The early 2013 Jeon 2212

As wages and fees are paid to daily workers by the total amount of wages and fees, they constitute a job placement office.

Although the job offering company received a lump sum statement including wages and fees from the job offering company and submitted a daily-paid worker's statement to the tax office, the company has first paid the daily-paid worker the amount excluding fees through the surrogate payment system, which is only a mistake in tax treatment, but also a job placement office in accordance with the principle of substantial taxation

Article 7 of the Value-Added Tax Act

Daejeon District Court 2013Guhap101363

XX

The Director of the National Tax Service

on January 13, 2014

October 01, 2014

1. The Defendant’s imposition of KRW 000 on February 8, 2013, the first-year value-added tax for the year 2008, KRW 000 on the first-year value-added tax for the year 2010, KRW 000 on the second-year value-added tax for the year 2010, KRW 000 on the first-year value-added tax for the year 201, KRW 000 on the second-year value-added tax for the year 201, and KRW 000 on the first-year value-added tax for the year 201.

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 is a person who has registered his/her business in each of the following trade names: OOO-gu OO-dong 622-10, 'AA Job Placement Service' and 'J removal'.

B. On the premise that personal services provided under the name of "AA job placement service" (hereinafter referred to as "personal services in this case") constitute "job placement services, which are value-added tax-free business," the Plaintiff did not report and pay value-added tax equivalent to the amount of the sales account issued by AA job placement service from the first half of 2008 and the first half of 2010 to the second half of 2012.

C. As a result of conducting a tax investigation on the Plaintiff from September 6, 2012 to October 10, 2012:

The plaintiff determined that he/she runs the human resources supply business which is a taxable business under the trade name of "AA Job Placement Service", calculated the value-added tax including the sales tax base of "J-Removal" operated by the plaintiff, and on February 8, 2013, the plaintiff decided and notified the plaintiff of the first value-added tax of 2008, the first value-added tax of 100, the second value-added tax of 2010, the second value-added tax of 2000, the first value-added tax of 2000, the second value-added tax of 2011, the second value-added tax of 2000, the second value-added tax of 200, and the first value-added tax of 100 for 2012 (hereinafter referred to as "each disposition of this case").

D. The Plaintiff filed a request for pre-assessment review on November 23, 2012, before each of the instant dispositions.

On January 17, 2013, the tax appeal was dismissed, and on April 22, 2013, each disposition of this case was rendered again on April 22, 2013.

However, the claim was dismissed on July 12, 2013.

Facts that there is no dispute over recognition, Gap's evidence 1 through 4, Eul's evidence 1 through 7 (including each number); the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

The plaintiff introduced and arranged the employment of daily workers to the job offerers, and then received wages in lump sum at the request of the job offerers and at the request of the daily workers, and deducted 10% of the daily premium, and paid the remainder as daily allowances to daily workers. The personal service of this case constitutes a job placement business which is not a taxable business but a tax-free human resources supply business. Thus, the value-added tax should be exempted.

Even if it falls under a taxable business, it goes against the principle of substantial taxation by taking the entire labor cost as the tax base and imposing each of the instant dispositions on the Plaintiff beyond the brokerage fee.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) According to Article 12(1)13 of the former Value-Added Tax Act (amended by Act No. 11608, Jan. 1, 2013) and Article 35 subparag. 2(e) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24359, Feb. 15, 2013), the value-added tax shall be exempted for personal services provided by job placement offices and other persons who operate counseling centers, etc. as prescribed by Ordinance of the Ministry of Strategy and Finance. According to the Korean Standard Industrial Classification, employment placement services (e.g., job placement services) refer to cases where selecting, arranging, and arranging human resources on behalf of an employer or job seeker based on job and job information, and human resources supply services refer to cases where the main industrial activity is to supply workers under self-management to others or other enterprises for a certain period under a contract.

2) Based on these legal principles, the following facts are recognized in full view of the evidence adopted earlier, the evidence adopted earlier, the entries in No. 20-1, and No. 20-1, and the purport of the entire pleadings as to whether the instant personal service provided by the Plaintiff constitutes a human resources supply business, not a job placement business.

① The Plaintiff sent daily workers recruited by the Plaintiff to the construction companies and manufacturers of an O orO area (hereinafter referred to as “construction companies, etc.”) and received daily wages from daily workers from the construction companies, etc. on the basis of the “work confirmation letter stating the number of service workers, the number of workers, the number of working days, and the details of daily labor cost,” and then paid the remaining amount after deducting a certain amount as daily wages to daily workers.

② The Plaintiff issued a sales invoice stating the total labor cost received from a construction enterprise, etc. as the supply value upon the request of a construction enterprise, etc.

③ With respect to any money paid to daily employed workers, the Plaintiff has prepared a statement of daily earned income directly and submitted it to the head of a tax office quarterly. The details of the submission are as follows:

④ The Plaintiff directly requested the payment of retirement allowances to the employees sent by the Plaintiff against S engineering Co., Ltd.

⑤ As indicated below, the Plaintiff’s “AA Job Placement Service,” which is a duty-free business from January 8, 2007, as follows:

After commencement of the business, the value-added tax is reported and paid by closing the business on August 11, 2009 and converting it into a taxable person.

Then, on April 12, 2010, the registration of the taxable business is cancelled, and the business is registered again as a tax-free business.

