2013Guhap12157 Disposition rejecting the rectification of value-added tax

Co., Ltd.*** Ghana

Seocho-gu Seoul

Representative Director ○ Kim

Law Firm Gyeong, Attorney Lee Dong-soo

Attorney Kang Nam-chul, and Park Jong-hoon

Head of Seocho Tax Office

Litigation Performers le-U.S.

June 28, 2013

July 26, 2013

1. The plaintiff's claim is dismissed.

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

Value-added Tax 219, 682, 650, and 2 surcharges imposed on the Plaintiff on September 30, 201 by the Defendant

Value-added tax 134,028, 700 won, value-added tax for 1 year 2008 479, 789, 250 won, and value-added tax for 2 years

679, 494, 120 won, value-added tax for the first year, 209 724, 229, 170 won, and value-added tax for the second period.

The rejection disposition against reduction of 1933, 748, and 690 won shall be revoked.

1. Details of the disposition;

A. The Plaintiff provides all services necessary for transactions, such as registration, search, order, settlement, settlement, deposit, delivery tracking, order cancellation, return of orders, and documentary evidence, etc., to a seller or an unspecified number of buyers registered as a seller or a purchasing member, who is the operator of the so-called Open Market (OPS)-type Internet shopping mall***** (hereinafter referred to as "***") and a seller registered as a selling member, in accordance with the terms and conditions of the Plaintiff’s seller. In return, the Plaintiff provides the sales member with all services necessary for transactions, such as the registration, search, order, settlement, settlement, settlement, delivery, order cancellation, refund, and documentary evidence issuance.

The prescribed sales commission calculated has been received.

B. The Plaintiff implemented a system of human rights to goods at a certain amount or a certain percentage of the selling price of goods (hereinafter referred to as “the discount”) for all purchasing members who purchase specific goods in order to promote the transaction through ***, while the Plaintiff deducts the discounted discount from the sales commission to be received from the selling member, the Plaintiff reported and paid value-added tax on the sales commission calculated based on the normal selling price from 1st to 2nd 2009 (hereinafter referred to as “the instant taxable period”).

C. On July 26, 2010 and December 3, 2010 of the same year, the Plaintiff filed a claim for reduction of the amount of discount from among the sales commission (hereinafter referred to as the "Act") to the amount equivalent to the amount of discount from among the sales commission under Article 13(2)1 of the Value-Added Tax Act and Article 52(2) of the Enforcement Decree of the Value-Added Tax Act (hereinafter referred to as the "Enforcement Decree"), and the amount already paid falls under the amount of discount from among the 1st value-added tax of 2007, 219, 682, 650, 650, 134, 028, 70 among the 2nd value-added tax, 479, 789, 250, 679, 494, 120, 120, 209, 379, 297, 297, 209.

D. On September 30, 201, the Defendant: (a) the sales commission reported by the Plaintiff as the value-added tax base for the instant taxable period was in accordance with the terms and conditions of sales before the change of the sales commission, which is the basis for calculating sales commission at the time of applying human rights; and (b) the Plaintiff issued and issued a tax invoice with the sales commission calculated on the basis of the sales commission before applying human rights to the seller; and (c) the seller deducteds the input tax accordingly; and (d) the Plaintiff and the seller agreed that the sales amount before applying human rights should be the value-added tax base; and (c) as the Plaintiff accounts for the sales promotion cost, the sales amount should be included in the value-added tax base and rejected correction (hereinafter “instant disposition”).

E. On December 29, 2011, the Plaintiff appealed to the Tax Tribunal. However, on February 1, 2013, the tax appeals court dismissed the appeal on the same ground as the Defendant.

[Ground of recognition] Unsatisfy, Gap evidence 1-2, Gap evidence 2, Eul evidence 1-6, non-satisfy

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In light of the principle of substantial taxation, the discount amount under the application of human rights under Article 13 (2) 1 of the Act shall be considered to be the discount amount under Article 13 (2) 1 of the Act. In particular, the Tax Tribunal considers the discount amount under the discount amount under the discount amount by item of Ebry Korea Co., Ltd. with the same business structure as the Plaintiff as the discount amount. Therefore, deeming that the discount amount under the application of the Plaintiff’s human rights also falls under the discount amount accords with the principle of tax equality or the principle of final non-taxation. Therefore, the discount amount under the application of human rights should be deducted from the value-added tax base for the Plaintiff’s seller, and the disposition of this case on a different premise must

B. Relevant statutes

The actual provisions of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013)

Article 13 (Tax Base)

(1) The tax base of value-added taxes on the supply of goods or services shall be the aggregate amount of the following values (hereinafter referred to as "value of supply"): Provided, That value-added taxes shall not be included:

1. Where payments are given in money: The payments [1];

(2) The following amounts shall not be included in the tax base:

1. The amount of discount [the amount of discount];

③ 재화 또는 용역을 공급한 후의 그 공급가액에 대한 대손금 ( 貸損金 ) · 장려금 ( 獎勵金 ) 과이와 유사한 금액은 과세표준에서 공제하지 아니한다 .

