Jeju District Court 2010Guhap348 (No. 10, 2011)

Cho High Court Decision 2008Da2873 ( October 16, 2010)

It does not exclude part of the transport services from the tax base.

The plaintiff is deemed to have taken over the transportation, not merely on the basis of the request, but on the basis of the separate independent business operator, the transportation service provided by the plaintiff on his own account shall not be deemed as a duty-free incidental service, and a part of the transportation service subcontracted shall not be excluded from the tax base and imposed on the plaintiff and the subcontractor respectively.

Article 12 of the Value-Added Tax Act and Article 13 of the Value-Added Tax Act

Article 17 of the Value-Added Tax Act

(Disposition)Revocation of revocation of imposition of value added tax, etc.201Nu305

XX Kim

Head of Jeju Tax Office

Jeju District Court Decision 2010Guhap348 Decided August 10, 2011

May 30, 2012

June 27, 2012

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 second-term value-added tax for the second-term period of March 5, 2008, 000 won for the second-term value-added tax for the year 2003, 000 won for the second-term value-added tax for the year 2003, 000 won for the second-term value-added tax for the year 2004, 000 won for the second-term value-added tax for the second-term value-added tax for the year 2004, 00 won for the first-term value-added tax for the year 205, 200 for the second-term value-added tax for the year 206, 200 for the second-term value-added tax for the second-term period of the year 206, 200 for each of the above global income tax for the year 200, 2000 won for global income tax for each of the above global income tax for the year 2000.

1. Details of the disposition;

The following facts may be acknowledged, either in dispute between the parties, or in full view of the entries in Gap evidence of subparagraphs 1 through 3, Eul evidence of subparagraphs 1 through 5 (if any, including each number), and the purport of the whole pleadings:

A. From September 10, 1982, the Plaintiff is a business operator running XX 758-4 in Western City from the date of Seopopo City to the date of Seopopo City.

B. As a result of the tax investigation on the plaintiff (hereinafter "tax investigation of this case"), during the period from July 1, 2002 to June 30, 2007, the defendant confirmed that the plaintiff omitted sales of 000 won in total, and did not include 000 won in the necessary expenses (the specific details are see the table below) and the imposition of each value-added tax and global income tax (hereinafter "each disposition of this case") as stated in the purport of the claim on March 3, 2008.

C. The Plaintiff dissatisfied with each of the dispositions of this case and filed a tax appeal on July 29, 2008, but was dismissed on January 14, 2010, and filed the instant lawsuit on April 9, 2010.

2. The plaintiff's assertion

① The Plaintiff is not a shipping agent but a shipping agent. The Plaintiff’s tax base should be calculated only for the shipping agency commission received by the Plaintiff during the course of transportation. However, each of the dispositions of this case was unlawful since the Plaintiff calculated the tax base with the total transportation commission, excluding refund, on the premise that the Plaintiff offered both marine and land transportation. ② Even if the Plaintiff is a shipping agent who is not a shipping agent, it should be deemed that the walscit transport service is an incidental service to the sale of walits, which is exempt from value-added tax pursuant to Article 12(3) of the Value-Added Tax Act. Therefore, each of the dispositions of this case against the Plaintiff is unlawful. ③ Since the Plaintiff is a shipping agent who is not a shipping agent, the imposition of value-added tax against the Plaintiff shall be imposed on the Plaintiff. Since each of the dispositions of this case is against the principle of substantial taxation by including the Plaintiff’s income from the part of transportation, and thus, it is unlawful against the principle of substantial taxation against the Plaintiff’s tax base.

3. Determination

(a) Facts of recognition;

The following facts may be found either in dispute between the parties or in full view of Gap evidence Nos. 1, 3, 4, 5, 19, 23, Eul evidence Nos. 1, 3, 4, and 5 (including each number, if any), and the testimony and the whole purport of the arguments by the witness strongCC of the first instance court.

