Seoul Administrative Court 2013Guhap9854 (Law No. 18, 2014)

AA and BB Group were in extenuating circumstances and the Plaintiff’s domestic activities could not meet the requirements of a permanent establishment due to preliminary activities.

○ (Displacement of Trade Name) Domestic activities, such as guidance, exchange, settlement, etc. on the customers performed by the Plaintiff (whether a domestic permanent establishment) are merely preliminary and auxiliary activities, and thus cannot meet the requirements of a permanent establishment.

2014Nu51052 Revocation of Disposition of Imposing corporate tax, etc.

AAAA

Intervenor joining the Intervenor

CC Co., Ltd

△△△ Director

Seoul Administrative Court Decision 2013Guhap9854 decided April 18, 2014

July 16, 2015

August 20, 2015

1. The plaintiff's appeal against the main claim is dismissed.

2. The part of the conjunctive claim in the first instance judgment against the plaintiff shall be revoked.

3. The Defendant’s disposition of imposing value-added tax on the Plaintiff for the business year 2007 between KRW 0,000 and KRW 0,000 among the corporate tax for the business year 2007, KRW 000 among the corporate tax for the business year 0,000, KRW 000 among the corporate tax for the business year 2009, KRW 000 among the corporate tax for the business year 1, 2011, KRW 00 among the corporate tax for the business year 207, KRW 00 among the value-added tax for the second period of 2007, KRW 00 among the value-added tax for the first period of 2008, KRW 00 among the value-added tax for the second period of 208, KRW 000 among the value-added tax for the second period of 200, KRW 2000 among the value-added tax for the year 2009, KRW 200 for each year 200.

4. The total cost of the lawsuit, including the cost of the supplementary participation, 1/2 of that cost, is the participation of the Plaintiff and the Plaintiff.

The remainder shall be borne by the Defendant respectively.

1. Parts of the main claim

The main claim in the judgment of the first instance shall be revoked. The defendant's imposition of 0,000 won of corporate tax for the business year 2007 (including additional tax of 0,000 won), 0,000 won of corporate tax for the business year 2008, 000 won of corporate tax for the business year 2009 (including additional tax of 0,000 won), 0,000 won of corporate tax for the business year 2009, 2000 won of corporate tax for the business year 2007 (including additional tax of 0,000 won), 200,000 won of value-added tax for 20,000 won of corporate tax for 207 (including additional tax of 0,000 won), 200,000 won of value-added tax for each of 200,000 won of value-added tax for 2008 (including additional tax for 200,20000 won of value-added tax).

2. The preliminary claim part

A. Purport of claim

The Defendant’s imposition of corporate tax of 0,000 won (including additional tax of 0,000 won), corporate tax of 2008 business year of 2008 (including additional tax of 0,000 won), corporate tax of 0,000 won (including additional tax of 0,000 won), corporate tax of 2009 business year of 2009, corporate tax of 20000 (including additional tax of 00 won), and the imposition disposition of 0,000 won for 2 years of 2007 (including additional tax of 0,000 won), each of the above imposition disposition of 00,000 won (including additional tax of 0,000 won), 200, 2000, 2000, 2000, 2000, 2000, 200, 2000, 200, 2000, 200, 2000.

B. Purport of appeal

The same shall apply to paragraphs 2 and 3.

1. Scope of the judgment of this court;

The court of first instance has dismissed the plaintiff's primary claim, and the part of the additional tax of this case among the conjunctive claims is revoked and the remaining part is dismissed. Accordingly, since the defendant did not appeal as to the part against it, the object of the judgment of this court is limited to the part of the plaintiff's primary claim (the invalidity of each of the dispositions of this case) and the part of the additional tax of the conjunctive claim (the cancellation of the principal tax of each disposition of this case

2. Details of the disposition;

This Court's explanation is identical to the corresponding part of the reasoning of the judgment of the court of first instance (from No. 4 to No. 78 of the 4th page, from No. 8 of the 7th page, and from No. 1 of the 1 of the 1 of the 1), except for the following matters, and therefore, this Court's explanation is accepted in accordance with Article 8 (2) of the Administrative Litigation Act

(2) The main part shall be the part

The portion of "Plaintiff AAA" in Part 5 of Part 4 of the Judgment of the first instance court (hereinafter referred to as "Plaintiff AA") and the part of "Plaintiff AA" thereafter are both referred to as "Plaintiff".

