Cho High Court Decision 2008Da2873 ( October 14, 2010)

The citrus transport income was omitted in sales, and the citrus transport service cannot be deemed to be a non-demanded area.

It is reasonable to deem that the Plaintiff did not merely request cruital transport brokerage from the owner of goods, but also take over the transport. It is not a duty-free incidental service provided by the Plaintiff, an independent business operator separate from the owner of goods, and it is difficult to recognize that the Plaintiff violated the substance over form principle or the principle of double taxation prohibition

2010Revocation of disposition of imposition of value-added tax, etc.

XX Kim

O Head of tax office

July 13, 2011

August 10, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of value-added tax for the second period of 202 imposed on the Plaintiff on March 5, 2008 is 165,227,650, value-added tax for the first period of 203, 114,092,760, value-added tax for the second period of 203, value-added tax for 134,124,560, 115,527,60 for the first period of 204, value-added tax for the second period of 205, 203, 206, 36,04, 340, 368, total value-added tax for the second period of 205, 206, 207, 208, 206, 368, 206, 204, 206, 207, 206, 207, 206, 2006, 2067, 2714.

1. Details of the disposition;

The following facts may be acknowledged, either as disputed between the parties, or as a whole, by taking into account the respective descriptions of Gap evidence of subparagraphs 1 through 3, and Eul evidence of subparagraphs 1 through 5 (including each natural disaster in the event of a natural disaster):

A. From September 10, 1982, the Plaintiff is a business operator running XX carriers in Seopo-dong 758-4, Seopo-dong from September 10, 1982 to the date.

B. As a result of the tax investigation on the plaintiff (hereinafter referred to as the "tax investigation of this case"), the defendant confirmed that the plaintiff failed to sell 11,413,893,000 won in total (non-system shipment) of the wals transport revenue amount during the period from July 1, 2002 to June 30, 2007, and failed to include 10,923,826,000 won in the necessary expenses (specific details refer to the table of the following three categories), and on March 3, 2008, the defendant issued a disposition imposing value-added tax and global income tax (hereinafter referred to as the "each disposition of this case").

(The following table omitted):

C. The Plaintiff was dissatisfied with each of the dispositions of this case and filed a tax appeal on July 29, 2008, but on July 2010.

1. Upon receipt of a decision of dismissal on April 14, 201, the instant lawsuit was filed on April 9, 2010.

2. The plaintiff's assertion

① The Plaintiff is not a transportation broker but a transportation broker, and the Plaintiff’s tax base should be calculated only for the transportation brokerage commission received by the Plaintiff during the transportation process. However, each of the dispositions of this case was unlawful on the premise that the Plaintiff provided both marine and land transportation services, and that the Plaintiff calculated the tax base with the total transportation commission excluding refund. ② Even if the Plaintiff is a transportation broker who is not a transportation broker, it should be deemed that the walscit transport service is an incidental service to the sale of walscits, which is exempt from value-added tax pursuant to Article 12(3) of the Value-Added Tax Act, and thus, the imposition of each value-added tax on the Plaintiff is unlawful, and ③ the transportation from the pet to the Cheongscitsus is entirely in charge of the Plaintiff, and each of the dispositions of this case is unlawful by including the Plaintiff’s tax base from the revenue

In addition, as a result of the tax investigation into New Asia in Maritime Affairs, it was confirmed that new A had omitted sales amount equivalent to KRW 11,474,00,000 in operating O-transport and △△△ Transportation, etc. from the second period of 2002 to the first period of 2007, and the head of Maritime Tax Office has issued a notice of correction of value-added tax based on the above amount as the tax base. Each of the dispositions of this case is in violation of the double taxation prohibition principle, and thus must be revoked.

3. Determination

(a) Facts of recognition;

The following facts may be found either as a dispute between the parties, or as a whole by taking into account Gap evidence Nos. 1, 3, 4, 5, 19, 23, Eul evidence Nos. 1, 3, 4, and 5 (including each number in the event of a natural disaster), and the testimony and the whole purport of the arguments of the witness KK.

