2013west 2381 ( June 18, 2013)

Where a customer pays for goods and pays for all or part of the price with accumulated mileage, the amount equivalent to the mileage shall be included in the tax base.

If the business operator sets aside the mileage corresponding to a certain ratio of sales to the customer and then makes a payment with the mileage accumulated in whole or in part, the amount equivalent to the mileage is included in the tax base, and thus the disposition rejecting a request for correction that is excluded from the table is legitimate, since the amount equivalent to the mileage is included in the tax base.

Article 48 of the Enforcement Decree of the Value-Added Tax Act

Disposition of revocation of revocation of revocation of Value-Added Tax Correction for Seoul Administrative Court 2013Guhap57389

00 shopping 1

00 Other 91

2014.08.29

oly 24, 2014

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Each part of the revocation tax column among the rejection dispositions against the plaintiffs listed in the plaintiff's column shall be revoked as of each date stated in the notice of rejection in the attached Form 2 list by the former defendant.

1. Details of the disposition;

A. Plaintiff OO shopping company (hereinafter referred to as “Plaintiff OO shopping company”) is an affiliate of the OO group, and is engaged in distribution business including business of establishing and operating department stores, large-scale retail stores, and supermarkets, and film-making business. An OO group’s affiliate, which was engaged in distribution business, etc., was merged with OOO OO sales company on August 2, 2012, and OOOO sales company on January 3, 2013 (hereinafter referred to as “Plaintiff OO shopping company without distinguishing before and after the merger for convenience”). Plaintiff OO sales company (hereinafter referred to as “Plaintiff OO shopping company”) is a company engaging in distribution business, such as sales department business.

B. 1) An affiliate, etc. of an O group, including the Plaintiffs, concluded a contract for a business partnership with an O card company and an O member bus, and the customer makes payments with an O card when purchasing goods or services from an O department store, OOE, OOE, etc. operated by the affiliates, etc. of the Plaintiffs and OO group, or presents a membership card with an O card, a certain percentage of the purchase amount shall be set aside as points, and the customer can purchase goods or services from the above sales store or exchange them with a private goods using the accumulated points later.

2) In addition, when the customer purchases goods in excess of a certain amount, the Plaintiffs increase the agreed gift certificates in advance and allow the customer to purchase goods or services at the above sales store using gift certificates later.

C. The Plaintiffs reported and paid value-added tax on the amount of money settled with points or merchandise coupons accumulated or increased through the previous transaction (hereinafter “the primary transaction”) in the course of the Plaintiffs’ purchase of goods at the Plaintiffs’ business stores (hereinafter “second transaction”). D. The Plaintiffs asserted that the amount of money settled with points or merchandise coupons accumulated or increased through the first transaction (hereinafter “the first transaction”). From July 25, 2012 to January 25, 2013, the amount of money settled with the Defendants as the points or merchandise coupons accumulated or increased in the first transaction should be excluded from the tax base return on the second transaction (amended by Act No. 9915, Jan. 1, 2010; hereinafter the same shall apply) of the former Value-Added Tax Act (amended by Act No. 12130, Dec. 13, 2011; hereinafter the same shall apply) and the list of money returned under Article 10 subparag. 13 of the former Value-Added Tax Act (amended by Act No. 9910, Jan. 1, 201010). 20).

E. For this, the Defendants notified the Plaintiffs that there is no reason to rectify the value-added tax base, such as the entry in the separate disposition list No. 2, on the grounds that the points or gift certificates used by the customers in the secondary transaction are included in the value-added tax base, or rejected the Plaintiffs’ request for correction by failing to give the above notification within 2 months (hereinafter collectively referred to as the “instant disposition”).

F. The Plaintiffs appealed and filed an appeal with the Tax Tribunal on December 4, 2012 and April 30, 2013, but were dismissed on May 10, 2013 and June 18, 2013.