○ The part of the 6th judgment of the first instance court, "Plaintiff BB Group" in the 6th judgment, is regarded as "BB Group".

○ The 7th part of the first instance court’s 4th decision “Plaintiff’s Intervenor” is regarded as “Plaintiff’s Intervenor”.

(c)

○ Part 5 of the 3rd Judgment of the first instance court, "in the event that the Korean laws and regulations are amended,"

If the law is amended, it shall be understood as "if the law is amended."

3. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(i) the first argument;

In the instant tax payment notice, the trade name (name), i.e., the taxpayer’s “BB Group △ △ permanent Establishment △△ Group” is indicated as the “BB Group △ Group” and the instant tax payment notice alone cannot be identified as the taxpayer because the instant tax payment notice includes the “BB Group” in the trade name (name) and thus, the BB Group is understood as the taxpayer. △ Group is also the representative of the Plaintiff and BB Group, and △ Group is not identified as the Plaintiff and BB Group in the trade name (name) column of the instant tax payment notice. In light of the fact that the Plaintiff and BB Group were aware of the fact that the party who entered into the instant contract with the supplementary participant was the Plaintiff during the course of the tax investigation with the Plaintiff, the instant tax payment notice constitutes a case where the identity of the taxpayer could not be identified. Accordingly, each of the instant tax payment notice is unlawful, and its defect is serious and invalid.

(ii) the second argument;

In order for a permanent establishment to exist in the Republic of Korea, there should be a fixed place of business in the Republic of Korea, and there should be a disposal authority for the place of business, and the principal and important business activities should be carried out through the fixed place of business. However, the office of this case is limited to the assistant intervenor provided temporaryly to all the ticket businessmen including the plaintiff, using the surplus space of the casino business place, and the plaintiff did not limit the right to use the office of this case as well as the disposition authority for the office of this case. ② The plaintiff recruited customers directly or through several subordinate diskettess in Asian areas other than China, Taiwan, the Philippines, Hong Kong, etc. under the contract of this case, and then transferred them to the assistant intervenor after receiving from the assistant participant to the customer, who can visit the casino operated by the assistant participant to perform the game, and then, the office of this case has to secure funds or collateral for the plaintiff's essential and important business activities, such as securing funds, in advance, in preparation for the case where the customer has lost his gambling funds in the casino and requested a loan with credit.

All activities are conducted overseas for foreigners, 3. On the contrary, the plaintiff's domestic activities

money exchange (chips exchange) services with customers and settlement of accounts with auxiliary intervenors;

without any inconvenience until entering and departing from the Republic of Korea; and

(4) A supplementary participation, such as the guidance of hotel, airport, and casino business places,

For the year of 2009, the casino business site of the person was in the fourth floor of the building located in Gangnam-gu Seoul Metropolitan Government 00 Dong 000;

On December 2009, the supplementary intervenor obtained additional approval for the use of casino business on the third floor of the above building from the head of Gangnam-gu Seoul Metropolitan Government, and expanded the casino business site of the supplementary intervenor to the third floor of the above building. However, until 2009, the plaintiff performed a duty of exchange (chip exchange) against customers in approximately 2 to 3 square meters on the second floor of the above building until 2009, and 2010, the supplementary intervenor took rest with employees of the other company in the office of this case, kept the articles in custody, received various kinds of houses, such as books, chairss, and safes from the supplementary intervenor. Thus, the office of this case did not meet the requirements of permanent establishment, and even if so, the office of this case does not fall under the plaintiff's domestic permanent establishment, and even if so, the period from June 30, 2007 to December 209 cannot be the plaintiff's domestic office of this case.

(iii) the third assertion;

Even if the office of this case is the Plaintiff’s permanent establishment in the Republic of Korea, pursuant to Article 7 of the Convention between the Republic of Korea and the Republic of the Philippines for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (hereinafter “the Tax Treaty”), the office of this case may be taxed as business income only for profits belonging to the office of this case, and all expenses incurred for the purpose of the office of this case shall be deducted regardless of the place of occurrence. However, the Defendant deemed that the Plaintiff’s recruitment fees received from the Intervenor constituted the amount of income belonging to the office of this case, excluding the value-added tax, was merely the amount of income belonging to the office of this case. However, this is merely that the Plaintiff’s main business activities conducted overseas from the office of this case had an absolute impact on the creation of income ( recruitment fees). In addition, the amount of the Plaintiff’s payment received from the Intervenor, which was paid by the Intervenor, which was made in the name of the customer.

