Jurisdiction of Salary Feed received by the employee

Where only basic service charges are paid, or part of the second service charges are paid in cash, etc., the duty payment ledger uniformly entered is prepared after the fact, and the disposition of imposition that is not excluded from the tax base is legitimate.

Article 48 (Calculation of Tax Base of Value-Added Tax Act)

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

On November 5, 2003, the imposition of global income tax of KRW 5,50,680,150, education tax of KRW 79,726,140, value-added tax of KRW 323,050,420, and global income tax of KRW 5,500,810, earned income tax of KRW 7,690,100, and global income tax of KRW 46,176,990, global income tax of KRW 227,183,430, and global income tax of KRW 157,316,610, and value-added tax of KRW 420 against Plaintiff Hong○○ is revoked.

1. Details of the disposition;

A. On September 18, 2002, the plaintiffs and non-party ○○○○○○○○○○○○○○ (hereinafter referred to as the "instant workplace"), located in ○○○○○, 2840, ○○○○○, 2840, operated the instant workplace jointly with the plaintiff Ho○○○, 2%, 13%, 28%, 37%, 20%, 10, 20%, 20%, 37%, 20%, 20%, 20%, and 20%, ○○, who is the husband of ○○○, has operated the said workplace.

B. From 203 to 29 October 203, the Plaintiffs and ○○○○○ was subject to investigation on suspicion of tax evasion. The Defendant conducted an investigation on the instant business establishment from September 1, 2003 to 30, and as a result, during the period from September 18, 2002 to 30 June 30, 203 (hereinafter referred to as “instant taxable period”), only 4,832,423,00 won (i.e., February 2, 200, KRW 1,942,00, KRW 378,430, KRW 00, KRW 200, KRW 200, KRW 378, KRW 300, KRW 300, KRW 200, KRW 200, KRW 100, KRW 300, KRW 300, KRW 200, KRW 300, KRW 205, KRW 206.

C. The Plaintiffs, who were dissatisfied with the above disposition, filed a petition with the National Tax Tribunal for a trial on January 28, 2004, but was dismissed on August 29, 2005.

[Ground of Recognition: Facts without dispute, Gap 1 through 3 (including each number), Eul 1 through 5 (including each number), the whole purport of the pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is legitimate in accordance with the relevant Acts and subordinate statutes, and the plaintiffs asserted that it is unlawful on the following grounds.

(1) The wazers, who worked in the instant workplace, engage in propaganda and marketing at their own expense, and profit from a certain portion of the sales of customers (13% to 20%) due to their own business, and the instant business operator did not receive business suspension allowances or other nominal money, and did not independently be subject to specific command and supervision from the instant business operator, such as employing assistants and doing business, and there was no fact that the instant business operator is subject to withholding labor income tax for wazers or covered by insurance, and therefore, the wazers who worked in the instant business place should be deemed as an independent business operator, not a worker, and therefore, the instant disposition imposed on waz since the amount paid by the instant business operator to wazz is not the sales of the instant business operator, it is unlawful in the instant disposition that was imposed on the Plaintiffs based on its tax base.

(2) With respect to the second service charge out of the service charge of the service charge for the instant workplace, the Defendant issued the instant disposition by excluding the second service charge amount of KRW 1,613,90,000, which is recognized by the service charge ledger, from the tax base, and the Defendant recognized only KRW 12,400,00 as the second service charge, but this was recognized as the average of KRW 80 per day to the service charge of the instant workplace, and entered the fact in the register of the second service charge to the service charge that the Plaintiff U2, ○○, the representative of the instant workplace, paid the second service charge to the service loan he manages, and based on this, entered the second service charge ledger, etc. on the basis. However, in light of the fact that the employment charge of the instant workplace reaches the average of KRW 28,00 per day, which is against the empirical rule, the average service charge rate of KRW 28,00 and KRW 28,000 as the service charge of the instant workplace.

