Whether penalty for excess volume of electricity consumption is subject to value-added tax.

Since it is reasonable to see that the substance of the excess penalty imposed on the excessive quantity of electricity used in excess of the contractual power is in a quid pro quo relationship with the Plaintiff’s power supply, the imposition of value-added

Article 1 of the Value-Added Tax Act

Article 13 of the Value-Added Tax Act

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendants’ [Attachment 1] List “date of Notice” shall revoke all the imposition of each value-added tax on each item in the same list “amount by taxable period” as the Plaintiff on each date of notice.

1. Details of the imposition;

A. On March 1, 2004, the Plaintiff, an operator of the electric power supply business, revised and implemented the main text of Article 44(2)2 of the former Terms and Conditions of the former Terms and Conditions of the former Terms and Conditions as “if the amount of electricity used exceeds 450 hours per month for the amount of the contractual power used by the customer in excess of the contractual power in excess of the amount of the contractual power, the Plaintiff shall be subject to penalty by adding 150% of the unit price for the amount of the excess electricity used to the customer who uses the excessive amount of electric power in excess of the contractual power in addition to 150% of the unit price for each type of the contract in question,” and did not report and pay value-added tax on the portion corresponding to the amount of excess electricity used in excess of the contractual power as it is not subject to value-added tax.”

B. Accordingly, the head of ○○ Tax Office conducted a tax investigation with respect to the Plaintiff, and deemed that the Plaintiff’s penalty for excess electricity volume collected from customers during the value-added tax period from January 2004 to January 2005 (hereinafter “excess penalty”) as consideration for the supply of electricity and notified each disposition authority of taxation data. Accordingly, the Defendants issued each of the instant dispositions imposing the Plaintiff the corrective and notification of the excess penalty for the first period of January 2004, February 2004, and January 2005, as stated in the purport of the claim.

2. Whether the disposition of imposition is lawful.

A. The plaintiff's assertion

The above penalty is imposed separately from the normal charge in accordance with the standard for imposing the penalty prescribed in the main sentence of Article 44(2) of the former Terms and Conditions of Electricity amended as of March 1, 2004 (hereinafter referred to as the "Terms and Conditions of Electricity") and is subject to monetary sanctions on the use of electricity in violation of contractual power, and even if it is not a consideration for the supply of electricity, each of the instant dispositions by the Defendants, based on different premise, is unlawful.

(b) Related statutes;

○ Article 1 of the Value-Added Tax Act

(1) Value-added taxes shall be imposed on the following transactions:

1. Supply of goods or services; and

2. Import of goods.

○ Tax base Article 13 of the Value-Added Tax Act

(1) The tax base for value-added taxes on the supply of goods or services shall be the aggregate of values falling under each of the following subparagraphs (hereinafter referred to as "value of supply"): Provided, That value-added taxes

1. Where payments are given in money, the payments;

2. Where payments other than money are given, the current market price of goods or services supplied by the supplier;

3. Where payments for the supply of goods are unjustifiably low or no payments are made, the current market price of goods supplied by the supplier himself/herself;

3-2. Where payments for the services rendered are unjustifiably low, the current market price of such services rendered by the relevant supplier; and

4. Where the business is closed down, the current market price of inventory goods.

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

(1) The tax base under Article 13 (1) of the Act shall include payments, commissions, fees, and all other monetary values in exchange for consideration, regardless of the pretext or pretext received from a trader.

(c) Fact of recognition;

(1) The main text of Article 44(2) of the former Terms and Conditions prior to the amendment of the amended Terms and Conditions (hereinafter referred to as the "Terms and Conditions prior to the amendment") provides that the main text and content of Article 44(2) of the amended Terms and Conditions shall be identical to that of the former Terms and Conditions, and that "I receive penalty by adding "I receive penalty" shall be added," and the plaintiff has reported and paid value-added tax on the electric charges collected for the volume of electricity used (the amount exceeding the contract power X450 hours) before the implementation of the amended Terms and Conditions, and has not reported and paid value-added tax thereon simultaneously with the implementation of the amended Terms and Conditions.

