In a case where Gap corporation operating air transport business partnership with credit card companies, banks, etc., and operated a system that deducts the amount of mileage accumulated by customers according to the use performance of the above affiliated companies from the amount of mileage used by Gap corporation for the purchase of airline tickets and the use of the route, etc., Gap corporation received a certain amount of mileage from affiliated companies at the time of accumulation of mileage, and Gap corporation filed a claim for correction with the purport that the amount of mileage used was included in the value-added tax base, but the amount of the mileage used by Gap corporation was claimed to be the amount of discount that is not included in the value-added tax base, and the refund of the reported and paid value-added tax, but the head of the competent tax office rejected it, the case held that the settlement amount or mileage used cannot be deemed as having a quid pro quo relationship with the transaction due to the use of mileage, such as the purchase of airline tickets, and the amount of mileage used cannot be deemed to have any monetary value, and thus, the settlement amount or mileage used cannot be deemed to have any monetary value.

A corporation operating air transport business has a business partnership with credit card companies, banks, etc. (hereinafter “affiliated companies”). A corporation operates a system for deducting the amount of mileage accumulated (hereinafter “affiliated mileage”) by customers according to the actual use of affiliated companies (hereinafter “the first transaction”) from the amount of mileage when using the mileage (hereinafter “the second transaction”) for the purchase of airline tickets provided by Company A, the use of the route, etc. (hereinafter “the second transaction”). At the time of the accumulation of the mileage, the corporation was paid a certain amount of settlement from the association companies. At the time of the accumulation of the mileage, the corporation reported and paid the amount of mileage used (hereinafter “the amount of mileage used”) equivalent to the mileage used by Company A included in the value-added tax base, but claimed that the portion of the amount of the mileage used constitutes an amount of discount that is not included in the value-added tax base. However, the head of the competent tax office rejected a request for the correction of value-added tax, but the head of the competent tax office rejected it.

According to the language and text and provision of Article 29(1), (3), and (5) of the former Value-Added Tax Act (amended by Act No. 1523, Dec. 19, 2017); in order to be included in the tax base of value-added tax, it must not only be in a relationship with the supply of goods or services, but it must have money or monetary value; so, so-called "excess amount" can not be included in the tax base of value-added tax because it is not an amount of direct reduction of a certain amount from an ordinary price in accordance with the quality, quantity, conditions of delivery or supply or other terms and conditions of supply when supplying goods or services, and it can not be included in the tax base of value-added tax because the amount of settlement received by Company A from its affiliates is not received from the provision of air services, and since it is merely a part of the amount paid by Company A to customers at the time of cooperation with the company A and it cannot be viewed that the amount of money is not an amount of money to be used nor can it be included in the tax base.

Article 29(1), 29(3)1, 2, and 5(5)1 of the former Value-Added Tax Act (Amended by Act No. 1523, Dec. 19, 2017);

Asian Air Co., Ltd. (Attorney Ba-man et al., Counsel for the plaintiff-appellant)

The director of the Gangseo Tax Office (Law Firm Barun, Attorneys Soh Pho et al., Counsel for the plaintiff-appellant)

Seoul Criminal Administration Act (2017Guhap81977 decided September 7, 2018)

September 11, 2019

1. Revocation of the first instance judgment.

2. The defendant's each disposition in the list (attached Form 1) and (attached Form 2) against the plaintiff shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

It is identical to the text of paragraphs 1 and 2.

1. Details of the disposition;

The reason why the court uses this part is the same as that stated in Paragraph 1 of Article 8 of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The amount of settlement received by the Plaintiff from the association members is not related to the second transaction, and the amount of settlement is not limited to the amount of monetary value, but merely indicated in the value of a simple discount agreement, and the portion of the use of the association mileage related thereto is a discount. Therefore, the amount of the association mileage used in this case or the settlement amount in this case should be deemed not to be included in the tax base of value-added tax related to the second transaction. The disposition in this case made on a different premise is unlawful.

B. Relevant statutes

Attached Form 3. The entry is as shown in Annex 3.

