(영문) 수원지방법원 2017. 11. 23. 선고 2015구합68261 판결

1. On December 19, 2014, the Defendant’s rejection disposition against the Plaintiff for reduction of KRW 17,569,658,364 of value-added tax for the first term of 2011 against the Plaintiff is revoked.

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

Cheong-gu Office

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff is a mobile communications business operator that provides mobile communications services to the subscribers to the mobile communications services (hereinafter referred to as "subscribers") and sells mobile communications terminal devices (hereinafter referred to as "terminals").

B. The Plaintiff, while selling a device to an agent for the business related to the mobile communications service (hereinafter referred to as “agency”), agreed to provide the subscriber who purchased the device from the agency to pay the subsidy in installments under a certain condition (hereinafter referred to as “the instant taxable period”) during the first taxable period of 2011 (hereinafter referred to as “the instant taxable period”), refers to the “the instant subsidy”.

C. The Plaintiff reported and paid the value-added tax for the taxable period to which the date of selling the device belongs, based on the total amount of the ex-factory price of the device before deducting the subsidy.

D. Since then, on the ground that the instant subsidy falls under the discount amount under Article 13(2)1 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter the same), the Plaintiff’s request for correction seeking reduction of KRW 17,569,658,364 (hereinafter referred to as “request for correction of this case”) from the tax base on July 25, 2014, for the Defendant to seek reduction of KRW 17,569,658,364 (hereinafter referred to as “request for correction of this case”).

was made.

E. On December 19, 2014, the Defendant rendered a disposition rejecting the instant claim for correction (hereinafter “instant disposition”) against the Plaintiff on the ground that the instant subsidy does not fall under the discount amount.

[Reasons for Recognition] In the absence of dispute, Gap evidence 1 to 6, Eul evidence 1 and 2 (including various numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff provided that the insured purchased the device at a discount from the agency in order to provide subsidies to the insured who meet certain subsidy support requirements, and the agency paid the purchase price of the device to the Plaintiff by transferring the beneficiary’s claim to pay the purchase price of the device to the Plaintiff. As such, the instant subsidy constitutes a discount amount, which is directly deducted from the value of supply of the device. Accordingly, the instant subsidy should be excluded from the value-added tax base, and thus, the instant disposition based on a different premise is unlawful.

B. Determination

1) Determination as to whether the instant subsidy constitutes a discount amount

A) Article 13(1) of the former Value-Added Tax Act provides that “The tax base of value-added tax on the supply of goods or services shall be the aggregate amount of values under each of the following subparagraphs (hereinafter referred to as “value of supply”).” Each subparagraph provides that “if the payment is made in money, the payment shall be made,” and “if the payment is made in money other than money, the market price of the goods or services supplied by the person himself/herself (Article 13(1) of the former Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same shall apply)” and Article 48(1) of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013) includes all monetary values, regardless of the price, charge, commission,

Meanwhile, Article 13(2) of the former Value-Added Tax Act provides that "the amount which is not included in the tax base" is one of them, and Article 52(2) of the former Enforcement Decree of the Value-Added Tax Act provides that "the overcharge amount under Article 13(2)1 of the former Enforcement Decree of the Value-Added Tax Act shall be the amount which is directly deducted from the ordinary supply value at the time of supply of the goods or services in accordance with the terms of quality, quantity, and payment of the cost of delivery and supply."

As such, in relation to the supply of goods or services, the amount of discount, which is directly deducted and reduced from the ordinary supply value due to the conditions of the supply, such as quality, quantity, and settlement of the cost of delivery and supply, is not limited to the time of the supply of the goods or services, and there is no special restriction on the method of deduction and reduction. Therefore, as well as the method of receiving not only the remainder after deducting and deducting a certain amount from the ordinary supply value when the supplier supplies the goods or services, but also the said amount may be refunded or any other similar method after receiving the total value of supply (see, e.g., Supreme Court Decision 2013Du19615, Dec. 23, 2015).

B) In full view of the purport of the entire pleadings, the following facts can be acknowledged.

① The Plaintiff and the agent agreed that the supply price of goods, including terminals supplied to agencies, shall be based on the ex-factory price, and the supply price may be changed through mutual consultation according to market conditions, etc.

(2) Where an account holder purchases a mobile phone from an agency in installments, the agency transfers to the Plaintiff all contractual status related to the installment sale of the mobile phone payment claim to the account holder and all contractual status related to the installment sale of the mobile phone, and the agreement is reached that the account holder accepts the transfer, and the Plaintiff was paid the agency the amount of the mobile phone payment by taking over the claim, etc. to the account holder from the agency as above.

