Seoul Administrative Court-2015-Gu Partnership-8152 ( October 18, 2016)

The whole amount collected by the bank from the customer's account to collect the fee for cash withdrawal shall be the revenue amount of the bank and shall be included in the education tax tax base.

The total amount collected by the bank from the customer’s account to collect the fee for cash withdrawal shall be the revenue of the bank, and the amount paid by the bank to the VN business operator on behalf of the said business shall be deemed as the separate expense for the performance assistant in the banking business.

Article 5 of the Education Tax Act

2016Nu3973 Revocation of Disposition of Imposing education tax

AA Bank, Inc.

OO Head of the tax office

Seoul Administrative Court Decision 2015Guhap8152 decided March 18, 2016

September 7, 2016

October 5, 2016

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's imposition of 9,890,390 won (including additional taxes) of education tax for the second term of February 2009 on August 25, 2014 and the imposition of 10,087,050 won (including additional taxes) of education tax for the third term of March 2009 on November 18, 2014 shall be revoked.

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance except for the dismissal or addition of part of the judgment of the court of first instance as follows. Thus, this part of the judgment of the court of first instance is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ 4, for the second reason, the "Agreement on the Cooperation in the Operation of Automatic Instruments" (hereinafter referred to as the "Agreement of this case") shall be added to the "Agreement of this case", and the "Automatic entry, exit, etc." in the 6th paragraph shall be added to the "Automatic Devices" (hereinafter referred to as the "Automatic Devices").

○ for the second reasons, the term “cash withdrawal or balance inquiry, etc.” in Part 7 of the Second Ground is fixed to read “deposit withdrawal and balance inquiry”, and the Defendant in Part 8 is fixed to read “the Defendant” as “the company outside the country”.

○ In the last part of the 9th page for the second reason, [On the other hand, in the Additional Agreement concluded on the same day as the instant contract (hereinafter referred to as the “Additional Agreement”) and the Revised Additional Agreement concluded on November 20, 2014, large-scale customer fees for deposit withdrawal services are separately determined to be excluded from business hours and business hours, while no fee for balance inquiry services is imposed.] are added.

○ The second ground "9,890,390 won" and the 15th "10,087,050 won" are added respectively to the following:

2. The parties' arguments and relevant statutes;

The court's explanation on this part is as follows: "The plaintiff and the non-party company provide deposit withdrawal service using automated devices jointly," and the "Education Tax Law" of 14 is as stated in the corresponding part of the judgment of the court of first instance (not later than the last day of the third to third) in addition to the fact that "the plaintiff and the non-party company provide deposit withdrawal service using automated devices" as stated in Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

3. Determination

A. Therefore, we examine whether the total amount of the instant fees falls under the revenue amount serving as the education tax base, which is the “fee received by the Plaintiff.”

1) First, the following facts are acknowledged in light of the purport of Gap evidence 1-1, Gap evidence 7, Gap evidence 9-1 to 9-9, and the whole pleadings.

A) Article 12(1) of the instant contract concluded by the Plaintiff and the Nonparty Company provides that the Nonparty Company may collect fees from the Plaintiff using the automation device. Article 12(2) of the instant contract provides that the Plaintiff and the Nonparty Company shall pay to the Plaintiff the amount determined by mutual agreement between the Plaintiff and the Plaintiff out of the fees collected by the Nonparty Company. Article 4(1) of the instant additional agreement provides that the fees paid by the Nonparty Company to the Plaintiff shall be 15% of the fees paid by the Plaintiff to the Plaintiff.

B) The non-party company provides its services using automated devices to customers for 24 hours by installing automated devices at various public places, including national convenience stores, major discount stores, subways, and railroad stations, and introducing them as “services providing customers with cash withdrawal, account transfer, cash services, and diverse conts for 24 hours through alliance with financial institutions and content cooperation companies.”

C) Although the outside of the automation machine established by the non-party company is indicated that the management company is the non-party company, the plaintiff is merely indicated in the bank list that can use financial services in the above automation machine, and Article 5(2) of the contract of this case also provides that the non-party company shall not use the user guidance phrase that may mislead the non-party company to believe that the non-party company owns and operates directly the automation machine installed by the plaintiff or a specific financial institution.

