Seoul Administrative Court 2009Guhap19199 ( October 26, 2010)

Seocho 208west 3156 ( October 25, 2009)

The face value of a merchandise coupon shall not be deducted when calculating the tax base of a game room.

In calculating the value-added tax standards in the game place where merchandise coupons are offered as free gifts, it is reasonable to view that the face value or acquisition value of merchandise coupons provided by the game operator to the users cannot be deducted from the total amount input by the users in the game machine.

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance is revoked. The defendant's imposition of value-added tax of KRW 673,545,960 against the plaintiff on June 10, 2008 shall be revoked.

1. Circumstances of dispositions;

A. From December 1, 2005 to May 2006, the Plaintiff operated an adult game room (hereinafter “instant game room”) under the trade name, “after setting up 50 adult amusement machine of ○○○○○○○-dong 67-1321, ○○○○○, an adult amusement machine of ○○○○○○○, ○○○ 67-1321,” along with Kim A, the Plaintiff operated a game room for adults (hereinafter “instant game room”). The instant game room was a type of business in which game users input KRW 10,00 won in the game machine and acquire KRW 10,000 by using the game as gift gift certificates of KRW 5,00 in the face value.

나. 피고는 2007. 3. 14. 원고에게 2006년도 제1기분 부가가치세 689,943,000원의 과세예고통지를 하였는데, 이는 상품권 발행업체인 □□ 주식회사(이하 '소외 회사'라고 한다)가 재단법인 ▲▲원(이하 '▲▲원'이라고 한다)에 이 사건 게임장에 공급한 것으로 보고한 아래 표와 같은 상품권 공급내역을 기초로 위 게임장에 대하여 실시한 상품권 매입자료 현지조사결과에 근거한 것이었다.

C. On April 17, 2007, the Plaintiff filed a request for pre-assessment review against the Defendant pursuant to Article 81-15 of the Framework Act on National Taxes, and the Defendant made a re-assessment review following a review by the National Tax Examination Committee. The reason for the decision was that the total purchase amount of gift certificates on the book and cultural gift certificate purchase register for free gifts submitted by the Plaintiff at the time of the request for pre-assessment review differs from 135,00 with the total purchase amount of gift certificates in 1,326,50 as confirmed by the non-party company, which is the merchandise coupon issuer, and there is a daily settlement account book stating the total sales amount, consumption amount, etc. by date, and ParkBB, which is the merchandise coupon dealer, was confirmed to be 135,000 gift certificates sold in the instant game book.

라. 피고는 위 재조사결정에 따라 재조사를 하였으나 원고가 과세전적부심사청구시 제출한 경품용 도서문화상품권 구매대장 등은 믿기 어렵다고 보아 그와 관련된 원고의 주장은 받아들이지 아니하였고, 다만 소외 회사가 ▲▲원에 보고한 이 사건 게임장에 대한 상품권 매출자료 중 2006. 6분 140,000장의 경우 판매 게임장의 상호가 '☆☆스'로 기재되어 있는 등 위 게임장에서 매입한 것으로 보기 어렵다는 이유로 이를 매입수량에서 제외하여 2006년 제1기분 부가가치세 과세표준을 아래와 같이 계산한 5,236,098,852원으로 재경정하고, 2008. 6. 10. 원고에 대하여 2006년 제1기분 부가가치세 673,545,960원의 부과처분을 하였다(이하 '이 사건 처분'이라고 한다).

E. On August 29, 2008, the Plaintiff appealed to the Tax Tribunal on the instant disposition, but was dismissed on February 25, 2009.

