[부가가치세부과처분취소][공1985.12.1.(765),1492]
(a) whether the zero tax rate is applied to goods or services supplied without going through a direct contract with a nonresident or foreign corporation having a domestic place of business (affirmative);
B. Requirements for establishing non-taxable practices
A. Article 26 (1) 1 of the Enforcement Decree of the Value-Added Tax Act provides that "goods or services supplied to a nonresident or foreign corporation having no domestic place of business in the Republic of Korea" means goods or services obtained foreign exchange earnings by supplying a domestic place of business in the Republic of Korea under a direct contract with a nonresident or foreign corporation. Therefore, even a nonresident or foreign corporation having a domestic place of business shall be subject to the zero-rate tax rate under the above Enforcement Decree, just as in the case where there is no domestic place of business, in case of goods or services supplied without a domestic place of business under
B. The fact that there was a omission of taxation for a certain period alone cannot be deemed to have existed a national tax practice generally accepted by taxpayers under Article 18(2) of the Framework Act on National Taxes, and the establishment of a non-taxable practice can be recognized only when, with the knowledge of the fact that the tax authority could impose a tax, the taxpayer made a speech and behavior suggesting the imposition tax on the taxpayer, and there are circumstances to deem that it is not unreasonable for the taxpayer to trust because the taxpayer failed to impose
(a) Article 11(1)4 of the Value-Added Tax Act and Article 26(1)1 (b) of the Enforcement Decree of the same Act;
Supreme Court Decision 85Nu366 Decided September 10, 1985, Supreme Court Decision 84Nu55 Decided May 22, 1984
Plaintiff 1 and one other, Plaintiffs et al., Counsel for the plaintiff-appellee
The director of the tax office
Seoul High Court Decision 83Gu1022 delivered on February 11, 1985
The judgment below is reversed and the case is remanded to Seoul High Court.
The plaintiffs' grounds of appeal are examined.
1. On the first ground for appeal:
(1) According to the reasoning of the judgment below, the court below applied zero tax rate for reasons that Plaintiff 1's income falls under the price for services acquired in foreign currency under Article 11 (1) 4 of the Value-Added Tax Act from July 1, 1974 to January 1, 1981, and Plaintiff 1's U.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S.s.s. S.s.s.s. S.s.s.s.s.s.s.s.s.s.s..s.......................................
1. Exported goods 2. Services supplied overseas; 3. Services supplied overseas; 4. Services for earning foreign currency other than those as referred to in subparagraphs 1 through 3, and those as prescribed by the Presidential Decree; and 26(1) of the Enforcement Decree thereof (amended by the Presidential Decree No. 10981, Dec. 31, 1982); and
1. Since the provision of goods or services supplied to non-residents or foreign corporations having no domestic place of business in the Republic of Korea provides that the price shall be paid in foreign exchange certificates or won currency at a foreign exchange bank, so long as the plaintiff supplied services to foreign corporations having a domestic place of business, the zero tax rate of the value-added tax system cannot be applied to the supply of the services is natural in light of the express interpretation of the above
(2) However, Article 11 (1) 4 of the Value-Added Tax Act provides that the supply of goods and services for foreign exchange earnings shall be subject to zero tax rate prescribed by the Presidential Decree for the policy purpose of encouraging foreign exchange earnings. Accordingly, Article 26 of the Enforcement Decree of the Value-Added Tax Act provides that the supply of goods and services for foreign exchange earnings traded in Korea shall also be subject to the application of zero-rate tax rate. Thus, in light of the above legislative purpose, Article 26 (1) 1 of the Enforcement Decree of the Value-Added Tax Act provides that "goods or services supplied to nonresidents or foreign corporations having no domestic place of business in Korea" means goods or services supplied in Korea without a domestic place of business under a direct contract with nonresidents or foreign corporations. Therefore, it is reasonable to interpret that zero-rate tax rate shall apply to the supply of goods and services for foreign exchange earnings (see, e.g., Supreme Court Decision 85Nu3666, Sep. 10, 1985).
Ultimately, the judgment of the court below that the plaintiffs cannot apply the zero tax rate to the service supply of this case is erroneous in the misapprehension of legal principles as to the application of the zero tax rate under the above Act, which affected the conclusion of the judgment. Therefore, the argument that points
2. On the second ground for appeal:
The fact that there was a omission of taxation for a certain period is just and the decision of the court below to this purport is justified, and it is not reasonable to recognize the establishment of non-taxation practice only when there was a speech or behavior suggesting a taxpayer to impose a non-taxation, even though the tax authority knew that there was no national tax practice accepted by the taxpayer as a general rule under Article 18 (2) of the Framework Act on National Taxes, and there was a circumstance to find that the taxpayer's trust is not unreasonable due to the failure to impose it for a considerable period of time in the public interest needs (see, e.g., Supreme Court Decision 84Nu55, May 22, 1984). Thus, the decision of the court below to this purport is without merit, and there is no violation of the respect for non-taxation practice,
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jong-soo (Presiding Justice) (Presiding Justice) since he is during overseas business trip, he is unable to sign and seal (Presiding Justice).