A fixed rate on sales slips shall be classified as service fees, and it is unreasonable that it is excluded from the revenue amount.

Despite the fact of the actual sales, it is unfair that the business owner's arbitrary allocation of the income amount is excluded from the revenue amount, and this tax disposition is legitimate.

Article 29 of the Value-Added Tax Act

2014Guhap2250 Revocation of Disposition of Imposition of Value-Added Tax, etc.

AAA

Head of Ulsan District Office

March 26, 2015

April 30, 2015

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

On October 10, 2013, the Defendant filed both the disposition imposing value-added tax, individual consumption tax and education tax imposed on the Plaintiffs, as stated in attached Form 2 “the details of the instant disposition” (a request for modification of the purport and cause of the claim).

Each disposition date stated in the written request is a clerical error in October 10, 2013.

1. Details of the disposition;

가. 원고 임AA은 2009. 3. 4.부터 2011. 4. 27.까지 ○○시 ○구 ○○로 75에서 '〇〇〇나이트클럽'이라는 상호로 유흥주점을 경영한 사업자이고, 원고 김BB는 2011. 4.25.부터 2012. 6. 12.까지 같은 곳에서 '◇〇〇〇나이트클럽'이라는 상호로 유흥주점을 경영한 사업자이며, 원고 김CC은 2012. 6. 1.부터 같은 곳에서 '△△△△'이라는 상호로 유흥주점을 경영하는 사업자이다(이하 위 유흥주점들을 통틀어 '이 사건 각 사업장'이라 한다). 원고들은 2009년부터 2012년에 이르기까지 다음과 같이 매출액 중 각 6,448,893,000원, 1,889,634,000원, 889,854,000원을 봉사료로 계상하여 과세표준에서 제외한 후 부가가치세, 개별소비세 및 교육세(이하 '부가가치세 등'이라 한다)를 신고・납부하였다.

B. The director of Dolsan Regional Tax Office shall conduct an integrated investigation into the Plaintiffs with respect to the entertainment taverns

The service fees paid to wawegs are piece-based remuneration, and each service fee reported by the plaintiffs should be included in the tax base such as value-added tax.

C. The defendant set the sales and service charges as follows according to the results of the above investigation and set the sales and service charges as follows:

Based on the results, on October 10, 2013, the first disposition of imposition of value-added tax was determined and notified as a total of 2,216,258,780 won, 578,102,570 won, and 235,67,550 won (hereinafter collectively referred to as "the first disposition").

D. On December 6, 2013, the Plaintiffs filed a tax appeal against the initial disposition. The Tax Tribunal (Plaintiff KimB), May 26, 2014 (Plaintiff KimCC), June 18, 2014, and July 1, 2014 (Plaintiff GA) filed a claim for reimbursement of service charges for entertainment and food to the customers in each of the instant workplace, including the revised service charges, and entered the amount of service charges separately from the credit card sales slips, and the amount of service charges was paid to the relevant wawait. Since it has not been confirmed that the service charges were paid to the wait because the initial service charges were different from the contents of the service charges ledger, it is reasonable to view that the service charges received from waitus as the performance rate reduction method, and that some of the service charges were paid to wait under the premise that wait and wait were paid to the other wait in the form of performance of the service charges (hereinafter referred to as “the Defendant’s service charges”).

E. On July 25, 2014, the Plaintiffs filed a second appeal against the instant taxation disposition with the Tax Tribunal and filed the instant lawsuit on September 22, 2014. The said appeal was dismissed on October 15, 2014.

[Ground of recognition] The facts without dispute, Gap evidence 1 to 10, Eul evidence 1 to 13 (including the number of pages) and the purport of the whole pleadings

2. The plaintiffs' assertion

The instantwater, etc. is not the employees employed by the Plaintiffs, but independent business operators who directly attract and manage customers for their own business and live with the service fees paid by customers, and merely play the role of delivering the Plaintiffs’ opinions on behalf of the organizations established by the generalwater with the generalwater for the effective operation of business. The authority, responsibility, and details of business are the same as that of the general non-grade airline. Furthermore, the Plaintiffs separately set the supply price and service fees on credit card sales slip, etc., received payment from the customers, and paid the full amount of the service fees to the instantwater, etc. according to the number of working days. Accordingly, the instant service fees are not actually the Plaintiffs’ sales, but should be excluded from the tax base, such as value-added tax, as they belong to other non-gradewater, etc., and thus, the instant taxation disposition based on the different premise is unlawful.

3. Determination

A. Facts of recognition

1) The Plaintiffs are alcoholic beverages and alcoholic beverages to customers by succeeding in the order of each business establishment of the instant case.

The business that provides interest, etc. was operated in each of the instant workplaces in the form of attracting customers in the workplace and allowing them to provide various convenience.

