Cho High Court Decision 2014Du0252 ( October 28, 2014)

The instant agreement is a service contract with the content of providing software and computer systems and allowing the use of trademarks, and thus, is obligated to pay additional taxes on behalf of others.

In order to distinguish whether a project is a joint project, the parties shall comprehensively take into account the specific and substantial circumstances, such as whether the project has been made individually, whether the project has an agreement to divide profits or losses according to the project performance, whether the property necessary for the joint project has a joint ownership, whether the project has internal joint ownership, and the external entity and form of the project.

Article 34 (Payment by Proxy)

Seoul Administrative Court-2015-Gu Partnership-51415 ( September 18, 2015)

(2) Added value added with the Plaintiff being provided with services from AA

The aggregate of the value-added taxes for the second period from 2008 to 2012 on the ground that the taxes have not been paid by proxy.

166,039,240 won was corrected and notified (hereinafter referred to as the "collection disposition of value-added tax in this case").

(d) Procedures of the previous trial; and

The plaintiff is dissatisfied with the disposition of imposition of corporate tax and the disposition of collection of value-added tax of this case* December 3, 201.

On October 22, 201* The Tax Tribunal made payment to AA on October 22, 201.

*,**,447,980 won in respect of corporate tax for each business year from 2008 to 2012

A decision to correct tax amount and dismiss a request for adjudication on the collection disposition of value-added tax in this case

was made.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 5 (including the relevant number), Eul evidence 1 and 2

Each entry, the purport of the whole pleadings

2. Whether collection disposition of value-added tax in this case is legitimate

A. The plaintiff's assertion

The collection disposition of the value-added tax of this case is unlawful in whole or in part for the following reasons.

must be revoked.

1) The Plaintiff’s profit accrued from a joint business while running a foreign exchange brokerage business jointly with AA

The Plaintiff is not obligated to pay the value-added tax on behalf of the Plaintiff, since the Plaintiff’s payment of the instant payment to AA is not subject to value-added tax.

2) Even if the service was supplied, US US dollars/originalization out of the instant payment amount.

Since the portion paid in relation to the opening does not correspond to the cost of service, the list of value-added tax;

AA shall be subject to value-added tax, and only the amount allocated to AA out of the fees for brokerage of transactions in foreign currency shall be subject to value-added tax.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Joint business means two or more persons under a partnership agreement pursuant to Article 703(2) of the Civil Code;

The following persons shall operate a joint business by investing in each other and determine their shares or the ratio of sharing of profits and losses:

Any business jointly operating the business and distributing the profits and losses thereof, all of the parties to the business

means the form of a partnership that has a direct interest in success. Accordingly, any kind of partnership

in order to distinguish whether a project is a sole project or a joint project, the form of the contract shall be

Whether a contract or partnership agreement is in the form of contract or partnership agreement, as well as ① individual between the parties

(2) Whether a project has been made or not, (3) whether a joint project has been made for profit or loss distribution based on the project performance;

existence of a joint ownership of property necessary for the management of the project, 4 internal joint ownership of the project;

(5) Comprehensive consideration of specific and substantial circumstances, such as external agents and forms of projects.

Determination must be made.

(ii) the facts of recognition

A) According to the instant agreement, AAA’s software, AA’s protein to the Plaintiff.

The Plaintiff and AAA grants non-exclusive license to operate and use AA documents to the Plaintiff, and distributes AA D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D, and the Plaintiff should pay the discount to the Plaintiff’s customer.

B) According to the instant agreement, the Plaintiff, AA, and EDRJ are related to the instant agreement.

He shall bear his own legal, accounting, audit, business, establishment, development and other expenses (Article 9(1)), and AA shall develop a telecommunication circuit from the AA server located in Japan to Seoul.

Expenses incurred in operating and maintaining all daily networks of the Plaintiff, and expenses incurred in operating and maintaining such networks

The plaintiff and the AA shall each bear the initial customer distribution at the end of the AAS Spo Daling Service Work.

and the Ministry of Finance and Economy, and new systems required to meet the real-time reporting requirements of the Bank of Korea

50% of the development costs agreed for the development of reporting functions shall be borne respectively (Article IX(3)).

C) According to the instant agreement, the Plaintiff is permitted to use and granted by AA and EDRJ services.

at the cost of the performance of the Project, a certain proportion of the proceeds shall be paid to the AA as shown in the table 2 below (Article 9)

Paragraph 2).

Table 2 (Omission)

D) In accordance with the instant agreement, the Plaintiff is engaged in domestic marketing business, installation, maintenance, repair, and NA

In charge of the provision, etc. of the infrastructure, AA shall take charge of affairs, such as the provision of overseas marketing and brokerage system protocols.