The plaintiff's income or loss should be recognized, and at least the nature of the discount amount should be excluded from the value-added tax base.

B. Relevant statutes

The reasoning for this Court’s explanation is as stated in the corresponding part of the judgment of the court of first instance (No. 14-15, No. 21-23 of the judgment of the court of first instance). Thus, Article 8(2) of the Administrative Litigation Act, Article 8(2) of the Civil Procedure Act

The reference shall be made pursuant to the main sentence of Article 420.

(c) Fact of recognition;

The reasons for this Court’s explanation concerning this part are as follows.

Part corresponding to the judgment of the court of first instance (from 10th to 13th 18th eth eth eth eth e.g., the judgment of the court of first instance).

Since the facts of recognition are the same as the entry, Article 8(2) of the Administrative Litigation Act, the main text of Article 420 of the Civil Procedure Act

this subsection shall be quoted by the court.

(2) The main part shall be the part

○ part of “Plaintiff AAA” and “Plaintiff AAA” in Part 16 of the Judgment of the first instance.

Both B and B are "Plaintiff".

○ The part of the 12th judgment of the first instance court, "the proposal for assistance" of the 25th judgment, shall be considered as an intervenor.

○ 13. “Sururur” part of the 8th sentence of the 13th sentence judgment of the first instance court is “Leururur”.

Ro-friendly.

D. Determination

1) As to the first argument

This Court's explanation is identical to the corresponding part of the judgment of the court of first instance [the corresponding part of the first instance court's judgment No. 13, No. 20, No. 15, No. 15, No. 15, No. 20, No. 15 of the judgment No. 13, No. 15 of the first instance court's judgment] except that the plaintiff AA was "the plaintiff" as "the plaintiff," and "Plaintiff BB group" as "BB group". Thus, this Court cites this part in accordance with Article 8

2) As to the second argument

A) The former part of Article 7(1) of the Tax Treaty provides, “The profit of an enterprise of a Contracting State shall be taxable only in that Contracting State unless the enterprise runs a business in the other Contracting State through a permanent establishment located in the other Contracting State,” and Article 5(1) provides, “a permanent establishment for the purpose of this Convention means a fixed place of business in which the business of the enterprise is wholly or partially carried on by the enterprise.” On the other hand, Article 9(3)(b) of the Tax Treaty provides, “a service, including an advisory service, provided by an employee or any other employee, including an advisory service, shall be a permanent establishment only if such activity continues for a single or several period exceeding 183 days in the territory of the Contracting State, and Article 7(4) provides, “a permanent establishment shall not be deemed to include:

"Maintenance of a fixed place of business for the purpose of carrying out other activities of preliminary or auxiliary nature only" is defined as "maintenance of a fixed place of business for the purpose of carrying out such activities."

In light of the language and purport of the above provisions, for the purpose of the existence of a permanent establishment in the Republic of Korea, there is ① a fixed place in the business of a domestic building, facility, device, etc. for which a corporation of the Philippines has the right to dispose of or use a permanent establishment in the Republic of Korea, ② an employee of a corporation of the Philippines or a person under its instruction at a fixed place.

It shall meet the requirements, such as conducting essential and important business activities, not exclusively for business activities.

It should be determined whether it is an essential and important business activity, and the nature and scale of the business activity Dong in Korea and the importance and role of the business activity in Korea in all business activities should be comprehensively considered.

B) In full view of the evidence Nos. 4 and 6-1 and 2 of the evidence Nos. 6-2, the testimony of DDR witnesses at the trial, and the purport of the whole arguments and the fact-finding results to the head of Gangnam-gu Office of this Court, the following facts can be acknowledged.

(1) According to the instant contract, the contents of the Plaintiff and the Intervenor’s main services are as follows. In other words, the Plaintiff recruited diskettes (a group visiting junket and casino) in Asian areas, excluding China, Taiwan, Hong Kong, the Philippines, Japan, etc., and then sent them to Korea and arranged the Intervenor to offer roll games at the casino business site of the auxiliary intervenor. The auxiliary intervenor designated and guide the Plaintiff’s casino business site VIP room on the knket sent by the Intervenor.

