[부가가치세경정거부처분취소][공2003.6.15.(180),1347]
[1] Requirements for falling under the "amount of discount" under Article 13 (2) 1 of the Value-Added Tax Act
[2] The case holding that part of the value of goods equivalent to the sales discount amount of a mobile phone cannot be deemed as self-supply in the mobile phone business, which is a tax-free mobile phone business
[1] Article 13 (2) of the Value-Added Tax Act provides that "the amount falling under any of the following subparagraphs shall not be included in the tax base" and Article 52 (2) of the Enforcement Decree of the same Act provides that "the amount of discount under Article 13 (2) 1 of the Act shall be the amount which deducts a specified amount directly from the ordinary supply value at the time of supply of goods or services in accordance with the terms and conditions of payment for quality, quantity, delivery and supply in exchange for the supply of goods or services." Thus, the amount of discount under the above provision is sufficient if it is determined according to quality, quantity, payment for delivery and supply prices, and other terms and conditions of supply, and the time of occurrence is not limited to the time of the supply of the goods or services.
[2] The case holding that since "the case of direct use and consumption for a person himself/herself under Article 6 (2) of the Value-Added Tax Act refers to the cases of use (use) or the removal of the form of the goods, it cannot be deemed that the mobile carrier directly used and consumed part of the value of the goods equivalent to the discount amount on the ground that the mobile carrier sold a device discount for the mobile telephone business, which is a tax-free business, on the ground that he/she sold a device discount for the mobile telephone business
[1] Article 13 (2) 1 of the Value-Added Tax Act, Article 52 (2) of the Enforcement Decree of the Value-Added Tax Act / [2] Article 6 (2) of the Value
Estecom Co., Ltd. (Attorneys Lee Im-soo et al., Counsel for the plaintiff-appellant)
Head of the Southern District Tax Office and 18 others (Law Firm, Kim & Lee, Attorneys Kim Tae-chul et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 200Nu5762, 200Nu5779 decided June 29, 2001
All appeals are dismissed. The costs of appeal are assessed against the Defendants.
1. As to whether a discount falls under the amount of discount
Article 13 (2) of the Value-Added Tax Act provides that "the amount falling under any of the following subparagraphs shall not be included in the tax base", and Article 52 (2) of the Enforcement Decree of the Value-Added Tax Act provides that "the amount of discount under Article 13 (2) 1 of the Act shall be the amount calculated by deducting a specified amount directly from the ordinary supply value at the time of the supply of the goods or services in accordance with the terms and conditions of the quality, quantity, and payment of the cost of delivery and supply, and other terms and conditions of the supply in the supply of the goods or services." Thus, the amount of discount under the above provision is sufficient if it is determined in accordance with the terms and conditions of the quality, quantity, and the cost of delivery and supply, and the time of occurrence is not limited to the time of the supply
According to the reasoning of the judgment below, the court below acknowledged the following facts: the Plaintiff was established for the purpose of providing mobile communications services on May 2, 1994; the Plaintiff supplied the instant device from the time of commencement of the instant 017 service to the instant agency; the call area of 017 service was limited as part of the Seoul Metropolitan area and Chungcheong right; and the Plaintiff’s subscription to 017 service was low; the Plaintiff recommended the instant agency to provide the instant discount amount from the supply price to the consumers on the condition that it would be used for at least one year after opening the service network at the end of 017 service; the instant agent would be entitled to deduct the outstanding amount from the fixed amount of 30,000,000 won from the fixed amount of 130,000,000 won from the fixed amount of 17,000,0000 won from the fixed amount of 2,000,0000 won from the supply price of the instant device under the condition of the instant 17,01,0,0,007, etc.
In light of the above legal principles and records, the above recognition and judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to the value-added tax base as otherwise alleged in the
2. As to whether it constitutes a self-supply
According to the reasoning of the lower judgment, the lower court determined that the Plaintiff could not be deemed to have directly used and consumed part of the value of goods equivalent to the discounted value on the ground that the Plaintiff sold the instant device at a discount for the mobile telephone business, which is a tax-free business, on the ground that the Plaintiff sold the instant device for the purpose of a tax-free mobile phone business, on the ground that the Plaintiff had directly used and consumed for the mobile telephone business, which is a tax-free business.
In light of relevant statutes and records, the above recognition and judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the principle of substantial taxation, as otherwise alleged in the ground of appeal.
3. Conclusion
Therefore, all appeals are 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.
Justices Shin Hyun-chul (Presiding Justice)