C. Facts of recognition

1) The Plaintiff has operated a Asian club operated on the basis of mileage as a kind of business of a business customer preferential treatment program. The members of the Asian club may purchase airline tickets from the Plaintiff and accumulate mileage (referring to mileage). The members of the club may set aside mileage (referring to mileage) through the first transaction with affiliated companies, including credit card companies. Persons who join the Asian club as members of the club have purchased the mileage accumulated by the said method free of charge through the second transaction. On the other hand, the Plaintiff has received a certain settlement amount (hereinafter referred to as “instant settlement amount”) according to the agreement with the affiliated companies at the time of accumulation with respect to the mileage, which is a third party set aside.

2) The Plaintiff provides for the accumulation, use, etc. of mileage, including mileages, through “A club membership guide”. The main contents are as follows.

본문내 포함된 표 ○ 회원님께서는 아시아나항공, 스타얼라이언스 항공사를 탑승하거나 아시아나항공과 제휴된 신용카드, 호텔, 렌터카 등을 이용하여 마일리지를 적립하실 수 있습니다. 또한 ‘샵앤마일즈’ 프로그램을 통해 국내 주요 인터넷 쇼핑몰 이용 시 온라인 쇼핑과 동시에 마일리지를 적립하실 수 있습니다. ○ 회원님께서 적립하신 마일리지는 항공 탑승 또는 제휴사 이용 이외에 추가적인 경제적 대가를 지불함이 없이 무상으로 제공되며, 사용기준이 조정될 가능성이 있기 때문에 사용 전에는 가치 측정이 불가합니다. 마일리지 항공권 발급 등으로 마일리지를 사용하는 시점에 비로소 그 가치가 결정됩니다. ○ 항공 탑승 또는 마일리지 적립 시점의 회원자격에 따라 마일리지 유효기간이 결정되며 유효기간 내 사용하지 않은 마일리지는 소멸됩니다. 구분 유효기간 매직마일즈/실버/골드 탑승일 또는 적립일로부터 10년 후 같은 달 말일까지 다이아몬드 이상 우수회원 탑승일 또는 적립일로부터 12년 후 같은 달 말일까지 * 유효기간 적용기준: 항공 탑승 마일리지-탑승일, 일반 마일리지-적립일 * 2008. 10. 1.부터 적립하는 모든 마일리지는 유효기간이 적용됩니다. ○ 유효기간 적용 마일리지부터 우선 공제되며, 유효기간이 적용되는 마일리지 사용 시 잔여 유효기간이 짧은 마일리지부터 순차적으로 공제됩니다.

A person shall be appointed.

Ap. A.a. A.A. A.A.A.A.A.A.A.A.A.A.A.A.A.A. in the main text is operating a program that can accumulate mileage using various services, such as hotels, sirens, finance, and Internet shopping mall. - The time of accumulation for mileage for each affiliated card company is below the upper limit, but within 7-10 days after paying the amount of ordinary claims, it automatically accumulations into the Asian club’s membership account.

3) Meanwhile, the main content of the business partnership agreement entered into with the Plaintiff on December 21, 2010 by the National Bank of Korea (hereinafter “National Bank”) which is one of the Plaintiff’s alliances (hereinafter “instant business partnership agreement”) is as follows.