(3) Unlike Article 48(9) of the Enforcement Decree of the Value-Added Tax Act, Article 2(1)11 of the Enforcement Decree of the Special Consumption Tax Act provides that the service charges shall be excluded from the subject of imposition regardless of whether or not the service charges are actually paid to employees in cases where a credit card sales slip, etc. separates the service charges and the service charges from the credit card sales slip, etc.

(b) Related statutes;

○ Special Consumption Tax Act

Article 1 (Taxable Object and Tax Rate)

(1) The special consumption tax shall be imposed on admission to specific goods or specific places, and entertainment, eating and drinking at a specific place.

(4) A place where special consumption tax is imposed on entertainment, eating and drinking (hereinafter referred to as "taxable entertainment place") and the tax rate therefor shall be as follows:

Amusement taverns, foreigner-only amusement restaurants, and other similar places;

10/100 of charges for entertainment and food;

○ Enforcement Decree of the Special Consumption Tax Act

Article 2 (Definitions)

(1) The definitions of terms used in the Act or this Decree shall be as follows:

11. The term "charges for entertainment and food" means the amount received by an operator of the taxable pleasure place from a person who conducts entertainment and food, regardless of the pretext thereof, such as food charges, meal charges, or other charges: Provided, That in cases where the amount received includes the service charges of employees (including free-income earners), and where the separate entry is made on the tax invoice, receipt, credit card sales slip, or debit card receipt under the Value-Added Tax Act, the service charges shall not be included in the charges for entertainment and food, but shall include the service charges in cases where the operator of the taxable pleasure place appropriates the relevant service charges in his/her income;

○ Value-Added Tax Act

Article 2 (Taxpayer)

(1) A person who independently supplies goods (referring to the goods prescribed in Article 1; hereinafter the same shall apply) or services (referring to the services prescribed in Article 1; hereinafter the same shall apply) on a business basis, regardless of whether it is for profit-making purposes (hereinafter referred to as "business operator") shall be liable to pay value-added taxes

Article 13 (Tax Base)

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

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

○ Enforcement Decree of the Value-Added Tax Act

Article 48 (Calculation of Tax Base)

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

(9) Where an entrepreneur supplies food and accommodation services or personal services, and enters the service charges of employees (including free-income earners) along with the price separately from the price in a tax invoice, receipt, credit card sales slip, etc. under Article 32-2 of the Act, and it is confirmed that the service charges are paid to the employee concerned, 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.

○ Income Tax

Article 80 (Settlement and Correction)

(1) If a person liable to make a final return on the tax base pursuant to Articles 70 through 72 or 74 fails to make such return, the chief of the district tax office or the director of the regional tax office having jurisdiction over the place of tax payment shall determine the

(2) If a person who has made a final return on the tax base pursuant to Articles 70 through 72 or 74, falls under any of the following subparagraphs, the superintendent of the district tax office or the director of the regional tax office having jurisdiction over the

1. Where an omission or error exists in the contents of return;

(3) Where the head of a regional tax office or the head of a regional tax office having jurisdiction over the place of tax payment determines or revises the tax base and amount of tax in the current year under paragraphs (1) and (2), he shall make it based on the books and other documentary evidence: Provided, That if it is impossible to calculate the amount of income by books and other documentary evidence for

Article 127 (Liability for Withholding)

(1) Any person who pays the following income or revenue amount to a resident or nonresident in Korea shall withhold the income tax on such resident or nonresident pursuant to the provisions of this Section:

4. Employment income amount of Class A;

○ Enforcement Decree of the Income Tax

Article 100 (Cumulative Taxation for Joint Business)

(1) The term “person having a special relation as prescribed by the Presidential Decree” in Article 43 (3) of the Act means persons who make their living with one resident and who fall under one of the following subparagraphs:

1. Spouse;

Article 143 (Determination and Revision through Estimation)

(1) The term "reasons prescribed by Presidential Decree" in the proviso to Article 80 (3) of the Act means the cases falling under any of the following subparagraphs:

1. Where necessary account books and documentary evidence are missing or important parts are incomplete or false in the calculation of the tax base;

(2) Where the tax base is estimated, determined and revised under the proviso to Article 80 (3) of the Act, the amount of tax base shall be calculated by making personal deduction and special deduction under Articles 50 through 52 of the Act from the income amount assessed under paragraph (3).