(2) The contract power is calculated by multiplying the contract power by the maximum power that the customer can use under a contract. The contract power is basically set up by an agreement between the Plaintiff and the customer in order to ensure the stable supply of electricity by prior installation of power supply facilities, such as transformers and power meters, which are adequate by ascertaining the amount of electricity required by the consumer in advance and providing it in advance.

(3) The method of calculating the electricity rate is calculated by adding the basic electricity rate of 10 kw and the actual electricity volume of 50 kws according to the contract amount regardless of the quantity of electricity used. The basic electricity rate is the cost for the supply of electricity that is adequate for the contract amount of the consumers. Therefore, if the contract amount is determined higher, not only the basic electricity rate is calculated higher but also the cost for the installation of the supply of electricity that is borne by the customers increased (see the Standard Construction Cost Table 4 [Attachment 4] of Articles 84 and 93 of the amended Terms and Conditions, 93 [see the Standard Construction Cost Table]]. If electricity is used exceeding the contract amount of 1 to 2 months per year, it is also possible to save the contract amount of 60 k, X 50 k, X 50 k, X 50 k basic electricity rate of 70 k k2,000 k basic electricity volume exceeding the contract amount of 1 to 50 k k 50 k,50 k basic electricity volume per month.

(4) The Plaintiff’s electric fee claim notified to the customer provides that if the monthly amount of use exceeds the contractual power capacity on more than two occasions, the additional charge (150%) was notified and the appropriate facility capacity shall be expanded. However, the above claim is treated as an additional charge, not a penalty, and even if the customer uses it in excess of the contractual power capacity, it does not take any measures against any particular contractual breach in addition to imposing a penalty exceeding the Plaintiff. Article 50 of the amended terms and conditions imposes liability on the customer for damages caused the Plaintiff’s electric installations, etc. on purpose or by negligence. Article 50 of the amended terms and conditions imposes liability on the customer when the customer intentionally or by negligence damages the Plaintiff’s electric installations, etc., even if the damage occurred to the wind used in excess of the contractual power capacity, it may be compensated by the customer as a means of compensation for damages, and it is not so significant that it is necessary to prepare for such damage through a penalty (if the change pressure, etc

(5) The electricity charge system imposes a charge on the high-speed electric power used for the high-speed electric power by increasing the maximum of 50% of the non-powered electric power used for the high-speed electric power, and in the case of the residential power, the electric charge per 1kw is up to 11.7 times the high-speed electric power charge system.

D. Determination

(1) Article 13(1) of the Value-Added Tax Act provides that the tax base of value-added tax shall be the sum of values falling under any of the following subparagraphs, and Article 48(1) of the Enforcement Decree of the Value-Added Tax Act provides that "if the tax base of value-added tax is paid with money, the consideration shall be placed, and Article 48(1) of the Enforcement Decree of the Value-Added Tax Act provides that "any monetary value in the relation

(2) According to the main sentence of Article 44(2) of the amended Terms and Conditions, the above penalty for breach of contract is not just for the supply of electricity, but for the violation of the contract. However, as seen earlier, the above penalty for breach of contract is merely for the modification of the name that was stipulated as additional charges in the terms and conditions of the contract before the amendment. ② There are not only the amount of electricity used but also the basic charges under the contract for the use of electricity, which are less basic charges than those for the users who use the electricity exceeding the basic charges, and it is necessary for the Plaintiff to impose the charges for the use of electricity in any form, which are appropriate for the amount of electricity used. ③ The above amount of electricity is not changed from the supply of electricity to the Plaintiff, and it is reasonable to impose the amount of electricity exceeding the basic charges for the use of electricity exceeding the basic charges for the use of the contract. Furthermore, it is reasonable to consider that the above amount of electricity exceeds the basic charges for the use of electricity exceeding the basic charges for the use of the contract, rather than the amount of electricity used exceeding the basic charges for the contract.