[Reasons for Recognition: Evidence Nos. 1, 2, 1, 2]

2.Attachment I shall be as follows:

3. Whether a disposition is lawful

가. ▲▲원이 작성한 자료를 기초로 이 사건 게임장의 매출액을 추계과세 한 것이 위법한지 여부

(1) The plaintiff's assertion

원고는, 이 사건 게임장에 상품권을 판매한 상품권 총판업체인 티켓사랑의 직원 장CC은 ○○ △△구 △△1동 446-12 지하 1층에서 김DD이 운영한 게임장 및 ○○ ○○구 ○○4동 298-2 2층에서 권EE이 운영한 게임장에 판매한 상품권까지 이 사건 게임장에 판매한 것으로 통보하였고, 소외 회사는 특별한 확인 없이 장CC 및 티켓사랑이 통보한 대로 ▲▲원에 보고하였을 뿐이므로, 소외 회사가 ▲▲원에 보고한 상품권 매출 자료만 믿고 이 사건 게임장의 매출액을 추계하여 한 이 사건 처분은 근거과세 원칙 및 실질과세 원칙에 반한다고 주장한다.

(2) Facts of recognition

(A) On October 12, 2006, the Defendant notified the Plaintiff and KimA of the submission of data on purchase of gift certificates, such as gift certificates, to the Plaintiff and KimA who operated the instant game site. Accordingly, on October 18, 2006, KimA appeared in the ○○ Tax Office and stated that there was no business-related books, and the Plaintiff also stated on January 31, 2007 that at the time of investigation by the Defendant, the books on the details of sales and purchase of gift certificates, etc. were not lost after the closure of the instant game site, and that at the time of operating the said game site, the actual dividend rate of the game machine was 103%.

(B) After February 22, 2007, KimA asserted that the purchase price of gift certificates was paid in cash, while attending the investigation division of ○○ Tax Office on February 22, 2007 and presenting ‘the purchase ledger of books and cultural gift certificates' and ‘the supply certificate'. The purchase price of gift certificates in the purchase ledger is a total of 5,000 copies as shown below.

(C) On April 17, 2007, the Plaintiff filed a request for pre-assessment review with the Defendant to submit a "purchase ledger of books and cultural merchandise coupons for light goods" and "one-day settlement account book". The number of merchandise coupons in the above purchase ledger is 135,00 in total as shown below. A merchandise coupon in daily settlement account book is 132,371 in total, and there are parts stating that sales of merchandise coupons have occurred even if there is no inventory of merchandise coupons on the preceding day.

(D) The daily dividend rate of the game machine in this case, which was submitted by the Plaintiff and KimA, is set before and after 101%, and the rate of operation per game machine is set at 0.97 hours per day and 0.04898% per day. Thus, if the daily dividend rate, etc. of the game machine in this case are to be assumed as above, it is difficult to cover rent (3,520,000 won per month) and employees’ pay (1,500,000 won per day) as there is little benefit from the beginning of operation of the game machine in this case.

(E) However, at the time when the Plaintiff was investigated by the Defendant on January 31, 2007 and February 27, 2008, the Plaintiff stated that: (a) daily sales were received at the beginning of the game of this case at the time of the opening of the game of this case; (b) however, (c) the Plaintiff was less than KRW 50 million per day due to a decrease in sales thereafter, and that there was less than KRW 0 million per day at the time of closure.

(F) Meanwhile, according to the monthly sales of diskettes, which is a merchandise coupon total sales company, the game room for the plaintiff's assertion located in △△dong and ○○○ from among the 15 15 15 15 3 15 3 15 3 3 15 3 15 12 12 15 15 15 15 15 15 15 15 15 15 15 15 15 15 15 15 15 15 15 15 144

(사) 권EE 운영의 ○○ △△구 △△1동 446-12 지하 1층 '■■스' 게임장은 2006. 3. 24.에 사업자등록이 되고, 홍FF 운영의 ○○ ○○구 ○○동 298-2 '◆◆스' 게임장은 2006. 3. 15.에 사업자등록이 되었다.

