It is difficult to view that the large amount of the large amount of the terminal sales corresponds to the discount amount for the terminal sales even though it was paid by substitute for the communications expenses of the subscriber who purchased the terminal.

Unless there is no data to confirm the substitute payment of a device, and there is no special circumstance, it is difficult to regard the Plaintiff as a direct discount of the relevant transaction because the Plaintiff paid the substitute payment for the device, and the sales incentive paid to the mobile communications company as the price for the entrusted business is also the fee.

Article 29 of the Value-Added Tax Act

Daejeon District Court-2017-Gu Partnership-802

AA

○ Head of tax office

October 25, 2018

November 22, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 17,493,638, value-added tax of KRW 14,542,211 for two years of 2013 against the Plaintiff on February 17, 2017 is revoked.

1. Details of the disposition;

A. The Plaintiff: BB on December 13, 2013 (hereinafter “instant mobile communications company”);

Between B and B, the said company entered into an agency contract with the intent to attract and manage the subscribers to the mobile communications service provided by the said company, to entrust the contractual services with the subscribers, and to purchase and sell the mobile communications device (hereinafter referred to as the "phone") from the instant mobile communications company, and to sell it again, and the mobile communications agency business was closed on January 18, 2016.

B. According to the above agency contract, the Plaintiff purchased the sales device from the instant mobile communications company to the customers, and sold the device in installments to the customers who became the subscribers of the instant mobile communications company, and recovered the installment sales price of the said device in lump sum by transferring the installment payment claim to the instant mobile communications company and receiving the transfer price.

C. Meanwhile, the Plaintiff received the attracting fees and management fees from the instant mobile communications company in return for attracting and managing the subscribers, and was also paid sales incentives to promote attracting the subscribers. Accordingly, from 2013 to 2015, the Plaintiff received sales incentives of KRW 14,906,075,876 in total from the instant mobile communications company from the instant mobile communications company to 2015, and provided the same to the customers by means of paying the subscription fees on behalf of the subscribers.

D. However, at the time of the Plaintiff’s filing of value-added tax from 2013 to 1, 2015, only the amount calculated by transferring installment bonds to the instant mobile communications company, and deducting the amount that the Plaintiff paid from the price received from the instant mobile communications company by substitution for telecommunications expenses or cash, etc., was reported as the value of supply of the said installment bonds.

E. From September 1, 2015 to November 8, 2015, the Defendant conducted an integrated investigation into the Plaintiff’s 2013 business years and 2014 business years and corporate tax and value-added tax for 2015, and then notified the Plaintiff of the difference between the transfer price of installment bonds and the actual reported amount of value-added tax to the instant mobile communications company as the base of value-added tax. The Plaintiff, on January 6, 2016, deducted some of customers from the tax base by deeming subsidies, etc. for the Plaintiff as the amount of discount. On January 6, 2016, the Defendant notified the Plaintiff of the amount of value-added tax for 215,450,540 won for the first period, 259,330 won for 22 years, 2013, 367, 265, 450 won for 12 years, 2014, 15, 439, 7605 won for 19

F. On July 22, 2016, the Plaintiff appealed and filed an appeal with the Tax Tribunal on March 21, 2016, seeking revocation of the said imposition of value-added tax. On November 28, 2016, the Tax Tribunal rendered a reinvestigation on the amount paid prior to August 6, 2013 out of the amount of the amount of the communications charges claimed by the Plaintiff, which is recognized as a discount amount, and decided to re-examine the amount to be paid prior to August 6, 2013, to correct the value-added tax base and tax amount, and the part of the Plaintiff’s appeal that the amount paid after August 6, 2013, out of the amount of the above payment of the communications charges, should be deducted from the tax base as a discount amount.

G. According to the determination of the re-investigation, the Defendant, from January 17, 2017 to February 3, 2017, through re-audit with the Plaintiff. On February 17, 2017, the Defendant notified the Plaintiff of KRW 10,024,380, which was paid by the Plaintiff’s corporate card out of the amount of the amount of the communications fee paid in lieu of the communications fee, 19,243,015, which was paid by the credit card in the name of employees CCC, and 38,361,116, which was paid by the credit card in the name of employees DD, out of the total amount of KRW 67,628,511, which was paid before August 6, 2013, the amount of KRW 28,287,844, which was additionally deducted from the value-added tax base, and notified the Plaintiff of KRW 26,2638,00 among the value-added tax base.

