Seoul Administrative Court 2007Guhap34866 ( October 28, 2010)

Cho High Court Decision 2006No3467 (O4, 2007)

The method of calculating whether or not the value-added tax is imposed on the lottery sales agency service and tax base;

Lottery ticket sales agency services shall be subject to value-added tax, and the difference of the value purchased from the foundation in calculating the tax base shall be calculated as the difference in the face value, but the retailer fees belonging to the retailer shall be excluded.

The contents of the decision shall be the same as attached.

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1. The defendant's appeal is dismissed.

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

1. Purport of claim

The Defendant’s portion of value-added tax for the first term of 1,442,035,490 on July 15, 2005, 200 for the first term of 1,472,578,393, 627,164,404 among the value-added tax for the second term of 200 on January 6, 2006, 627,167, 36368, 207, 207, 369, 207, 207, 207, 368, 367, 207, 207, 207, 367, 209, 367, 207, 368, 207, 367, 279, 208, 207, 367, 209, 207, 367, 28182, 207, 20784.

2. Purport of appeal

The judgment of the first instance is revoked. All the claims of the plaintiff are dismissed.

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1. The process of the instant disposition

A. On May 10, 199, the Plaintiff entered into a contract with the Korea Science Foundation (hereinafter referred to as the “Foundation”) on the sales business of technology development lottery tickets (hereinafter referred to as the “Restoration”) issued by the Foundation pursuant to Article 7-2 (4) of the Special Act on the Innovation of Science and Technology (amended by Article 2 of the Addenda to the Framework Act on Science and Technology, Act No. 6353 of Jan. 16, 2001). On April 1, 2004, the Plaintiff entered into a contract with the Korea Science and Technology Mutual Aid Association (hereinafter referred to as the “Mutual Aid Association”) on the lottery sales business issued by the Foundation pursuant to Article 4 of the Lottery Tickets and Lottery Fund Act. The Plaintiff acquired the lottery tickets from the Foundation, etc. on June 1, 199 and supplied it to intermediate wholesale markets, retail markets, etc.

B. The Defendant issued the Plaintiff’s lottery sales agency services that are subject to value-added tax, and the amount equivalent to fees for lottery sales agency services is all the difference between the value of lottery tickets including retail commission and sales incentive pursuant to Article 48(1) of the Enforcement Decree of the Value-Added Tax Act and the value of the Plaintiff’s acquisition. The Defendant issued the Plaintiff’s notice of the instant disposition from the foundation and the Mutual-Aid Association for the first period to the second period of 2000 to the second period of 2004 received from the foundation and the Plaintiff for the first period of 1 to 2002 from July 15, 2005 and the second period of 200 to the second period of 2002, including the value-added tax for the first period of 171 minutes in 200 and 271 minutes in 200, and the value-added tax for the second period from January 6, 2006 to the second period of 20 years (hereinafter “value-added tax”).

C. The defendant filed an objection against the imposition of value-added tax on October 13, 2005 and filed an appeal with the National Tax Tribunal on February 15, 2006 (hereinafter “National Tax Tribunal”) but was dismissed on June 11, 2007. On April 10, 2006, the defendant filed an appeal against the imposition of value-added tax on Article 271 with the National Tax Tribunal (hereinafter “National Tax Tribunal”) on June 14, 2007, but dismissed the request on June 14, 2007.

[Basis] Evidence Nos. 1-1 through 10, Evidence Nos. 2-1 through 3, Evidence Nos. 3, Evidence Nos. 4-1 through 3, Evidence No. 16-1, Evidence Nos. 1-1 through 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) Value-added tax shall be exempted on the sales of lottery tickets, which are exempt goods under Article 12(1)8 of the Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) that the Plaintiff entered into a lottery sales contract with the Foundation and the Mutual-Aid Association and purchased at a price discounted at par value, and supplied to the intermediary wholesale and retail retail (hereinafter referred to as “Intermediate wholesale, etc.”). Even if the Plaintiff’s lottery sales business was provided as a lottery sales agent, value-added tax on the price for providing lottery sales agent services should be exempted in light of the purport of the above provision of the Value-Added Tax Act.