O On September 10, 1982, the Plaintiff registered his business with his trade name as XX transportation broker, and the type of business as a road freight forwarder.

O The plaintiff entered into a contract of carriage of wruscruscruscruscruscruscruscruscruscruscruscruscruscrus (hereinafter referred to as "cruscruscruscrus") in Jeju-do, and transported wruscruscruscruscrus

O NewA entered into an arrangement on allocation with the Plaintiff, as a person operating OB and △△ Transportation in the name of KimB, GCC, etc. in the Republic of Korea in the Republic of Korea.

In order to transport wrusits in the U.S., ① to the crusital in the Do, the owner shall use the vehicle in the Do, ② to the salital port from the ship to the salital port from the salital port, ③ to go through the process of transporting the wrusital from the salital to the salital port by using the vehicle, ③ to go through the procedure of transporting the salit

O. In the case of the system shipment, transportation services for citrus purchased from the Nonghyup or the Scits were awarded by open bidding, and they were transported to the national joint markets through the above transportation process. In this case, the plaintiff issued and issued a tax invoice for the total transportation charges from Jeju-do to the Agricultural Cooperatives or the Scits, received the purchase tax invoice from cargo vehicle operators, ship transportation business operators, etc. while the plaintiff did not exchange the tax invoice in the case of non-system shipment, but did not exchange the tax invoice in the case of non-system shipment, and the citrus sales price ( approximately KRW 2,00 per box) including the transportation charges between the owner and the citrus et al. through the above transportation process, the citrus citrus crus crus crus crus crus crus crus crus crus crus crus crus crus crus crus c.

The contract between the owner of O and the plaintiff was originally concluded orally, but the plaintiff prepared a contract retroactively with the owner in the course of the tax investigation of this case.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Determination as to the assertion that the Plaintiff merely carried out cruital transportation

As seen earlier, the fact that the Plaintiff registered the business by making the type of transportation broker involved as a road freight forwarding service. However, even if the transportation broker receives a request from the client for the transportation-related work, if it is unclear whether the transportation broker is requested or not, the intention of the party should be examined to determine whether the transportation broker acquires the status of the carrier. However, if the intention of the party is unclear, it should be determined whether the transportation broker can be deemed to have taken over the transportation from the client in accordance with logical and empirical rules, comprehensively taking into account all the circumstances into account (see, e.g., Supreme Court Decision 2007Da4943, Apr. 27, 2007).

The plaintiff is liable to compensate for the damage incurred during the course of transportation to the 2002 J. S. 1, and the fact that the plaintiff paid the refund to the owner after deducting the marine transportation charges, freight charges, loading and unloading expenses, loading and unloading expenses, and other incidental expenses from the settlement amount by the plaintiff. According to the statement of No. 3 and witness testimony of J. D., the contract that the plaintiff made a retroactive preparation with the owner of the ship is the contract that the plaintiff made the delivery to the owner of the ship, Gangnam, which is the owner of the ship, shall request the transportation company to transport the whole quantity of the transport of the p.m. (excluding the carriage of air freight) of the p. S. 2 (Article 2), the unit price of the transportation shall be determined in consultation with the transport company with the Gangnam, and if it is acknowledged that the transportation charge is deducted from the hire amount, the transportation charge shall be refunded to Gangnam, and if so, it is reasonable to deem that the plaintiff merely requested the transportation forwarding from the owner, and the plaintiff shall be deemed to have taken over the transportation between the plaintiff and the defendant 3).