(3) Therefore, each of the instant dispositions imposing value-added tax on excess penalty is lawful, and the Plaintiff’s assertion that differs from this premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified, and it is so decided as per Disposition by the assent of all participating Justices.

[Seoul High Court Decision 2007Nu23691, April 10, 2008]

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance court is revoked. The notice date of the list "date of notification" written by the Defendants shall be revoked in all the imposition of each value-added tax stated in the same list for the Plaintiff on each date of notification.

The court's reasoning concerning this case is as follows, with the exception of partial dismissal of the grounds for the judgment of the court of first instance, the entry of the grounds for the judgment of the court of first instance is the same as the entry of the grounds for the judgment of the court of first instance. As such, Article 8 (2) of the Administrative Litigation Act and

· 제5쪽 2번째 줄의 "전기설비를 등을" ⇒ "전기설비 등을"

· 제5쪽 20번째 줄의 "띄고 있으나" ⇒ "띠고 있으나"

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

[Supreme Court Decision 2008Du6929 (No. 24, 2008)]

1. All appeals are dismissed.

2. The costs of appeal are assessed against the Plaintiff.

In comparison with the records and the judgment of the court below, the argument on the grounds of appeal by the appellant is clear that it falls under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal, and therefore, all appeals are dismissed under Article 5 of the same Act. It is so decided as per Disposition by the assent of all participating Justices.

[Attachment 1]

Details of taxation by Defendant

series

No.

Date of Notice

Amount by taxable period;