③ On the other hand, the Plaintiff agreed to pay the cost of the mobile communications service provided by the Plaintiff for a certain period of time to an agency to purchase a device from the agency, and provided such subscriber a subsidy by means of discounting the amount of the subsidy in equal installments (hereinafter referred to as the “increased subsidy”) from the monthly installments of the device during the installment sales period through an application for the terms and conditions of the subsidy, shocking cellphone, etc. However, if the insured fails to meet the above conditions of the subsidy during the period of the subsidy, the agent did not provide the remainder of the remaining subsidy for the remaining period of the subsidy. Accordingly, the agent is to receive the amount obtained by subtracting the amount of the monthly installment from the monthly installment of the device during the installment sales period, but if the insured fails to meet the above conditions of the subsidy during the period of the subsidy, the agent agreed not to deduct the amount of the subsidy after the remainder of the subsidy.

④ Under an agreement on the installment sale of a mobile phone, the Plaintiff acquired the agency’s claim for the installment payment of a mobile phone from the subscriber to the mobile phone, received monthly payment from the subscriber less the installment payment of the mobile phone: Provided, That if the subscriber fails to meet the requirements for subsidy support, the subsidy was not paid after the occurrence of the cause, and thus, the amount of subsidy was no longer deducted from the cost of the mobile phone.

C) Examining these facts in light of the aforementioned provisions and legal principles, the Plaintiff granted the right to receive a discount equivalent to the amount of the subsidy from the agency of the Plaintiff by limiting the purpose of the subsidy by providing subsidies to the subscribers meeting the requirements for the subsidy, and by limiting the purpose of the subsidy from the monthly installment of the device. With respect to the subscribers meeting the requirements for the subsidy subsidy as publicly announced in advance by the Plaintiff, the agency was paid the monthly installment of the device during the agreed installment sales period and sold the device. The Plaintiff received all contractual status related to the above installment claims and installment sales from the agency with the consent of the subscriber, and received only the remainder of the subsidy from the agency in the form of installment. Accordingly, it can be deemed that there was an agreement between the Plaintiff and the agency to reduce the amount of the subsidy from the value of the supply of the device on condition that the Plaintiff and the agency sell a discount equivalent to the amount of the subsidy. Ultimately, the amount equivalent to the subsidy shall be deemed as the amount deducted directly from the value of supply of the Plaintiff’s agency.

In addition, in light of the circumstances that the settlement of the amount of the instant subsidy was scheduled from the time of the Plaintiff’s supply of a device to the Plaintiff’s agency, even if the Plaintiff did not issue a revised tax invoice following the reduction of the supply price of the device with respect to the instant subsidy, such tax settlement can be deemed an inevitable measure taking into account the tax administration at the time when the instant subsidy was not considered as a cumulative amount, and thereby, it is difficult to say that the nature of the instant subsidy differs (see Supreme Court Decision 2013Du19615, Dec. 23, 2015).

2) Determination as to the scope of revocation

A) In a case where a taxpayer contests the legitimacy of a taxation disposition after the tax authority imposed a tax disposition, in principle, the tax authority that issued the disposition is liable to submit data to support the legitimacy of the final tax base and amount of tax, whereas it is reasonable to view that the taxpayer is liable to submit data to support that the initial tax base and amount of tax reported by the taxpayer were wrong in a case where the tax authority requests the tax authority to reduce the amount of tax for the reason that the reported tax base and amount of tax were erroneous in a tax return method

However, the tax authorities, upon receiving a request for correction, have the duty to investigate and confirm whether the tax base and amount recorded in the tax base return exceed the objectively legitimate tax base and amount to be reported under the tax law. As such, as in the ordinary tax disposition revocation lawsuit, the revocation lawsuit against the request for correction of reduction also serves as a ground for cancellation of the substantive and procedural illegality of the disposition of refusal. The subject of the trial is the objective existence of tax base and amount of tax recorded in the tax base return (see, e.g., Supreme Court Decision 2006Du13497, Dec. 24, 2008).

In light of such legal principles, in a case where the Plaintiff, who is liable for tax payment, has revealed to the extent that it reasonably acceptable to accept the circumstances of errors in the tax base and amount already reported, it is reasonable to deem that there exists the grounds for the request for reduction unless the Defendant, who is the tax authority, proves that the relevant grounds for

B) According to the aforementioned facts and the evidence, the Plaintiff submitted the detailed details of the subsidy payment by customer from January to June 2017, 201. The Plaintiff appears to reduce the amount of KRW 17,569,658,364, which corresponds to the total amount of the above subsidies, on the ground that the amount of KRW 193,266,241,98, which is the total amount of the subsidies, should be excluded from the value-added tax base, due to the fact that the amount of the subsidy should be deducted from the total amount of the subsidies, and the claim for correction of this case was filed. The Defendant did not assert any assertion and prove any errors in the calculation of the above detailed amount. ② The Defendant stated that it is not possible to receive any benefit equivalent to the remaining amount of the subsidy if the reasons such as termination, etc. occur in the request for correction of the subscriber ○○○○○○○○○, which is the Plaintiff’s claim for correction. Therefore, it is reasonable to recognize the Plaintiff’s excessive amount of the subsidy payment claim for correction.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.

참조조문

참조판례

-대법원 2008. 12. 24. 선고 2006두13497 판결

-대법원 2015. 12. 23. 선고 2013두19615 판결

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