Article 52 of the former Enforcement Decree of the Value-Added Tax Act (Amended by Presidential Decree No. 24638, Jun. 28, 2013); Article 52 (Unfair Consideration and Scope of Earsen, etc.) / [1]

② The amount of discount prescribed in Article 13(2)1 of the Act refers to the amount of direct deduction of a certain amount from the ordinary supply value as at the time of supply of the goods or services in the supply of the goods or services in accordance with the quality, quantity, and settlement of the price for delivery and supply and other terms and conditions of supply [....]. Recognition is as follows: (a) The main contents of the Plaintiff’s terms and conditions of the former seller’s terms and conditions (amended on April 15, 2010) are as follows. (a) The terms and conditions of this agreement between the Plaintiff and the seller are as the basis for the open market service contract between the Plaintiff and the seller. (hereinafter referred to as “individual terms and conditions”). If necessary, the Plaintiff consented to such individual terms and conditions of the agreement and uses a specific service, the individual terms and conditions are preferentially applied to the seller, and the terms and conditions are only complementary effect (Article 1). (b) In the case of a majority of sellers’ notice to the seller, the Plaintiff’s offering of information to the seller or open market is deemed to be substituted.

(D) The selling price of the goods shall be determined by the seller. The advertising effect of the goods and the open market system usage fees provided by the Plaintiff are divided into registration fees, pay added services fees, sales fees, and other service fees. The details of each service and service fees shall be separately posted on the service screen in question. The sales commission shall be imposed on the seller as of April 15, 2010 (Article 17). (2) The contents of the changed terms and conditions of the seller’s major terms and conditions are as follows: (a) the selling price of the goods shall be determined by the seller. (b) The selling price of the goods may be determined based on the amount obtained by subtracting discount amounts: (b) the Plaintiff may issue and apply discount tickets in consultation with the seller; (c) where the buyer uses them (except where the seller discounts without consultation with the Plaintiff) the amount of human rights calculated by subtracting the sales commission from the sales commission (except where the seller gives discount to the seller).

(4) The Plaintiff held only the remainder of the sales commission calculated on the basis of normal sales price, among the sales commission for the goods to which the discount right applies in the instant taxable period, as sales commission, and paid all the remainder to the seller. The Plaintiff reported and paid the value-added tax as the tax base for the sales commission calculated on the basis of normal sales price, and the seller has received input tax deduction using the sales tax invoice calculated accordingly. In addition, the Plaintiff accounts for the sales promotion cost as the amount equivalent to the discount right.

(5) On the other hand, on April 15, 2009, the Plaintiff asked the National Tax Service on whether the instant discount amount constitutes the value-added tax base. However, on September 29, 2009, the National Tax Service responded that such discount amount is included in the tax base as the seller’s product selling price and the sales commission of the Internet shopping mall operator.

[Grounds for Recognition] The absence of dispute, the evidence adopted before, the entry of Eul-V through 10, and the purport of the whole pleadings

D. Determination

On the other hand, the issue of this case is whether the discount amount in this case should be excluded from the tax base of value-added tax, or should be included in the tax base by considering the amount of discount under Article 13(2)1 of the Act and Article 52(2) of the Enforcement Decree, or the amount of bounty under Article 13(3) of the Act or the amount similar thereto. Considering the above facts and the following circumstances revealed, it is reasonable to view that the discount amount in this case is included in the tax base of value-added tax rather than the amount of discount. Accordingly, the prior disposition in this case is legitimate, and the plaintiff's assertion is without merit. (1) The Internet commercial transaction using open market is the provision of goods between the plaintiff and the buyer, and two transactions between the plaintiff and the seller are fair, and the tax base of value-added tax should not be consistent or linked to the above two transactions. In other words, in the case of this case, the seller and the seller of this case should be determined differently between the plaintiff and the seller, and even if the amount of discount in this case should be determined differently between the plaintiff and the seller.

(2) The agreement between the Plaintiff and the seller is concluded in the form of consent of the seller of the terms and conditions established by the Plaintiff and the seller. In the event that the Plaintiff and the seller have made an individual agreement contrary thereto, such individual agreement takes precedence over the terms and conditions of the seller established by the Plaintiff. If it is clearly prescribed how to compute the price of the service provided by the terms and conditions of the seller established by the Plaintiff, such agreement shall be complied therewith, and if there is no or insufficient indication thereof, the intention of the Plaintiff and the seller shall not be inferred on

(3) However, considering that the Plaintiff and seller calculated sales commission based on the price of goods before discount in the instant taxable period, and then reported and paid value-added tax as the tax base for value-added tax, sellers received input tax deduction using the sales tax invoice issued and received as such, the Plaintiff accounts for the amount equivalent to discount rights out of sales commission as sales promotion expenses, and the Plaintiff reported and paid value-added tax accordingly after clearly stating that the amount equivalent to human rights amount to be paid by amending the seller’s terms and conditions of sales was excluded from the standards for calculating sales commission, it shall be deemed that there was an implied agreement between the Plaintiff and seller, which would make it the tax base for sales commission calculated based on the normal sales price until before the amendment of the said terms and conditions. Meanwhile, as seen earlier, sales commission between the Plaintiff and seller can be determined by mutual agreement between the parties, so that the Internet shopping operator’s agreement with the Internet shopping mall operator may not be deemed as violating the principle of equality in taxation.

3. Conclusion

The plaintiff's claim is dismissed, and the costs of lawsuit shall be borne by the losing party.

Judges in charge of the presiding judge

Judge Han Han-han

Justices Kim Tae-tae