2) The amount equivalent to the difference between the face value and the face value of lottery tickets includes the retailer fees and sales incentives in addition to the sales agency fees reverted to the Plaintiff. The retailer fees are attributed to the retailer’s profits. Sales incentives to support lottery sales are not paid to the agency as sales incentives, advertising expenses, sales promotional expenses, and sales incentives to support lottery sales are paid or used to the agency, and are not attributed to the Plaintiff. Thus, sales agency fees should be excluded from

3) Article 33(4) of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17041, Dec. 29, 2000) newly established Article 33(4) of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17041, Dec. 29, 200) which provides for a tax exemption for lottery sales, etc. excluded the service of lottery sales from the financial and insurance services subject to tax exemption. The Plaintiff was unable to fulfill his/her duty to report and pay value-added tax due to his/her ignorance of amendment

B. Relevant statutes

Attached Form 3 is as shown in the "relevant Acts and subordinate statutes".

(c) Fact of recognition;

1) The Foundation established the Plaintiff with three individual shareholders in order to promote the expansion of lottery sales in the course of issuing lottery tickets, and owned 9.9% of the total number of the Plaintiff’s issued stocks. After its establishment, the Foundation performed its duties as an institution distributor for lottery tickets issued by the Foundation.

2) Lottery ticket sales agency contract

A) The terms of the lottery ticket sales contract concluded with the Foundation on May 10, 1999 are as follows.

Article 3 (Scope of Agency Business)

The scope of lottery ticket sales business conducted by the plaintiff shall be as follows:

1. Sales in front of an agency (including Durr) and a retailer, and direct sales;

2. Recruitment and management of agents (including withstandingrs) and retailers;

3. Payment of the prize money in the amount of not more than 10,00 won per ticket;

4. Establishment and operation of a computer network for the management of lottery tickets sales business;

5. Other incidental business referred to in the preceding subparagraphs and affairs agreed between the Foundation and the Plaintiff.

Article 4 (Fidelity Performance and Cooperation in Business)

(3) The plaintiff and the Foundation shall cooperate with each other in support of all necessary matters so that the plan for the issuance and sale of lottery tickets can achieve the objectives of the lawsuit.

Article 8 (Designation of Agency, etc.)

(1) For the smooth sale of lottery tickets, the Plaintiff shall establish a management plan for the designation of agents (including withstandingrs) and retailers, transaction methods, etc. and obtain prior approval from the Foundation.

Article 9 (Sale of Lottery Tickets)

(1) For the efficient sale of lottery tickets, the plaintiff shall make every effort to allocate and sell lottery tickets to distributors, including the plaintiff's agent, etc.

(2) The Foundation and the Plaintiff may request mutual cooperation for matters necessary to promote sales, and in such cases, they shall actively cooperate with such request.

Article 10 (Area where Lottery Tickets are Sold)

(1) The area of lottery ticket sales business of the plaintiff shall be nationwide.

(2) The Plaintiff may have agents and sea-dr for each sales area. In such cases, the detailed terms and conditions of sale shall be determined by prior consultation, and the Plaintiff shall separately determine the plan for management of bonds to guarantee the recovery of sales proceeds.

③ The Plaintiff may sell lottery tickets to an institution shop equipped with its own distribution network, such as convenience stores for 24 hours and red club.

Article 11 (Return of Lottery Tickets and Adjustment of Quantity)

(1) The plaintiff shall make every effort to sell the entire amount of lottery tickets allocated to him/her, and when it is judged that the whole quantity of lottery tickets is difficult to sell by the closing date, he/she shall promptly request the Foundation to return such lottery tickets so that it does not impede the adjustment

② When the Plaintiff requests the return, the Foundation shall notify the Plaintiff of the amount, place, and date and time of the return, and at such time, the Plaintiff shall collect the return lottery and ensure that it does not interfere with the recovery of the Foundation.

(3) The Foundation may request the return of the unsale lottery in accordance with the current status of the plaintiff's sale. In such cases, the plaintiff shall comply with such request, except in extenuating circumstances.

Article 12 (Treatment of Unsaleable Lottery Tickets)

(1) Unsale lottery tickets shall be recovered and discarded under the expense and responsibility of the Foundation.

(2) The plaintiff shall prepare a detailed statement of lottery tickets that he/she has failed to sell within the period of sale determined by the Foundation and notify the Foundation thereof, and the plaintiff shall return it to the service company designated by

Article 13 (Settlement of Proceeds from Sale of Lottery Tickets)

(1) The plaintiff shall deposit money into the account of the Foundation of a bank designated by the Foundation within the deadline for paying the next prize of lottery tickets received from the Foundation.

(2) The amount of deposit under paragraph (1) shall be the amount calculated by subtracting the refund from the purchase price of lottery tickets acquired by the plaintiff from the foundation.