Development of gram, trade connection and maintenance of the brokerage system, operation of customer service centers, and every electronic transaction new

The work of manufacturing ice was in charge.

E) The Plaintiff’s fees for the spot exchange brokerage to AA until February 2012.

In addition, among the brokerage fees for spot exchange transactions in different currency, the amount equivalent to the percentage specified in the Schedule 2 above was paid.

A. Since March 2012, no part of the brokerage commission for spot exchange transactions shall be paid to US US dollars / Won.

was made.

[Reasons for Recognition] Facts without dispute, Gap evidence 5, 7, 8 (including the relevant number), Eul evidence 3 and 4, the purport of the whole pleadings

3) In light of the legal principles as seen earlier, the purport of the aforementioned facts and the evidence duly admitted

In addition, taking into account the following circumstances known, the Plaintiff is a joint foreign exchange with AA.

It is difficult to see that AA was operating a opening business, and the Convention of this case is a foreign exchange intermediary business for the Plaintiff.

to provide software, computer systems, etc. for use of a trademark of AA.

The service contract with the content shall be the service contract and only the descriptions and images of Gap evidence 6 to 12

and without prejudice to the above recognition, there shall be no other counter-proofs.

A) Interpretation of declaration of intention is clearly made by the party to the act of indication.

the settlement of the terms of any contract between the contracting parties in writing, which is a disposal document.

in the case of the party, the phrase used in the document is not written, but is not written.

(1) A party may, regardless of whether the party has committed an act of indicating it in writing.

The objective meaning should be reasonably interpreted, and in this case the objective meaning is clear.

, barring special circumstances, the existence and content of the expression of intent should be recognized in accordance with the language and text.

(See Supreme Court Decision 2009Da92487 Decided May 13, 2010, etc.)

Under the instant agreement, the Plaintiff’s payment to AA is indicated as “the license fee,” and the Plaintiff’s payment from customers is indicated as “the money intermediary or transaction fee.” Considering the text, words, etc. of the instant agreement, it is natural to view the nature of the instant payment to have paid for the use of AAA’s software, etc. for which the Plaintiff obtained permission for use rather than distributing the profits accrued from the joint business to AAA.

B) The data that the Plaintiff reviewed before entering into the instant agreement with AA (Evidence No. 3)

Section 1. The Plaintiff’s transaction structure under the instant Convention provides for a “AA’s term from the AA.”

(2) The Plaintiff provides domestic customers with 'AA flucation' and install terminal devices; and

(3) AAA provides domestic customers with technical assistance for 'AA’ display;

(2) The Plaintiff’s payment to AA is made to the said material.

The term "lurise fe" is written.

C) Under the instant agreement, the settlement of losses, which can be said to be a characteristic mark of joint business.

There is no stipulation on the arrangement. In fact, from 2008 to 2012, the Plaintiff is acting as a spot exchange broker in this paper currency.

Although carrying on the business continuously and continuously suffered loss, AA paid to A an amount equivalent to the percentage specified in the present Convention out of the brokerage fees for spot exchange in E-U currency.

D) The Plaintiff and AA shared some of their marketing costs, such as marketing costs, but each of the Parties respectively.

In principle, each party has agreed to bear (see Article 9(1) of the present Convention) the cost incurred in relation to the principal duties (see Article 9(3)(a) and (c) of the present Convention) and the cost incurred in relation to the present Convention. Such an arrangement cannot be deemed as an agreement on loss sharing of the business related to the present Convention, and it is only deemed that AA voluntarily bears the cost necessary for the supply of services to the Plaintiff.

E) In the instant agreement, there is a provision excluding the partnership business (see Article 16(3) of the instant agreement).

According to this, the Plaintiff and AAA and EDRJ should not be interpreted as a partner, and all financial obligations related to each Party’s business are entirely responsible to the pertinent party. In addition, according to the instant agreement, even if the customer does not pay the Plaintiff a brokerage fee, the Plaintiff shall pay the license fee to AA at the due date for payment determined by the instant agreement (the instant agreement).

Article 15(3) of the Convention, the Plaintiff and AA shall not be liable for any damage to the other party or the other party’s customer by its employees, agents, etc. (see Article 12(4), (5), and (6) of the Convention). In light of such provisions, the Plaintiff and AAA cannot be deemed as an enterprise in which they share a direct interest in the business of the Convention.

(f) The Plaintiff and AA were not registered as a joint business operator. In addition, AA was not registered in Korea.

In order to operate a foreign exchange brokerage business, AA must obtain authorization from the Minister of Strategy and Finance pursuant to Article 9 (1) of the former Foreign Exchange Transactions Act (amended by Act No. 9351 of Jan. 30, 2009), but AA did not obtain authorization from the Minister of Strategy and Finance.

G) The Plaintiff is entitled to receive all commission fees from customers through foreign exchange brokerage.