Total Amount

04. 1 set

04.2 2

05. One set;

1

○ Head of tax office

205

11

11

13,898,500

93,049,250

40,227,880

147,175,630

2

○ Head of tax office

205

11

10

8,663,600

39,171,850

20,585,740

68,421,190

3

○ Head of tax office

205

11

10

2,402,480

6,022,360

5,488,690

13,913,530

4

○ Head of tax office

205

11

2

488,880

3,431,560

5,099,670

9,020,110

4-1

○ Head of tax office

205

11

2

1,308,050

4,169,990

5,796,360

11,274,400

4-2

○ Head of tax office

205

11

4

650,940

2,174,070

2,646,790

5,471,800

5

○ Head of tax office

205

11

3

3,628,640

18,389,160

9,743,810

31,761,610

5-1

○ Head of tax office

205

11

3

500,510

2,643,900

3,723,610

6,868,020

6

○ Head of tax office

205

11

7

7,549,090

29,239,650

19,676,880

56,465,620

6-1

○ Head of tax office

205

11

7

3,173,370

14,381,030

9,979,400

27,533,800

7

○ Head of tax office

205

11

1

15,422,580

57,737,380

62,354,790

135,514,750

8

○ Head of tax office

205

11

15

2,397,320

9,602,140

8,094,340

20,093,800

8-1

○ Head of tax office

205

11

15

2,846,520

8,983,790

6,731,450

18,561,760

9

○ Head of tax office

205

11

15

2,645,140

5,593,940

5,186,270

13,425,350

9-1

○ Head of tax office

205

11

15

572,570

2,351,950

1,867,070

4,791,590

10

○ Head of tax office

205

11

3

12,924,520

50,214,870

27,253,360

90,392,750

10-1

○ Head of tax office

205

11

3

3,028,050

10,962,440

8,433,240

22,423,730

11

○ Head of tax office

205

11

9

2,066,600

14,630,340

7,640,060

24,337,00

12

○ Head of tax office

205

11

3

24,163,930

6,972,700

17,903,200

49,039,830

12-1

○ Head of tax office

205

11

3

14,297,090

5,739,200

7,854,100

27,890,390

13

○ Head of tax office

205

11

2

4,462,680

10,507,820

10,508,710

25,479,210

13-1

○ Head of tax office

205

11

2

1,934,120

5,230,840

6,228,790

13,393,750

14

○ Head of tax office

205

11

10

6,426,930

13,111,320

20,253,740

39,791,90

14-1

○ Head of tax office

205

11

10

16,340,150

48,440,190

42,827,360

107,607,700

15

○ Head of tax office

205

11

18

2,473,270

9,568,050

9,966,770

22,008,090

15-1

○ Head of tax office

205

11

18

1,509,810

5,540,130

4,598,890

11,648,830

15-2

○ Head of tax office

205

11

18

1,360,470

4,008,320

3,142,840

8,511,630

16

○ Head of tax office

205

11

10

11,099,020

60,970,740

29,007,400

101,077,160

17

○ Head of tax office

205

11

1

38,280,590

79,184,280

79,345,700

196,810,570

17-1

○ Head of tax office

205

11

1

5,224,710

14,081,040

14,411,520

3,717,270

17-2

○ Head of tax office

205

11

1

1,637,360

6,880,820

4,604,770

13,122,950

18

○ Head of tax office

205

11

17

1,719,300

8,422,160

6,376,790

16,518,250

18-1

○ Head of tax office

205

11

17

1,618,280

3,188,090

3,970,440

8,776,810

18-2

○ Head of tax office

205

11

17

575,350

2,159,560

2,005,150

4,740,060

18-3

○ Head of tax office

205

11

17

255,450

1,195,140

1,686,290

3,136,880

19

○ Head of tax office

205

11

10

14,680,280

64,701,260

3,777,670

113,159,210

20

○ Head of tax office

205

11

22

16,718,920

48,442,040

26,457,200

91,618,160

21

○ Head of tax office

205

11

1

3,287,810

16,224,540

18,253,470

37,765,820

21-1

○ Head of tax office

205

11

1

4,285,170

7,908,930

7,309,210

19,503,310

22

○ Head of tax office

205

11

7

8,287,690

48,177,950

16,713,750

73,179,390

22-1

○ Head of tax office

205

11

7

793,120

3,855,250

4,177,620

8,825,990

23

○ Head of tax office

205

11

3

0

61,135,260

32,797,850

93,933,110

24

○ Head of tax office

205

11

1

9,521,850

5,330,150

20,336,860

85,188,860

25

○ Head of tax office

205

11

7

15,487,00

79,886,330

38,720,310

134,093,640

26

○ Head of tax office

205

11

1

13,270,790

76,376,170

37,793,050

127,440,010

27

○ Head of tax office