본문내 포함된 표 업무제휴 기본계약서(이하 ‘기본계약서’라 한다) 제1조(목적) 본 계약은 원고와 국민은행 간의 제휴카드 관련 업무제휴의 범위와 방법, 업무분담 등 업무제휴의 내용을 명확히 하고, 양사 고객에 대한 서비스 제고 및 공동발전을 도모하는 데 그 목적이 있다. 제2조(용어의 정의) 1. ‘제휴카드’라 함은 본 계약에 의해 국민은행이 발행하는 신용카드에 원고의 상호, 로고 및 아시아나클럽 회원번호를 표기하여 원고와 국민은행의 대회원 서비스가 함께 제공되는 신용카드를 의미한다. 2. ‘회원’이라 함은 제휴카드를 발급받은 자로서 ‘제휴카드’ 발급 이전에 이미 아시아나와 아시아나클럽 회원이었던 자 또는 제휴카드 발급 시 아시아나클럽 회원으로 가입된 자를 의미한다. 3. ‘마일리지’라 함은 원고가 운영하는 아시아나클럽 마일리지를 의미한다. 제3조(업무제휴의 범위) 원고와 국민은행은 다음의 업무를 제휴한다. 1. 제휴카드 상품개발, 회원모집 및 발급에 관한 사항 2. 제휴카드 디자인 및 관련 홍보·광고물 제작에 관한 사항(이하 생략) 제4조(카드의 개발, 명칭 및 디자인) 2. 원고와 국민은행은 상호 합의된 상품명의 제휴카드를 발급한다. 3. 제휴카드의 디자인은 양사의 관계 및 이미지를 만족시킬 수 있도록 사전에 상호 합의하여 정한다. 제5조(회원모집 및 심사) 1. 회원의 모집은 원고와 국민은행의 공동책임하에 수행함을 원칙으로 한다. 제7조(제휴카드의 기능 및 서비스 제공범위) 1. 원고는 아시아나클럽 규정에 의거한 아시아나클럽 회원 서비스를 회원에게 제공한다. 제8조(마일리지 적립 및 사용) 1. 국민은행은 원고에게 의뢰하여 회원이 제휴카드를 이용하여 해당 월 결제일에 정상 입금한 신판(신용판매)이용금액에 대해 ○마일을 회원의 아시아나클럽 구좌에 적립하기로 한다. 2. 전 제1항에 따라 회원에게 적립된 마일리지는 적립된 시점부터 아시아나클럽 마일리지로서 효력이 발생하며, 적립이 완료된 마일리지는 취소가 불가하다. 3. 회원에게 적립되는 마일리지는 원고의 아시아나클럽 운영 규정에 따른다. 아시아나클럽 규정에는 마일리지 사용 기준, 회원 등급 승격 기준, 마일리지 제도 변경 등 제반 규정이 포함된다. 제9조(마일리지 적립 한도) 개인회원에 대한 마일리지 적립 한도는 별도로 설정하지 않으며, 임직원 명의의 기업카드 회원에 대한 적립 한도는 ○마일로 한다. 제16조(계약 기간 및 연장) 1. 본 계약의 유효기간은 계약 체결일부터 2012. 12. 31.까지로 하고 계약 만료일 3개월 전까지 원고와 국민은행 중 일방의 계약해지에 관한 서면통보가 없는 한 자동으로 1년씩 연장되는 것으로 한다. 단, 계약 기간 중에라도 필요한 사항에 대해서는 상호 서면에 의한 합의하에 결정하여 이를 본 계약내용에 반영한다. 2. 원고와 국민은행은 계약이 해지될 경우 회원에게 발급된 제휴카드의 유효기간에도 불구하고 마일리지 제공 서비스는 회원에 대한 고지기간을 감안하여 계약 해지일로부터 6개월간 서비스를 제공하고 그 이후에는 중지한다. 또한 계약의 해지는 해지일 전에 이미 제공된 마일리지의 효력에 영향을 미치지 아니한다. 업무제휴 부속 계약서(이하 ‘부속계약서’라 한다) 제2조(마일리지 적립) 1. 마일리지 적립 기준은 기본계약서 제8조 제1항 규정과 같이 회원이 제휴카드를 이용하여 해당 월 결제일에 정상 입금한 신판이용금액에 대해 1,000원당 ○마일로 한다. 2. 기본계약서 제8조 및 본 계약 제2조 제1항에도 불구하고, 제휴카드 중 KB프랜드 카드에 대해서는 마일리지 적립 기준을 회원이 해당 월 결제일에 정상 입금한 신판이용실적 ○마일로 한다. 제3조(마일리지 적립 방법) 1. 국민은행은 회원의 제휴카드 이용 실적을 매월 전용회선을 통하여 원고에 통보한다. 2. 원고는 국민은행으로부터 회원의 카드 이용 실적을 통보받은 날로부터 7영업일 이내에 아시아나클럽 회원 실적에 적립하고, 마일리지 적립 기록을 국민은행에 통보한다. 3. 원고와 국민은행은 해당 정보의 포맷에 대하여 상호 협의하여 결정한다. 제4조(마일리지 적립에 따른 마케팅 비용 부담) 1. 국민은행은 제2조 제1항에 따라 원고가 회원에게 마일리지를 적립함에 따른 마케팅 비용에 대하여 1마일당 ○원을 원고에게 지급하여 분담하기로 한다. 2. 국민은행은 제2조 제2항에 따라 원고가 KB프랜드 카드 회원에게 마일리지를 적립함에 따른 마케팅 비용에 대하여 1마일당 ○원을 원고에게 지급하여 분담하기로 한다. 4. 원고는 전월 마일리지 적립비용을 익월 5일까지 국민은행에 인보이스를 발행하여 전월 1개월간 발생한 마일리지 마케팅 비용 분담 내역을 청구하며, 국민은행은 청구 월 말일까지 원고가 지정한 계좌로 입금한다. 단, 해당일이 공휴일인 경우에는 전 영업일까지로 한다. 5. 청구된 대금의 입금이 지연될 경우, 국민은행은 입금의 지체 1일당 청구금액의 1/1000에 해당하는 금액을 지체보상금으로 지급한다. 제6조(아시아나클럽 정보교환 방식) 국민은행은 원고에게 회원의 카드 사용 내역을, 원고는 국민은행에 회원에게 제공한 마일리지 내역을 전용회선으로 교환한다.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, Eul evidence 1 and 2, and the purport of the whole pleadings

