Article 5 (Registration of the former Value-Added Tax Act)

2. The plaintiff ○○○’s claim against the defendant Cho Jae-nam Tax Office and the remaining claims against the defendant Lee Sung-nam Tax Office are all dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

다음 각 사실은 당사자 사이에 다툼이 없거나, 갑 제3호증의 1 내지 5, 갑 제5,7호증Ÿ�각 1, 2, 을 제1호증의 1내지 5, 을 제11, 13호증의 각 1, 2, 을 제12호증의 각 기재에 의하여 인정할 수 있다.

A. The plaintiffs are members (a rooftop: the plaintiffs, ○○○○○○○co., Ltd. (hereinafter referred to as “O○○○○○○co., Ltd.”) in an open market (a cyber trading place where goods can be traded between a seller and a buyer via the Internet site services) and sell goods by registering them as members (a rooftop: the plaintiffs, ○○○○○○○co., Ltd.).

B. The director of the Seoul Regional Tax Office received taxation data from the plaintiff and the seller registered in the open market as well as the plaintiffs from the above ○○○○○○○ Store and notified the defendants. On June 5, 2007, the director of the Seoul Regional Tax Office imposed value-added tax 7,245,90 won for the second term portion of 2003 on the plaintiff's maximum sale in the open market, and value-added tax 29,190,060 won for the first term in 2004, and value-added tax 43,873,130 won for the second term portion of 204, and value-added tax 35,350,270 won for the first term portion of 205, and 68,055,260 won for the second term portion of 2005, 208, 2005, 206, 2005, 207.

C. After that, on August 21, 2008, the head of Sungnam Tax Office reduced or corrected the amount of value-added tax 712,750 won, and value-added tax 573,340 won for the first half of 2005 on the ground that he/she determined the tax base including value-added tax on the Plaintiff Lee Nam-Nam (hereinafter the remaining disposition of imposition remaining after such reduction or correction is referred to as Disposition 2 of this case)

2. Determination as to whether the part of the lower court’s decision on reduction against the Plaintiff Lee Nam-nam by the head of Sung-nam Tax Office is legitimate

The facts as seen earlier are: (a) the amount of imposition of value-added tax for a period of 2005 is KRW 7,127,530 (=7,840,280 - 712,750 - 712,750 won); and (b) the amount of imposition of value-added tax for a period of 2005 is KRW 7,127,530 (i.e., KRW 7,840,280 - 712,750); (b) the amount of imposition of value-added tax for a period of 2 years of 2005 is KRW 5,73,500 (=6,306,840 - 573,340 won); and (c) the amount of imposition of value-added tax for a period of 205, which exceeds the amount of value-added tax for a period of 1 year of 2005; and (d) the amount of imposition of value-added tax for a period of 3637,7507.7

3. Determination of legality of the first and second dispositions of this case

A. The plaintiffs' assertion

(1) In light of the sales method of the open market, the final supplier and the actual supplier of the goods are the mail order distributor, but the parts 1 and 2 of the case where the plaintiffs, who are the sellers of the open market, deliver the goods and receive the sales proceeds according to the instructions of the open market business operator, are divided into substance over form principle. In light of the provisions of the above terms and conditions, the agreement between the open market and the individual members that the value-added tax should be paid by the open market is formed. In fact, since the open market business operator is an operator of the open market and the credit card merchant is a credit card merchant and the relevant accounting is related accordingly, the first and second dispositions of the case where the plaintiffs are regarded as the tax obligor under the Value-Added Tax Act are invalid.

(2) The director of the Seoul Regional Tax Office, by collecting the information of sellers, including the plaintiffs, from the rooftop and the ○○○○○○○○○ Pocket, infringed the plaintiffs' right to self-information control as well as the plaintiffs' right to receive assistance in the tax investigation, the right to prior notice of the tax investigation and the right to postpone the tax investigation, and thus, the first and second dispositions of this case

(3) Even if the proprietor is liable to pay value-added tax, the head of Sungnam Tax Office issued the instant disposition No. 1 without deducting the input tax amount from the Plaintiff’s input tax amount through a field investigation or an estimate investigation in the course of calculating the Plaintiff’s maximum value-added tax base and tax amount. In this regard, the overlapping No. 1 of this case is unlawful and invalid.

(b) Related statutes;

Article 2 (Tax Liability of the former Value-Added Tax Act)

Article 5 (Registration of the former Value-Added Tax Act)

(c) Fact of recognition;

The following facts shall not be disputed between the parties, or may be acknowledged by comprehensively taking into account the overall purport of the pleadings as set forth in the items of Gap evidence 1, 6, 14, Eul evidence 3 through 5, 10, 14, Eul evidence 6-1, 2, Eul evidence 9-1 through 4:

(1) Operational methods, etc. of open market

(A) The main contents of the articles of incorporation are as stated in the attached articles of incorporation. The articles of incorporation of the ○○○○○○ Potet also stipulate the same as the articles of incorporation of the above ○○ Potet.