Article 16 (Value of Supply of Lottery Tickets)

(1) The Foundation shall provide the Plaintiff with 430 won per 1 lottery ticket, 422.5 won per 1 lottery ticket, and 422.5 won per 1 lottery ticket, and may adjust the value of supply according to the situation of the lottery market.

(2) The Foundation may pay separate sales incentives, sales promotions, etc. within budgetary limits to promote the sale of the plaintiff.

Article 17 (Public Relations and Advertisement)

(1) The plaintiff may conduct public relations, advertisement and sales promotion on his/her behalf or directly for the promotion of sales.

(2) The Foundation and the Plaintiff shall fully cooperate with each other in public relations, advertisement, and promotional activities.

Article 18 (Request for Submission of Data)

(1) Where necessary, the Foundation may request the Plaintiff to submit materials related to the sales agency business and other related documents.

(2) Upon receipt of a request under paragraph (1), the Plaintiff shall immediately submit relevant data and documents to the Foundation.

Article 19 (Guidance and Supervision)

The Foundation may, if necessary, guide and supervise matters related to the plaintiff's sales business on a regular or occasional basis, and the plaintiff shall actively cooperate therewith.

B) On March 31, 2004, the Foundation entered into a lottery delivery contract with the Foundation and the Mutual Aid Association and the Plaintiff on June 29, 2004.

C) The terms of the lottery ticket sales contract concluded with the Mutual-Aid Association on April 1, 2004 are as follows.

Article 3 (Scope of Sales Business)

The scope of lottery ticket sales business conducted by the plaintiff shall be as follows:

1. Selection and sale of lottery ticket distributors;

2. Payment of prize money to the holder of the lottery ticket;

3. All the business related to claims of the seller generated from the sale of lottery tickets.

4. Establishment and operation of a computer network for the management of lottery tickets sales business;

5. Other incidental business referred to in the preceding subparagraphs and affairs agreed between the Mutual-Aid Association and the Plaintiff.

Article 4 (Fidelity Performance and Cooperation in Business)

(3) The plaintiff and the Mutual-Aid Association shall provide mutual support for all necessary matters so that the plan for the issuance and sale of lottery tickets can achieve the objectives of the lawsuit.

Article 9 (Sale of Lottery Tickets)

(1) The supply price per ticket which the Plaintiff receives from the Mutual-Aid Association for sale shall be as follows:

1. Lottery ticket by drawing: 15% per par value;

2. In other words, 20% of the face value;

(2) Sale shall be made through mutual consultation between the Mutual-Aid Association and the plaintiff within the scope of the price referred to in paragraph (1) supplied by the Mutual

(3) The Mutual-Aid Association and the Plaintiff may request mutual cooperation for matters necessary for the promotion of sales, and in such cases, they shall actively cooperate in such request.

Article 11 (Disposition of Unsale Lottery Tickets)

(1) Unsale lottery tickets shall be recovered and discarded at the expense and responsibility of the plaintiff.

(2) The plaintiff shall prepare a detailed statement of lottery tickets that the plaintiff has failed to sell within the period of sale determined by the Mutual-Aid Association and notify the same to the Mutual-Aid Association, and return them to the service company designated by

Article 12 (Settlement of Proceeds from Sale of Lottery Tickets)

(1) The plaintiff shall deposit the sales proceeds of lottery tickets acquired from the Mutual-Aid Association into the mutual-aid account of banks designated by the Mutual-Aid Association within the following periods:

1. Lottery tickets by lottery: Settlement of accounts and deposits in money within 20 days after the last lot of each month;

2. In other words, a instant lottery ticket: The payment shall be made at the end of each quarter within 20 days after the settlement;

(2) The amount of deposit under paragraph (1) shall be the amount calculated by subtracting the prize from the lottery proceeds received from the mutual aid association and sold by the plaintiff.

Article 15 (Request for Submission of Data)

(1) The Mutual-Aid Association may, if necessary, request the Plaintiff to submit data and other related documents related to sales business.

(2) Upon receipt of a request under paragraph (1), the plaintiff shall immediately submit relevant data and documents to the Mutual-Aid Association.

shall deposit in the account.

Article 16 (Guidance and Supervision)

The Mutual-Aid Association may, if necessary, guide and supervise matters related to the plaintiff's sales affairs on a regular or occasional basis, and the plaintiff shall actively cooperate therewith.

