Seoul High Court-2016-Nu-70644 (Law No. 16, 2017)

The time of supply of the yacht sales agency services and the time of accrual of earnings shall be deemed to be the time of conclusion of the sales contract.

The provision of a sales agency service under the instant service contract is completed by the conclusion of a sales contract between the seller and the buyer as a broker of the Plaintiff, and the supply of the Plaintiff’s sales agency service was completed at that end, and the Plaintiff’s claim against the seller was confirmed.

Article 9 of the former Value-Added Tax Act (Amended by Act No. 10409, Dec. 27, 2010)

Supreme Court Decision 2017Du47564 and revocation of disposition of imposing corporate tax

Ho****

*The Director of the Tax Office

Seoul High Court Decision 2016Nu70644 Decided May 16, 2017

September 9, 2019

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Case summary

A. In principle, on August 24, 2009, the Plaintiff purchased and sold yachts sold by the Plaintiff between AAman Co., Ltd. (hereinafter “Aman”), but, on behalf of the Plaintiff, entered into a contract with the Plaintiff to receive brokerage commission from Aman (hereinafter “instant service contract”).

B. On the same day, AAman entered into a yacht sales contract for four yachts, including BB development (hereinafter “B development”) and FF (hereinafter “the instant yachts”) with the Plaintiff’s broker, and among which the sales amount of the instant yachts was set at KRW 4.7 billion (hereinafter “former sales contract”).

C. On the same day, the Plaintiff received KRW 660 million from December 20, 2009 to December 20, 2009, and KRW 740 million from February 28, 2010, and agreed that the AAma Green shall immediately pay the said fees to the Plaintiff when it received the payment from the BB development at the large payment period.

D. BB development paid the down payment of KRW 1180,000,000 and KRW 900,000 for the first intermediate payment to AAman by October 15, 2009. At that time, Amaman entered the yacht of this case into the Jeju △△△ and transferred it to BB development. Since then, BB development delayed payment of the remainder, AAman changed the object of the sales contract between BB development and the alteration only on one of the instant yachts, and paid the remainder of KRW 2.62,00,000 on July 23, 2010 (hereinafter “after amendment”).

E. Since then, when BB development delayed payment of the purchase price and discussed reduction of the purchase price between BB development and AAma, the Plaintiff agreed on May 21, 2012 to reduce the brokerage commission to be paid by the Plaintiff when the purchase price of the Amarin and the yacht in this case is reduced to 4 billion won, and to reduce the sales commission additionally as much as the reduced amount.

F. After the change between AAman and BB development, the dispute on the implementation of the sales contract has continued, the dispute has been settled by theCC yacht service (hereinafter referred to as “CC yacht”). The Plaintiff entered into an agreement with the purport that the Plaintiff will confirm the existence of any claim against AAman in accordance with the said assignment of claims, and that the Plaintiff will not have any claim against AAman on October 5, 2012.

G. On November 29, 2012, AAma entered into an agreement with D Heavy Industries Co., Ltd. (hereinafter “D Heavy Industries”) to complete the settlement of the sales contract after changing the payment of KRW 2,567,903,619 on December 5, 2012 (hereinafter “instant settlement agreement”), and AAma entered into a payment from D Heavy Industries on December 5, 2012.

H. Since then AAma made payment of a brokerage fee of KRW 660 million (including value-added tax) toCC yachts, and received a tax invoice of KRW 660 million fromCC yachts as the supply price. On December 24, 2012,CC yachts was issued a tax invoice of KRW 250 million from the Plaintiff as the supply price.

(i) The Defendant, on January 14, 2015, notified the Plaintiff of the correction and notification of the value-added tax of KRW 110,634,00 (including additional tax) for the second term portion for the year 2009 and KRW 178,684,00 (including additional tax) for the business year 2009, on the ground that the supply price of the sales agency services provided by the Plaintiff to AAma under the Value-Added Tax Act belongs to the second term of 2009, but the supply price for the sales agency services provided to AAma under the Value-Added Tax Act was 60 million won finally reduced (hereinafter “instant correction disposition of value-added tax”), and notified the Plaintiff of the correction and notification of the corporate tax of KRW 178,684,00 (including additional tax) for the business year 209 (hereinafter “instant correction disposition of the corporate tax of this case”).

