Whether the cosmetic operator is a business operator under the Value-Added Tax Act.

The cosmetic Board is an independent business entity since it was supplied with cosmetics and supplied and sold them to consumers under its own calculation and responsibility.

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

1. The disposition of imposition of value-added tax for the second term of 192 against the Plaintiff by the Defendant as of September 1, 1994, KRW 667,860 for the second term of 192, KRW 13,022,840 for the first term of 1993, and KRW 707,520 for the business income tax for the year 1992, and KRW 1,818,180 for the business income tax for the year 193 shall be revoked.

1. Basic facts

갑제1호증의 1 내지 4, 갑제5호증, 갑제7호증의 1 내지 8, 갑제9호증의 1 내지 9, 갑제11호증의 1 내지 6, 갑제14호증의 1 2, 갑제15호증의 1 2, 갑제16호증의 1 2의 각 기재와 증인 김ㅇㅇ, 이ㅇㅇ의 각 증언에 변론의 전취지를 종합하면 다음 각 사실을 인정할 수 있고 달리 반증이 없다.

가. 원고는 1991. 10.경부터 ㅇㅇ실업이라는 상호로 사업자등록을 하고 화장품 도매 및 소매업을 하면서, 1992년도 하반기부터 1993년도 상반기 사이에 85명의 외판원들에게 화장품을 공급하여 소비자들에게 판매하도록 하였다.

B. In supplying cosmetics to the above external members, the Plaintiff entered the business registration number in the supply of the cosmetics, and issued the sales tax invoice on the sale of cosmetics to the remaining 79 persons, stating their respective resident registration numbers.

C. Even if the above external board members registered a separate business, they could not obtain approval from a credit card company to join an independent credit card merchant because their size is small. Accordingly, in preparation for the case where consumers pay cosmetics by credit card, the Plaintiff opened a credit card merchant account in the name of the Plaintiff, and in the case where external board members sold cosmetics and receive the payment by credit card, they should receive payment by using the old account in the name of the said Plaintiff.

D. The Plaintiff designated only the recommended consumer price of cosmetics for each category and supplied wholesale price to the external sales personnel. Each external sales personnel sold the price at a discount of 10% to 40% or more from the above recommended consumption price at their own discretion. On the other hand, the Plaintiff granted each external sales personnel a position as the head of a branch office, head of division, division, head of office, and instructor according to his work experience to each external sales personnel. On the other hand, for the external sales personnel who has been engaged in door-to-door sales business for at least 20 days each month, a certain amount of money shall be paid regardless of his position, and a certain amount of money shall be paid as a position allowance for sales performance exceeding the monthly sales target amount for each position. The monthly sales performance regardless of his position, if the monthly sales amount is above 5,00,000, 2000, 6,000, 250,000, 250,000, and 200,000 won or more under the name of new sales salesperson.

(e) When the cosmetic sales proceeds sold by each of the external members are deposited into the credit card accounts opened in the name of the plaintiff, each of the external members received from the plaintiff and paid the total amount of the ex-factory price to each of the external members and paid the total amount of the sales proceeds to each of the external members, and if the card sales amount falls short of the total amount of the ex-factory price for the reason that the cash sales ratio falls short of the total amount of the ex-factory price, the difference was settled as the price for the goods. If the credit card sales amount is refused to be paid by the credit card company, the amount of the ex-factory price shall be treated as the plaintiff's attempted bonds and deducted the excess amount to be paid to the external members, and the credit card sales commission shall be treated as the sales expenses of the external members and bear the full amount to the external sales members. The plaintiff reported the amount of the sales revenue and the value-added tax base return for the second and value-added tax for the year 192 and the value-added tax for each of the aforementioned tax invoices.

G. On October 193, in conducting a field investigation on the plaintiff's tax base return for the second period of the year 1992, the defendant did not raise any question as to the failure of the plaintiff to report the excess inputs for the second period of the above period as the plaintiff's sales. However, on the ground that there are some omissions in the plaintiff's sales return based on the ex-factory price, the defendant issued a decision to additionally collect the tax amount on the omitted portion on the ground that there are some omissions in the plaintiff's sales return. On July 2, 1994, while conducting the second field investigation on the credit card sales, the amount of excess inputs paid to the external board out of the above credit card sales should be deemed to be all the plaintiff's sales amount. However, on the ground that the above tax return was omitted, the above amount of excess inputs for the second period of the year 1992 and 115,807,605 won for the first period of the plaintiff's tax base and the value-added tax on the amount reported.

H. In addition, the plaintiff is an independent retail business operator and did not withhold taxes on the import of the external sales center. The defendant, while making a disposition of re-revision of the above value-added tax, since the plaintiff's external sales center constitutes a free vocational income earner under Article 20 (1) 10 of the former Income Tax Act, not an independent business operator, in light of its business structure and method of paying remuneration, etc., the plaintiff is obligated to withhold and pay the business income tax, on the ground that the external sales center's business income for 64,320,530 won for February 1992 business income for 707,520 won for the business income for 64,320,530 won for 165,289,825 won for the first term of 193 and the business income for 165,289,818,180 won for the business income tax for 193 (hereinafter "re-revision disposition of this case") and whether the disposition of this case is legitimate.