D) According to the "Plan for Technology Development Lottery Project and Budget Approval" notified by the Minister of Science and Technology to the Foundation on January 29, 2001, the terms and conditions of issuing lottery tickets are 10% of the retail fees, 3-4% of the banks in case of a tiny, 4% of the agency distributors in case of a marry, 3-4% of the banks in case of a marry, and 5.5% of the agency distributors in case of a marry.

(3) Contracts for lottery sale

A) For the distribution of lottery tickets, the Plaintiff entered into a lottery supply contract with the intermediate wholesale (sales agency) and retail stores such as LG distribution company, LG distribution company, LGT (LG), LGT company, YGTT company, SYT company, Sweet, Ying-Mamart company, and Yangyang Co., Ltd., and entered into a lottery supply contract with each intermediate wholesale (sales agency). The Plaintiff would pay sales incentives and distribution expenses according to the agreed ratio of the lottery sales amount to the lottery sales amount by each intermediate wholesale, and would receive the sales incentives and distribution expenses after deducting the sales incentives and distribution expenses at the time of settlement.

B) The contract entered into with the Plaintiff was not a provision that the Plaintiff consulted with, or obtained approval from, the Plaintiff on most matters relating to sales, such as the adjustment of the volume of lottery tickets sales, designation of an agent, sales area and sales method, value of supply, publicity, and advertisement. The intermediate wholesalers agreed to pay the Plaintiff the price in the bill or cash by the 25th day of the following month after the receipt of the lottery ticket.

4) Payment of lottery ticket sales incentives;

A) According to the documents submitted by the Defendant to the National Tax Tribunal, the Plaintiff received 2,98,00,000 won for lottery tickets sales in 2000, equivalent to 3.3% of the amount of lottery tickets sales in 200, and 3,694,000,000 won for 3.4% for 2001, and 4,195,000,000 won for 3.5% for 2002 (the total tax base for the sales incentives in this case) (the total amount of 2,717,203,408 won for sales incentives in 200, 3,693,684, 380, 2000 won for 201, 4,000 won for 3,695,000 won for 3.5% for 202, 4,000 won for 200).

B) According to Article 16 of the Lottery Tickets Sales Agency Contract concluded with the Foundation on April 1, 2003, the Plaintiff stated that “the Plaintiff shall pay an amount equivalent to 3.4% (including value-added tax) of the lottery tickets sales amount as sales commission when it performs the sales business.”

[Reasons for Recognition] Facts without dispute, Gap evidence 2-1 to 3, Gap evidence 3, Gap evidence 4-1 to 3, Gap evidence 5-1 to 12, and the purport of the whole pleadings

D. Determination

1) The Plaintiff’s business type and duty-free type

(1) Type of business between the Plaintiff, the Foundation and the Mutual Aid Association

According to the above facts, the following circumstances are recognized.

(A) On May 10, 199, the Plaintiff entered into a lottery sales contract with the Foundation, and was supplied with 430 won per 500 foot lottery tickets and 422.5 won per 400 won per 500 foot lottery tickets. On April 1, 2004, the Plaintiff entered into a lottery sales contract with the Mutual-Aid Association, and was supplied with 15% per 50 foot lottery tickets with the face value at 15% per 50 foot lottery, that is, with the face value at 20% discount. The final consumer price of lottery tickets is fixed at 500 won, and it is impossible to sell at discount or premium according to market conditions.

(B) The Plaintiff shall pay the Foundation the balance remaining after deducting the prize from the subscription price in the lottery within the payment period, and shall pay the Mutual-Aid Association the balance remaining after deducting the prize from the prize price in the lottery ticket acceptance price within 20 days from the last day of each month, in case of a lottery, within 20 days from the end of each quarter. The Foundation and the Mutual-Aid Association have not been provided with a security by the Plaintiff for securing the claim for lottery tickets, and only have a separate decision on the bond management plan to secure the collection of the sales proceeds to the intermediate commercial agent, etc. under the contract entered into with the Foundation, and there is no special provision on securing the claim for lottery tickets acquired by the Plaintiff. The Plaintiff was allowed to return the lottery ticket among the lottery tickets acquired by the Foundation and the Mutual-Aid Association, and did not incur any loss due to the sales performance under the contract concluded with the Foundation and the Mutual-Aid Association. According to the Plaintiff’s contract for lottery sales business with the Foundation and the Mutual-Aid Association,

(2) The type of business between the Plaintiff and the intermediary wholesaler, etc.

