Each statement of Gap evidence 1-1 to 10, Gap evidence 2-1, Eul evidence 3-2, Eul evidence 1-2, Eul evidence 1-2, and Eul evidence 2 through 10 can be acknowledged as follows in full view of the whole purport of the pleadings, and there is no other counter-proof.

A. On May 28, 1970, the Plaintiff established with the permission of incorporation of a non-profit incorporated association from the Minister of Culture and Tourism on December 31, 1994, consisting of 451 foreign members as of December 31, 1994, and 449 Korean nationals (797 regular members, 61 honorary members, 24 members, 14 members, and 14 associate members). The Plaintiff receives 20,000,000 won from regular members at the time of joining the said members, 50,000 won from diplomats, 50,000 won from Associate members, 30,000 won from Associate members, 10,000 won from Associate members to 10,000 won, 30,000 won from Associate members and Associate members are not refunded at the expense of 10,000,000 won, and 10,000,000 won, 10,0000.3 additional members currently operated from Ma members.

B. From July 1, 1989 to June 30, 1994, the total amount of monthly membership fees and all kinds of contributions paid by the Plaintiff’s members to the Plaintiff is KRW 6,245,621,430 ( KRW 4,310,678,750 for monthly membership fees + KRW 484,942,680 for monthly membership fees + KRW 291,00,000 for additional charges at the time of the change of the title holder of a corporate member + KRW 460,000 for additional charges at the time of the change of the title holder of a corporate member + KRW 65,00,000 for regular membership fees + KRW 216,000 for associate member membership fees + KRW 216,000 for associate member membership fees).

C. The Plaintiff, while operating a restaurant, is allowed to use food expenses only for non-members accompanied by members and members. Since the establishment of an outdoor swimming pool from around 1985 to March 1991, the Plaintiff’s construction of a sports facility (264 square meters) and a private-use facility (294 square meters) by altering part of the Plaintiff’s one floor of the building owned by the Plaintiff and allowing only non-members accompanied by members to use it, free of charge for the members, and for non-members, the Plaintiff’s major financial resources are membership fees, all contributions, profits from the operation of a restaurant, and interest income from a bank trust of KRW 20,000,00, which is required to deposit at the time of membership of a regular member.

D. Accordingly, on October 6, 1994, the Defendant considered the Plaintiff’s membership fees and all contributions paid by the Plaintiff’s members as remuneration for the use of the Plaintiff’s facilities (sports facilities, friendship facilities, and outdoor swimming pools), and deemed that the Plaintiff’s membership fees and all contributions paid by the Plaintiff’s members were omitted for sales from July 1, 1989 to June 30, 199, and the total amount of KRW 6,245,621,430 paid by the Plaintiff’s members was omitted for 640,682,090 (the total amount of KRW 44,85,040 for the second period of 1989, KRW 47,424,040 for the first period of 190, KRW 45, KRW 414, KRW 860 for the second period of 190 for the second period of 19, KRW 98, KRW 198 for the second period of 298, KRW 1960 for the year 298.

