It is reasonable to view that the Plaintiff’s penalty received from the party who violated the contract does not constitute a taxable object of value-added tax.

The instant amount is not the proceeds from supply of goods or services provided to the users, but the penalty that the Plaintiff received from the users who violated the contract, and is not subject to value-added tax.

Article 29 of the Value-Added Tax Act

2015Guhap69615 disposition of revocation of refusal to correct value-added tax

AAA, Inc.

○ Head of tax office

oly 2016.105

December 21, 2016

1. The Defendant’s rejection of correction of each value-added tax on the Plaintiff is entirely revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, a corporation operating an information and communications business, etc., and filed a return of value-added tax from January 201 to January 2014, 201, upon entering into an obligatory use agreement with the Plaintiff for a certain period of time, and filed a return on the tax base, including penalties received from the terminated users even though they were given a discount on mobile telephone charges, Internet communications charges, and Internet communications terminal, etc.

B. On July 25, 2014, the Plaintiff filed a claim for correction with the Defendant for the refund of the value-added tax****** Won on the penalty for breach of contract for the first term portion in 2011. On November 10, 2014, the Defendant refunded the entire amount of the claim for correction to the Plaintiff.

C. On November 19, 2014, the Plaintiff filed a claim for correction to the Defendant for the total value-added tax on the aggregate of the penalty for the period from February 2, 2011 to February 2, 2013 ****** (The details are as shown in attached Table 2). On January 27, 2015, the Defendant received a claim for correction from the Plaintiff for correction on the ground that the penalty calculated based on the discount amount of mobile telephone rates, Internet telecommunications rates, and mix charges, etc. (service), constitutes penalty for which value-added tax was imposed without supply, and thus, constitutes penalty for which value-added tax was imposed without supply, and ② the amount of value-added tax was refunded KRW 17,084,74,710 on the ground that it is not subject to value-added tax, and ② the amount of penalty calculated based on the discount amount of the terminal (such as Annnn terminal, Vip terminal, PC support, portable SB terminal, etc.) provided for Internet communications service, based on the tax base.

D. On January 29, 2015, the Plaintiff rejected the Plaintiff’s request for correction on the ground that: (a) the sum of value-added tax on KRW 000 of the mobile telephone charges, the Internet telecommunications charges, and the amount of discount charges (services), calculated on the basis of the discount charges on the Internet communications charges, and the amount of discount on the Internet communications charges and the amount of discount charges on the Internet communications charges on March 31, 2015 (the details are as stated in attached Table 2); and (b) the Defendant refused the Plaintiff’s request for correction on the ground that, even in the case of penalty calculated on the basis of the discount charges on mobile telephone charges or the amount of discount on the Internet communications charges and the amount of discount charges (services), on the basis that the first business operator supplied the services pursuant to Articles 9 and 11 of the Value-Added Tax Act and received from the person supplied the services subject to early termination (hereinafter referred to as “second rejection disposition”); and (c) each disposition in the case, including the first rejection disposition and the sum of penalty (○○○○○)*************.

E. The Plaintiff dissatisfied with each of the instant dispositions and filed a request for examination on April 20, 2015, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request for examination on July 21, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3 through 8, Gap evidence No. 9-1 and 2, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The instant amount is not a price for the supply of goods or services, but a penalty for breach of contract by a user, and thus does not constitute value-added tax objects. Each of the instant dispositions made on different premise is unlawful.

(b) Related statutes;

Attached Table 3 shall be as stated in the relevant statutes.

(c) Fact of recognition;

1) The Plaintiff has entered into an agreement with the user of mobile phone services, under which the user agrees to use the mobile phone service for a certain period of time (a fixed period of time), to discount the cost of the mobile phone terminal and part of the mobile phone rates, etc., and if the user agrees to terminate the mobile phone in violation of the agreement within the agreed period, he/she shall receive a certain amount of penalty, and (2) where the user agrees to use the mobile phone in a certain period of time between the user of the Internet communications service and the user of the service, he/she shall provide free gifts (such as gift certificates or bicycles) or discount part of the rent, etc. for the terminal, such as Internet charges and fee-types or three-to-stops, and if the user terminates the mobile phone service even during the agreed period of time in violation of the agreement, he/she shall

2) 원고가 이동전화 서비스 이용자로부터 작성・제출받는 이동전화가입신청서 양식(갑 제1호증의 1 내지 3)에는 "약정기간 내 해지(중략) 시 위약금이 발생하며, 단말기 및 요금할인에 대한 위약금을 납부하셔야 합니다." 또는 "요금할인이 제공되는 요금제 이용 고객은 약정기간 동안 요금할인을 제공받으며, 약정기간 내 해지 및 할인 프로그램 가입이 불가한 요금제로 변경시 할인반환금이 발생할 수 있습니다."라고 기재되어 있고, 그 중 요금 할인 관련 위약금3)은 '요금할인 받은 총 금액 × {(약정일수 - 사용일수)/약정일수}', '∑{약정 이용기간별 총 할인금액 × (1 - 약정 이용기간별 할인반환금 할인율4))}(통합요금의 경우)'의 방식으로 산정하도록 되어 있다.