O On September 10, 1982, the Plaintiff registered the business to the head of Jeju Tax Office with its trade name as XX transportation company, and the type of business as a road freight forwarding business.

O The plaintiff entered into a contract for the carriage of wruscruscruscruscruscruscruscruscruscruscruscruscruscruscruscrus (hereinafter referred to as "AA") in Jeju-do, and transported wruscruscruscruscruscrus

O NewA entered into an agreement with the Plaintiff on dispatch consultation with a person who operates OD, Y transport in the name of KimD, EE, etc. in the Republic of Korea.

In order to transport wrusits in the area of Jeju-do to a pansitus, a vehicle in the Do shall be transported from AA to a pansital port by using a vehicle in the Do, ② to a sital port by using a ship, ③ to a sital port by using a vehicle, ③ to be transported to a pansital port by using a vehicle, ③ to a sital course, the plaintiff, ② to a sital course, and ③

In the case of the system shipment, there are two methods of shipping wits. ① In the case of the system shipment, the transportation services for wits purchased from agricultural cooperatives (hereinafter referred to as "agricultural cooperatives") or wits agricultural cooperatives (hereinafter referred to as "citscitscitscitscitscits") are awarded in a public tender, and they are transported to the national joint market through the above transportation process. The plaintiff received the total transportation fees from the NAF to each joint market through the system shipment, and issued and issued the tax invoice to the NA or the reduction cooperative, and received the purchase tax invoice from the NA or the shipping company. ② In the case of the non-system shipment, the purchase tax invoice was not exchanged, and the NA and the Do sales price (hereinafter referred to as "citscital citscital citscital citscitscit citscit citscitscit citscit citscit citscitscitscitscitscitscits).

The contract between AA and the Plaintiff was originally concluded orally, but the Plaintiff prepared a contract retroactively with A in the course of the instant tax investigation.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Determination as to the assertion that the Plaintiff was merely engaged in the witrusty transportation brokerage

However, if the intention of the parties is unclear, the intention of the parties should be examined to determine whether the transportation broker has obtained the status of the carrier even if the transportation broker received the request for the transportation-related work from the client. However, if the intention of the parties is unclear, it is necessary to determine whether the transportation broker can be deemed to have taken over the transportation from the client in accordance with logical and empirical rules, comprehensively taking into account all the circumstances (see, e.g., Supreme Court Decision 2007Da4943, Apr. 27, 2007).

In this case, as seen earlier, the fact that the plaintiff registered his business with the category of transportation company XX operated by the plaintiff as a road freight forwarding service. However, there is no dispute between the parties as to the plaintiff's liability for damages incurred during the course of transportation to A, and the fact that the plaintiff paid a refund to AA after deducting marine transportation charges, Do transportation charges, loading charges, loading charges, unloading charges and other incidental expenses from the settlement of accounts, and the plaintiff paid a refund to B. According to Eul evidence 3 and witness testimony of the court of first instance. According to the contract prepared retrospectively with AAG witness of the court of first instance, AAGGG (excluding air freight transportation charges) transporting the whole quantity (excluding air freight transportation charges) of the transport company to PCC for the transport company, the unit price of transportation shall be determined through consultation between Gangnam and the transportation company (Article 4), and the transportation agency shall be deemed to have been accepted by the plaintiff from the transport agency (Article 5).

As to this, the Plaintiff asserted that the document No. 3 was a retroactive contract, and that the content of the contract was not reliable. According to the testimony of the Gangwon-CC by the witness of the first instance court, it is acknowledged that the above contract was retroactively prepared, and that the Gangwon-CC did not thoroughly examine the details of the contract at the time when it signed the document No. 3, but on the other hand, it is possible to know through the testimony of the witness of the first island 1 Island F and the remaining testimony of the KCC by the witness of the first island 1 Island 1 Island 3. In other words, the above contract was prepared by debate with the Plaintiff. The Plaintiff requested the preparation of the above contract, and the Gangwon-CC signed the contract at its request. In light of the circumstances leading up to the retroactive preparation of the above contract, it is difficult to believe that the above contract was retroactively prepared solely on the basis that the above contract was prepared.