(3) In case where the income amount is estimated, determined or revised under the proviso of Article 80 (3) of the Act, the method falling under each of the following subparagraphs shall be applied: Provided, That the provisions of subparagraph 1-2 shall apply only to persons subject

1-2. The method of determining or revising as income amount the amount obtained by deducting the amount obtained by multiplying the income amount by the simple expense rate;

(c) Fact of recognition;

(1) Operational form of the instant workplace

(A) The instant place of business is a four-story business entity running around September 2002 and enjoying a considerable sulfur from around February 2003. Among them, the second floor was operated in the form of a golf club, and the third and fourth floors were operated in the form of a studal sprink (28) as well as the so-called studal speach (28) type of entertainment bars that sell alcoholic beverages with a entertainment loan.

(B) With respect to the instant business establishment, the Plaintiff U2○○○, 2% for the Plaintiff Ha○○, 28% for the Plaintiff Gong○○○, 37% for the Plaintiff Red○, and 20% for the Nonparty ○○, who is the husband of the Plaintiff Gong○○, was holding the respective shares of 20% for the instant business establishment. The Plaintiff U2○ and the Nonparty ○○○, as the business president of the instant business establishment, was on duty by Nonparty 00 for the general secretary in charge, who receives the principal and service fees from customers.

(2) Details of the plaintiffs' import declarations in 2002 and 2003

Classification

Year

Classification of Sales

Service charges

Main Sales

Gross income

Receipt of cards

Cash Revenues

Total

8,407,597

7,877,125

530,472

4,832,423

3,575,174

202

3,927,861

3,573,406

354,455

2,320,500

1,607,361

2003

4,479,736

4,303,719

176,017

2,511,923

1,967,813

(unit: Book won and consideration for supply)

(3) Details of the statement of related persons, including employees at a workplace

(A) Statement by the Plaintiff U.S. investigation agency

In the instant workplace, the average of 30 to 40 persons, regardless of the actual service fees paid to the head of the general affairs division who is in charge of accounting related to the service fees of the service loan, the service fees shall be paid at 40%, and the service fees shall be paid at 60%, and the service fees shall be paid in a false manner. The service fees of the service fees shall not be drawn up at the time of payment of the service fees, but shall be drawn up in a false manner, and the service fees of the service fees shall be paid at a cost amount of 10 million won every week at the approval of twice every week, and the pages, invoices, etc. prepared while paying the service fees shall be teared immediately after the approval.

(B) A statement to an investigative agency of ○○.

In the instant workplace, the average of 40 to 50 persons were on a monthly basis, regardless of the actual service charges paid to the head of the general affairs division in charge of accounting of the loan, and the service charges amounting to 30 to 35%, and the service charges amounting to 65 to 70%. The rate is adjusted at will at the time of filing a report with the tax office every month. The service fee payment ledger was prepared falsely in order to reduce the tax amount, and the submitted service fee payment ledger (from September 2002 to December 2002) also was prepared falsely.

(C) A written answer to Madoo, ○○, ○○, ○○, and ○○○.

The books of account on which service fees are recorded for the entertainment loan are not remaining, and each marina is prepared, and there is no fact that the plaintiff has made a statement of monthly service recovery presented by the plaintiff directly.

(4) The defendant's tax investigation and its result

(A) On July 8, 2003, the Defendant started an investigation into the instant business operator upon the Defendant’s request for dispatch of investigating staff among internal investigation on the suspicion of tax evasion against the instant business operator. On August 28, 2003, the Defendant filed a criminal charge of violating the Punishment of Tax Evaders Act with the ○○ District Prosecutors’ Office, filed a criminal charge against the Plaintiff ○○ and the Plaintiff ○○○○, and received the relevant investigation data and relevant books, and conducted an investigation into the tax offense from September 1, 2003 to October 29, 2003.