For the purpose of distributing the instant lottery tickets, the Plaintiff entered into a contract for selling KRW 370 to KRW 450, 430, and 450, respectively, in the retail market, the Plaintiff sold KRW 450,000 [Article 10(2) of the lottery sales contract entered into between the Plaintiff and the Foundation.] Under the lottery sales contract entered into between the Plaintiff and the Foundation, the Plaintiff is required to make a decision by prior consultation with the Foundation (Article 4-1, 10(2)). According to the lottery sales contract entered into between the Plaintiff and the Mutual Aid Association, the Plaintiff and the Plaintiff are allowed to sell the instant lottery within the scope of the price supplied by the Mutual Aid Association (Article 4-3, 9(2) of the Evidence No. 4), which was notified to the Foundation on January 29, 2001. According to the 201 Technology Development Project Plan and the conditions of issuing lottery tickets under the budget approval, the retailer was paid at least 10% of the face value (50), the Plaintiff’s intermediate sales commission and the Plaintiff and the Plaintiff’s intermediary sales commission.

B) Whether the Plaintiff’s business is exempt from value-added tax

(1) Type of business between the Plaintiff, the Foundation and the Mutual Aid Association

(A) According to Article 12(1) of the Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) Article 12(1), one of the supply of goods or services exempt from value-added tax is entitled to lottery (No. 8), and financial and insurance services prescribed by Presidential Decree (No. 10), and Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17041, Dec. 29, 2000; Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827, Jan. 1, 2001; Presidential Decree No. 17827, Dec. 30, 202; Presidential Decree No. 178175, Dec. 30, 2003); and Article 33(4)1 of the Value-Added Tax Act excludes the sale of lottery tickets and advertising services as an agent.

(B) Whether the Plaintiff’s business type constitutes sale of lottery tickets that are duty-free goods

In order to be eligible for value-added tax exemption because it falls under the supply of lottery tickets as tax-free goods under Article 12 (1) 8 of the Value-Added Tax Act, the Foundation and the Mutual-Aid Association that have purchased lottery tickets from lottery issuers and have ownership of lottery tickets purchased and sell lottery tickets under its own calculation and responsibility.

In light of the fact that the Plaintiff’s provision that the Plaintiff should consult with or even obtain approval from the Foundation and the Mutual-Aid Association on all matters related to the sale of lottery tickets, and that the Plaintiff does not provide any security to the Foundation even when the amount of lottery tickets acquired was paid by the method of settling this later, and that the return of unsale lottery tickets is unlimited, etc., the Plaintiff constitutes not conducting the lottery sale business subject to value-added tax exemption but receiving agency fees by lending the form of supply of lottery ticket sales services subject to taxation and acquisition of profit margin (see Supreme Court Decision 2002Du12144, Feb. 13, 2004). This part of the Plaintiff’s assertion is without merit.

(C) Whether an agency business for lottery ticket sales is exempt from tax

Article 1 of the Value-Added Tax Act (wholly amended by Act No. 9915, Jan. 1, 2010) stipulates that the supply of goods or services and the import of goods shall be subject to the imposition of value-added tax, and Article 7 provides that the supply of services shall provide services or allow the use of goods, facilities, or rights due to all contractual or legal grounds. However, the exceptional provisions of Article 12 are specifically limited to the supply of services subject to tax exemption. The lottery sales agent does not fall under the supply of services subject to tax exemption. Article 3(4)1 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17041, Dec. 29, 2000) which was newly established on January 1, 2001 and enforced on January 1, 2001.

2) Whether the assessment of the tax base of the instant disposition is legitimate

(a) Value-added tax base for the supply of lottery ticket sales services;

According to Article 13(1)1 of the Value-Added Tax Act, where payments for the supply of goods or services are paid in money, the value-added tax base is the value-added tax base. The value-added tax base for the supply of lottery sales agency services is the amount equivalent to the commission for sales agency received in return for the supply of services such as lottery sales agency (see Supreme Court Decision 2006Du2565, Dec. 24, 2008). Meanwhile, if a transaction between the Plaintiff and the intermediate wholesale or retail store is deemed a sales agency contract, the value obtained by the Plaintiff from the issuer of lottery, such as the foundation, is the tax base after deducting the value acquired by the Plaintiff from the final retail price (the value at the lottery face value). However, where the Plaintiff sells to the intermediate wholesale or retail store and transfers the ownership of lottery tickets to the intermediate wholesale, etc., the difference between the selling price for the intermediate wholesale and the value acquired by the issuer of lottery is

B) As to the retailer fee among the tax base of the instant disposition

In light of the following circumstances revealed by the facts of recognition as seen earlier, a supply contract entered into with the intermediate wholesale and retail retail is not entrusted to them with lottery sales agency services, but is a sales contract for lottery tickets, which are securities. The retailer fees are reverted to the retail, and are not included in lottery sales acquired by the Plaintiff from the intermediate wholesale, etc., so it is unlawful to calculate the tax base including this.