G. Meanwhile, the Plaintiffs’ supply of services to other persons without receiving any price accumulated or increased in the first transaction does not constitute a supply of services that is a transaction subject to value-added tax pursuant to Article 7(3) of the former Value-Added Tax Act, and Article 13(1)1 of the former Value-Added Tax Act provides that the payment for the supply of goods or services is the base of value-added tax if the supply of services is made in money to those who are not in a special relationship. Therefore, the supply of services equivalent to the amount of value-added tax accumulated by the Plaintiffs is imposed value-added tax on the basis of only the price received in cash (amount) because the services are supplied for free or part of the services. The amount settled by points or merchandise coupons, including the tax base, reported and paid value-added tax on January 2009 through February 20, 2010 including the amount paid by the points or merchandise coupons, but the Defendants refused to request correction, but sought opinions from the National Tax Service and the relevant laws and regulations during the lawsuit of this case, and received the Plaintiffs’ payment from the following tax base.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 15 (including each number, hereinafter the same shall apply), Eul evidence 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiffs asserted that the instant disposition is unlawful in light of the following circumstances.

1) The Plaintiffs: (a) set up O points in the first transaction of supplying goods or services to customers; and (b) subsequently, when they engage in the second transaction of goods or services from the Plaintiffs, they deduct a certain amount of amount accumulated in the first transaction from the supply price; (c) O points used in the second transaction are discounting the prices; and (d) the Defendants’ supply of services equivalent to the value of KRW 13(2)1 of the former Value-Added Tax Act does not amount to KRW 20 if they are purchased at the time of the purchase of goods or services by a large number of customers; and (c) the Defendants are not entitled to KRW 5 of the purchase of goods or services. The Defendants are not entitled to KRW 10 of the purchase of goods or services from KRW 20,000 if they are purchased at the time of the purchase of goods or services by a large number of customers; and (d) the Defendants are not entitled to KRW 10 of the purchase of goods or services from KRW 20,000,000.

On the other hand, incentives are paid or supplied at a certain rate based on the transaction partner’s sales performance (Common Rule 6-16-3 of the Value-Added Tax Basic), while O Points are merely a direct accumulation to all buyers, and they are discounted from the transaction price at the time of the second transaction. Thus, incentives which already meet the conditions are different from each other, so they can be claimed to the other party even if there is no other transaction thereafter, while O Points accumulated by the customer can only be used as a secondary transaction and it cannot be claimed to the Plaintiffs. Article 13(3) of the former Value-Added Tax Act provides that the amount of incentives shall not be deducted from the tax base. Accordingly, in accordance with the Defendants’ assertion, the tax base of the first transaction should be added to the Plaintiffs’ money received from the customers and the amount accumulated to the customers, which is only the value-added tax base. In light of the above, it is difficult to accept that the Plaintiffs’ accumulation of value-added tax base is inconsistent with that of the first transaction, but it does not constitute the secondary gift tax base.

5) Upon amendment by Presidential Decree No. 22043 on February 18, 2010, the Enforcement Decree of the Value-Added Tax Act clearly states that the amount equivalent to mileage used in the second transaction is included in the value-added tax base by newly establishing Article 48 (13) of the former Enforcement Decree of the Value-Added Tax Act (hereinafter “instant provision”) that “if a business operator sets aside mileage corresponding to a certain ratio of sales to customers and settle all or part of the prices with mileage accumulated, the amount equivalent to the mileage shall be included in the tax base.” However, if the amount equivalent to mileage is of monetary value, the legislators are deemed to have determined that the amount equivalent to the mileage is of monetary value. However, if it is not possible to deduct the amount equivalent to the mileage from the original Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 22043, Feb. 18, 2010; Presidential Decree No. 220135, Feb. 15, 2010>

On the other hand, as alleged in paragraph (4) above, the customer’s settlement of the mileage in the secondary transaction is not a gift of business in terms of concept, and thus does not constitute a transaction subject to value-added tax under Article 6 of the former Value-Added Tax Act. Ultimately, in order to deem the mileage amount as an object of value-added tax, the amount equivalent to the mileage amount should be considered as a gift of business. Unless otherwise stipulated in Article 6 of the former Value-Added Tax Act and Article 16(2) of the former Enforcement Decree of the Value-Added Tax Act, the amount equivalent to the mileage amount cannot be considered as a gift of business. Therefore, there is no problem of calculation of the value-added tax base. Nevertheless, the provision of this case, which is delegated only the portion necessary for calculating the tax base pursuant to Article 13 of