(B) As a result of the investigation of the above tax offense, although the omission in sales was not found with respect to the reported amount of income at the instant place of business, it was confirmed that the 2002 service charge ledger seized at the time of investigation by the ○○○○ National Police Agency was not based on the amount actually received, but was prepared at will. Accordingly, the details of the salary record confirmed by the Defendant in the investigation of the above tax offense are as follows.

(1) Service charges for a loan in service.

The National Police Agency’s 2002 service charge ledger, confiscated by the Korea National Police Agency, was confirmed to be the amount of the service charge, not the actual amount of the service charge. As a result of the investigation and verification of the service charge statement on the service charge of marina loan submitted by the instant business entity, the total service charge amount of KRW 1,100,80,000 for the 116 service charge of the 133 service charge of the 1,621,440,00 service charge, which is confirmed to have been actually engaged in, as shown below, was excluded from the special consumption tax and value added tax base, and the second service charge was not recognized as service charge other than KRW 12,40,00,00 as confirmed at the time of the investigation by the National Police Agency without presenting the evidence of the instant service charge. The service charge amount is the service charge of the 1,621,80,000,000 for each service charge submitted by the instant business entity.

Classification

The volunteer fee payment ledger;

○○ ○○○

Service charges for loan service;

Inspection and Confirmation (Recognition of Service Fees)

Number of persons

Amount

Number of persons

Amount

Number of persons

Amount

From September 18, 2002 to June 30, 2003

181

4,418,302

133

1,621,440

16

1,100,800

(units: 1,00 won

(2) Service charges of waitors

The commission 740,260,000 won paid to the proprietor of this case to the proprietor of this case is the payment of the amount equivalent to 13 through 20% of the sales of the customer in charge of the proprietor in accordance with the agreement after he paid a certain amount of deposit to the proprietor of this case. This is not a service charge but a service charge, which is included in the tax base of special consumption tax and value added tax, which is the performance-added rate, and is included in the tax base of the special consumption tax and value added tax, and the 27 water and the 15 auxiliarywater who submitted a confirmation document stating the substitute driving, the provision of daily profit, the fireworks, and the fact-finding fee for the secondary importer and the 15 auxiliarywater are as listed below. Although it is impossible to respond separately to the contents of the secondary import pocket, the date of issuance of credit card sales slip, and the amount of service charge, it is excluded from the tax base of special consumption tax and value added tax.

Classification

The service charges for the water submitted to the instant place of business

Amount verified for inspection

Total

Fees

Service charges for water

Assistance service charges

Total

Service charges for water

Assistance service charges

Number of persons

Amount

Number of persons

Amount

Number of persons

Amount

Number of persons

Amount

Number of persons

Amount

Total

1,721,280

34

740,260

31

523,280

27

457,740

716,204

27

436,550

16

279,654

202

722,520

34

344,090

31

199,640

23

178,790

282,719

27

169,555

16

113,164

2003

98,760

34

396,170

31

323,640

27

278,950

433,485

27

266,995

16

166,490

(units: 1,00 won

(C) The instant disposition

The Defendant issued a revised notice of KRW 1,141,624,00 as stated in the attached disposition, such as special consumption tax and value added tax, for the remaining KRW 3,00,00, excluding only KRW 1,829,404,00, which was recognized as service charges of KRW 4,832,423,00 based on the above investigation.