2. Whether the instant disposition is lawful

A. The parties' assertion

"(1) 원고는, 부가가치세의 납세의무자로 되기 위하여는 사업상 독립적으로 재화 또는 용역을 공급하는 자라야 하는바, ㈎ 원고법인의 회원들은 한국과 외국 간의 관계를 증진하고 문화교류를 꾀할 목적으로 원고법인의 회원으로 가입하여 제반기여금과 월회비를 납부하는 것이며 이러한 회원의 자격에서 원고법인이 사교의 장으로서 설치한 운동시설을 무료로 이용하는 것일뿐, 원고법인으로서는 회원들이 이를 실제로 이용하는지의 여부와 관계 없이 회원들로부터 가입비 등 제반기여금과 월회비 등을 징수하고 있고 회원들의 운동시설 이용의 대가로서 제반기여금이나 월회비 등을 받는 것은 아니므로, 원고법인이 그 회원들로 하여금 위 운동시설등을 이용할 수 있는 상태로 제공한 것이재화 또는 용역의 공급'이란 거래에 해당한다고는 할 수 없고, ㈏ 또한 비영리 사단법인인 원고가 법적으로는 법인이란 독립된 인격체이지만 실질적으로 회원들의 집합체이기 때문에 회원들 없는 원고법인은 성립될 수가 없다는 점에서 원고법인과 그 회원들 사이의 관계는 상호종속적, 상호의존적이기 때문에 원고법인은사업상 독립적으로' 재화 또는 용역을 공급하는 지위에 있지 아니하는바, 따라서 피고가 원고법인이 사업상 독립하여 재화 또는 용역을 공급하고 그 회원들로부터 위 운동시설 등의 사용대가로 제반기여금 및 월회비를 수령한 것으로 보아 이 사건 부과처분을 한 것은 위법하다는 취지로 주장한다.",(2) 이에 대하여 피고는, 원고법인이 그 회원들로부터 수령한 제반기여금 및 월회비는 모두 원고의 수익사업을 위하여 사용되고 있으며 위 회원들은 제반기여금 및 월회비를 납부하여야만 원고법인의 운동시설 등 제반시설을 이용할 수 있는 점, 원고법인의 구성원인 회원들의 가입과 탈퇴가 지속적으로 이루어지더라도 원고법인은 독자적으로 존속하고 있는 점, 원고가 그 회원들에게 제공하는 위 운동시설 등의 공급은 계속적, 반복적인 의사에 기하여 이루어지는 점 등에 비추어 볼 때, 원고법인이 그 회원들로부터 제반기여금 및 월회비를 수령하고 그 회원들에게 운동시설 등을 이용할 수 있도록 하는 것은 외형상 위 운동시설 등의 이용이 회원들에 대하여는 무료인 형식을 취하였으나 실질적으로는 회원들이 원고법인에게 제반기여금 및 월회비를 대가로 지급하고 위 운동시설 등을 이용하는 총체적 대가관계에 있다 할 것이므로 원고법인은 사업상 그 회원들과 독립하여 재화 또는 용역을 공급하는 자에 해당하므로 원고를 부가가치세 납세의무자로 본 피고의 이 사건 부과처분은 적법하다고 주장한다.

B. Relevant statutes

Article 1 (1) 1 of the Value-Added Tax Act provides that the value-added tax shall be imposed on the sale of goods or services, Article 1 (3) of the Value-Added Tax Act provides that the supply of goods or services shall be imposed on the transaction, and Article 1 (1) of the same Act provides that the service refers to all services and activities other than the goods which have property value. Article 2 (1) of the same Act provides that any person who independently supplies goods or services for business purposes regardless of whether it is for profit-making purposes is liable to pay the value-added tax pursuant to this Act, and Article 1 (2) of the same Act

In addition, Article 7 (1) of the Value-Added Tax Act provides that the supply of services shall be either provided with services or made use of goods, facilities or rights by all contractual or legal grounds, and Article 13 (1) thereof provides that the tax base of value-added tax on the supply of goods or services shall be the aggregate of the values under each of the following subparagraphs, and subparagraph 1 thereof provides that if the payment is made in cash, the payment shall be made in cash, and subparagraph 2 thereof shall be the market price of the goods or services supplied by the supplier, and Article 48 (1) of the Enforcement Decree of the Value-Added Tax Act provides that the tax base under Article 13 (1) of the Act shall include payments, charges, fees, and all other monetary values in a quid

C. Determination

Each of the evidence mentioned above and evidence No. 4-1 to No. 6, evidence No. 5-1 to 5, evidence No. 11, evidence No. 12-1, 23, and evidence No. 13 and No. 14 can be acknowledged as follows in full view of the whole purport of the pleading, and no other counter-proof exists.

(1) On May 28, 1970, pursuant to Article 32 of the Civil Act, the Plaintiff is an organization established after obtaining permission for establishment of a non-profit incorporated association with the purpose of cultural exchange and promotion between the Republic of Korea, the free world, and foreigners, and with foreigners, and with the Korean nationals, pursuant to the provisions of Article 32 of the Civil Act from the Minister of Culture Gazette.

(2) As seen earlier on December 31, 1994, the Plaintiff is composed of 90 members, and the board of directors is composed of 14 members elected by the vote of members, and is operated by a method of deciding important matters other than those to be resolved in the general meeting of members as stipulated in the articles of incorporation.