6) On the other hand, where a business operator sells bread and 5% of the sales price at the time of selling bread, while a business operator sells bread, he/she can accumulate 5% of the sales price as a mileage and settle it as a mileage, and where he/she sells bread of 10 million won when including the mileage amount in the value-added tax base, A business operator shall bear value-added tax of 950,000 won = (10 million won - 500,000 won) ¡¿ 10% x 81%, but B business operator shall bear value-added tax of 1 million won (i.e., 10 million won x 10% x 10% x 10%). Where a business operator directly collects value-added tax from a customer who is supplied with goods or services, it goes against the basic tax base of the Value-Added Tax Act, and there is no tax neutrality in that the amount used by a business operator and B as a means of sales promotion is identical to 500,000 won.

B. Relevant statutes

Attached Table 3 shall be as stated in the relevant statutes.

(c) Fact of recognition;

1) The main contents of the terms and conditions of O member bus cards are as follows:

Article 2 (Definitions)

(1) The term "O member bus card member" (hereinafter referred to as a "member") shall approve this terms and conditions and apply for the issuance of an O member bus card to us, and refers to the portion that has been issued with a card from us, or the portion that has been issued with an O member bus card from us, or from us, an O member bus card member. (hereinafter referred to as "a member" means any point that is given according to the accumulation rates notified by us and us when a member purchases goods and services at us and at affiliated companies. 6. 7. . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. ... .. ... ... ... ..... ... ... ... .... ... ... .. .. . ... . ... .. ..... ................ the remaining points in the remaining points in the remaining and the goods and the goods...............................

(1) Members who purchase goods or use services at us and affiliated companies, and settle the payment therefor, shall be given the following points as agreed upon and notified by us and affiliated companies: Provided, That any taxes and public charges arising in connection with the accumulation of points shall be borne by members: * accumulated points = (price for the purchase of goods or for the use of services) x (price for the accumulation of points notified):

2. Points accumulated in us and affiliated companies may be accumulated and used in accordance with the standards set by us and affiliated companies. ③ Members holding available points may settle all or some of the proceeds from the purchase of goods or the use of services with usable points in accordance with the procedures set by us in us and affiliated companies. 7 The effective period of points provided on O cards shall be five years (60 months) from the date of accumulation, and the effective period of points provided on OO cards shall be two years (24 months) from the date of accumulation: Provided, That the conditions of extinction of specific points may be set differently according to the nature of OO points, and in such a case, the conditions of extinction may be set separately. The points whose effective period expires is automatically terminated by the monthly unit prior to the expiration of the effective period, the O card request, O-O-mors report, and the Plaintiffs may be 0% of the amount accumulated on 10 or more O-O-O bus cards, and the Plaintiffs shall be 10% of the amount of customer members available to O-O-O cards.

3) The content of the instant provision is as follows.

(2) It is clear that the mileage is included in the value-added tax base as the case where the mileage is accumulated and the whole or part of the price of the goods is settled through the mileage recently on-line, etc.

(3) the first supply or supply after the enforcement date of the applicable period.