H. On April 12, 2018, the Defendant notified the Plaintiff that the amount of KRW 3,287,844 of the value-added tax for the first period of the year 2013 was reduced to KRW 3,287,844 of the said tax, and KRW 266,803 of the said tax for the second period of the value-added tax

2. Summary of the plaintiff's assertion

Of sales incentives received by the Plaintiff from the instant mobile communications company, the Defendant recognized only the amount of customer’s payment on or before August 6, 2013 as a discount amount. However, the amount of customer’s payment on the telecommunications fare constitutes an overcharge amount directly reduced from the mobile communications price, and thus, the Plaintiff’s payment on or after August 6, 2013 ought to be deducted from the value of the transfer of installment bonds for the sale of devices. Therefore, the value-added tax in this case’s tax disposition should be revoked on the ground that the Plaintiff’s payment on or after the date of August 6, 2013 constituted an overcharge amount of the transfer of installment bonds for the year 192,430,030, 159,964,30 won for the communications expenses paid by the Plaintiff on or after August 6, 2013.

3. Relevant statutes;

The entries in the attached statutes are as follows.

4. Whether the disposition of this case was unlawful

A. Relevant legal principles

Article 29 (1) of the Value-Added Tax Act provides that "the tax base of the value-added tax on the supply of goods or services shall be the total amount of supply value of goods or services supplied in the relevant taxable period," and Article 29 (5) 1 of the Value-Added Tax Act provides that "the amount of direct reduction of a certain amount from the ordinary price in accordance with the quality, quantity, conditions of delivery, method of settlement of the consideration for the supply of goods or services, or other terms and conditions of supply (hereinafter referred to as "the cumulative amount") shall not

The purport of the Value-Added Tax Act, which excludes accumulated amounts from the value-added tax base, is to exclude them from the value-added tax base, as the supply conditions for the quality, quantity, delivery, etc. of goods or services are not the amount actually received from the other party to the transaction, and thus, is to exclude them from the value-added tax base (see Supreme Court Decision 2011Du8178, Apr. 11, 2013).

B. Determination

In full view of the following circumstances, the evidence mentioned above, Eul's evidence No. 14, and the purport of the entire pleadings, even if the plaintiff paid the communications cost to the subscriber who purchased the device on behalf of the plaintiff, it is difficult to view the above amount of the communications cost as the discount amount for the sales of the device, and there is no other evidence to acknowledge it otherwise.

① First, there is no evidence to verify whether the Plaintiff’s claim was paid in full by the communications cost of KRW 192,430,030 for the year 2013, KRW 159,964,330 for the year 2014, and KRW 159,964,330 for the year 2014. Even if the Plaintiff paid in lieu of the Plaintiff’s communications cost, there is no evidence to verify whether the payment in lieu of the communications cost is directly related to the terms and conditions of supply, such as purchase and sale of the device, or how the scope of the payment in lieu of the communications cost varies depending on the supply price of the device, and it is not entirely confirmed whether the payment in lieu of the communications cost was made for the promotion of subscription to the mobile communications service, and was made for the promotion

② Furthermore, the telecommunications cost borne by the account holder is the price for the use of telecommunications services provided by the instant mobile communications company, and in principle, its scope may not vary depending on the type or volume of the device purchased by the account holder. Thus, barring any special circumstances, the Plaintiff cannot be deemed as having paid the account for the Plaintiff’s telecommunications cost on the ground that the Plaintiff paid the account for the cost of telecommunications services in lieu of the account holder

③ The Plaintiff paid the Plaintiff’s telecommunication fee in the sales incentive received from the instant mobile communications company. However, the instant mobile communications company also included the sales incentive in the “fee, which is the consideration for entrusted duties under an agency contract, paid according to an agency contract, the contents of which are the attracting of subscribers,” and the agent cannot participate in any of the above fees even if used for any of the above purposes. However, it is difficult to view that the instant mobile communications company, as a matter of course, took over the installment claim from the Plaintiff for the sales of the device from the Plaintiff, at a discount of the amount equivalent to the amount of the communication fee paid by

C. Sub-committee

Therefore, it cannot be deemed that the amount of the Plaintiff’s payment of the communications cost for the Plaintiff constitutes the discount amount deducted from the proceeds from the supply of installment bonds following the sale of the terminal, and there is no error in the disposition of this case as alleged by the Plaintiff.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.