A. The parties' assertion

The defendant asserts that the disposition of this case is legitimate because it is in accordance with the grounds of the above disposition and related Acts and subordinate statutes. The plaintiff supplied cosmetics to a certain factory price by the plaintiff rather than the plaintiff's remuneration according to its sales performance, and sold them to consumers with its own independent calculation and responsibility. Since the amount paid by the plaintiff to the external shop members under the basic pay and various allowances is not only the sales promotion expenses for the promotion of business promotion, the above external shop members should be deemed to be independent retailers, not free vocational income. Therefore, the disposition of this case violates the principle of substantial taxation under Article 14 of the Framework Act on National Taxes, and it is unlawful because the disposition of this case violates the principle of substantial taxation under Article 14 of the Framework Act, and the National Tax Service, the defendant's supervisory office, included the sales amount to the external shop members in the credit card sales slip amount under the plaintiff's name with respect to the plaintiff's tax quality, and therefore, the above external shop members' sales amount should be deducted from the sales amount, this disposition goes against the above contents of this case, and thus, it is unlawful.

B. Relevant statutes

Article 2 (1) of the Value-Added Tax Act provides that any person who supplies goods or services independently for a resident (hereinafter referred to as “business income”) shall be liable to pay the value-added tax; Articles 6, 7 and 13 provides that any income tax shall be imposed on the aggregate of the values of goods or services supplied by such independent business operator as tax base; Article 1 (1) 1 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same shall apply) provides that any individual who has his domicile in Korea shall pay the income tax on such business income; Article 3 provides that any income tax on such business income under the provisions of subparagraph 1 of the former Income Tax Act shall be imposed on a resident under subparagraph 3; Article 4 (1) 1 provides that any person who receives services from such resident shall be subject to the provisions of subparagraph 1 of the same Article 4 and that any income tax on such income shall be withheld at source pursuant to the provisions of subparagraph 10 through 3 of the same Article:

C. Determination

(1) Comprehensively taking account of the provisions of each of the above statutes, if it is recognized that the cosmetic operator is an independent business operator under the Value-Added Tax Act that supplies goods or services, the cosmetic operator is obligated to pay the value-added tax on his sales independently from the Plaintiff. Accordingly, the Plaintiff is obligated to pay the value-added tax on the basis of the ex-factory price, excluding the excess input from the sales of the Outline operator out of the credit card subscription amount, and the business income from the Outboard operator's business falls under the business income through a retail business under Article 20 (1) 6 of the former Income Tax Act and each of its members is obligated to pay its comprehensive income tax. However, if the Outboard operator is not an independent business operator as above, but is recognized as a free business income earner under Article 20 (1) 10 of the former Income Tax Act, all the Outboard operator's sales are included in the Plaintiff's sales amount, and the Plaintiff is obligated to pay the value-added tax on the entire amount of the sales revenue.

(2) Therefore, it is impossible for the external sales personnel to independently join a credit card merchant because it is not possible for the external sales personnel to independently join a credit card merchant by using credit card units in the name of the Plaintiff due to the business size, etc. In addition, some of the external sales personnel were registered as independent business operator and reported the value-added tax and paid taxes separately from the Plaintiff. The Plaintiff traded the external sales in the way of issuing sales tax invoices stating resident registration numbers of each external sales personnel to those who did not make separate business registration as above. Dur the settlement process of the sale proceeds of cosmetics, the Plaintiff only calculated the ex-factory price from the external sales personnel and received the final sales price for the consumers within the scope of the recommended price presented by the Plaintiff. According to the provisions of the former Income Tax Act, it is recognized that each of the external sales personnel arbitrarily determined the discount rate within the scope of the recommended price set by the Plaintiff, and that the credit card sales personnel paid profits to all the external sales personnel other than the ex-factory price, and that the amount to be paid out of the total amount of the pre-factory sales revenue was determined by the amount of the previous 10 products.

Comprehensively taking account of the above facts, it is reasonable to view that the above external sales costs are independent business operators under the Value-Added Tax Act that have been supplied and sold to consumers by independently determining the selling price after being supplied cosmetics at a certain factory price by the Plaintiff. Although the Plaintiff granted a certain position to each external sales commission and paid basic pay and various allowances corresponding thereto, the above basic pay is not unconditional if all external sales commission members work as the external sales commission of the Plaintiff, but paid only if they worked as the external sales commission for a certain number of days per month, and the rest of all kinds of allowances have the characteristics of a monetary reward for the excess sales targets other than the main revenue earned from their own sales profit, and they do not seem to be the sales commission provided by the external sales commission to the Plaintiff. Thus, it is difficult to view the above basic pay and various allowances as the receipt of the above basic pay and various allowances that the above external sales commission paid for services under Article 38 subparagraph 13 of the Enforcement Decree of the Income Tax Act, i.e., income, free occupation.

(3) Thus, the disposition of this case is unlawful on the premise that the above external source's income constitutes not the business income as a retailer but the business income as a free vocational income earner, and the excessive input of the external source is included in the plaintiff's sales, and therefore, the disposition of this case is unlawful on the premise that the plaintiff is liable to withhold and pay the income tax

3. Conclusion

Therefore, the plaintiff's claim of this case seeking its revocation on the ground of the illegality of the disposition of this case is justified without any need to determine the facts of other allegations, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.