[Reasons for Recognition: Evidence Nos. 3, 4, A, 5, and 6

(3) Determination

(A) The tax base and tax amount of value-added tax are determined based on the actual amount revealed by the method of the on-site investigation, and in order to determine it by the method of the on-site investigation, it is exceptionally allowed only when there is no taxpayer’s account books or documentary evidence, or the important part thereof is not reliable and otherwise there is no other method by which the tax authority can disclose the actual amount of income (see, e.g., Supreme Court Decision 98Du915, Oct. 8, 1999). If it is reasonable and reasonable to reflect the method and content of the estimation in making such estimation in the case of an on-site investigation, which is the most reasonable and reasonable manner (see, e.g., Supreme Court Decision 96Nu15756, Jun. 27, 1997). In addition, the burden of proving the necessity and rationality of the on-site taxation, which is the requirement for taxation, is once imposed on the tax authority, but it is more close to the fact when it is proved by the tax authority.

(나) 이 사건의 경우, 위 인정사실에 나타난 아래와 같은 사정 및 위 법리에 비추어 볼 때, 피고가 이 사건 처분을 함에 있어, 구 부가가치세법 시행령(2010. 2. 18. 대통령령 제22043호로 개정되기 전의 것) 제69조 제1항 제4호 나목과 제5호에 따라 ▲▲원 자료를 기초로 과세기간 중 원고의 상품권 매입수량의 액면금액 총액을 산정한 다음 이를 평균 배당률로 역산하는 방법으로 이 사건 게임장에 대한 과세표준을 계산한 것은 추계의 방법과 내용에 있어 합리적이고 타당한 것으로 인정된다.

① 위 상품권 매입수량에 관한 ▲▲원 자료가 사실에 부합하지 않는 것이고 장CC이 다른 게임장에 공급한 상품권까지 이 사건 게임장에 공급한 것으로 허위보고를 하였다는 원고 주장을 인정할 만한 객관적이고 신빙성 있는 자료를 찾아볼 수 없다

② In addition, the Plaintiff’s original statement that the Plaintiff and KimA submitted the purchase ledger of books and cultural gift certificates and the daily settlement account book is inconsistent with the Plaintiff’s statement that they posted a separate account book, etc. related to the operation of the instant game site. Moreover, the contents of the statement are inconsistent with each other, and it is difficult to believe that there is no objective data, such as the details of payment and the receipt and payment of gift certificates, which can support its reliability.

③ 원고가 주장하는 이 사건 게임장의 규모나 게임기의 특성 및 운영 상황을 고려하더라도 ▲▲원 자료에 나타난 위 상품권 매입수량이 터무니없이 과다하다고 단정할 수도 없다.

④ The Plaintiff is deemed to be in need of estimated taxation because it did not submit tax invoices, account books, and other documents necessary for calculating the tax base.

⑤ 소외 회사와 같은 상품권 발행사가 게임제공업소에서 게임의 결과로 제공할 수 있는 경품용 상품권으로 지정받기 위해서는 상품권의 판매 및 회수 현황 등을 전산 관리하는 전자적 상품권 관리시스템을 구축하는 등의 요건을 갖추어 지정 신청을 하여야 하고, 지정 이후에도 공급판매자별 및 게임제공업소별 세부내역을 확인할 수 있는 전자적 자료를 관리하여야 하며, 상품권 발행 등 실적과 각 거래세부명세자료 및 가맹점 내역 등을 매분기마다 지정기관인 ▲▲원에 제출하여야 하고, 이러한 준수사항을 제대로 이행하지 아니할 경우 상품권 지정이 철회될 수 있는 점에 비추어(을 4호증), 소외 회사가 이 사건 게임장에 대한 상품권 판매수량에 관하여 제출한 내역은 전자적으로 관리되고 있는 객관적 자료를 토대로 한 것이라고 보인다.

(C) Therefore, it cannot be said that the determination of the value-added tax base based on the above estimation method violates the underlying taxation principle or is unlawful due to lack of rationality and feasibility in the process of the estimation taxation.

