[2] The case holding that the value-added tax base for the supply of services can be deemed as a simple lottery sales contract, not a lottery sales contract under a contract entered into with the intermediary wholesaler, etc. with the company that provides lottery sales agency services to the lottery issuer

[2] Where a company that received lottery tickets from a lottery issuer and provides lottery sales agency services to intermediary wholesalers, etc. can be seen as a simple lottery sales contract, not a commission of lottery sales agency services, the company's tax base of value-added tax on the supply of lottery sales agency services is the amount equivalent to the commission that the company provided lottery sales agency services and received in return, i.e., the difference between the lottery sales price for intermediary wholesalers and the price that the lottery issuer acquired from the lottery issuer

1. According to Article 13(1)1 of the Value-Added Tax Act, where the price is paid in money for the supply of goods or services, the price becomes the tax base of value-added tax. Thus, the value-added tax base for the supply of lottery sale services shall be the amount equivalent to the commission for sales agency received in return for the supply of services such as lottery

2. According to the reasoning of the lower judgment, the lower court determined that the Plaintiff’s input tax invoice cannot be submitted to the Defendant on the ground that, even if the Plaintiff received lottery tickets at a price lower than the value of lottery tickets and again supplied lottery tickets from the Foundation to intermediary wholesalers or retailers, etc. (hereinafter “Intermediate wholesalers, etc.”), the amount equivalent to the fees received from the Foundation is not limited to the portion that is calculated by deducting the fees paid from the intermediate wholesalers, etc. from the difference between the face value of lottery tickets and the face value of the value of the lottery tickets. Furthermore, if the Plaintiff was supplied to the Foundation for the supply of lottery sales agency services from the intermediate wholesalers, etc. for the supply of lottery sales agency services, the input tax amount for the said payment would be the amount of the input tax if the Plaintiff paid the price to the Foundation. However, even if the Plaintiff received lottery tickets at a price lower than the face value of lottery tickets from the Foundation and supplied the lottery sales agency services from the intermediary wholesalers, etc., the amount equivalent to the input tax invoice and the value-added tax amount can not be verified.

3. However, the lower court’s determination is difficult to accept for the following reasons.

According to the facts and records duly established by the court below, the plaintiff did not separately receive the sales agency fee, which is the proceeds from the above lottery sales agency service, from the foundation, but received lottery tickets, and paid only the amount equivalent to the value of the purchase price from the foundation among the proceeds from the sale of lottery tickets. Accordingly, the amount equivalent to the difference is the plaintiff's lottery sales agency fee. Thus, the plaintiff's lottery tickets with the face value of 500 won are accepted from the foundation, i.e., 430 won, and 422.5 won, and i.e., i., e., e., e., e., 370 won or 450 won, i., e., e., e., e., e., 430 won or 450 won, and e., e., e., e., e., s., e., s., e., s., 4300 won or e.

Examining the above circumstances in light of the legal principles as seen earlier, the Plaintiff and the Foundation did not specify the specific amount of the commission for lottery sales agency, but at least the amount within the scope excluding the sales profit of about 10% acquired by retail retail sales, and there is no room to deem that the Plaintiff did not commission the Plaintiff to intermediate wholesalers, etc. part of the lottery sales agency services that the Plaintiff should supply to the Foundation in the course of providing lottery tickets to intermediate wholesalers, etc., but rather did not sell the lottery ticket sales agency services entrusted by the Foundation to the Foundation to the intermediate wholesalers, etc... In such a case, the lower court should have sufficiently examined the nature of the contract with the Plaintiff and the intermediate wholesalers, etc., and then the tax base for value-added tax on the supply of the Plaintiff’s lottery sales agency services would be equivalent to the difference between the Plaintiff’s lottery sales price for the intermediate wholesalers, etc. and the amount equivalent to the commission received in return.

Nevertheless, the court below held that the disposition of this case where the value-added tax is imposed on the whole amount equivalent to the difference by deeming the difference between the face value of lottery tickets and the Plaintiff’s acceptance value as the price for the supply of lottery ticket sales services without sufficient deliberation on the above point. In this case, the court below erred by misapprehending the legal principles on the tax base of value-added tax in the supply of lottery sales services, and failing to exhaust all necessary deliberation. Thus, the plaintiff’s ground of appeal pointing this out is with merit.

Meanwhile, Supreme Court Decision 2002Du10391 Decided January 29, 2004 cited by the court below is related to the imposition of value-added tax before the taxable period of this case, which was held by the plaintiff and the defendant. However, unlike the disposition of this case, the disposition of this case takes only a part of the difference between the face value of lottery tickets and the value of acceptance from the foundation as the commission for lottery sale, and it cannot be applied to this case as it is because it takes the value-added tax base.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)