Article 29 (Medical and Health Services)

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

가. 원고 박AA는 2004.11.01.부터 ○○ ○○구 ○○동 832-29 소재 ☆☆빌딩 6, 7, 8층에서 상호 '●●마'로 안마시술소를 운영하다가 2007.03.26. 폐업하고, 김BB은 2007.03.12. 같은 장소에서 상호 '◆◆아'로 안마시술소를 운영하다가 2008.05.27. 폐업하였다.

나. 그런데 ○○지방국세청의 세무조사 결과, 안마사 김BB은 명의대여자에 불과하고 실제로는 정상인으로서 안마사 자격이 없는 원고 김CC이 시각장애인으로서 안마사인 원고 박AA와 9:1의 지분으로 ●●마와 ◆◆아(이하 ●●마와 ◆◆아를 합하여 '●●마 등'이라 한다)를 운영한 사실이 밝혀짐에 따라, 피고는 원고들이 공급한 안마시술 용역이 부가가치세 면제 대상에 해당하지 않는다고 보아 2008.09.01. 공동사업자인 원고들에게 청구취지 기재 부가가치세 7건, 합계 420,128,860원을 부과하였다 (이하 '이 사건 처분'이라 한다).

C. The plaintiffs filed a request with the Tax Tribunal on September 23, 2008. However, on September 09, 2009, the Tax Tribunal determined that the plaintiff KimCC, who was not entitled to establish a massage place because it was not a massage operator, employed the plaintiff YA as qualified to establish a massage place, or the massage treatment services employed and provided jointly with the plaintiff YA, are not subject to value-added tax exemption because it does not constitute medical health services. However, on the premise that if the plaintiff YA separately operated the massage part by employing the visually disabled person, the part may be subject to value-added tax exemption, on the premise that the plaintiffs can be subject to value-added tax exemption.

D. Accordingly, the head of ○○ Regional Tax Office conducted a reinvestigation pursuant to the aforementioned decision made by the Tax Tribunal, but the Plaintiff failed to submit the relevant documentary evidence. As such, the Defendant maintained the instant disposition on the premise that the Plaintiffs operated the entire massage place, such as Balbale, as the shares of 9:1.

[Recognition] Facts without dispute, Gap evidence 1, 2, 3

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

A. The plaintiffs' principal

As a visually disabled person from November 01, 2004, the Defendant’s disposition of this case is unfair since it is clear that the service itself constitutes a medical and health service exempt from value-added tax pursuant to relevant statutes, inasmuch as the Plaintiff Park Jong-A, as a financial investor managing the business fund, invested in the operational fund, was in the position of receiving profit distribution as a financial investor managing the business fund. In the event that the Plaintiff Park Jong-A, as well as the Plaintiff Park Jong-A, provided the massage-A with a massage operation by employing the massage, even though the profit accrued therefrom was attributed to the Plaintiff KimCC or whether the Plaintiffs violated the Medical Service Act.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

First of all, in light of the health class, Eul evidence 3-1, 2, 3, and Eul evidence 8-1 through 5, and the purport of the whole arguments as to the relation of the plaintiffs, the plaintiff Park Park Jong-A independently operates the Balbae, etc. and the plaintiff KimCC is not merely an investor of Balbale, etc., but also a fact that the plaintiffs jointly operated with the shares of 9:1 as stated in the investigation process of the ○○ regional tax office. Thus, this part of the plaintiffs' assertion that the plaintiff KimCC is merely a mere financial investor is without merit.

Next, regarding the legitimacy of the imposition disposition of value-added tax on the massage services supplied by the plaintiffs, exemption from value-added tax on the massage services in light of the following circumstances is deemed to be strictly interpreted, and therefore it is difficult to view BBma, etc. as a place of business exempt from value-added tax.

