Whether the amount equivalent to the interest on the mobile operator's device should be treated as a loss from the sale of the sales bond

As long as the Plaintiff offsets the transfer price against the purchase obligation that the Plaintiff should pay to the mobile carrier while transferring the installment claim containing the discount interest to the mobile carrier, it is reasonable to view that the interest rate is included in the Plaintiff’s income.

Articles 7, 11 and 13 of the Value-Added Tax Act, Articles 48 and 52 of the Enforcement Decree of the Value-Added Tax Act

Daejeon District Court-2017-Gu Partnership-1171 Revocation of Disposition of Imposing Value-Added Tax

AA

BB director, CCC director

2018.24

2018.19

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

The disposition of imposition of the value-added tax of 108,783,080 won, the value-added tax of 128,783,080 won, the value-added tax of 1,2011 against the Plaintiff on January 12, 2016, and the disposition of imposition of the value-added tax of 128,51,650 won, the value-added tax of 2,2011, the value-added tax of 128,513,700 won, the value-added tax of 2,790,270 won, and the value-added tax of 102,908,560 won, the value-added tax of 2,012 against the Plaintiff on February 1, 2016, each of the disposition of imposition of the global income tax of 19,912,270 won, the global income tax of 736,201, the global income tax of 2012

1. Details of the disposition;

A. From February 1, 2010 to October 17, 2012, the Plaintiff is a person who has been engaged in the business of attracting subscription to the mobile communications service provided by the mobile operator by entering into an agency contract with DDpler Co., Ltd. (hereinafter referred to as " mobile communications company"), and continued the said business in the name of EE Telecom, after the Plaintiff became the representative director.

B. As a result of an integrated investigation of the Plaintiff and EE Telecom, the FF Director of the Regional Tax Office: (a) deemed that the Plaintiff and EE Telecom omitted the amount of transfer of other sales, such as the amount of transfer of the claim for sales of the mobile devices; and (b) 3,927,087,285 won of the installment and subscription fee paid by the customer; and (c) notified the Defendants of the relevant data by deeming that the payment by installments and subscription fee was omitted.

C. Accordingly, on December 1, 2015, the head of Defendant BB Tax Office: (a) value-added tax of 2/2014,668,830, value-added tax of 114,68,830, value-added tax of 1/2013; (b) 42,685,060, and (c) 2/2013, 2013.

Value-added tax 322,072,840 won, value-added tax 235,740,060 won, value-added tax 21,875,60 won for 2014, and corporate tax 90,440,340,340 won for 2012, and corporate tax 238,076,530 for 2013, respectively, were corrected and notified. On December 1, 2015, the director of the Defendant CCC issued a notice of change in the amount of income that disposes of 116,010,97 won for EEcom in the business year 2013, 367,290,811 won for bonus in the business year 2013, as bonus for the Plaintiff.

D. After January 20, 2016, Defendant BB director of the tax office rendered the Plaintiff a disposition of KRW 108,783,080 of value-added tax for 2010; KRW 94,851,650 of value-added tax for 128,51,650 of value-added tax for 201; KRW 128,513,700 of value-added tax for 201; KRW 262,790,270 of value-added tax for 2012; KRW 102,908,560 of value-added tax for 2012; and Defendant CCC director of the tax office’s disposition on February 1, 2016 as global income tax for 19,912,270 won; KRW 736,348,208, and KRW 2010 for global income tax for 201; KRW 537,585,57.

E. On June 24, 2016, the Plaintiff filed a petition for review with the Tax Tribunal for revocation of each of the dispositions of this case, following an objection on April 8, 2016. However, the Tax Tribunal dismissed the Plaintiff’s claim on May 25, 2017.

[Reasons for Recognition] Facts without dispute, Gap's 1 to 3, 6, Eul's 5 (including additional numbers), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

For the following reasons, each of the dispositions of this case must be revoked as it is unlawful.

1) The Plaintiff or EE Telecom (hereinafter referred to as “Plaintiff, etc.”) sold a device with a part of the device, and transferred a claim for installment sales of the device to the mobile operator, and there is no fact that the mobile operator paid the interest on the part of the mobile operator to the Plaintiff, etc. Therefore, it is merely an omission of the payment of the interest on the part of the mobile operator in 2012 and KRW 501,898,584, which should be treated as a loss from the sale of the part of the claim, and it should be treated as the cost, and the said amount cannot

2) Since the Plaintiff, etc. paid 593,106,019, 769,762,412, and 1,523,795,642, out of the subscription fees and installments to be borne by the Plaintiff, etc., the amount should be included in the necessary expenses.