Therefore, this part of the plaintiff's assertion is without merit.

(2) Determination as to the assertion that wrusit transport service is exempt from duty

Pursuant to Article 12(3) of the Value-Added Tax Act, the scope of the supply of goods or services, which are essentially annexed to the supply of goods or services exempt from value-added tax, shall be limited to only the supply of the main goods or services exempt from value-added tax, and it shall be limited to only the supply of such goods or services, which are essentially annexed to the supply of such goods or services (see, e.g., Supreme Court en banc Decision 2000Du7131, Mar. 15, 2001). It cannot be deemed that the transportation services provided by the Plaintiff, an independent entrepreneur separate from A, under its own account, is an incidental service under Article 12(3) of the Value-Added Tax Act.

Therefore, the plaintiff's assertion on this part is without merit.

(3) The determination on the assertion that the sale by land transportation under the responsibility of the new AA violates the substance over form principle by including the tax base in the tax base

The plaintiff asserts that since the plaintiff, a carrier of the first carrier, entered into a contract of carriage on the account of the carrier prior to the second carrier and the plaintiff's name and the consignor's account, the part of land carriage under the captain's responsibility is unrelated to the plaintiff and therefore, it violates the substance over form principle.

According to the Plaintiff’s testimony, Gap evidence No. 19, Gap’s witness 1G, and Sung F, it stated that the Plaintiff and new A shall be liable and resolved with respect to all matters arising from the vehicle during the transport of the vehicle in full in the agreement entered into by the Plaintiff and New A. The Plaintiff’s new transportation contract concluded with the Plaintiff on the basis of the following facts: (a) new transportation contract agreement entered into between the Plaintiff and the Plaintiff and new transportation contract with the Plaintiff, which is difficult to accept; (b) new transportation contract with the Plaintiff on the basis of the agreement entered into between the Plaintiff and new transportation contract with the Plaintiff; (c) new transportation contract with the Plaintiff; and (d) the amount of compensation for the problems arising in the course of land transportation, entered the new transportation contract with the Plaintiff in the agreement entered the new transportation contract with the Plaintiff on the charges of new transportation; or (d) the amount of damages arising from the new transportation contract with the Plaintiff’s agreement entered the new transportation contract with the Plaintiff on the charges of new transportation; and (e) the Plaintiff entered the new transportation contract with the Plaintiff’s witness No. 13.

Therefore, it cannot be deemed that there was an error in calculating the Plaintiff’s tax base based on the total transport fee, and the Plaintiff’s failure to obtain input tax deduction is only a result of not receiving a tax invoice. Therefore, the Plaintiff’s assertion that each disposition of this case goes against the substance over form principle is also without merit

(4) Determination as to the assertion that each of the instant dispositions violates the double taxation prohibition principle

In light of the purport of the testimony of the witness of the first instance court, the omitted sales amount of the New AA is calculated on the basis of the sum of the rent for the land transport and the rent for the first time from 2002 to 2007 between 200 won, and the director of the tax office of the Republic of Korea issued a revised notice of value-added tax to the New AA. The plaintiff also received each disposition of this case due to the omission of the sales amount of KRW 00,00 as a result of the tax investigation, as seen earlier. However, in light of the purport of the argument of the first instance court, the omitted sales amount of the new BA is calculated on the basis of the sum of the sales amount for the land transport and the rent for the first time from 202 to 207. The plaintiff's omitted sales amount was calculated on the basis of the difference between the plaintiff and the new BA and the new BA sales amount, and thus, the plaintiff's portion of the total sales amount and the new BA sales amount are not considered to be a substantial weight of the Plaintiff's sales amount.

Therefore, the plaintiff's assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.