4) 이 사건 조항이 신설되기 전에 마일리지 상당액에 관한 국세청의 질의회신 내용은 아래와 같다. □ 부가46015-4565, 1999. 11. 11. 인터넷 전자상거래업자가 판매촉진을 위하여 고객마일리지 제도를 실시하여 상품을 구매한 소비자에게 구매가격의 일정비율에 해당하는 금액을 지급하거나 다른 상품 구입시 일정률을 할인하는 경우로서, 고객에게 상품으로 지급하는 경우에는 사업상 증여에 해당하므로 부가가치세가 과세되는 것이며, 현금으로 지급하거나 다른 상품 구입시 할인하는 경우에는 구 부가가치세법 제13조 제3항의 규정에 의하여 부가가치세 과세표준에서 공제되지 않는다. □ 서삼46015-10744, 2003. 5. 2. - 질의내용 요약 : 의류용품을 생산하여 판매하는 사업자(갑)가 자사의 제품을 직영점에서 매출하거나 대리점을 모집하여 매출하는 경우로서 갑의 제품을 구매하는 고객 중 당해 고객의 신청에 의하여 우수고객으로 관리(지문으로 인식��관리)하는 을이 갑의 직영점 또는 대리점에서 제품을 구매하게되면 제품구매액의 일정율(예 : 3%)에 해당하는 것을 마일리지로 부여하고 이 마일리지가 축적되면 을은 갑의 제품을 구매할 때 그 동안 축적한 마일리지(현금으로 환불하지는 아니함)를 현금 대신으로 사용하여 구매대금을 지급할 수 있는 것으로, 당해 우수고객인 을이 갑으로부터 시가 10만 원(부가가치세 별도)의 제품을 구매하면서 현금으로 7만 원을 결제하고 나머지 3만 원은 그 동안 축적한마일리지로 결제하는 경우 축적한 마일리지로 계산한 3만 원이 당해 제품 판매에 대한 부가가치세과세표준에 포함되는 것인지 여부. - 회신 : 부가가치세 과세표준에 포함하지 아니하는 것이 타당함. 이후 재정경제부(현재의 기획재정부)는 2006. 3. 29. 아래와 같이 마일리지 상당액이 부가가치세 과세표준에 포함된다고 유권해석하였다. □ 재경부 소비세제과-319, 2006. 3. 29. 온라인을 통하여 물품을 판매하는 사업자가 구매고객에게 매출액의 일정비율에 상당하는 마일리지를적립하여 주고 향후 당해 고객이 물품 구입시 구입대금의 일부 또는 전부를 적립된 마일리지에 의하여 결제하는 경우 당해 마일리지 상당액은 부가가치세 과세표준에 포함되는 것임. 이 해석은 이 해석 시행일 이후 재화를 공급하는 분부터 적용함. [인정근거] 다툼 없는 사실, 갑 제5, 6, 7호증, 을 제1호증의 각 기재, 변론 전체의 취지

D. Determination

1) Article 13(2) of the former Value-Added Tax Act provides that "the following amounts shall not be included in the tax base." Article 52(2) of the former Enforcement Decree of the Value-Added Tax Act provides that "The amount of discount under Article 13(2)1 of the former Enforcement Decree of the Value-Added Tax Act shall be the amount of direct deduction of a certain amount from the ordinary supply value at the time of supply of goods or services in accordance with the terms and conditions of the quality, quantity, delivery and supply in the supply of goods or services, and other terms and conditions of the payment." Exclusion from the tax base is the purport that the amount of discount or deduction from the supply value is not the amount actually received from the other party, and thus, it is intended to exclude from the tax base of value-added tax (see Supreme Court Decision 2011Du8178, Apr. 11, 2013). Therefore, in order for customers to make a second transaction, the amount of discount or deduction from the supply price of goods or services should not be determined from the trading price.

On the other hand, Article 13(3) of the former Value-Added Tax Act provides that "the bad debts, incentives, and other similar amounts for the value of supply after the supply of goods or services shall not be deducted from the tax base", regardless of the title, if the company pays grants grants, etc. in cash after a transaction is made. In other words, the sales unit costs incurred by the company in relation to the sale according to the transaction conditions may constitute an over-the-counter amount, and may fall under such amounts as incentives, etc., but in relation to the imposition of value-added tax, only the amount directly deducted from the sales can be excluded from the value-added tax base, except for the amount directly deducted from the value-added tax base

2) In light of the following circumstances, it is reasonable to view that OO points or gift certificates used in the second transaction are monetary value and have the character of incentives or other similar amounts. The second transaction cannot be included in the gift tax base. Therefore, the disposition of this case is lawful, and the plaintiffs' above assertion is not reasonable. ① OO points or gift certificates themselves cannot be said to have the same economic value as the money for customers or the plaintiffs. In other words, at the time of accumulation or increase, they merely provided "the rights that can be settled by using them in the second transaction," but they did not actually use and deduct, and they are not obligated under the tax law. In addition, the Plaintiffs are not obligated to pay a certain amount of money for 10 years or more (10 years or more).