원고 임AA은 원고 김BB에게 사업을 양도한 후에도 경리이사로서 ◇〇〇〇나이트클럽, ◇〇〇〇의 자금관리를 맡아 하는 등 영업 전반에 관여하였다.

2) Nitters in each of the instant places of business are ice, ice, and fully with the exclusive responsibility of the customers who sought themselves.

With respect to customers who have worked in each of the instant workplaces without finding any specific wafers, the wafers allocated by the sequences have provided the above services.

3) The Plaintiffs’ sales of credit cards by which the main and service charges are separated for customers who pay by credit cards.

In comparison with the sales proceeds of the above sales slips and receipts (the sum of main and sealed feed), the ratio of the sealed feed to the sales proceeds of the above sales slips and receipts was set to 33% in case of Plaintiff Pacific, 23% in case of Plaintiff KimCC, and in case of Plaintiff KimB, and customers using each of the instant workplaces have paid service charges in lump sum with the main and service charges. In addition to the phrase "weter T/C separate", the main or internal and external notice boards, etc. include 33% in charge of entertainment and food charges. T/C does not indicate that 50,000 won and more than 50,000 won, more than 150,000 won, and 150,000 won, and 150,000 won and more than 15,000 won are not included in the daily service charges of this case in the workplace of this case. They are not included in the daily service charges of this case separately from the main service charges of this case.

4) 이 사건 각 사업장의 웨이터들은 영업실적에 따라 1인당 월 200만 원〜300만

The plaintiffs received service fees to the extent of the cost, and the plaintiffs prepared a service fee payment ledger with respect to the service fees paid to the wazers, and the income tax was withheld from the wazers' business income and paid to the competent tax office. On the other hand, it was not confirmed whether or not the payment of fixed benefits was made to the wazers, etc. in this case.

5) 원고 임AA은 2013. 4. 12. 세무조사 당시 '〇〇〇나이트클럽'에는 주방직원,

The position of "△△△△△△△△△△ has been described as the position of the master secretary, the chief of the office, the chief of the office, the 60 senior executive officer, the 30 senior executive officer, the 6 senior executive officer, the 15 senior executive officer in charge of managing the senior executive officer, and the 12 senior executive officer in charge of managing the senior executive officer. The 12 senior executive officer, the 12 senior executive officer, the 15 senior executive officer, the 3 senior executive officer, the 4 senior executive officer, the 1st executive officer, the 1st executive officer, the 4th executive officer, the 1st executive officer, the 1st executive officer, the 4th executive officer, the 1st executive officer in charge of managing the senior executive officer, the 1st executive officer in charge of managing the senior executive officer document, the 1st executive officer in charge of managing the senior executive officer document, and the 1st executive officer in charge of managing the senior executive officer document."

[Reasons for Recognition] Facts without dispute, entry of evidence Nos. 4 to 13, purport of the whole pleadings

(b) reviewing the requirements for recognition of service fees;

1) Article 13 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013)

Paragraph (1) 1 shall apply to payments for the supply of goods or services in cash.

Article 48(1) and (9) of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013) provides that “The tax base includes any money, charge, fees, and all other monetary values having a quid pro quo relationship, regardless of the pretext thereof, paid by a trader.” Article 48(1) and (9) of the same Act provides that “Where it is confirmed that an entrepreneur supplies food and accommodation services or personal services, and pays the service charges to an employee (including free-income earners) along with the price, separately from the price in a tax invoice, receipt, credit card sales slip, etc., and that the service charges are paid to the employee, the service charges shall not be included in the tax base (Provided, That the same shall not apply where the entrepreneur appropriates the service charges in his/her own income) [Article 13(1)3 of the former Value-Added Tax Act (Amended by Act No. 11129, Jan. 1, 2010>

In addition, Article 1 (1) and (4) of the Individual Consumption Tax Act shall apply to entertainment and food charges for entertainment and food.

Article 2(1)8 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 25197, Feb. 21, 2014) provides that individual consumption tax shall be imposed, and the meaning of the service charge for entertainment and food is that Article 2(1)8 of the same Act provides that where an operator of a taxable entertainment place receives food, entertainment and food from a person who conducts entertainment and food, regardless of the name thereof, and the service charge for an employee (including a free-income earner) is included in the amount received, the service charge shall not be included in the charges for entertainment and food if it is confirmed that the service charge was paid to the relevant employee (Provided, That the same shall not apply where the business operator appropriates the service charge as his/her own income) [Article 1(1) and (4) of the former Enforcement Decree of the Individual Consumption Tax Act (amended by Presidential Decree No. 25197, Feb. 18, 2010).

2) In full view of the language and structure of the relevant statutes, an entrepreneur running an entertainment drinking club shall be deemed as running a business.