(B) Unlike the case of selling goods in the Internet portal site, a seller of Open Market sells its goods by freely registering as its members without paying a certain monthly fee and paying fees for each sales case to an operator of Open Market. In addition, an operator of Open Market only provides and manages only cyber trading places and systems that can sell goods to a seller and a buyer, and does not directly trade between members or directly sell goods to a buyer or purchase goods from a seller.

(C) Some open market operators operate the settlement deposit system, which is the service of paying the price to the seller, after confirming that the buyer and the seller kept the settlement price for a certain period of time in the event that the buyer and the seller conduct electronic commerce transactions, received the delivery of goods and the provision of services from the purchaser.

(2) Specific background of the first and second dispositions in this case

(A) The director of the Seoul Regional Tax Office (hereinafter “Seoul Regional Tax Office”) received data from ○○○○○○○○○○ Store sellers and sent them to each head of the competent tax office, except those who appear to have temporarily sold the open market by stating the sales frequency among them. They created taxation data only for those who engaged in sales activities over several occasions, as the Plaintiffs.

(B) The Plaintiff ○○ Government did not receive a tax invoice on the purchase of the goods it sold. Accordingly, the head of the Defendant City Tax Office did not deduct the input tax amount in calculating the value-added tax on the Plaintiff ○○ Government.

(C) Before rendering the instant disposition Nos. 1 and 2, the Defendants notified the Plaintiffs of the pre-announcement of taxation, stating the amount of revenue, tax base, calculated tax amount, etc.

D. Determination

(1) Whether the plaintiffs constitute the taxpayer under the Value-Added Tax Act

(A) A taxpayer under the Value-Added Tax Act refers to a person who supplies goods or services independently for business purposes (Article 2(1)) regardless of whether they are for profit or not. As seen above, ① the plaintiffs have been employed by ○○ Market operators or have been entrusted by such operators, making a purchase and sale contract and delivering goods to buyers. ② The fact that an open market operator is an open market operator and ○○○○ Store members respectively, do not sell goods or services online (auction services) so that transactions between members can be conducted by their own decision. The fact that an operator does not sell or purchase goods from its members. The fact that an operator does not sell or promote the safety and reliability of transactions between its members; ② The fact that an operator does not sell or sell goods or services in the open market in the name of ○○○ Store operators and ○○ Store operators and takes charge only for such sales or services; ③ The fact that the operator does not have any legal obligation to sell or sell goods or services in the name of its members, and the fact that it does not include any duty to sell goods or services in the name of its members.

(B) Meanwhile, as seen earlier, the plaintiffs' assertion that the open market constitutes an individual member under the terms and conditions after their business registration is not a taxpayer under the Value-Added Tax Act is without merit.

(2) Whether the procedure of importing data is lawful

Article 35 of the Value-Added Tax Act provides that public officials engaged in the business of value-added tax may ask questions to persons who have a transaction with the taxpayer or investigate or order them to submit the relevant account books, documents and other things when necessary for the performance of their duties. ① The director of the Seoul Regional Tax Office, based on the right to ask questions and investigation as above, has received the data from ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ which is a transaction with the Plaintiffs who are the taxpayers based on the above right to ask questions and investigation. ② The right of taxpayers to receive assistance in a tax investigation is premised on the condition that taxpayers are specified, so there is room to apply the above right to request submission of the data in this case conducted for the specific purpose of taxpayers. ③ The above data were submitted to the Plaintiffs prior notice of taxation on the revenue amount, tax base, calculated tax amount, etc. before making dispositions as above. ④ The data submitted by the director of the Seoul Regional Tax Office, etc. from the Plaintiffs’ assertion

(3) Whether the failure to deduct input tax when calculating value-added tax is illegal

Article 17 of the Value-Added Tax Act provides that the amount of value-added tax payable by an entrepreneur shall be the amount obtained by deducting the input tax amount on the supply of goods or services that have been used or are to be used for his own business from the output tax amount on the goods or services supplied by him, and the input tax amount prior to the registration of business under Article 5(b) shall not be deducted in case where the tax invoice is not delivered or the tax invoice delivered does not contain all or part of the requisite entries in the tax invoice under Article 5(1). Thus, the first disposition of this case, which did not deduct the input tax amount, is lawful, unless the plaintiff ○○ does not receive the tax invoice on the goods

4. Conclusion

Therefore, the part of the lawsuit by the plaintiff Lee Nam-nam which exceeds 7,127,530 won among the disposition of imposition of value-added tax for the first term portion of 2005 7,840,280 won on June 1, 2007 against the plaintiff Lee Jong-Nam and the part which claimed revocation of the disposition exceeding 5,733,50 won among the disposition of imposition of value-added tax for the second term of 2005 6,306,840 won is unlawful, and it is so decided as per Disposition. The claim by the plaintiff Lee Sung-nam Tax Office against the defendant Lee Jong-nam Tax Office and the remaining claims by the plaintiff Lee Sung-nam Tax Office for the defendant Lee Sung-nam of 205 are all dismissed. It is so decided as per Disposition.