D. Determination

1) The premise for the determination

Article 29 of the former Value-Added Tax Act (amended by Act No. 1523, Dec. 19, 2017; hereinafter “former Value-Added Tax Act”) provides, “The tax base of value-added tax on the supply of goods or services shall be the aggregate of the supply values of goods or services supplied in the relevant taxable period.” Paragraph (3) provides, “The value of supply under paragraph (1) shall mean the value falling under each of the following subparagraphs. In this case, the value of supply shall include any monetary value received from a person who is supplied with goods or services regardless of the pretext thereof, such as the price, charge, fee, or any other charge.” Each subparagraph provides, “Where the price is paid in money: The market value of the goods or services supplied by the person himself/herself ( subparagraph 1); and Paragraph (5) provides, “The value-added tax base for the supply of value-added tax”, “the value of goods or services, the quality or quantity of the goods or services supplied at the time of the supply of the goods or services, or any other transaction condition” (Article 1).

According to the literal contents and regulatory structure of Article 29(1), (3), and (5) of the former Value-Added Tax Act, in order to be included in the tax base of value-added tax, not only the goods or services are required to be paid in return for the supply of goods or services, but also must have money or money value. On the other hand, the so-called "amount of overcharge" cannot be included in the tax base of value-added tax because it is not the amount of direct reduction of a certain amount from the ordinary price in accordance with the quality, quantity, conditions of delivery, the settlement method of proceeds from supply of goods or services, or other terms

2) Whether there exists a quid pro quo relationship with the supply of the second transaction with the instant settlement amount, etc.

Where a supplier receives money or money from a third party who is not a person who is not a supplier of goods or services in connection with a supply, and receives money or money from a third party who is not a supplier, it may be included in the tax base for value-added tax if it is related to the supply. However, if it is related to a different supply between the third party and the supplier, and it cannot be deemed that it is in a relationship with the supply, it shall not be included in the tax base for value-added tax on the relevant supply. Furthermore, whether the payment of money or money is in a relationship with the supply should be determined by comprehensively taking into account all the circumstances, including the reason for payment, the purpose and motive pursued by the third party, the existence of legal relations, such as a separate contractual relationship between the supplier and the third party, and whether the payment of money, etc. at issue can be evaluated as a performance of such legal relations (see Supreme Court Decision 2014Du1444, Jun. 23, 20

In full view of all the following circumstances that can be recognized by adding up the purport of the entire pleadings, the amount of the settlement of the instant case or the amount of the association mileage used in the instant case cannot be deemed as having a quid pro quo relationship with the secondary transaction.