1) The Value-Added Tax Act provides for the exemption of value-added tax on all goods and services in order to alleviate the dynamicness of consumption tax, or to achieve policy objectives for social, cultural, and public interest. Article 12(1)5 of the Value-Added Tax Act (hereinafter “the Act”). Article 29 of the Enforcement Decree provides for the exemption of value-added tax on “the supply of medical and health services prescribed by the Presidential Decree”. Article 12(1)4 of the Act (Article 12(1) of the Act provides for the exemption of value-added tax on 3-2. Women’s physiological hygiene and hygiene and health services; Article 12(1)4 of the Act provides for the exemption of value-added tax on 3-2.0 of the Act; Article 9 of the former Medical Service Act provides for the exemption of value-added tax on 1.0-4 and 4.0-5 of the Act without properly reflecting the system under Article 9(2)4 and the provision of value-added tax on 2.0-10 of the former Medical Service Act.

2) According to Articles 82, 33, and 66 of the Medical Service Act, only the visually impaired who has undergone a certain course of study may be a massage club, and only such massage club may establish a massage clinic or massage clinic. If a massage club is employed by a person who is not entitled to establish a massage clinic and performs an act of massage under employment, the relevant massage club may be subject to a disposition of suspension of license. According to Article 82 of the Medical Service Act, the rules on massage, which stipulate the recognition of the recognition of a massage club, the limit of its duties, the standards for installation of massage clinic and massage clinic (Article 2), and the standards for installation of a massage clinic (Article 6). The head of Si/Gun/Gu shall instruct the relevant public official to guide and check whether the massage clinic or massage club complies with the matters to be observed by the relevant public official at least once a half-year period, have set the detailed standards for administrative disposition on the violation of Article 8, 9 (Articles 9) and the articles of association of the Association of the Matrio Association for the visually under Article 38.

Meanwhile, Article 12(1)6 of the Act provides that the value-added tax shall be exempted for educational services prescribed by Presidential Decree, and Article 30 of the Enforcement Decree of the Act provides that "schools, private teaching institutes, training institutes, training institutes, teaching schools, and other non-profit organizations." The requirements for the duty-free educational services include the government's permission or authorization under the Enforcement Decree. The reasons why the government requires the government's permission or authorization under the requirements for the duty-free educational services are due to the necessity of guiding and supervising the educational institutions such as the relevant schools and private teaching institutes, and the government's non-permission or authorization is excluded from tax-free educational institutions (see Supreme Court Decision 2007Du23255, Jun. 12, 2008). Such interpretation and necessity of the above statutes are also applicable to the massage and massage treatment establishments in light of the provisions of the Medical Service Act as seen earlier, so it is reasonable to legally establish massage treatment establishments under the Medical Service Act.

3) The purport of the Medical Service Act stipulating that only the visually disabled person can be a massage club, and only the massage club shall establish a massage clinic, and deeming the massage service as an act of similar medical treatment is in accordance with the constitutional request to protect the livelihood of the visually disabled who is in a poor condition than the general public (see, e.g., Constitutional Court Order 2003Hun-Ba715, May 25, 2006; Constitutional Court Order 2002Hun-Ga16, Jun. 26, 2003).

Meanwhile, the system of tax exemption under the Value-Added Tax Act is divided into ① a case where a person who supplies goods or services is exempt from all, ② a case where a person supplies goods or services supplied by a specific business operator is exempted from all, and ③ a case where a specific business operator is exempted from all those goods or services supplied by a specific business operator. In full view of the social policy functions of the system of tax exemption under the Value-Added Tax Act and the classification of the system of tax exemption and the system of tax exemption, it is deemed that a place of massage practice constitutes only a case where a specific business operator supplies the services provided by a specific business operator. Such benefits of tax exemption are to only a case where a massage operator supplies the services lawfully. Therefore, it is reasonable to interpret that only a case where a person who is qualified under the Medical Service Act directly or by hires a certified massage and supplies the services provided for massage services is exempted from the value-added tax.

Ultimately, in light of all such circumstances, the Defendant’s disposition imposing value-added tax on the instant massage services that Plaintiff KimCC opened and supplied a massage place jointly with Plaintiff Gaba, who is not legally qualified, is justifiable. Therefore, the Plaintiffs’ assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.