The payment of this case was accounted as deductible expenses. The plaintiff is in accordance with the method of accounting management.

Although it is alleged that the nature of the instant agreement does not vary, the Plaintiff’s method of accounting is original.

It is important to consider whether high and AA is joint business operators.

(h) The Plaintiff, in the course of spot exchange transactions in US US US US dollars/originalized goods exchange brokerage unrelated to AAD Daling Services

The brokerage commission incurred has been distributed to AA, and such amount has been distributed to the brokerage of spot exchange transactions in this paper currency.

(1) the Korean won export limit is no more than distributed to the agency commission, and the Korean won export limit is

AA and U.S. dollars/U.S.C. to jointly engage in a brokerage business

In light of the foregoing, the Plaintiff and AA asserts that they are joint business operators. However, the Plaintiff’s financial capacity, overseas

The scope of its business by introducing the status of AA and AA D D Daling services in foreign exchange brokerage markets;

Benefits expected due to expansion and the fact that the spot exchange market in Korea is small scale, etc.

provided by AA, including any commission for spot exchange transactions in the United States US US US US dollars/originalization;

The agreement of this case only is calculated on the basis of the plaintiff's assertion.

The agreement between the plaintiff and the AA cannot be interpreted as a partnership agreement.

4) Therefore, the Plaintiff’s foreign exchange brokerage business from AA, a foreign corporation with no domestic place of business.

supply of software, computer systems, etc.; and

Since it is deemed that a merchant offered foreign exchange brokerage, there is a duty to pay value-added tax on the payment of the instant payment, which is the price for the supply of the said service on behalf of AA.

5) Furthermore, certain expenses out of the brokerage commission for spot exchange transactions in US US US US US dollars/ Won in the instant payment

Even if the amount corresponding to the rate is included, the Plaintiff and the AA appears to have calculated the price for the services provided by the AA, taking into account the aforementioned circumstances, and it is difficult to view that the Plaintiff and the AA have received the price for the services not provided by the AA. Therefore, the part concerning the fee for the spot exchange brokerage in the instant payment, which is the US US US US US US dollars/ Won, shall not be excluded from the value of supply.

6) Ultimately, the instant disposition to collect value-added tax is lawful.

3. Conclusion

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

The decision shall be rendered as above.

***** brokerage

Head of the tax office;

July 24, 2015

September 18, 2015

1. All of the plaintiff's claims are dismissed.

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

The imposition of each value-added tax (including each additional tax) on November 9, 201 by the defendant of the Gu office against the plaintiff on November 9, 201* is revoked.

1. Details of the disposition;

A. The plaintiff's status

The plaintiff is a corporation that runs a brokerage business for transactions such as foreign exchange trading, exchange, and lending between financial institutions with the approval of the Minister of Finance and Economy pursuant to Article 24-2 of the former Foreign Exchange Control Act (amended by Act No. 5550 of Sep. 16, 1998 and repealed by Article 3 of the Addenda to the Foreign Exchange Control Act (amended by Act No. 5550 of Apr. 1, 1999) established on July 20, 199.

(b) Conclusion of business partnership agreements and brokerage of transactions in foreign currency;

1) The plaintiff is running a brokerage business of US US US dollars/originalization transactions. On February 2008, in order to expand the scope of business through a brokerage business of transactions, the plaintiff entered into a business consultation agreement with the Common Lord Limited (hereinafter referred to as the "AAA") and the AAA AA JP (hereinafter referred to as the "EDJ") which is a Japanese legal entity." (2) The plaintiff was granted from AA to operate and grant non-exclusive permission for use of AAA Software 2), AA Proteto3, and AAA document in accordance with the agreement of this case.

1) The term "AA" means any currency other than US US US dollars, such as eroding and United Nations, 2) AAA itself or on behalf of or on behalf of a foreign financial institution, including software related to Deal Fladic functions, and includes reinforcement, erod, modification or supplement (Article 1(3) of the present Convention) AA D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D, and the Plaintiff paid part of the 98 B D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D d D d D d d d d d d d d d d d d d d d d d d d d d d d d d.

Table 1 (Omission)

C. On November 9, 201, the Defendant: (a) notified the Plaintiff of the disposition of imposition of corporate tax and the collection of value-added tax on the Plaintiff; (b) on the grounds that the use of the software under Article 12 of the Convention between the Government of the Republic of Korea and the Switzerland Government for the Avoidance of Double Taxation with respect to Taxes on Income; and Article 93 Subparag. 8 of the Corporate Tax Act, the Defendant’s disposition of imposition of corporate tax and the collection of value-added tax on the Plaintiff’s income was the cost of using the software, and accordingly, notified the Plaintiff of the rectification and correction of KRW 181,