① The instant settlement amount that the Plaintiff received from a partner company was merely paid based on a contract concluded separately between the Plaintiff and the partner company, including the instant business partnership agreement, and did not receive the Plaintiff’s payment of air services, etc. to the customers.

② The purpose and motive that the Plaintiff and the partnership companies pursue through the conclusion of a partnership agreement does not seem to have been for the partnership companies to pay the Plaintiff the price for the second transaction on behalf of their customers. Rather, in light of the content, etc. of the partnership agreement in this case, the genuine purpose and motive of the partnership agreement concluded between the Plaintiff and the partnership companies are to share the expenses incurred in jointly operating the price discount system through the accumulation and use of the partnership mileage, while inducing the customers to actively purchase the subject transactions so that they can accumulate the partnership mileage.

③ From the standpoint of partnership companies including credit card companies, there is an interest in attracting customers who wish to accumulate and use the mileages as their customers through the conclusion of a business partnership agreement. From the Plaintiff’s standpoint, the Plaintiff also has an interest in attracting customers of the partnership who wish to accumulate and use the mileages through the conclusion of a business partnership agreement. Meanwhile, the principal cost required for attracting customers can be deemed as the partnership mileages provided to the Plaintiff. The Plaintiff’s only one party to the business partnership agreement provides the customer with the burden. In light of the above, it is reasonable to deem that the settlement amount of this case has the nature of sharing part of the cost incurred for promoting joint interests (Article 4(1) of the attached agreement to the business partnership agreement of this case). In this context, it can also be understood that the Plaintiff paid the Plaintiff KRW 00 per day for marketing expenses incurred in accumulating the mileages to its members.

④ The instant settlement amount is calculated and paid according to the business partnership agreement between the Plaintiff and the association members separate from the secondary transaction. On the other hand, whether the Plaintiff and the association members agreed to settle the accounts, and how much time they agreed to do so is made pursuant to the agreement concluded between the business operators, and the customer does not have any interest in this regard. As a result, the settlement relationship between the Plaintiff and the association members arising from the allocation of expenses between the Plaintiff and the association members does not have any influence on the secondary transaction of purchasing airline tickets, etc. using the association mileage, and the customer’s use of the association mileage does not have any influence on the sharing of expenses between the Plaintiff and the association members.

⑤ The instant settlement amount is paid around the time when the mileage is set aside as a result of the first transaction, and is paid regardless of the establishment of the second transaction. Even if the Plaintiff’s settlement amount was paid, the relevant settlement amount becomes extinct upon the lapse of the term of validity, and the Plaintiff does not return the settlement amount already received to the association members. Considering such circumstances, it is difficult to view the instant settlement amount as having a direct relation with the supply of the second transaction.

(6) On the other hand, the amount of the association mileage used in this case is not a monetary value as seen in the following 2. D. 3, and in light of its nature, it is deemed that the amount of the association mileage used in this case was paid in return for the supply of the second transaction. In addition to the following circumstances, it cannot be deemed that the amount of the association mileage used in this case was paid in return for the supply of the second transaction.

Even if the Plaintiff and the association members of the Corporation were granted the name of the association of the Corporation, which is the establishment of a method to manage the status at which the price can be discounted, taking into account various secondary transactions, actual discount, and the amount of discount may vary depending on the customer’s choice. On the other hand, if the Plaintiff and the association members of the Corporation are given a discount in the second transaction, it does not transfer the mileage itself to the Plaintiff, which refers to the status of the Plaintiff, which means the status of the customer, whose numericalized closed mileage is reduced and the status of being given a discount as much as the amount of discount is extinguished, and that of which the amount of discount can be given. On the other hand, it cannot be deemed that the Plaintiff paid the price equivalent to the amount of discount for the use of the association mileage to the Plaintiff on the basis of the above price discount.

