부가가치세 면제대상은 적법한 허가를 받은 자에 의한 증권업을 의미함[국승]
Seoul Administrative Court 2010Guhap29765 ( December 10, 2010)
Cho High Court Decision 2010west044 (2010.06.01)
The object of VAT exemption means a securities business by a person who obtains legitimate permission.
Securities business under the Securities and Exchange Act refers to securities business permitted by the Securities and Exchange Act, which is a securities business by a person who has obtained legitimate permission under the former Securities and Exchange Act, and since the plaintiffs are not a corporation permitted by the Financial Services Commission, the acts of stock transaction outside the country of the plaintiffs are not subject to
2011Nu3090 Revocation of taxation disposition
1. The Ga2. RedB
○ Head of Tax Office and one other
Seoul Administrative Court Decision 2010Guhap29765 decided December 10, 2010
July 6, 201
August 17, 201
1. All appeals filed by the plaintiffs are dismissed.
2. The costs of appeal are assessed against the Plaintiffs.
The decision of the first instance is revoked. The imposition of value-added tax of KRW 118,137,090 and global income tax of KRW 81,327,670 and the imposition of value-added tax of KRW 118,137,09 on October 1, 2009 by the head of the Suwon Tax Office, and the imposition of value-added tax of KRW 118,137,090 against Plaintiff HongB on October 1, 2009 shall be revoked.
The reason for the judgment of the first instance is reasonable, and it is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act of Article 8(2) of the Administrative Litigation Act.
In the appellate court of this case, the plaintiffs asserts that the extra-counter stock trading act of this case is subject to value-added tax exemption pursuant to Article 33 (1) 2 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 21304 of Feb. 4, 2009) since it falls under the securities consignment sale under Article 2 (8) 2 of the Securities and Exchange Act (amended by Act No. 8635 of Feb. 3, 2009; hereinafter referred to as the "former Enforcement Decree of the Value-Added Tax Act").
However, considering the following, it is reasonable to view that the securities business under the Securities and Exchange Act, which is subject to VAT exemption under Paragraph (1) Item 2 of the former Enforcement Decree of the Value-Added Tax Act, refers to the securities business by a person who obtains lawful permission under the former Securities and Exchange Act.
(1) In principle, value-added tax shall be imposed on the supply of goods or services in accordance with relevant provisions, such as the Value-Added Tax Act: Provided, That only the supply of specific goods or services and the import of specific goods shall be limited exempted (see Supreme Court Decision 98Du1192, Dec. 26, 200).
② Under the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring any special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret the provisions that clearly indicate preferential provisions among the requirements for reduction and exemption (see Supreme Court Decision 2008Du11372, Aug. 20, 2009).
(3) The former Securities and Exchange Act limits the persons who are allowed to engage in a securities business to a stock company permitted by the Financial Services Commission (Article 28(1)), and stipulates that criminal punishment shall be imposed on a person who runs a securities business without obtaining permission from the Financial Services Commission (Article 208 Subparag. 1).
④ Although the VAT reduction and exemption system ultimately aims to reduce the consumer’s value-added tax burden, it is difficult to deem that legislators intended to give preferential treatment to consumers participating in illegal trade that is not permitted by law.
However, there is no dispute that the plaintiffs are not stock companies permitted to engage in securities business by the Financial Services Commission. Therefore, the act of trading stocks outside the securities of this case by the plaintiffs does not constitute a securities business under the Securities and Exchange Act.
The judgment of the first instance court to the same purport is just and without merit. The plaintiffs' appeal is dismissed in entirety.