The obligation to pay value-added taxes, etc. on the basis of the total amount of money received in return for the goods and services provided by the person himself/herself or the total amount of money received in return for the provision of services by the person himself/herself as the tax base. However, apart from the price for the provision of services, etc. by the operator, the amount paid by the customer as the price for intangible services, such as the behavior, kindness, consideration, etc. provided by the employee accompanied by the provision of services by the business operator, may be excluded from the tax base only if it is recorded as service charges separately from other prices in the card sales slip, etc. and actually paid to the employee.

In addition, even if the service fee satisfies the above requirements, the business operator himself/herself shall pay the service fee.

In case where the service charges are appropriated as the amount of income, in principle, they are included in the tax base such as value-added tax, and in this context, the term "in case where the service charges are appropriated as the amount of his own income" means that the service charges are used according to his responsibility and calculation even if the service charges are entered separately from the price of goods or services, and for example, it is reasonable to view that the service charges have been appropriated as the amount of the service charges in case where the service charges are paid by the customer in accordance with the payment standards

Therefore, service charges excluded from the tax base of value-added tax, etc. are credit card sales slip.

It shall be recorded separately from the cost of goods and services of an entertainment tavern, and the actual payment shall be made to the relevant employee, as well as the characteristics as a service fee, shall be recognized in view of the size appropriated as a service fee, or the form of receipt or settlement.

C. Determination as to the service fee of this case

According to the above facts of recognition, the plaintiffs' drinking value and the customer using each workplace of this case

The facts of issuing a credit card sales slip, receipt, etc. with a separate service charge, and the fact that the service charge ledger was prepared to the purport that the full amount of service charge was paid to the instant water, etc. are known.

However, the following circumstances that can be known from the facts acknowledged above, i.e., the Plaintiffs

"이 사건 사업장을 이용한 고객들이유흥접객원으로부터 어떤 용역을 제공받았는지 또는 언행, 친절, 배려 등 무형의 용역을 제공한 유흥접객원이 누구인지 등을 구별하지 아니한 채 일률적으로 술값의 33% 또는 23%를 임의로 봉사료로 할당한 점, ② 원고들은 봉사료를 술값과 함께 일체로 계산하였으므로 이를 지불하는 고객들로서도 영수증이나 계산서에 기재된 봉사료가 유흥접객원에게 직접 귀속되는 금원이라고 인식하기는 어려웠을 것으로 보이고, 일반적인 고객들에게 재화나 용역의 본래 대가를 초과하는 금원을 별도의 봉사료로 지급할 의사가 있었다고 추단하기도 어려운 점, ③ 실제로 고객들이 자신들에게 직접 서빙, 부킹 등의 서비스를 제공한 웨이터들에게 봉사료를 지급할 때에는 그들에게 직접 현금으로팁'을 주는 경우가 많으며, 이 사건 각 사업장에서 주대에 따라 계산서에 계상한 'T/C'도 일종의 '팁'으로 보이는 점, ④ 이 사건 봉사료는 영업실적에 따라 책정되어 지급되었던 것인바 유흥접객행위에 대한 봉사료가 아니라 영업실적에 대한 수당으로서의 성격이 두드러지는 점, ⑤ 이 사건 각 사업장은 원고 임AA의 관여 하에 동일성을 유지하며 계속적으로 영업하여온 것으로 보이는바,원고 임AA은 세무조사 당시 ○○○나이트클럽 직원 중 6명의 유급간부와 웨이터들을 관리하는 구좌간부가 15명 정도 있다고 진술한 사실이 있고, ◇〇〇〇나이트클럽의 웨이터들은 직책이 구분되어 있었으며, 웨이터들만 60명 이상인 이 사건 각 사업장의 규모에 비추어 고객에 대한 접객서비스를 제공하는 일반 웨이터들과는 달리 웨이터의 관리・교육 등에 관한 업무 등을 수행하는 자들이 따로 있고, 원고 임AA이 진술한 바와 같이 그들에게는 급여를 지급한 것으로 보이는 점, ⑥ 탈세의 가능성을 우려하여 봉사료의 인정요건을 엄격히 규정하고 있는 관계 법령의 취지 등을 종합하여 보면, 적어도 원고들 스스로도 유급이라 인정한 직원들이 포함된 이 사건 웨이터 등에게 지급한 이 사건 봉사료는 고객들이유흥접객원 등으로부터 제공 받은 특별한 용역의 대가",로 지급한 봉사료가 아니라 원고들이 자신의 수입금액으로 수취한 금원을 성과급 형태의 보수나 수당으로 지급한 것에 불과하므로 부가가치세 등 과세표준에서 제외될 수없다. 이와 같은 전제에서 이루어진 피고의 이 사건 과세처분은 정당하며, 거기에 원고들이 주장하는 바와 같은 위법이 있다고 할 수 없다.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so ordered as per Disposition.

shall be ruled.