205

11

10

10,583,690

37,342,250

38,700,380

86,626,320

28

○ Head of tax office

205

11

4

14,030,350

59,446,760

41,035,410

14,512,520

29

○ Head of tax office

205

11

7

3,400,620

18,33,500

9,086,940

30,821,060

29-1

○ Head of tax office

205

11

7

7,371,780

2,058,600

9,132,510

18,562,890

30

○ Head of tax office

205

11

4

14,681,100

90,507,110

37,966,030

143,154,240

31

○ Head of tax office

205

11

15

6,918,510

36,915,730

19,201,90

63,036,230

31-1

○ Head of tax office

205

11

15

1,462,640

5,881,950

5,718,950

13,063,540

31-2

○ Head of tax office

205

11

15

2,603,380

7,067,370

5,124,570

14,795,320

31-3

○ Head of tax office

205

11

15

845,340

3,219,510

4,163,940

8,228,790

32

○ Head of tax office

205

11

1

7,457,860

48,865,360

28,096,940

84,420,160

33

○ Head of tax office

205

11

10

5,656,800

3,285,000

17,304,080

56,245,880

3-1

○ Head of tax office

205

11

10

4,982,850

12,304,530

8,636,280

25,923,660

3-2

○ Head of tax office

205

11

10

279,360

4,852,810

1,095,440

6,227,610

34

○ Head of tax office

205

11

22

3,997,240

20,184,380

12,692,90

36,874,610

34-1

○ Head of tax office

205

11

10

3,125,040

5,780,810

7,198,830

16,104,680

35

○ Head of tax office

205

11

1

9,501,260

5,015,580

27,626,190

92,143,030

36

○ Head of tax office

205

11

1

14,965,540

67,489,490

4,493,310

126,948,340

37

○ Head of tax office

205

11

10

13,932,750

82,732,590

36,067,530

132,732,870

37-1

○ Head of tax office

205

11

7

1,558,120

5,157,100

4,836,850

11,552,070

37-2

○ Head of tax office

205

11

7

2,194,650

3,535,980

2,887,210

8,617,840

38

○ Head of tax office

205

11

10

13,167,710

76,874,660

31,642,090

121,684,460

39

○ Head of tax office

205

11

7

17,941,810

59,882,540

42,972,450

120,796,800

40

○ Head of tax office

205

11

14

13,386,240

64,059,500

45,145,510

122,591,250

41

○ Head of tax office

205

11

7

1,421,790

5,651,890

3,631,660

10,705,340

41-1

○ Head of tax office

205

11

7

936,400

3,673,370

2,744,210

7,353,980

41-2

○ Head of tax office

205

11

8

1,512,750

3,891,590

4,768,870

10,173,210

42

○ Head of tax office

205

11

7

1,878,160

4,818,440

5,399,020

12,095,620

42-1

○ Head of tax office

205

11

7

810,480

3,992,990

2,959,330

7,762,800

43

○ Head of tax office

205

11

11

6,336,400

4,009,430

20,201,740

70,547,570

43-1

○ Head of tax office

205

11

11

5,963,910

26,998,490

15,057,510

48,019,910

43-2

○ Head of tax office

205

11

11

3,665,830

10,040,510

5,935,900

19,642,240

44

○ Head of tax office

205

11

8

5,284,530

38,575,640

15,815,530

59,675,700

44-1

○ Head of tax office

205

11

8

1,944,800

5,136,860

8,891,030

15,972,690

45

○ Head of tax office

205

11

4

9,714,430

58,162,010

30,146,380

98,022,820

46

○ Head of tax office

205

11

7

7,661,690

41,360,680

17,963,720

66,986,090

47

○ Head of tax office

205

11

4

10,680,660

60,862,500

26,800,460

98,343,620

48

○ Head of tax office

205

11

28

2,865,520

11,680,980

8,176,850

2,723,350

48-1

○ Head of tax office

205

11

1

3,017,340

17,246,790

7,291,940

27,556,070

49

○ Head of tax office

205

11

1

14,196,080

44,319,970

3,395,150

91,911,200

49-1

○ Head of tax office

205

11

1

15,372,450

35,142,510

43,702,460

94,217,420

49-2

○ Head of tax office

205

11

1

1,421,520

5,631,380

6,908,890

13,961,790

50

○ Head of tax office

205

11

1

25,081,140

159,447,640

8,139,040

272,667,820

51

○ Head of tax office

205

11

7

11,913,900

60,559,150

34,382,960

106,856,010

52

○ Head of tax office

205

11

1

12,764,060

75,838,320

30,251,320

18,853,700

53

○ Head of tax office

205

11

8

2,761,400

13,671,430

6,908,570

23,341,400

53-1

○ Head of tax office

205

11

8

1,175,470

4,862,090