3) In the form of an application for subscription to the Internet communications service prepared and submitted by the Plaintiff to the user of the Internet telecommunications service (Evidence A 2), the Plaintiff states that “I will terminate the contract period or refund the discounted premium at the time of failure to comply with the first contract period due to any cause attributable to the customer,” and “I may request the refund of discounted premium for the premiums received at the time of termination within one year after subscription,” and among them, the penalty for the discounted fee on the Internet charge and the mother-type discount may be claimed (pre-paid user fee x the lapse of one month x the lapse of one month) x (contract discount rate - the contract period discount rate - the period of use discount is less than one year, less than two years, less than three years, and two years, less than two years, and the period of use under two years, less than two years, and the period of use under two years, and the period of usage under two years, and the period of usage under two years, respectively, shall be less than two years, and the period of usage under the agreement.

4) The terms and conditions of the Plaintiff’s terms and conditions (e.g., B/3) include, with regard to the user fee, etc. on the terminal device (e.g., “if the first subscription is impossible due to the customer’s fault, the amount of discount can be claimed.” With regard to the discount, the term “the time when the contract period or additional contract period is terminated or at the time when the contract period is shortened, the additional discount shall be refunded,” and “the penalty” and “the discounted refund amount shall be refunded when the contract period is terminated or the contract period is shortened,” and on the block operated by the Plaintiff, the refund of discount amount may occur when the contract is terminated within the agreed period. However, the refund amount does not come to know that the customer does not fall short of the discounted amount by the agreement. Since the discount amount is refunded part of the discount benefit received through the rate system, the agreed person does not cause any damage to the customer at all.”

5) Under the terms and conditions on the use of Internet communications services (No. 2) the Plaintiff provides that if a customer has no cause attributable to the user, such as "where the area for which the user has requested the change of the place of installation is impossible," "where the monthly short time has occurred for at least 48 hours due to the Plaintiff's responsible cause," "where the customer himself/herself is on active duty," he/she may terminate the contract without refunding at a discount (Article 13(7)), "in the terms and conditions on the use of mobile telephone services (Evidence No. 3)," "in the case where the customer is terminated within 14 days from the new date of subscription and returns all the terminal," and "in the case where the customer is on any other cause attributable to the company," the penalty shall be exempted (Article 38).

[Ground of recognition] Evidence No. 1-3, Evidence No. 2, Evidence No. 1-4, Evidence No. 1-4 and the whole purport of the pleading

D. Determination

1) Whether the instant amount constitutes the proceeds from supply of goods or services

A) Article 13(1) of the former Value-Added Tax Act (wholly amended by Act No. 11608, Jun. 7, 2013) provides that "the tax base of value-added tax on the supply of goods or services shall be the aggregate of the following values (hereinafter referred to as "value of goods or services")" and Paragraph 1 of the same Article provides that "price shall be paid in money," and Paragraph 5 of the same Article provides that "matters necessary for the calculation of tax base other than those provided for in paragraphs (1) through (4) shall be prescribed by Presidential Decree." Article 48(1) of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013) provides that "the tax base of value-added tax shall be the value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-added value-.

On the other hand, taxpayers may choose one of the several legal relationships in order to achieve the same economic purpose while engaging in economic activities, and the tax authority shall respect the legal relationship chosen by the parties, except in extenuating circumstances. The issue of which transaction method is to be decided by themselves, taking into account the efficiency of the purpose, the degree of bearing related expenses, such as taxes, etc., and if they form a legal relationship by selecting a certain one, the content and scope of the tax arising therefrom shall be decided individually in accordance with the legal relationship, and the ultimate goal of different transactions shall not be deemed to be the same as the substance, notwithstanding the difference in the legal form, or to be treated equally under the Tax Act (see, e.g., Supreme Court Decision 200Du963, Aug. 21, 2001).

B) In the instant case, comprehensively taking account of the following circumstances, it is reasonable to deem the instant amount not only the proceeds from the supply of goods or services provided to the users by the Plaintiff, but also the penalty that the Plaintiff received from the users who violated the contract, and thus not subject to value-added tax.

(1) Under the Civil Act, penalty for breach of contract means the money agreed if the party promises to compensate for losses or agrees to impose penalty for breach of contract in preparation for the failure of the party to perform his/her future obligation.

The purpose of the contract to pay a penalty is to divide the case where the contract partner's scheduled liquidated damages due to non-performance of obligation is a private penalty due to non-performance of obligation, and the case where the contract partner's scheduled liquidated damages and the private penalty (compact penalty) are two characteristics (e.g., e., Civil Code II, Park Jong-soo, 202, 112).