They can play a role in the provision of sea-dr, operation of game, provision of convenience facilities other than game rooms, etc.

shall be conducted.

(2) According to the instant contract, the Plaintiff received 70% of the casino sales and roller operations from the machines and diskettes recruited and sent by the Intervenor as above from the Intervenor joining the Intervenor, and the Intervenor agreed to take 30% of the casino sales and roller operations from the machines and diskettes sent by the Plaintiff in return for the provision of casino business places, urines, and chips. Meanwhile, the Intervenor agreed to take 30% of the casino sales and rollering operations incurred from the machines and diskettes sent by the Plaintiff as profits. Meanwhile, the Plaintiff agreed to bear the Plaintiff’s non-use of the compact, such as air fees, lodging expenses, food and beverage expenses, which are disbursed in the course of recruiting the tickets and sending them to the Intervenor joining the Intervenor.

(3) The key point of the Plaintiff’s specific activities in accordance with the instant contract was to recruit diskettess for the Asian regions other than China, including China, Taiwan, Hong Kong, the Philippines, and Japan. In addition, most of the activities to recruit individual tickets were conducted through various subordinate ticket business operators in each country. Moreover, the Plaintiff received the cards so that he/she can play games in the casino business place of his/her assistant tickets before leaving the Republic of Korea, and transferred the cards to the supplementary intervenor’s Hong Kong account, while securing the amount of money to be provided or setting security in preparation for the case where he/she requests a loan on credit as he/she loses the entire funds in the game process. In addition, the Plaintiff also performed settlement work between customers and customer and customer management business to attract customers in the future.

(4) In Korea, the Plaintiff: (a) had employees within the Intervenor’s place of business to exchange chips to customers; or (b) had sales generated in the rolling game operated by the Intervenor; (c) had the Plaintiff conducted the reservation of airline tickets and boarding guide service for the diskettes sent to Korea; (d) the Plaintiff’s instruction service for the Intervenor’s casino operation at the airport; and (e) had the hotel and restaurant’s reservation and instruction service.

(5) From July 2007 to the end of July 2009, the Plaintiff handled the above domestic business at the auxiliary casino business site of the second floor of the building located in Gangnam-gu Seoul Metropolitan Government 00 dong 00,000, and the Intervenor extended its business site from the beginning of 2010 to the third floor of the same building, and the Intervenor was now equipped with the same office on the third floor.

C) According to the facts examined earlier and the facts acknowledged as above, since the supplementary intervenor had the plaintiff use the office of this case free of charge, the plaintiff could have been deemed to have been granted the right to use the office of this case. At the time of the tax investigation, there were seven books, seven computers, one cash chip storage, one cash chip storage, three cash chip storage, three cash chip size, one attendance card size, and 15 employees of the plaintiff were working in the office of this case as 3 p.m. daily (4-5 daily average), the office of this case can be deemed to be a fixed place in the domestic business of the plaintiff, who is the Switzerland, the plaintiff of this case.

However, the aforementioned facts and the following facts revealed by the facts as seen earlier, namely, ① the source of profit to be acquired by the Plaintiff and the Intervenor under the contract of this case is the money that the Plaintiff recruited by the Plaintiff was disbursed in the casino operated by the Plaintiff, and how much the amount of money would be recruited is the business failure. ② As such, the core part of the service provided by the Plaintiff to the Intervenor pursuant to the contract of this case is to recruit the tickets and send the rolling game to the Intervenor in the casino business site of the Intervenor, so the Plaintiff is actually engaged in the actual recruitment of the Plaintiff through many subordinate business overseas, and the customer management to continuously recruit the diskettes is being carried out overseas, and the Plaintiff is also taking advantage of all essential and core duties overseas, and most expenses are being paid abroad, ③ the Plaintiff’s office of this case in Korea to the customer through approximately 15 employees.

The business affairs such as hotel, airport, casino operating guide, etc. and the exchange of chips are carried out, but the above tasks are

The essential part of the same work must be performed by the employee of the plaintiff or the person under his direction.