3,828,070

9,865,630

53-2

○ Head of tax office

205

11

8

898,670

2,239,690

1,727,870

4,866,230

54

○ Head of tax office

205

11

9

11,234,700

72,918,110

30,205,640

114,358,450

5

○ Head of tax office

205

11

1

11,340,250

53,186,810

28,284,650

92,811,710

5-1

○ Head of tax office

205

11

1

9,464,150

31,213,200

31,504,090

72,181,440

5-2

○ Head of tax office

205

11

1

11,783,000

28,241,580

23,516,580

63,541,160

5-3

○ Head of tax office

205

11

1

18,634,940

23,264,900

18,017,230

59,917,070

56

○ Head of tax office

205

11

1

4,587,390

23,924,140

13,203,420

41,714,950

56-1

○ Head of tax office

205

11

1

3,647,920

8,107,640

7,499,450

19,255,010

56-2

○ Head of tax office

205

11

1

1,699,560

9,375,020

6,340,090

17,414,670

56-3

○ Head of tax office

205

11

16

706,570

3,542,510

2,842,880

7,091,960

56-4

○ Head of tax office

205

11

1

306,910

2,170,190

1,482,030

3,959,130

57

○ Head of tax office

205

11

1

4,995,780

25,597,660

17,901,350

48,494,790

57-1

○ Head of tax office

205

11

1

16,630,170

49,674,420

49,772,770

16,077,360

58

○ Head of tax office

205

11

2

2,498,746

14,563,545

11,326,354

28,388,645

58-1

○ Head of tax office

205

11

2

1,198,380

4,379,210

3,188,820

8,766,410

58-2

○ Head of tax office

205

11

2

434,190

2,842,810

1,460,980

4,737,980

58-3

○ Head of tax office

205

11

2

1,109,160

2,819,260

2,412,860

6,341,280

58-4

○ Head of tax office

205

11

2

57,870

1,330,360

542,620

1,930,850

59

○ Head of tax office

205

11

9

11,772,340

35,541,100

24,775,820

72,089,260

60

○ Head of tax office

205

11

1

13,041,900

68,631,780

30,726,340

12,400,020

61

○ Head of tax office

205

11

22

5,427,110

25,761,570

12,383,890

43,572,570

62

○ Head of tax office

205

11

4

933,470

3,740,810

2,062,690

6,736,970

62-1

○ Head of tax office

205

11

4

1,582,030

7,559,780

4,280,230

13,422,040

63

○ Head of tax office

205

11

1

691,820

1,586,600

2,124,790

4,403,210

63-1

○ Head of tax office

205

11

1

1,839,940

4,354,570

3,026,750

9,221,260

63-2

○ Head of tax office

205

11

1

454,070

1,688,550

1,010,070

3,152,690

64

○ Head of tax office

205

11

1

13,805,590

87,908,970

44,512,410

146,226,970

65

○ Head of tax office

205

11

1

747,900

2,412,630

1,995,750

5,156,280

65-1

○ Head of tax office

205

11

1

702,300

1,810,220

1,141,140

3,653,660

65-2

○ Head of tax office

205

11

1

527,830

1,039,730

1,406,510

2,974,070

66

○ Head of tax office

205

11

14

2,209,340

5,587,430

4,202,520

11,99,290

66-1

○ Head of tax office

205

11

14

821,700

1,643,030

1,825,830

4,290,560

66-2

○ Head of tax office

205

11

14

694,760

1,540,420

1,923,330

4,158,510

67

○ Head of tax office

205

11

7

3,271,830

14,196,900

15,187,480

32,656,210

67-1

○ Head of tax office

205

11

7

2,308,640

7,180,240

9,748,820

19,237,700

68

○ Head of tax office

205

11

11

195,220

781,700

456,510

1,433,430

69

○ Head of tax office

205

11

10

14,676,00

83,519,710

44,323,130

142,518,840

70

○ Head of tax office

205

11

1

4,227,280

20,182,540

15,778,740

40,188,560

70-1

○ Head of tax office

205

11

1

1,774,910

3,959,470

5,893,120

11,627,500

71

○ Head of tax office

205

11

1

6,548,630

19,255,370

26,719,750

52,523,750

71-1

○ Head of tax office

205

11

1

11,160,590

58,413,360

3,072,080

102,646,030

71-2

○ Head of tax office

205

11

1

7,942,420

17,699,060

24,965,990

50,607,470

71-3

○ Head of tax office

205

11

1

16,711,560

4,927,010

49,337,220

10,975,790

71-4

○ Head of tax office

205

11

1

5,850,590

12,877,270

16,992,120

35,719,980

72

○ Head of tax office

205

11

10

5,059,920

14,592,820

20,969,200

40,621,940

72-1

○ Head of tax office

205

11

10

9,178,620

29,521,820