(D) Meanwhile, in light of the principle of substantial taxation, the confirmation of a taxpayer must be based on the legal substance, not external appearance, and if there is only the title of the income, profit, property, act or transaction subject to taxation and there is another person to whom it actually belongs, the person to whom it actually belongs shall be the taxpayer (Article 14(1) of the Framework Act on National Taxes), but the burden of proof exists to the claimant that there is another person to whom the transaction actually belongs.

However, with regard to the fact that the gift certificates actually purchased by the Plaintiff are merely 5,00 through 135,000, and the remaining gift certificates are different from the fact that the headCC supplied the gift certificates to each game room located in △dong and ○○○○○, as if they were supplied to the game room in this case, each statement of Nos. 3 and 4 is written by the headCC. As seen earlier, each statement of Nos. 3 and 4 is recorded. As seen earlier, the above ticket E and RedF game room were operated after the mid- March 2006, while most of the gift certificates were supplied from January 2 to March 2006 in the game room in this case, it is difficult to believe the contents of the above statement by the above headCC, and there is no other evidence to acknowledge the above assertion by the Plaintiff. Therefore, the Plaintiff’s assertion that the disposition in this case is contrary to the principle of substantial taxation

B. Whether the amount of gift certificates deducted the face value of the gift certificates should be the gross sales

(1) The plaintiff's assertion

The plaintiff asserts that when calculating the value-added tax base of the game of this case, gross sales should be viewed as the amount obtained by deducting the face value of gift certificates offered to users as free from the total cash input by the users of the game of this case.

(2) Determination

(A) Article 1(1)1 of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006; hereinafter referred to as the "Act") provides that "the supply of goods or services shall be subject to value-added tax," and Article 1(3) provides that "any services and other acts having property value other than goods" shall be "all services and other acts having property value other than goods." In addition, Article 13(1) of the same Act provides that "the tax base of value-added tax for the supply of goods or services shall be the total amount of the value under each of the following subparagraphs," while Article 13(3) provides that "if the price is paid in money, the price shall be the sum of the value under each of the following subparagraphs."

(B) Considering the contents and purport of the above provisions as well as the following, it is reasonable to view that in calculating the value-added tax base of the game room providing merchandise coupons as free gifts, it is not possible to deduct the face value or acquisition value of merchandise coupons provided by the game machine users as free gifts from the total amount input by the game machine users in the game machine (see, e.g., Supreme Court Decision 2008Du11211, Sept. 25, 2008).

(C) Unlike income tax and corporate tax, the value-added tax that adopts the pre-stage tax credit system has the form of transaction tax imposed on the external appearance of transaction rather than substantial income, and thus, it does not constitute a concept of cost deduction, and is imposed regardless of whether the entrepreneur’s profit or loss is.

(1) In a game where merchandise coupons are offered as free gifts, it is only a service of using a game machine. It is reasonable to view that a merchandise coupon is an incidental gift provided to each game user after the use of a game machine, and there is room to view that there is a nature of incentive under Article 13 (3) of the Act.

② According to the criteria for free gift handling at a game providing business establishment (before the change by the Ministry of Culture and Tourism No. 2006-24, Nov. 1, 2006), it is strictly limited that a game business operator easily commercializes free gifts. Therefore, even if realization is guaranteed, cash with merchandise coupons cannot be presented.

③ Since value-added tax is not imposed on gift certificates, if gift certificates are provided as gift certificates, the purchase price of such gift certificates shall not be deducted from input tax, but such results are the result of the game room business operator’s choice of gift certificates as gift certificates.

(D) Therefore, the Plaintiff’s assertion that the face value of gift certificates should be deducted from the calculation of gross sales in the instant game room is without merit.

4.In conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is unlawful, and it is dismissed as it is without merit, and the judgment of the court of first instance is justified. The plaintiff's appeal is dismissed. It is so decided as per Disposition.