이 사건 사은품은 그 실질이 부가가치세의 과세표준에 포함될 수 없는 장려금 또는 그에 준하는 성질을 가지는 것임[국승]
Seoul High Court 2013Nu52409 ( August 19, 2014)
Seocho 2013west0315 (2013.07.04)
The private goods of this case have the nature of incentives or equivalent thereto which can not be included in the tax base of value-added tax.
The goods of this case are cash which is ultimately reverted to all customers who join the Internet telecommunications line service. The purpose of this case is to promote sale and build a market, etc., and the incentive and insufficient amount paid according to the trading quantity or premium amount pursuant to the prior agreement is difficult to view it as the service cost of the sales agency.
Articles 13 and 17 of the Value-Added Tax Act
2014Du41404 Disposition revocation of Disposition of Imposition of Value-Added Tax
AAA, Inc.
Head of Geumcheon Tax Office
Seoul High Court Decision 2013Nu52409 Decided August 19, 2014
The appeal is dismissed.
The costs of appeal are assessed against the Plaintiff.
The grounds of appeal are examined.
1. Based on its adopted evidence, the court below found that ① the Plaintiff is an Internet business-related agent with the primary business sector to attract users of BB (hereinafter referred to as “BB”) such as the Internet, etc., and CCC (hereinafter referred to as “CCC”) and DDD (hereinafter referred to as “DDD”) as the Plaintiff’s business agent and received sales agency fees from the Plaintiff in return for attracting subscribers such as super-high speed Internet, Internet telephone, Internet TV, etc.; ② According to the sales agency contract entered into with CCC on April 2009 with the Plaintiff, CCC (hereinafter referred to as “CB”) attracting customers to use the super-high speed Internet, etc. provided by BB on behalf of the Plaintiff, and paid cash to the attraction, and ③ the Plaintiff considered the Plaintiff as a representative of CCC and the amount of sales agency fees paid by the Plaintiff to the Plaintiff by deeming that the amount of sales agency, etc., including the value-added tax and the amount of sales agency fees, was not included in the amount of sales agency fees paid by the Plaintiff as the Plaintiff’s sales agent.
Furthermore, the lower court determined that the instant disposition imposing the value-added tax is lawful, based on the following: (a) the Plaintiff paid cash goods directly to the Internet subscriber, unlike the type of transaction in principle under the sales agency contract; (b) the Plaintiff did not prepare the said sales agency contract with the 59 sales agencies except for CCC and DD; (c) the purchase tax invoice received from the Plaintiff did not include the amount of cash goods in the service cost; (d) the services of CCC and DD were not substantially different from the services of other 59 sales agencies; and (d) the cash goods ultimately collectively belong to all customers who join BB’s Internet communications line services; and (e) the cash goods paid by the Plaintiff are difficult to be considered as the consideration for the services provided by CCC and DD; and (b) the Defendant denied the deduction of the input tax amount corresponding to the portion of the cash goods.
2. In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are acceptable, and there is no error in the misapprehension of legal principles as to the grant money or incomplete hearing.
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.