[Attachment]

2) 그러나 한편, 앞서 채택한 증거, 갑 제21호증, 을 제8호증의 각 기재(가지번호 있는 것은 각 가지번호 포함), 증인 강BB, 김CC의 각 증언, 이 법원의 주식회사 QQ테크, 주식회사 EE텍, ㅁㅁ지방고용노동청ㅁㅁ지청장에 대한 각 사실조회결과 및 변론 전체의 취지를 종합하면 다음의 각 사실이 인정된다.

① Human resources who sent to the site of a construction company, etc. were mainly daily workers suffering from the Plaintiff’s place of business. However, there was no fact that the Plaintiff concluded an individual employment contract with the said worker, and there was no fact that the Plaintiff entered into a dispatch contract with the said company

② The Plaintiff was issued a letter of consent on the date of construction and nursing, the letter of consent on the receipt of the dispatch commission, or the letter of delegation on the receipt of the employment fee, etc. from daily workers before receiving the employment fee, etc. in lump sum from a construction enterprise, etc

③ A person who conducts fee-charging job placement services does not receive money or goods other than the fees determined and publicly notified by the Minister of Employment and Labor under Article 19(3) of the Employment Security Act. The Plaintiff received labor expenses from construction enterprises, etc. in lump sum, but paid all the remaining money after deducting the fees. The deducted fees are based on the ratio specified in the “public notice of domestic fee, vocational fee, etc.” publicly notified by the Minister of Employment and Labor.

④ 일용근로자들과 건설업체 등과의 사이에 직접 고용계약이 체결되거나(이MM과 WW건업 주식회사 사이의 2011. 10. 13.자 근로계약, 강PP과 SS엔지니어링 주식회사 사이의 2012. 5. 2.자 근로계약, 최KK과 주식회사 QQ테크 사이의 2011. 8. 5.자 근로계약 등), 건설업체 등에서 근로자를 위해 고용보험에 직접 가입한 사례가 있다(강PP의 경우 등). 또한, 작업 중 재해 발생 시 건설업체 등에서 치료비 등을 부담하고 근로자와 합의를 하였다(안LL의 경우 등).

⑤ 원고는 2012. 7. 24. 임GG에게 SS엔지니어링 주식회사에서 2010. 12. 10. 부터 2012. 6. 30.까지 근무한 부분에 대한 퇴직금을 대신 지급하고, 같은 날 SS엔지니어링 주식회사에 같은 금액 상당의 퇴직금을 청구하였다. 또한, 강PP은 2012. 5. 22. SS엔지니어링 주식회사 대표(박FF)를 상대로 2011. 3. 27.부터 2012. 5. 7.까지 근무한 부분에대한 퇴직금을 지급받지 못하였다고 주장하면서 ㅁㅁ지방고용노동청 ㅁㅁ지청장에 민원을제기하였다가, 원고로부터 퇴직금 000원 상당액을 대신 지급 받고 2012. 7. 24. 진정을 취하하였고, 원고는 위 금액을 SS엔지니어링 주식회사에 청구하였다.

⑥ 주식회사 ㅇㅇㅇㅇ동신의 대표이사 최ZZ은 ㅁㅁ지방법원 ㅁㅁ지원 2008고단1145 근로기준법위반 사건에서 원고가 근로를 알선한 14명의 근로자들의 임금을 지급하지 않은 점에 대하여 징역 6월에 집행유예 2년을 선고받았는데, 당시 최ZZ은 14명의 근로자의 사업주는 직업소개소의 소장인 원고이지 근로자를 파견받은 피고인이 아니라고 주장하기도 하였으나, 위 법원은 "설사 직업소개소의 소장이 (주) ㅇㅇㅇㅇ동신으로 부터 근로자들의 임금을 교부받기 전에 근로자들에게 임금을 선지급한 경우가 있었던 점을 감안하더라도, ...판시의 14명의 근로자와 근로계약을 체결한 것은 직업소개소가 아니라 주식회사 ㅇㅇㅇㅇ동신인 사실을 넉넉히 인정할 수 있으므로, 위 주장은 받아들일 수 없다"는 취지로 판시하였다.

7. The Plaintiff did not receive any value-added tax amount separately from a construction enterprise.

⑧ 피고는 원고가 주식회사 QQ텍에 제공한 인적용역에 대하여는 면세를 인정하였는데,이 경우에도 원고는 수령한 노무비 전체에 대하여 매출계산서를 발행하고, 일용근로소득지급명세서를 작성하여 제출하였다.

3) Comprehensively taking account of each of the above circumstances, the plaintiff employed daily employed workers and received referral fees from daily workers at a construction company, etc. instead of dispatched them under his/her responsibility, and daily employed workers entered into an employment contract explicitly or impliedly with the construction company, etc., and it is recognized that they provided their labor in the status of workers such as employment insurance, disaster agreement or retirement allowances from the construction company, etc. In addition, it is recognized that the plaintiff received wages or retirement allowances from daily employed workers and submitted a statement of payment on the total amount of labor expenses to the National Tax Service while submitting a statement of payment on daily earned income to the National Tax Service is deemed that the plaintiff was erroneous in tax processing in the course of implementing the so-called "the so-called" system for providing convenience to the construction company, etc. and the daily employed workers. It is difficult to deem that such circumstance is the direct basis for the plaintiff to engage in the human resources supply business.

Therefore, since it is reasonable to see that the instant personal service constitutes a job placement business, the Plaintiff’s supply of the instant personal service must be exempted from value-added tax. On the other hand, the Defendant’s each disposition of this case is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per the disposition.