① The Plaintiff entered into a lottery sales contract with the intermediary wholesaler, etc., not a lottery sales agency contract, but a lottery sales contract. According to the contract, the Plaintiff and the intermediary wholesaler, etc. may supply lottery tickets on condition that lottery tickets are not returned. There is no provision that a contract entered into between the Plaintiff and the intermediary wholesaler, etc. shall be determined by consulting with or obtaining approval from the Plaintiff regarding the adjustment of the quantity of lottery tickets sales, designation of agencies

② The Plaintiff did not separately receive the sales agency fee from the Foundation and the Mutual-Aid Association, which is the proceeds from the sales agency service, but instead received the lottery, and paid to the Foundation and the Mutual-Aid Association only the amount equivalent to the value acquired from the Foundation and the Mutual-Aid Association, out of the proceeds from the sales, and paid to the Foundation the amount equivalent to the difference between the value acquired by the Plaintiff and the value provided to the intermediary wholesaler. According to the "Terms and Conditions of Issuance of the Technology Development Lottery Tickets Business Plan and Budget Approval" notified by the Minister of Science and Technology on January 29, 2001, the sales agency fee for the Plaintiff is 4% in the case of a instant lottery, namely, 5.5% in the case of a instant lottery, and the retailer fee is 10% in the case of a instant lottery ticket. However, the Plaintiff’s sales agency fee is merely 10% in the standard for determining the sale price to the intermediary wholesaler, etc., and the actual revenue that the Plaintiff

C) As to the sales incentive among the tax base of the instant disposition

(1) According to Article 13(3) of the Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006), the supply price of goods or services shall not be deducted from the tax base. According to Article 48(1) of the Enforcement Decree of the Value-Added Tax Act, the tax base under Article 13(1) of the Value-Added Tax Act includes any amounts, charges, fees, and all other monetary values having a quid pro quo regardless of the pretext thereof.

(2) Facts of recognition

According to the results of fact-finding on the Science and Technology Mutual-Aid Association of Korea, the following facts are acknowledged.

① At the time when the Plaintiff provided lottery sales agency services, 8 to 10 institutions were individually issued lottery tickets, and the lottery agency dealing with lottery tickets sold all of the entire lottery tickets and was in an excessive competition state to increase sales volume. The Foundation and the Mutual-Aid Association paid sales incentives to intermediary wholesalers, etc. as a policy to increase lottery sales.

② The Foundation, etc. is merely in charge of issuing lottery tickets, and the lottery sales is a structure of the Plaintiff’s agency. As such, the Foundation cannot pay the sales incentive directly to intermediary wholesalers, etc., it was paid through the Plaintiff. The Plaintiff submitted to the Foundation a plan for promotion and promotion of lottery sales and obtained approval, and used the sales incentive as expenses related to lottery sales, such as advertising expenses, promotional products production expenses, local delivery agency expenses (logistics expenses), business expenses, etc., and received guidance and supervision by submitting a list of agencies that paid sales incentives to the Foundation later.

③ According to the lottery ticket sales agency contract concluded with the Plaintiff, the Foundation is able to separately pay sales incentives, promotional items, etc. within budgetary limits to promote lottery sales by the Plaintiff’s agent.

(3) Determination

Sales incentives received by the Plaintiff were paid to intermediary wholesalers, etc. for the purpose of expanding the sales volume of lottery tickets issued by the Foundation, and did not belong to the Plaintiff. Sales incentives are not monetary payments related to the provision of lottery ticket sales services rendered by the Plaintiff, and it is unlawful to calculate the tax base including this.

3) On the assertion that the Plaintiff has justifiable grounds for neglecting the duty to report and pay value-added tax

Since the disposition of this case based on the retailer fee and sales incentive is unlawful, it is also unlawful without considering whether there is any justifiable reason that the portion of the additional tax was neglected to report and pay.

3. Conclusion

The instant disposition is imposed value-added tax on only the retailer fee and sales incentive as its tax base. Since the imposition of value-added tax on the retailer fee and sales incentive is erroneous, the entire disposition of this case is unlawful. The Plaintiff’s claim is with merit. The judgment of the first instance court is justifiable as this conclusion is dismissed. The Defendant’s appeal is dismissed.