2. Regarding ground of appeal No. 2

For the reasons indicated in its reasoning, the lower court determined that the disposition to rectify the value-added tax of this case on the premise that the sales agency service performed by the Plaintiff under the instant service contract included the details of the sales agency service performed by the Plaintiff included the sales agency service in having actually received the sales amount from BB development, or that the AAMain paid the sales commission under the condition that it would receive the sales amount from BB development. As such, the Plaintiff’s sales agency service was completed on August 24, 2009 when the former sales contract was concluded between AAman and BB development by the Plaintiff’s brokerage, the disposition to rectify the value-added tax of this case on the premise that the sales agency service under the instant service contract was supplied at the second time in 209.

The ground of appeal disputing such judgment of the court below is merely the purport of disputing the selection of evidence and fact-finding, which are the exclusive authority of the court below as a fact-finding court, and thus cannot be deemed legitimate grounds of appeal. Furthermore, even if the reasoning of the court below is examined in light of the records, the court below did not err by misapprehending the bounds of the principle of free evaluation

3. Regarding ground of appeal No. 3

Article 40(1) of the former Corporate Tax Act (amended by Act No. 10423, Dec. 30, 2010) provides that the business year in which the date of confirmation of gross income and deductible expenses falls shall be the business year of accrual of gross income and deductible expenses. Article 69(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22577, Dec. 30, 2010) provides that the business year of accrual of gross income and deductible expenses from the provision of services shall be the business year in which the date of completion of the provision of services falls.

The lower court determined that the disposition to rectify the corporate tax of this case on the ground that the provision of sales agency services under the instant service contract was completed by entering into a sales contract on August 24, 2009 between AAma Green and BB development as a broker of the Plaintiff, and the Plaintiff’s claim for brokerage commission was conclusive at that time, and the amount of the claim should be included in the gross income in the business year of 2009.

Examining the reasoning of the lower judgment in light of the foregoing provisions and relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the period of attribution of earnings, as otherwise stated in the grounds of appeal.

4. Regarding ground of appeal No. 1

A. According to Article 9(2) and (4) of the former Value-Added Tax Act (amended by Act No. 915, Jan. 1, 2010) and Article 22 subparag. 1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 22043, Feb. 18, 2010) in the case of the ordinary supply of services, the liability to pay value-added taxes is established upon the arrival of the time of supply when the provision of services is completed. The issue of whether the supply of services is actually paid as long as the services are supplied to others after receiving the price does not affect the determination of whether the liability to pay value-added taxes is established (see, e.g., Supreme Court Decision 94Nu1446, Nov. 28, 195)

In addition, in determining whether to include a claim under the Corporate Tax Act in gross income, if there is no legal limitation on the exercise of the claim, the right is once determined and included in gross income for the pertinent business year, and even if there is no possibility of recovery of claim due to the debtor's insolvency, etc. thereafter, it is merely a ground for treating it as a bad debt when it becomes final and conclusive as impossible to recover, and it does not affect the time of attribution of income from such claim (see Supreme Court Decision 2004Du3328, May 13, 2005).

B. Examining the aforementioned facts in light of the aforementioned legal principles, the Plaintiff’s liability to pay value-added tax due to the provision of sales agency services under the instant service contract was established on August 24, 2009, when the supply of the service was completed, and accordingly, the Plaintiff’s claim for brokerage commission should also be included in the Plaintiff’s gross income for the business year 2009 business year. Accordingly, each of the dispositions of this case premised on the premise that each of the dispositions of this case is legitimate. Since the transfer of claims thereafter, the Plaintiff’s actual payment of brokerage commission is merely KRW 250,000,000,000, or the taxation for KRW 350,000,000,000 out of the brokerage commission under the instant service contract was made for the

C. In the same purport, the lower court rejected the Plaintiff’s assertion on the grounds that, even if the Plaintiff transferred a brokerage fee toCC yacht on October 5, 2012 or the brokerage fee was reduced due to the occurrence after the supply of a sales agency service was completed, it does not affect the Plaintiff’s liability to pay value-added tax already established. In so determining, the lower court did not err by misapprehending the legal doctrine as to the substance over form principle and the principle of prohibition of double taxation, etc. as otherwise stated in the grounds of appeal.

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.