant refused to refund by 110/10,000.

2) When the Defendant rejected a claim for correction at the time of the first rejection disposition, “the penalty calculated based on the discount amount of the device (such as Ann terminal, Vip terminal, PC support, portable STB terminal, etc.) offered while supplying the Internet telecommunications service” was excluded from the subject of the claim.

3) With respect to mobile phone devices sold simultaneously with subscription to mobile phone services, the Plaintiff reported and paid the total amount of devices prior to discount at the time of selling mobile phone services, including the sales tax base, and thereafter, with respect to penalty calculated on the basis of the discount amount of mobile phone devices received by the user after early termination of the mobile phone service contract within the agreed period, it is not included in the tax base at the time of filing the return and payment of the value-added tax and is not included in the subject of the instant claim for correction. Thus, the penalty related to the discount of mobile

Note 4)