Changwon District Court-2016-Gu Partnership-22531 (No. 28, 2016)

It should be confirmed that the service fee excluded from the value-added tax base is actually reverted to the employee.

Even if service charges are separately stated in the settlement amount, if the credit card payment is entered in a uniform ratio from the credit card payment, and if it is not verified that it is reverted to the employee, it is not excluded from the additional tax base.

Article 13 of the Value-Added Tax Act

Article 1 of the Individual Consumption Tax Act and Tax Rate

(C)The revocation of the disposition imposing value-added tax, etc.

Park AA3

The Director of the Z Tax Office

Busan District Court Decision 2014Guhap22531 Decided June 28, 2016

May 31, 2017

July 19, 2017

1. The plaintiffs' appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance court shall be revoked. The imposition of each value-added tax and individual consumption tax on November 1, 2012 by the Defendant against the Plaintiffs shall be revoked.

1. Details of the disposition;

A. From October 0, 200 to October 0, 2000, the Plaintiffs are joint business operators operating an entertainment drinking club (hereinafter “instant place of business”) with the trade name “BBA club” located in AAA-ro 43 paths from AA-Gu from October 0, 200.

B. The Plaintiffs reported value-added tax and individual consumption tax for the business year 2000 to 2000 of the instant business establishment, and paid service charges to thewater of the instant business establishment.

The value-added tax and individual consumption tax was reported, except 0 won from the tax base.

C. BB commissioner of the Regional Tax Office considers that service charges paid to thewegth by conducting a consolidated investigation against the Plaintiffs constituted performance-based remuneration, and each service reported by the Plaintiffs.

The fee(hereinafter referred to as the "service fee of this case") is to be included in the tax base such as value added tax.

D. The Defendant determined and notified the value-added tax and the individual consumption tax (hereinafter “instant disposition”) on October 0, 200 on the basis of the set-off of the sales and service charges according to the results of the above investigation, and on the basis of the set-up of the attached Form 1.

E. The plaintiffs dissatisfied with the disposition of this case and filed an appeal with the Tax Tribunal on October 0, 200 after filing an objection on October 0, 200, and the Tax Tribunal dismissed the appeal on October 0, 200.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 1 to 3 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiffs entered the service charges amounting to 20% of the sales revenue in credit card sales slip, etc. from customers, received the payment of the service charges in cash every day, and paid the service charges to wazers in cash. Since the recipient of the service charges prepared and kept the service charges payment ledger and confirmed and signed the fact of direct receipt, the service charges paid to wazers shall be deemed the service charges that are excluded from the assessment basis of value-added tax and the individual consumption tax. Therefore, the instant disposition made on a different premise by the Defendant is unlawful.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

1) Article 13 subparag. 1 of the former Value-Added Tax Act (Amended by Act No. 11873, Jun. 7, 2013)

Article 48(1) and (9) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same shall apply) provides that the price for the supply of goods or services shall be the tax base of value-added tax, and Article 48(1) and (9) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same shall apply) provides that the tax base of value-added tax shall include the price for the supply of goods or services, fees, fees, and all other monetary values, regardless of the pretext of the price received from the other party to the transaction, but where it is confirmed that the business operator provided food and accommodation services or personal services and paid the service fees to the employee concerned, such service fees shall not

In addition, Article 1 (1) and (4) of the Individual Consumption Tax Act provides that individual consumption tax shall be imposed on entertainment and food charges, and Article 2 (1) 8 of the Enforcement Decree of the same Act provides that with regard to the meaning of a charge for entertainment and food, a person who operates an entertainment place receives service charges from a person who conducts entertainment and food regardless of the name thereof, such as food charges, entertainment and food charges, or other charges, and where an employee (including free-income earners) is included in the amount received, it shall be stated separately from the relevant charges in tax invoice, receipt, credit card sales slip, etc., and where it is confirmed that service charges have been paid to the relevant employee, they shall not be included in the charges for entertainment and food (However, this provision does not apply where an entrepreneur appropriates the service charges as his/her own income)

In full view of the language and structure of the relevant Acts and subordinate statutes, an entrepreneur running an entertainment drinking house is, in principle, liable to pay value-added tax, etc., on the basis of the full amount of money received in return for goods and services supplied by him/her or the full amount of fees for entertainment drinking. However, apart from the fees for the provision of services, etc. by an entrepreneur, it is interpreted that the amount of money paid by a customer to an employee who provided the relevant services, as consideration for intangible services, such as speech, friendship, consideration, etc. provided by an employee, may be directly attributed to the employee who provided the relevant services (see, e.g., Supreme Court Decisions 2006Do8690, Mar. 15, 2007; 200Du875, Apr. 26, 2002; 91Nu8104, Apr. 28, 1992) may be excluded from the tax base only when it is recorded as a service charge separately from other charges on credit card sales slip, etc. (see, e., Supreme Court Decisions

2) In full view of the following facts that can be recognized by the aforementioned evidence, the amount paid by the Plaintiffs to waz is not service charges but wages or performance-based remuneration for wazzzers. Therefore, the instant service charges cannot be excluded from the assessment basis of value-added tax and individual consumption tax. The instant disposition is just and the Plaintiffs’ assertion is without merit.