The Plaintiff made continuous investment in physical facilities (such as optical cable reclamation, the installation of relay facilities such as e-mail and sprink, purchase of e-mail and sprink, etc., and installation of heavy meters), and human resources facilities (such as installation engineers, AS engineer, etc.) in order to provide the users of the Republic of Korea with a certain level of telecommunications services, and such investment costs are appropriated from the user’s profits (for the purpose of stable implementation of the business, the user and the user agree to use the user’s telecommunications services for a certain period of time). In addition, in the event that the user and the user agree to use the user’s telecommunications services for a certain period of time, the user is secured by concluding an agreement to discount the user’s fees, etc., thereby inducing the user to use the user’s services for a long period of time. However, if the user terminates the agreement in the middle in violation of the agreed period, the Plaintiff is not able to make profits to the extent of the initially expected service prices, and thus, to preserve this agreement is exempt from the user’s obligation to pay penalty.

Article 22(1) of the Civil Act provides that “A penalty for breach of the contract shall be imposed on the Plaintiff when the Plaintiff violated the contract term,” and Article 2(1) of the Civil Act provides that “A penalty for breach of the contract shall be imposed on the Plaintiff when the Plaintiff violated the contract term,” and “a penalty for breach of the contract term shall be imposed on the Plaintiff,” and “a penalty for breach of the contract term shall be imposed on the Plaintiff,” and “a penalty for breach of the contract term shall be imposed on the Plaintiff,” and “a penalty for breach of the contract shall be returned to the Plaintiff.” However, in the case of a discount for a certain period of time, it is effective and reasonable to impose sanctions on the violation of the contract term shall be imposed on the Plaintiff by the method of de facto recovering all or part of the discount rate.” In addition, according to the method of calculation of the penalty prescribed by the Plaintiff, the Plaintiff’s initial discount rate shall be determined on the basis of the total discount rate and the amount of the penalty for breach of the contract shall not be imposed on the Plaintiff.

Applicant When the user agrees to use the service for a certain period (the agreed period), it is too deemed that the intent of the party to an agreement to discount part of the rent for terminals such as mobile phones, Internet communication charges, e-mail m or scambling, etc., and if the user terminates even if he/she violated the agreement within the agreed period, he/she would make the user pay a certain amount of penalty, and that the value of the service or goods as stipulated in the initial agreement shall be changed to the amount of the penalty to be increased as much as the user has to pay at the time when the user terminates the agreement." Since the legal form of the transaction chosen by the party concerned is neglected, the amount of this case received as the penalty is not refunded as it is, as seen in the above ar. Thus, it is unfair in that the Plaintiff’s interpretation results in the same way as the Plaintiff concluded an agreement to arbitrarily select the fare system reported or authorized to the Minister of Science, ICT and Future Planning under Article 28 of the Telecommunications Business Act, and it cannot be evaluated that the service payment or settlement fee is “in the previous amount already paid.”

(v) insofar as the fees discounted by the Plaintiff pursuant to a certain supply condition are already excluded from the value of supply, it is reasonable to view that the value of supply for telecommunications services, etc. provided by the Plaintiff is “on a discount basis, regardless of whether or not there has been any violation of the user’s agreement,” and that “the first payment of the user’s benefits” is “on a discount basis,” so the amount in excess should be deemed to be paid separately from the original payment (the price for the goods or services provided) due to the violation of the agreement. Therefore, the amount in this case is therefore excluded from the value of supply under Article 29(5) subparag. 1 of the Value-Added Tax Act (the amount of this case was calculated by directly reducing a certain amount from the ordinary price in accordance with the supply condition when the goods or services are supplied).

⑹ 요금할인액이 위약금 산정 요소 중 하나라거나, 위약금액의 산정방식을 정하고 있는 원고의 이용약관에 대하여 미래창조과학부장관에게 신고하거나 그 인가를 받아야 한다는 사정이 이 사건 금액의 위약금으로서의 법적 성격을 부인하는 근거가 될 수는 없다.

2) Determination on the assertion on non-founded grounds for filing a claim for rectification

The defendant asserts that the plaintiff should prove that the tax base and tax amount entered in the original return of tax base exceeds the tax base and tax amount to be reported under the tax law, by revealing "the detailed amount by item of the penalty for which the plaintiff filed the original return and filed the request for correction," "the detailed details thereof, the slips and relevant evidence that can identify the settlement details of the penalty for breach of duty."

However, the duty to investigate and confirm the tax base and tax amount stated in the tax base return to the defendant who is the tax office upon request for reduction or correction (see, e.g., Supreme Court Decision 2002Du9261, Aug. 16, 2004); Gap evidence 13-3; Gap evidence 14-17-2; and Gap evidence 18-2; on Nov. 19, 2014, the plaintiff submitted 18-16-2; on the basis of the total amount of charges for breach of duty, 189,05, 630, 250 won to the defendant; the defendant submitted 17-15-2 of the total amount of charges for breach of duty; on the ground that the plaintiff's request for correction of the above amount of charges for breach of duty was submitted; on the other hand, the defendant submitted 20-15-2 of the total amount of charges for breach of duty for breach of duty to the defendant; on the other hand, the defendant submitted 165-2-2 of the penalty.

3) Each of the dispositions of this case is unlawful and thus must be revoked.

3. Conclusion

The plaintiff's claim is justified, and it is so decided as per Disposition.