(3) To become a member of the Plaintiff foundation, an application shall be submitted with the recommendation of an existing member and shall obtain the final approval of the board of directors through a review by the Plaintiff’s Membership Management Committee. If a member of the Plaintiff becomes a member through such procedures, the member acquires the right to use the Plaintiff’s restaurant and sports facilities as a private school.

(4) Of the Plaintiff’s regular members, the Plaintiff’s regular members are entitled to transfer or purchase their membership and have the right to participate in the pro rata property portion at the time of dissolution of the Plaintiff’s corporation.

(5) Of the membership fees received by the Plaintiff from regular members, diplomats members, and associate members, the membership fees of regular members shall be refunded at the time of withdrawal, but the membership fees of diplomats and associate members shall not be refunded. On the other hand, when a member withdraws from the membership of a juristic person among regular members, and when a member withdraws from the membership of a juristic person, a contribution of KRW 1,00,000 shall be additionally paid at the time of the member’s withdrawal, and in particular, when the amount of use of a restaurant operated by the Plaintiff is less than KRW 75,00 as of December 31, 1994, all members operate a minimum burden system that imposes the difference on such member.

(6) All members, excluding only lifelong members residing overseas among the Plaintiff’s members, are obligated to pay the membership fees of 125,000 won per month (as of December 194). Accordingly, the Plaintiff is allowed to use food expenses only for members and non-members accompanied by the Plaintiff’s members while operating his/her restaurant. Since the establishment of an outdoor swimming pool from around March 1985, the Plaintiff installed a sports facility (264 square meters) and well-known facilities (294 square meters) by altering part of the Plaintiff’s building on the first floor and allowing them to use it only for non-members accompanied by the Plaintiff’s members and non-members, and operates it free of charge for the non-members. Meanwhile, if the Plaintiff’s member fails to pay monthly membership fees, the Plaintiff’s membership cards shall be returned and the sports facilities operated by the Plaintiff’s corporation shall not be used.

(7) The Plaintiff Corporation’s gross income for 6 years from the year 1989 to the year 1994 is KRW 18,593,407,00 (the cafeteria Operating Revenue 10,021,163,00 + the monthly membership fees and all contributions of its members + KRW 8,572,24,00). The total amount paid for the operation and maintenance of the Plaintiff Company’s restaurant and all sports facilities, etc. during the above period is KRW 18,912,365,00, the monthly membership fees and all contributions of its members are approximately KRW 45.33% of the above expenditure.

(8) The Plaintiff corporation is a private guide for supporting business, which promotes cultural exchanges and promotions between the Republic of Korea, countries of free world, foreigners and nationals, and between foreigners and nationals. Even in the case of 194, the Plaintiff corporation did not engage in activities for the unique purpose of business, except for those holding 2-3 high-level visits and gifts, and ordinary meetings and cultural events for the promotion of friendship among its members.

According to the above facts, even if the plaintiff corporation allows its members to use all sports facilities, etc. free of charge, and there is a difference between its members in the number of use, etc., it is reasonable to view that the plaintiff as a party to the transaction of goods or services in terms of the provision of sports facilities and the payment of monthly membership fees and all kinds of contributions, etc. when its members join (unclaimed interest income, etc.) and monthly membership fees paid by its members, etc., and as a result, the plaintiff's members are paid and provided as compensation for the money borne by its members. In addition, although the plaintiff corporation is an incorporated association consisting of its members, it has a general meeting consisting of the board of directors and its members and a general meeting consisting of its members and maintains its independence regardless of its members' admission and withdrawal.

"As a result, the plaintiff corporation's use of all sports facilities for its members is made for all contributions such as subscription fees and monthly membership fees borne by its members, and the plaintiff corporation continuously and repeatedly provides them independently and repeatedly with its members, so the plaintiff corporation constitutes "a person who supplies goods or services independently for business which is the requirement of a person liable for payment under the Value-Added Tax Act". Therefore, the defendant's disposition of this case by deeming the plaintiff corporation as a taxpayer under the Value-Added Tax Act and using the plaintiff corporation as the tax base for all contributions and monthly membership fees paid by its members to the plaintiff corporation is legitimate."

Therefore, the plaintiff's claim of this case seeking the revocation of the disposition of this case is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition.

July 30, 1997