① The Plaintiffs, at the instant workplace, provided entertainment and liquor to customers, and operated the instant workplace in the form of attracting customers in the instant workplace and allowing them to provide various convenience to their customers.

② Nitter provided ice, ice, and strawing services to attract customers through the Internet advertisement, etc., dedicated to their attracting customers, and ice and strawing services to the customers in the instant business site without finding any specific Nitter, provided exclusive services to the customers in charge of the instant business site according to the sequences, and received compensation from the Plaintiffs, such as Paragraph 4, in proportion to the sales of the customers who provided the services in exclusive charge. The Nitter provided services to the customers in addition to the above exclusive services for the customers, and there was no employee who performs cleaning and rearrangement other than Nitter.

"Third, the plaintiffs stated 20% of the service charges to the main unit after indicating liquor prices, etc. in the instant workplace, and issued a credit card sales slip in which the service charges (20% of the sales) indicated as above are classified as 20% to the customers who settle the payment by credit card. The above service charges are not known and paid to the customers of the instant workplace as the service charges directly belonging to the main unit, as they are included in liquor prices, etc., and customers of the instant workplace do not seem to have been aware that the service charges specified in the credit card sales slip, etc. are directly reverted to the main unit. In fact, there are many cases where customers pay the service charges directly to the main unit who provided services such as ice and stalking, etc., under their names." "The plaintiffs are paid 20% of the sales in cash to the main unit in proportion to their exclusive customers' sales, and 15% of the sales in credit card sales (as seen in the previous 20%).

⑤ As seen above,wait actually performed the work of employees in the workplace of this case as well as in individual activities to attract customers in accordance with its performance and ratio, and the service fee was set at a uniform rate (20% of sales) and was included in the liquor price, etc., and it cannot be deemed that the customer paid the service fee to the employee as the intention to directly belong to the employee as the consideration for the service, such as the employee’s speech, friendship, consideration, etc., separate from the consideration for the Plaintiff’s provision of entertainment services. Rather, the so-called “concept” is merely that the service fee that the Plaintiffs paid to the employees, separately from the service fee of this case, falls under actual wages or performance-based remuneration.

6) The fact that the Plaintiffs paid a certain amount of money on the basis of 20% of the sales amount in the case of cash sales to wawaz and 15% of the sales amount in the case of credit card sales is recognized, but in full view of the following, it is difficult to view that the full amount of service charges in this case is paid to wazz

20% of the total sales of credit card sales slip, etc. is divided into service charges, and 20% of the cash sales and 15% of the credit card sales are paid to wazers.

Even based on the Plaintiff’s assertion itself, the full amount of service charges stated in a lump sum classification on credit card sales slip, etc. is not actually paid to water.

(B) In addition, the sum of monthly service charges (No. 7) entered in the credit card sales slip, etc. and the monthly service charges entered in the monthly service charge ledger (No. 16) are inconsistent with each other. If the plaintiffs claim that the service charges were paid to waiters each day.

In addition to the monthly service charge ledger, only stating the total sum of monthly service charges, the daily service charge ledger (Evidence No. 33,38 of the above Act) stating the daily service charges paid to the wazers was submitted. However, the daily service charge ledger is not the wazers’ daily confirmation signature, but only one confirmation signature at the end of the end of each month. Moreover, since the name of the wazers’ confirmation statement entered in the daily service charge ledger is clearly different from the confirmation name of the monthly service charge ledger made by the same person for the same period, it is difficult to believe the details of the statement.

In addition, the plaintiffs claim that the service charges were paid in cash to the Corporation every day, and the time and amount of payment of the service charges to the Corporation is not supported by objective financial data, etc. In order to provide the basis for the fact that the service charges were paid to the Corporation, the plaintiffs received the service charges from the Corporation in cash and then submitted a copy of the passbook (No. 6 and No. 8) by asserting that the plaintiffs were paid the amount later. According to the above passbook details, the service charges were paid several times from October 0, 200 to October 0, 200, and the service charges were paid to the Corporation on a temporary basis, and the fact that the above service charges were paid to the Corporation was paid to the Corporation, and the fact that the service charges were paid to the Corporation was paid in cash only to the Corporation, but only to the extent that the above service charges were not actually paid to the Corporation, as the evidence of the plaintiffs' claim that the service charges were paid to the Corporation.