2) However, in full view of the facts acknowledged in paragraph (1) and the following circumstances recognized by adding the above evidence, Gap evidence Nos. 5 and Eul evidence No. 1 to the whole purport of the pleadings, it is reasonable to deem that the non-party company does not directly provide the plaintiff's service to the plaintiff's customer and pay the plaintiff's fees, but rather, it is reasonable to deem that the plaintiff provided the plaintiff with the deposit withdrawal service which the plaintiff provided to the plaintiff in the course of installing and managing the automated device and received the fees agreed under the contract of this case and the additional agreement of this case from the plaintiff (see Supreme Court Decision 2007Du2433, Oct. 15, 2009). Thus, it is reasonable to regard the above fees of this case as the "fee received by the plaintiff" as the "fee received by the plaintiff," and it is difficult to view it differently solely on

A) Article 3 of the General Terms and Conditions for Deposit Transactions applicable to the Plaintiff’s customer when entering into a deposit contract with the Plaintiff provides that the customer shall engage in all deposit transactions at a business store that opened the deposit account (hereinafter referred to as “depository store”). However, the said provision provides that the customer may make transactions at any other business store, other financial institutions, cash automatic or cash automatic receiving machines, computer, telephone, etc. (hereinafter referred to as “electronic communications device”), as prescribed by the Plaintiff, and Article 19(1) provides that the bank may collect online commission or collection fee when the customer makes transactions at any other business store, other financial institutions, or electronic communications equipment, etc. (hereinafter referred to as “electronic communication equipment”). Article 5 of the instant Additional Arrangement provides that the Plaintiff shall provide the Nonparty company with a prescribed operating fund calculated on the basis of the average monthly record, etc. for the operation of services using the automated device.

B) Article 4(2) of the instant Additional Arrangement provides that the non-party company shall prepare a monthly fee calculation sheet and claim monthly fee calculation sheet to the plaintiff on the fifth day of the following month, but shall deduct and claim the fee under Paragraph (1) upon a request for fee calculation, and that the plaintiff shall deposit the fee in the account of the non-party company on the 15th day of the following month, thereby collecting the instant fee and paying the fee that the plaintiff collected from the non-party company. In fact, the non-party company collects the instant fee from the customer’s deposit account at each transaction, and then prepares a monthly fee calculation sheet (the remaining amount after subtracting the fee equivalent to 15% of the instant fee) and claims to the plaintiff in the lump sum, the settlement of the instant fee is made by depositing the relevant amount in the account of the non-party company.

C) Since the other party to a deposit contract entered into with the Plaintiff is the Plaintiff, the other party to the transaction providing the Plaintiff’s deposit withdrawal service is the Plaintiff even when using the automation device installed by the Nonparty Company. Even if the Plaintiff’s customer is the subject managing the above automation device in the process of using the automation device, and the Nonparty Company is able to use the deposit withdrawal service at a more convenient place, such as subway stations, and instead, the deposit withdrawal service provided through the automation device is basically based on the deposit contract concluded by the Plaintiff and the Plaintiff’s customer, it is reasonable to view that the service provided by the Nonparty Company constitutes an incidental service that allows the Plaintiff to use the Plaintiff’s deposit withdrawal service at various places, and it is difficult to view that the Plaintiff’s customer’s awareness as above falls under the Plaintiff’s total deposit withdrawal service and the Plaintiff’s customer’s payment of the deposit withdrawal service at a more convenient place between the Plaintiff and the Nonparty Company and the Plaintiff’s payment of the Plaintiff’s deposit withdrawal service and the Plaintiff’s payment of the Plaintiff’s payment of the deposit withdrawal service at the same time as the Plaintiff’s payment of the contract between the Plaintiff and the Plaintiff.

D) According to the instant contract, the Plaintiff and the non-party company may terminate the contract in a case where the conditions relating to the extension of the scope of service, change of time, etc. are mutually agreed upon (Article 2(2)) and the Plaintiff’s qualification examination criteria conducted once a year fall short of the non-party company (Article 3). The non-party company shall not, in principle, keep transaction information, etc. on the Plaintiff’s customer in an automated device, list, server, etc. (Article 6(3). The Plaintiff and the non-party company reserve the right to extend the contract period and terminate the contract in a case where certain grounds arise (Article 14 and 15).

E) Of alliance financial institutions that use the automation device established and managed by the non-party company, the non-party company issued tax invoices to those who are supplied with the financial institution except three companies including the plaintiff, and reported them as revenue amount.

B. Meanwhile, the Plaintiff’s assertion that all of the instant fees fall under the Plaintiff’s revenue amount is that the Plaintiff and the Nonparty Company denies without any ground the validity of the instant contract and the instant additional agreement, and thus, it cannot be permitted. However, deeming that all of the instant fees fall under the Plaintiff’s revenue amount, as seen in the foregoing A. As seen in the foregoing paragraph, it is only a result of ascertaining transaction relations between the Plaintiff, the Nonparty Company, and the Plaintiff’s customers by comprehensively taking into account the instant contract concluded by the Plaintiff and the Nonparty Company, the content of the instant additional agreement, the details of the instant additional agreement, and the Plaintiff’s transaction relationship through the Plaintiff’s deposit withdrawal service through the automated device, as well as the Plaintiff’s transaction relationship through the Plaintiff’s deposit withdrawal

C. Therefore, each of the dispositions of this case, based on the premise that the full amount of the instant fees falls under the Plaintiff’s revenue amount, is legitimate.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is dismissed as the plaintiff's appeal is without merit. It is so decided as per Disposition.

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