전력 초과사용량에 따른 위약금이 부가가치세 과세대상인지 여부[국승]
Whether penalty for excess volume of electricity consumption is subject to value-added tax.
Since it is reasonable to see that the substance of the excess penalty imposed on the excessive quantity of electricity used in excess of the contractual power is in a quid pro quo relationship with the Plaintiff’s power supply, the imposition of value-added
Article 1 of the Value-Added Tax Act
Article 13 of the Value-Added Tax Act
1. All appeals are dismissed.
2. The costs of appeal are assessed against the Plaintiff.
In comparison with the records and the judgment of the court below, the argument on the grounds of appeal by the appellant is clear that it falls under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal, and therefore, all appeals are dismissed under Article 5 of the same Act. It is so decided as per Disposition by the assent of all participating Justices.
[Seoul Administrative Court 2006Guhap32023, 2007. 14]
1. The plaintiff's claims against the defendants are all dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Defendants’ [Attachment 1] List “date of Notice” shall revoke all the imposition of each value-added tax on each item in the same list “amount by taxable period” as the Plaintiff on each date of notice.
1. Details of the imposition;
A. On March 1, 2004, the Plaintiff, an operator of the electric power supply business, revised and implemented the main text of Article 44(2)2 of the former Terms and Conditions of the former Terms and Conditions of the former Terms and Conditions as “if the amount of electricity used exceeds 450 hours per month for the amount of the contractual power used by the customer in excess of the contractual power in excess of the amount of the contractual power, the Plaintiff shall be subject to penalty by adding 150% of the unit price for the amount of the excess electricity used to the customer who uses the excessive amount of electric power in excess of the contractual power in addition to 150% of the unit price for each type of the contract in question,” and did not report and pay value-added tax on the portion corresponding to the amount of excess electricity used in excess of the contractual power as it is not subject to value-added tax.”
B. Accordingly, the head of ○○ Tax Office conducted a tax investigation with respect to the Plaintiff, and deemed that the Plaintiff’s penalty for excess electricity volume collected from customers during the value-added tax period from January 2004 to January 2005 (hereinafter “excess penalty”) as consideration for the supply of electricity and notified each disposition authority of taxation data. Accordingly, the Defendants issued each of the instant dispositions imposing the Plaintiff the corrective and notification of the excess penalty for the first period of January 2004, February 2004, and January 2005, as stated in the purport of the claim.
2. Whether the disposition of imposition is lawful.
A. The plaintiff's assertion
The above penalty is imposed separately from the normal charge in accordance with the standard for imposing the penalty prescribed in the main sentence of Article 44(2) of the former Terms and Conditions of Electricity amended as of March 1, 2004 (hereinafter referred to as the "Terms and Conditions of Electricity") and is subject to monetary sanctions on the use of electricity in violation of contractual power, and even if it is not a consideration for the supply of electricity, each of the instant dispositions by the Defendants, based on different premise, is unlawful.
(b) Related statutes;
○ Article 1 of the Value-Added Tax Act
(1) Value-added taxes shall be imposed on the following transactions:
1. Supply of goods or services; and
2. Import of goods.
○ Tax base Article 13 of the Value-Added Tax Act
(1) The tax base for value-added taxes on the supply of goods or services shall be the aggregate of values falling under each of the following subparagraphs (hereinafter referred to as "value of supply"): Provided, That value-added taxes
1. Where payments are given in money, the payments;
2. Where payments other than money are given, the current market price of goods or services supplied by the supplier;
3. Where payments for the supply of goods are unjustifiably low or no payments are made, the current market price of goods supplied by the supplier himself/herself;
3-2. Where payments for the services rendered are unjustifiably low, the current market price of such services rendered by the relevant supplier; and
4. Where the business is closed down, the current market price of inventory goods.
Article 48 of the Enforcement Decree of the Value-Added Tax Act
(1) The tax base under Article 13 (1) of the Act shall include payments, commissions, fees, and all other monetary values in exchange for consideration, regardless of the pretext or pretext received from a trader.
(c) Fact of recognition;
(1) The main text of Article 44(2) of the former Terms and Conditions prior to the amendment of the amended Terms and Conditions (hereinafter referred to as the "Terms and Conditions prior to the amendment") provides that the main text and content of Article 44(2) of the amended Terms and Conditions shall be identical to that of the former Terms and Conditions, and that "I receive penalty by adding "I receive penalty" shall be added," and the plaintiff has reported and paid value-added tax on the electric charges collected for the volume of electricity used (the amount exceeding the contract power X450 hours) before the implementation of the amended Terms and Conditions, and has not reported and paid value-added tax thereon simultaneously with the implementation of the amended Terms and Conditions.