[Grounds for Recognition: Facts without dispute, Gap 1 through 4 (including each number), Eul 5 through 7 (including each number), the purport of the whole pleadings]

D. Determination

(1) The meaning of salary in the Special Consumption Tax Act and the Value-Added Tax Act

Article 48 (1) and (9) of the Enforcement Decree of the Value-Added Tax Act includes any monetary value related to consideration received from an employee on the basis of the transaction basis under Article 13 (1) of the Act. If a business operator enters the service charges of an employee (including free-income earners) along with the consideration for the supply of food and accommodation services, personal services, or credit card sales slip under Article 32-2 of the Act separately from the consideration, and it is confirmed 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 to cases where the business operator appropriates the service charges from his own income, and Article 2 (1) 11 of the Enforcement Decree of the Value-Added Tax Act provides that the payment of the service charges to an employee on the basis of the above service charges shall be excluded from the tax base of the special consumption tax, but it shall not apply to cases where the operator does not directly include the service charges of an employee on the basis of the special consumption tax, such as the above service charges, the service charges, or other than the special consumption charges.

(2) Determination as to the assertion on the service charges of thewait

(A) As seen earlier, the tax base of value-added tax includes all monetary values in relation to consideration received from a trader regardless of its title. The tax base of special consumption tax includes the amount received by an operator of a taxable entertainment place from a person carrying on entertainment, eating and drinking, regardless of its title. However, if the service charges of an employee (including a free-work income earner) constitute "service charges" and formally provides a separate statement from the cost of service provided by an operator, such as tax invoice, receipt, credit card sales slip, etc., it shall be excluded from the tax base of value-added tax and special consumption tax pursuant to Article 48 (9) of the Enforcement Decree of the Value-Added Tax Act and Article 2 (1) 11 of the Enforcement Decree of the Special Consumption Tax Act. However, the term "employee's service charges" in this context refers to the amount paid by the customer for the employee's speech, friendship, consideration, etc. in addition to the original cost of service provided by the operator, whether the employee's service charges are paid to the employee's employee's actual service charges or not.

(B) In full view of the purport of the argument in this case, the plaintiffs provided entertainment places or food such as alcoholic beverages, etc. as business operators of the workplace of this case without any separate business registration, but they received fees equivalent to 13 through 20% of their own sales in accordance with the prior agreement with the plaintiffs for attracting customers through promotion activities, etc., and they received fees of 13 to 20% of their own sales in advance. In light of the above facts, since water performs its role as business operators of the workplace of this case, while water used only partial business activities such as attracting and contact with customers within the workplace of this case, water paid a certain amount of money without any separate business registration, washe shall not be separately paid to 20,000,0000,0000,0000,0000,0000,0000,000,0000,000,0000,000,000,000,000.

(3) Determination as to the assertion on the second service charge of the loan

(가) 신용카드매출전표에 매출액과 구분하여 봉사료로 기재되어 있는 금액은 원칙적으로 부가가치세 및 특별소비세 등의 과세표준에서 제외되는 부가가치세법 또는 특별소비세법 소정의 봉사료에 해당한다고 추정되므로, 신용카드매출전표상의 봉사료가 실제 봉사료가 아니라는 점에 대한 입증책임은 일단 과세관청에 있다고 할 것이다. 다만, 그 입증의 정도에 있어서 증거자료 획득 및 제출의 용이성에 비추어 과세관청으로서는 각 신용카드매출전표상의 봉사료가 실제 봉사료가 아니라는 것을 일일이 입증할 필요는 없고, 위와 같은 추정을 깰 수 있을 정도로 입증하면 족하다고 할 것이고, 이와 같이 신용카드매출전표상의 봉사료가 실제 봉사료라는 추정이 깨어지면, 사업자로서는 신용카드매출전표상의 봉사료가 실제 봉사료로서 종업원에게 지급되었음을 입증하여야 한다고 할 것이다(실제 봉사료라면 당연히 종업원에게 지급될 것이므로, 이와 같이 해석하지 아니한다면, 신용카드매출전표상 봉사료로 기재된 부분은 실제로 봉사료가 아니라고 하더라도 그에 대하여 사실상 부가가치세 등의 부과를 포기하여야 하는 결과가 될 것이다).