The fact that it is difficult to see it as an important business activity, 4. In the case of Egyptian Egyptian witness, the customer

one hotel reservation or chip exchange, etc. shall be conducted as a job for those other than the plaintiff.

in fact, a statement to the effect that customers recruited by a specialized solicitor such as the Plaintiff are often subject to hotel reservation or chips exchange with customers who are not the specialized solicitor.

(5) In particular, the plaintiff argued that the assistant participant of the second floor of the same building that moved to the office of this case around early 2010 only dealt with the business of the chip exchange, etc., with approximately 2-3 square meters of chip chip exchange, etc. The time when the plaintiff moved to the office of this case is recognized as the beginning of 2010. However, in light of the fact that the plaintiff had no evidence of assertion.In comparison with the essential and essential business of the plaintiff such as recruitment diskettes, collection and delivery of chip money, securing of funds for credit extension, etc., it is reasonable to view that the office of this case is merely a "preliminary or auxiliary business activity" of the plaintiff's domestic business operation. Therefore, the plaintiff's assertion on this part is reasonable.

3) On the third argument (family judgment)

Even if the office of this case can be recognized as the Plaintiff’s “domestic permanent establishment”, in light of the following circumstances, it is not reasonable to include the part corresponding to rollerness among the money received by the Plaintiff from the Intervenor in calculating the corporate tax and value-added tax base in the tax base, in light of the following circumstances, not the service cost, but the Plaintiff’s 70% of the service cost, and the Intervenor’s 30% of the supplementary intervenor’s share of 30%, and the Plaintiff’s share of 30% of the supplementary intervenor’s share of 30% of the amount that the Plaintiff received from the supplementary intervenor was included in the tax base.

“A) In the instant contract, the Plaintiff and the Intervenor should pay 70% of the “Lossss amount (Wssss/Lsss amount as intermediary fees to the Plaintiff.” The Plaintiff agreed that the Intervenor paid 30% of the 70% of the 70% of the 70% of the 70% of the scams amount to the Plaintiff’s scambling to the scams (if the scams unilaterally lose money in the casino business place. In the event that scams do not unilaterally lose money in the course of the game, the scams and scams are rare and repeated, and the scams do not lose in the end. In this case, the sum of the scams paid by the scams is more than the amount of Loss.) to the Plaintiff, and the remainder 70% of the scams are borne by the Intervenor.”

B) According to the settlement details of the Plaintiff and the Intervenor, the Intervenor paid to the Plaintiff all of the rollers that were agreed upon by the instant contract.

C) In the case of Madao, in which rolling games are activated, Rawls were about 1.0% to 1.3% (at present, the upper limit is 1.2%). In the case of Korea, not only the time and cost are much more than the time and the size of casino is small, but also it is very difficult to attract customers in the case of conditions such as Madao. Therefore, if the Plaintiff recruited diskettes and sent them to Korea, it is necessary to suggest more favorable conditions than the Mada casino, and accordingly, the Plaintiff and the Intervenor agreed to pay 1.7% of the Mada amount by rolling so that the Plaintiff and its assistant would have agreed to pay 1.7% of the Mada amount.

D) Inasmuch as rollering is an essential element in rolling games, it is the money that the Plaintiff, a ticket solicitor, is required to pay, not only the money of a mutually beneficial nature that may be paid and may not be paid, but also the money that may have to be paid. Therefore, if a roller fails to pay the originally agreed roller, the Plaintiff cannot face a big difficulty in soliciting the rolls, so it is difficult to deem that the Plaintiff agreed to pay rollering even if it did not pay the roller.

4) Sub-determination

Therefore, each of the dispositions of this case on the premise that the existence of a permanent establishment in the Republic of Korea by the Plaintiff is illegal, but its defect cannot be deemed null and void since it cannot be deemed null and void.

4. Conclusion

Therefore, the plaintiff's main claim is dismissed as it is without merit, and the main claim shall be accepted as it is with merit. Among the judgment of the court of first instance, the main claim shall be justified as the conclusion of the main claim. Thus, the appeal against the main claim of the plaintiff is dismissed as it is without merit.

Among the ancillary claims of the judgment of the court of first instance, the part against the plaintiff among the ancillary claims of the judgment of the court of first instance (the main part) is unfair, and thus, it is revoked, and it is so decided as per Disposition by the defendant to revoke the main part of each disposition against the plaintiff.