(2) The contract power is calculated by multiplying the contract power by the maximum power that the customer can use under a contract. The contract power is basically set up by an agreement between the Plaintiff and the customer in order to ensure the stable supply of electricity by prior installation of power supply facilities, such as transformers and power meters, which are adequate by ascertaining the amount of electricity required by the consumer in advance and providing it in advance.
(3) The method of calculating the electricity rate is calculated by adding the basic electricity rate of 10 kw and the actual electricity volume of 50 kws according to the contract amount regardless of the quantity of electricity used. The basic electricity rate is the cost for the supply of electricity that is adequate for the contract amount of the consumers. Therefore, if the contract amount is determined higher, not only the basic electricity rate is calculated higher but also the cost for the installation of the supply of electricity that is borne by the customers increased (see the Standard Construction Cost Table 4 [Attachment 4] of Articles 84 and 93 of the amended Terms and Conditions, 93 [see the Standard Construction Cost Table]]. If electricity is used exceeding the contract amount of 1 to 2 months per year, it is also possible to save the contract amount of 60 k, X 50 k, X 50 k, X 50 k basic electricity rate of 70 k k2,000 k basic electricity volume exceeding the contract amount of 1 to 50 k k 50 k,50 k basic electricity volume per month.
(4) The Plaintiff’s electric fee claim notified to the customer provides that if the monthly amount of use exceeds the contractual power capacity on more than two occasions, the additional charge (150%) was notified and the appropriate facility capacity shall be expanded. However, the above claim is treated as an additional charge, not a penalty, and even if the customer uses it in excess of the contractual power capacity, it does not take any measures against any particular contractual breach in addition to imposing a penalty exceeding the Plaintiff. Article 50 of the amended terms and conditions imposes liability on the customer for damages caused the Plaintiff’s electric installations, etc. on purpose or by negligence. Article 50 of the amended terms and conditions imposes liability on the customer when the customer intentionally or by negligence damages the Plaintiff’s electric installations, etc., even if the damage occurred to the wind used in excess of the contractual power capacity, it may be compensated by the customer as a means of compensation for damages, and it is not so significant that it is necessary to prepare for such damage through a penalty (if the change pressure, etc
(5) The electricity charge system imposes a charge on the high-speed electric power used for the high-speed electric power by increasing the maximum of 50% of the non-powered electric power used for the high-speed electric power, and in the case of the residential power, the electric charge per 1kw is up to 11.7 times the high-speed electric power charge system.
D. Determination
(1) Article 13(1) of the Value-Added Tax Act provides that the tax base of value-added tax shall be the sum of values falling under any of the following subparagraphs, and Article 48(1) of the Enforcement Decree of the Value-Added Tax Act provides that "if the tax base of value-added tax is paid with money, the consideration shall be placed, and Article 48(1) of the Enforcement Decree of the Value-Added Tax Act provides that "any monetary value in the relation
(2) According to the main sentence of Article 44(2) of the amended Terms and Conditions, the above penalty for breach of contract is not just for the supply of electricity, but for the violation of the contract. However, as seen earlier, the above penalty for breach of contract is merely for the modification of the name that was stipulated as additional charges in the terms and conditions of the contract before the amendment. ② There are not only the amount of electricity used but also the basic charges under the contract for the use of electricity, which are less basic charges than those for the users who use the electricity exceeding the basic charges, and it is necessary for the Plaintiff to impose the charges for the use of electricity in any form, which are appropriate for the amount of electricity used. ③ The above amount of electricity is not changed from the supply of electricity to the Plaintiff, and it is reasonable to impose the amount of electricity exceeding the basic charges for the use of electricity exceeding the basic charges for the use of the contract. Furthermore, it is reasonable to consider that the above amount of electricity exceeds the basic charges for the use of electricity exceeding the basic charges for the use of the contract, rather than the amount of electricity used exceeding the basic charges for the contract.
(3) Therefore, each of the instant dispositions imposing value-added tax on excess penalty is lawful, and the Plaintiff’s assertion that differs from this premise is without merit.
3. Conclusion
Therefore, the plaintiff's claim against the defendants is justified, and it is so decided as per Disposition by the assent of all participating Justices.
[Seoul High Court Decision 2007Nu23691, April 10, 2008]
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance court is revoked. The notice date of the list "date of notification" written by the Defendants shall be revoked in all the imposition of each value-added tax stated in the same list for the Plaintiff on each date of notification.
The court's reasoning concerning this case is as follows, with the exception of partial dismissal of the grounds for the judgment of the court of first instance, the entry of the grounds for the judgment of the court of first instance is the same as the entry of the grounds for the judgment of the court of first instance. As such, Article 8 (2) of the Administrative Litigation Act and
· 제5쪽 2번째 줄의 "전기설비를 등을" ⇒ "전기설비 등을"
· 제5쪽 20번째 줄의 "띄고 있으나" ⇒ "띠고 있으나"
Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.