As to this, the Plaintiff asserted that the document No. 3 was a retroactive contract, and that the content of the contract of this case is not reliable. According to the witness Gangnam's testimony, it is acknowledged that the above contract was made retroactively, and that it did not thoroughly examine the details of the contract at the time it signed the document No. 3, but on the other hand, it is possible to know through the witness MaD's testimony and the remaining testimony of the witness Gangnam. In other words, the above contract was made through the discussion with the Plaintiff, namely, the fact that MaD, which is the accounting of MaD, was written by MaD, the Plaintiff requested the preparation of the above contract, and the Plaintiff signed the written contract at the request, and it is difficult to believe the content of the contract of this case by considering the fact that the above contract was made retroactively. In light of the circumstances leading up to the retroactive preparation of the contract of this case, it is difficult to say that the above contract was made retroactively.

Therefore, this part of the plaintiff's assertion is without merit.

2) Determination on the assertion that cruit transport service is exempt from duty

As seen in the above-mentioned relevant Acts and subordinate statutes, the sales of the reduction rate are subject to tax exemption pursuant to Article 12(1) of the Value-Added Tax Act, and Article 12(3) of the same Act provides that the supply of goods or services essentially annexed to the supply of goods or services exempt under paragraph (1) of the same Article shall be deemed to be included in the supply of goods or services exempt from value-added tax, but the scope of the supply of goods or services essential to the supply of goods or services exempt from value-added tax pursuant to Article 12(3) of the Value-Added Tax Act shall be limited to only the supply of the goods or services that are essential to the supply of the goods or services exempt from value-added tax while the supply of the goods or services is subject to value-added tax exemption (see, e.g., Supreme Court en banc Decision 200Du7131, Mar. 15, 201). The scope of the supply of goods or services, separate from shippers, cannot be deemed as a supplement of Article 12(3) of the Value-Added Tax Act.

Therefore, the plaintiff's assertion on this part is without merit.

3) Determination as to the assertion that the tax base included in the tax base violates the substance over form principle by means of land transport under the responsibility of the newA

According to the plaintiff's assertion that the plaintiff is in a common transport relationship, Gap evidence No. 19, witness E, and MaD's testimony, the plaintiff and Shin agreed to conclude an agreement on dispatch, in principle, that the plaintiff shall be responsible for and settle all the problems arising from the vehicle while transporting the vehicle in full. The plaintiff paid the plaintiff an amount of compensation after deducting the land transport charges and distribution charges from the fact that new transportation contract was actually processed with the plaintiff. On the other hand, it is recognized that the plaintiff did not have any possibility of damage to the plaintiff's new transportation contract, or that the new transportation contract was concluded with the plaintiff's new transportation contract was not entered in a new transportation contract with the owner of the vehicle in full. The plaintiff's new transportation contract was entered into with the new transportation contract with the owner of the vehicle in full. The plaintiff's new transportation contract had no possibility of damage to the new transportation contract with the owner of the vehicle in question. The plaintiff's new transportation contract had no possibility of damage to the new transportation contract with the owner of the vehicle in full.

Therefore, it cannot be deemed that there was an error in calculating the Plaintiff’s tax base based on the total transportation fee, and the Plaintiff’s failure to obtain the output tax deduction is only the result of not receiving the tax invoice. Therefore, the Plaintiff’s assertion that each of the dispositions of this case goes against the substance over form principle is

4) Determination on the assertion that each of the instant dispositions violates the principle of double taxation prohibition

The facts of this case are as follows: (a) it is discovered that the ASEAN had omitted sales of KRW 11,474,00 from the second to the first period of 2002 through the second period of 2007; (b) the director of the ASEAN has issued a notice of correction of value-added tax to the ASEAN; (c) the plaintiff also received each disposition of this case as the result of the tax investigation; (d) the plaintiff was found to have omitted sales of KRW 11,413,893,00 for the same period; (e) on the other hand, the evidence No. 23, No. 1; (e) the witness testimony; (g) the purport of the entire pleadings; (g) the omitted sales amount of the ASEAN was calculated based on the sum of the rent and sales commission for the land transport part identified by the daily statement and the daily statement of accounts with the plaintiff; (g) it is difficult to find that the plaintiff had the same portion of the total sales amount and the amount omitted sales amount of the plaintiff's new transport amount and the sale amount.

Therefore, the plaintiff's assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.