The plaintiff asserts to the effect that, on the basis of the amount equivalent to the price actually discounted in the second transaction or any equivalent price, which is not paid by anyone. The defendant asserts to the effect that "the mileage that the plaintiff was paid in the second transaction, is an commendation of the right to receive money equivalent to the mileage from an association member, which is not money worth monetary value, and thus constitutes monetary value." However, the plaintiff is merely a payment of the settlement money from the association members in proportion to the association mileage set aside at the stage of accumulation of the association mileage, and it is not a subsequent payment from the association members in the second transaction. This part of the defendant's assertion is erroneous on its premise and cannot be accepted.

3) Whether the amount of connection mileage used in the instant case is of monetary value

In full view of all the following circumstances that can be recognized in addition to the purport of the entire pleadings, the amount of use of the association mileage in this case is not a monetary value, and it is determined that the amount of the association mileage in this case falls under the discount amount that directly reduces the specified amount from the ordinary price in light of the nature of the transaction.

① Regardless of whether a customer uses the connection mileage in the second transaction, it is as seen earlier that the settlement of the connection mileage is completed immediately after the first transaction between the Plaintiff and the association members. Therefore, it cannot be deemed that the amount of the connection mileage used in the instant case is an official commendation of any right to receive the settlement amount, etc. from the association members after the second transaction.

② The amount of the association mileage used in the instant case becomes an issue only at the time of the second transaction, that is, the time of the Plaintiff’s deduction of the association mileage. From the point of time to the point of time, the association mileage does not have any monetary value. This is more clear in light of the following: (a) the customer uses the association mileage through the second transaction; and (b) the function of the association mileage is merely extinguished immediately; and (c) the Plaintiff and the association members do not have any grounds for maintaining the value as a unit of settlement and receiving a reimbursement in money.

③ The amount of the association mileage used in this case is indicated by numericalizing the terms of the discount agreement as promised to customers at the time of the first transaction. The Plaintiff’s deduction of the association mileage pursuant to the second transaction is merely the fact that the Plaintiff has the meaning of confirming the implementation of such discount agreement.

④ “The amount of discount” refers to “the amount that a customer directly reduces a certain amount from an ordinary price in accordance with the quality, quantity, conditions of delivery, method of settlement of the consideration for supply, or other terms and conditions of supply at the time of the supply of goods or services. In the event that a customer purchases goods or services in a primary transaction, the Plaintiff agreed to set aside an association mileage in accordance with an agreement with the association companies, and provide airline tickets, etc. free of charge when the customer uses the association mileage in the secondary transaction, and actually offered airline tickets, etc. free of charge to the customer pursuant to the said agreement. As such, the Plaintiff, as such, at the time of the secondary transaction, discounted the discounted amount of discount given by the association mileage in accordance with the terms and conditions of supply, i.e., the amount used by the customer in the secondary transaction, which directly reduces a certain amount from the ordinary price in accordance with the terms and conditions of supply.

4) Sub-determination

The amount of the settlement of the instant case or the amount of the association mileage used cannot be deemed as having a quid pro quo relationship with the secondary transaction. Meanwhile, the amount of the association mileage used in the instant case cannot be deemed as having any monetary value, as it has the character of “the amount of discount”. Therefore, the amount of the settlement of the instant case or the amount of the association mileage used in the instant case shall not be deemed to be included in the value-added tax base for the secondary transaction. The instant disposition made on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion. Therefore, the judgment of the court of first instance is revoked and the disposition of this case is revoked and it is so decided as per

[Attachment 1] Details of the instant disposition (No. 3-1-9): omitted

[Attachment 2] Disposition rejecting Correction of this case (Evidence A No. 4-1, 2): Omitted

[Attachment 3] Relevant Statutes: omitted

Judges Jeon Soo-tae (Presiding Judge)

1) Part of the instant disposition is subject to Article 13(1)1, 2, (2)1, and (5) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013); Articles 48(1), and 52(2) of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013). The substantial content is different from Article 29(1), (3)1, 2, and (5)1 of the former Value-Added Tax Act; hereinafter the same is determined based on the provisions of Article 29 of the former Value-Added Tax Act.