However, there is a monetary value different from that of the primary transaction. In other words, customers may pay for goods, etc. in the secondary transaction using the O Points or merchandise coupons accumulated or increased in the primary transaction. As such, OO points or merchandise coupons used in the secondary transaction are monetary value as means of payment. Ultimately, it is reasonable to view that the Plaintiffs are not able to attract customers to purchase goods, etc. additionally by granting the incentive to the customers who have made the primary transaction, and it is not only a 3-party incentive or other similar amount provided after the primary transaction, but also a 1-party incentive or other similar amount provided after the primary transaction (However, since the Plaintiffs are used in the secondary transaction, it is not a 3-party incentive or other similar amount provided after the primary transaction, it is not a 1-party incentive or other similar amount provided in the primary transaction, it is not a 3-party incentive or other similar amount provided in the primary transaction. Accordingly, the Plaintiffs are different from the 1-party incentive or other similar amount provided in the primary transaction.

② Customers may decide on whether to accumulate points or increase gift certificates according to the purchase amount at the time of the first transaction, and how to use them at the time of the second transaction, and how to use them. The Plaintiffs are obligated to determine whether to use the OO points or gift certificates in the second transaction, and if they are used, to deduct the amount equivalent thereto from the purchase amount. Ultimately, OO points or gift certificates used in the second transaction are set according to the supply terms and conditions of the first transaction, and cannot be said to have been set according to the supply terms and conditions of the second transaction. In fact, even if the second transaction is made, they cannot be deemed to fall under the discount amount as stipulated in the former Value-Added Tax Act.

③ double taxation refers to the imposition of taxes on the same taxable object. However, in the first transaction, the object of value-added tax is only goods supplied in the transaction, and the value-added tax is not imposed on the OO or merchandise coupon amount accumulated or increased in the first transaction. Therefore, even if the amount equivalent to O or merchandise coupons used in the second transaction is included in the value-added tax base for the second transaction, it cannot be deemed double taxation.

In addition, the plaintiffs' assertion that double taxation problems may arise if the amount of mileage used in the secondary transaction is included in the value-added tax base is based on the premise that the amount equivalent to mileage used in the secondary transaction is not worth monetary value and falls under the discount amount. However, as seen earlier, the amount equivalent to mileage used in the secondary transaction is of monetary value as a means of payment, and it is the amount of incentives or similar nature, and does not fall under the discount amount, and thus, it shall be added to the consideration received by the business operator. In such a case, there is no double taxation issue as the price and the value-added tax base received by the business operator in the primary and secondary transaction

④ Under Articles 1(1), 13(1), and 13(3) of the former Value-Added Tax Act, Article 15 of the former Value-Added Tax Act provides that the value-added tax on the value of supply when an entrepreneur supplies goods, etc. shall be collected from the person who is supplied with the goods, etc.; and Article 17(1) of the same Act provides that the amount of value-added tax payable by an entrepreneur shall be the amount obtained by deducting the value-added tax (purchase) collected when the entrepreneur is supplied with the goods, etc. from the output tax amount, and that the input tax exceeding the output tax amount shall be refundable, thereby adopting a pre-stage tax credit system. In light of the above, Korea’s value-added tax has the form of transaction tax imposed on the external transaction, which is not substantial income, unlike the income tax and corporate tax, and it is imposed regardless of the entrepreneur’s profit or loss.

④ As seen in the above paragraph (1), as long as mileage used in the second transaction (OO points or gift certificates in this case) has monetary value, it shall be included in the base of value-added tax. Thus, the instant provision does not go beyond the delegation scope under Article 13(1) of the former Value-Added Tax Act (if the amount equivalent to mileage has monetary value, then the Plaintiff includes all monetary value in the base of value-added tax under Article 48(1)1 of the former Enforcement Decree of the Value-Added Tax Act. Thus, the instant provision does not need to be newly established separately. If the instant provision is merely a provision of confirmative meaning, the Plaintiff asserts that it is impossible to explain why the service is excluded from the subject of value-added tax. However, because there is no clear provision as to why the mileage used in the second transaction is included in the base of value-added tax, there is no reason to view that there is a need to legislative resolution, and that there is no provision of confirmative meaning in the law of the Republic of Korea.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.