3) Of the fees that the Plaintiff, etc. received from the mobile carrier, the amount of KRW 1,269,260,00 in 201, KRW 1,627,828,00 in 201, KRW 5,060, KRW 967,00 in 201, and KRW 5,060 in 201, KRW 967,00 in 200 (hereinafter “instant fee”) is merely an incentive and is not subject to value added tax

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the amount equivalent to interest paid in installments should be treated as a loss from the sale of sold bonds

A) The burden of proof of the tax base, which is the basis of taxation, is the tax authority, and the tax base is the burden of proof of revenue and necessary expenses, as it deducts necessary expenses from revenue. However, considering that the necessary expenses are favorable to the taxpayer and most of the facts generating the necessary expenses are within the area under the control of the taxpayer and it is easy to prove them, it is consistent with the concept of fairness to recognize the necessity of proof for the taxpayer by allowing presumption of non-existence of necessary expenses which the taxpayer does not conduct the verification (see, e.g., Supreme Court Decision 2002Du1588, Sept. 23, 2004).

B) In light of the above legal principles, the Plaintiff’s sales of the instant case at the price including interest rate at the time of the Plaintiff’s sales of the device, including interest rate on the part of the Plaintiff’s revenue amount, and the fact that there was a partial omission in the amount of the Plaintiff’s sales at the time of the Plaintiff’s initial sales declaration can be acknowledged by the Plaintiff’s statement as either dispute between the parties or by the Plaintiff’s statement as to the Plaintiff’s revenue amount. As such, the Plaintiff’s assertion that there was necessary expenses equivalent to the omitted amount out of the interest calculated as the Plaintiff’s revenue amount, the Plaintiff should prove that there is no value-added tax, etc. (the Plaintiff’s assertion that the Plaintiff cannot impose value-added tax, etc., because the Plaintiff’s interest was ultimately the profit of the Plaintiff, but it is reasonable to deem that the Plaintiff’s interest on the part

According to the overall purport of the statements and arguments by evidence Nos. 1 and 3, the plaintiff, etc. and the mobile carrier shall succeed to the installment claim, including the installment charge, in case where the mobile carrier succeeds to the installment claim against the plaintiff, etc., but the payment for succession to the installment claim shall be the sum of the supply price of the device, the value-added tax on the supply price of the device, the value-added tax on the installment charge, and the amount of the installment charge shall be excluded. The mobile carrier, etc. shall handle the sales including the installment charge of the device, which was introduced from January 1, 2012 to the plaintiff, etc., with respect to the interest on the installment sales of the device, and the amount of the installment charge at the time of selling the part of the device to the mobile carrier as the sales loss of the sales claim. However, the aforementioned evidence alone does not support the fact that the plaintiff, etc. actually did not include the amount equivalent to the installment sales claim in the sales claim, but does not have any reason to recognize it in the account book.

2) Whether the additional admission fee and installment payment should be included in the necessary expenses

The Plaintiff’s evidence No. 4 alone is insufficient to recognize the fact that the Plaintiff, etc. actually paid the additional subscription fee and installment to the terminal purchaser in addition to the necessary expense amount of KRW 5,649,040,239 recognized by the Defendants at the time of the tax investigation, and there is no other evidence to acknowledge this otherwise. Thus, the Plaintiff’s allegation in this part is without merit.

3) Whether the instant fee is subject to value-added tax

The following facts and circumstances can be acknowledged according to the overall purport of evidence Nos. 2, 2, 3, and 4, i.e., when entering into an agency sales contract with the plaintiff et al., "in entering into the agency sales contract with the plaintiff et al." means policy fees that the company notifies the agency of the fulfillment of the conditions under the monthly sales policy for the purpose of facilitating and encouraging the attraction of the agency subscribers. Incentives may vary within a reasonable scope depending on the type of the product or the volume of the transaction. If the company violated the sales policy notified by the company, the terms and conditions of payment may be limited to the incentive payment or request the return of all or part of the incentive payment. The fees of this case constitute 60% of the sales contract of the plaintiff et al., the right to request the plaintiff to pay the sales price for each type of device, charge, and value-added tax for each type of mobile device, etc., the right to request the plaintiff to pay the sales price of this case, which are determined and approved as 10% of the sales price per month.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed, and it is so decided as per Disposition.