Therefore, it is difficult to recognize that the plaintiffs paid the full amount of service charges stated in the classification of credit card sales slip sales slip, etc. to the water.

7) The Plaintiffs paid the withheld income tax at the competent tax office, deeming the amount equivalent to the instant service fee as the “business income of wazers, who are free and professional income earners” to be the “business income of wazers.”

"As long as the plaintiff has paid the price for the provision of services to waiters, it shall be liable to withhold and pay the income tax, and accordingly, it shall not change whether the service fee of this case constitutes "service fee of employees (including free-income earners) who are not included in the tax base of value-added tax and individual consumption tax."

Therefore, the plaintiffs' claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed as it is without reason. It is so decided as per Disposition.

2

Relevant statutes

/ former Value-Added Tax Act (Amended by Act No. 11873, Jun. 7, 2013)

Article 12 (Exemptions)

(1) The supply of the following goods or services shall be exempted from value-added taxes:

14. 저술가・작곡가나 그 밖에 대통령령으로 정하는 자가 직업상 제공하는 인적(����) 용역

Article 13 (Tax Base)

① 재화 또는 용역의 공급에 대한 부가가치세의 과세표준은 다음 각 호의 가액(價��)을 합한금액(이하 공급가액 이라 한다)으로 한다. 다만, 부가가치세는 포함하지 아니한다.

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

(5) Matters necessary for the scope of goods or services under paragraphs (1) and (2) shall be prescribed by Presidential Decree.

(1) The former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013)

Article 35 (Scope of Personal Services)

Personal services referred to in Article 12 (1) 14 of the Act mean services falling under any of the following subparagraphs, which are supplied as an independent business (including cases where an entrepreneur concurrently operating several businesses independently supplies services not necessarily incidental to a taxable business):

1. Personal services, the prices of which are paid by an individual for supplying services in an independent capacity not employing workers without physical facilities prescribed by Ordinance of the Ministry of Strategy and Finance, as follows:

(f) A entertainment, dancing, and similar services;

Article 48 (Calculation of Tax Base)

(1) The tax base as provided for in Article 13 (1) of the Act shall include all monetary values in exchange for consideration, regardless of any price, charge, fees, and other titles received from a trader.

(9) Where an entrepreneur supplies food and accommodation services or personal services, and enters the service charges of employees (including free-work income earners) along with the price separately from the price in a tax invoice, receipt, credit card sales slip, etc. under Article 32-2 of the Act, and it is confirmed that the service charges are paid to the employee concerned, the service charges shall not be included in the tax base: Provided, That the same shall not apply where the entrepreneur appropriates the service charges in his/her own income.

/ Individual Consumption Tax Act

Article 1 (Taxable Object and Tax Rate)

① 개별소비세는 특정한 물품, 특정한 장소 입장행위(������� �), 특정한 장소에서의 유흥음식행위(������������) 및 특정한 장소에서의 영업행위에 대하여 부과한다.

(4) Places where individual consumption tax is imposed on entertainment, eating and drinking (hereinafter referred to as "taxable entertaining places") and the tax rate thereon shall be as follows:

Entertainment bars, foreigner-only entertainment and restaurant, and other similar places: 10/100 of a charge for entertainment and food.

Article 8 (Tax Base)

(1) The tax base of individual consumption tax shall be as follows: Provided, That taxable goods referred to in Article 1 (2) 2 shall be the tax base of the portion exceeding the base price out of the prices referred to in the following subparagraphs 1 through

6. Entertainment, eating and drinking at taxable entertaining places: Charges at the time of entertaining, eating and drinking: Provided, That in cases of taxable entertaining places that install and use a cash register pursuant to Article 23-3, the amount of cash income may be the tax base, as prescribed by Presidential Decree;

【Enforcement Decree of the Individual Consumption Tax Act

Article 2 (Definitions of Terms)

(1) The terms used in the Individual Consumption Tax Act (hereinafter referred to as the "Act") or this Decree shall be defined as follows:

8. 유흥음식요금 이란 음식료, 연주료, 그 밖에 명목이 무엇이든 상관없이 과세유흥장소의 경영자가 유흥음식행위를 하는 사람으로부터 받는 금액을 말한다. 다만, 그 받는 금액 중 종업원(자유직업소득자를 포함한다)의 봉사료가 포함되어 있는 경우에는 「부가가치세법」에 따른 세금계산서・영수증・신용카드매출전표 또는 직불카드영수증에 봉사료 금액을 구분하여 기재하고, 봉사료가 해당 종업원에게 지급된 사실이 확인되는 경우에는 그 봉사료는 유흥음식요금에 포함하지 아니하되, 과세유흥장소의 경영자가 그 봉사료를 자기의 수입금액에 계상(計��)하는 경우에는 이를 포함하는 것으로 한다.

Finally.