(나) 이 사건에 관하여 보건대, 위 인정사실에서 알 수 있는 다음과 같은 사정, 즉, 이 사건 사업장의 영업사장인 원고 유○○과 박○○은 접대부들의 봉사료와 관련하여 경리를 보는 총무과장에게 실제 지급한 봉사료와 무관하게 일괄적으로 주대는 30 내지 40%, 봉사료는 60 내지 70% 정도로 하여 결제를 하라고 지시하였던 점, 2차 봉사료를 당해 접대부에게 실제로 지급하였음을 인정할 아무런 자료가 없는 점[국세청 고시 제2001-17호 '봉사료를 과세표준에서 제외하고자 하는 사업자가 지켜야 할 사항'에 의하면, 봉사료를 과세표준에서 제외하고자 하는 사업자는 봉사료지급대장을 작성하여 5년간 보관하도록 규정하고 있는바(갑8호증의 9), 원고들은 위와 같은 대장을 작성·보관한 바 없고, 달리 봉사료를 당해 종업원에게 실제로 지급하였음을 인정할 아무런 증거가 없다]. 이 사건 사업장에서 마담으로 근무한 황○○, 이○○, 최○○, 박○○은 이사건 사업장에서 윤락행위는 없었다고 진술하였던 점, 원고 유○○의 진술(일주일에 2번 봉사료를 정산하였고, 1회 정산금액은 약 1,000만 원 정도였다)에 의한 대략적인 접대부 봉사료는 822,860,000원[≒ 288일(원고 주장 영업일수) ÷ 7일 X 2회 X 1,000만 원]으로 이는 피고가 마담별로 조사·확인하여 봉사료로 인정한 1,113,200,000원의 범위 내에 있는 점 등에 비추어 보면, 원고들이 접대부들의 2차 봉사료라고 주장하는 1,613,900,000원이 접대부에게 실제로 지급된 봉사료에 해당한다고 볼 수 없고, 설사 일부 접대부에게 실제로 지급된 2차 봉사료가 있다고 하더라도, 부가가치세법 시행령 제48조 제9항 및 특별소비세법 시행령 제2조 제1항ㅇ 제11호 규정의 취지로 보거나, 피고가 한 위화 같은 상당한 정도의 입증에 의하여 인정되는 사실의 반대사실, 즉, 세무조사를 실시할 당시에는 제출하지 아니하다가 국세심판을 청구하면서 비로소 제출한 것으로, 앞서 본 바와 같이 접대부의 봉사료와 관련하여 원고 유○○, 박○○은 임의로 신용카드매출전표를 작성하였다고 진술하였던 사실, 이 사건 사업장에서 마담으로 근무한 황○○, 이○○, 최○○, 박○○은 봉사료 정산 후 2차 봉사료와 관련된 장부 등은 폐기하였다고 진술하였던 사실과 위 각 증거들이 기본 봉사료만 지급받는 경우나 2차 봉사료 중 일부가 현금으로 지급되는 경우 등에 대한 기재 없이 일률적으로 접대부들이 2차 봉사료를 신용카드로 결재받은 것으로 기재되어 있는 점 등을 종합하여 보면, 위 각 증거들은 사후에 일괄 작성된 것으로 보여져 믿을 수 없다), 접대부에게 2차 봉사료로 지급된 1,613,900,000원은 과세표준에서 제외되어야 한다는 취지의 원고들의 위 주장은 이유 없다.

3. Conclusion

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

Details of imposition;

(unit: Won)

Name

Time of Reversion

guidance.

Global Income Tax

Value-added Tax

Special consumption tax

Wage and salary income

Red○ ○

202

157,316,619

Gong ○

202

27,183,434

Hao

202

46,176,997

○○

202

5,500,814

7,690,100

2, 2002

182,120,032

1, 2003

140,930,392

September 2002

27,000,815

October 2002

63,520,821

November 2002

63,163,535

December 2002

54,666,059

January 2003

24,212,319

February 2003

32,557,235

March 2003

28,936,887

April 2003

34,537,306

May 2003

30,319,510

June 2003

16,491,756

4,142,324,631

436,177,864

323,050,424

375,406,243

7,690,100