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(영문) 서울고등법원 2007. 5. 31. 선고 2006누24291 판결
[법인세부과처분취소][미간행]
Plaintiff and appellant

Samsung SP Co., Ltd. (Law Firm Pacific, Attorney Jeong Jae-hun, Counsel for the defendant-appellant)

Defendant, Appellant

Head of the District Tax Office

Conclusion of Pleadings

April 19, 2007

The first instance judgment

Seoul Administrative Court Decision 2005Guhap29761 Decided September 13, 2006

Text

1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The judgment of the court of first instance shall be revoked. The defendant's disposition of imposition of the corporate tax of 61,520,130 won for the business year of 1999, the corporate tax of 82,68,750 won for the business year of 2000, the value-added tax of 209 for the second year of 199, the value-added tax of 33,014,460 won for the first year of 200, the value-added tax of 33,014,460 for the second year of 200, the value-added tax of 27,623,940 for the second year of 200, the value-added tax of 103,843,540 won for the business year of 201, the value-added tax of 37,540 won for the first year of 201, the value-added tax of 37,540,41 for 204

Reasons

1. The reasoning for the court’s explanation concerning this case is as stated in Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, with the exception that the part No. 2-D.(2) (from 8-h to 9-h.) among the grounds for the judgment of the court of first instance is modified as follows, and therefore, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

“Determination.”

6. According to the above facts, the plaintiff's assertion that the plaintiff is an independent contractor who is not an applicant for the above-mentioned examination or his/her agent, and that the plaintiff is not an applicant for the above-mentioned examination team or an independent contractor for the above-mentioned examination team (in particular, the plaintiff is an independent contractor for the actual team or an agent for the examination, and the third party is not indicated as a partner, an agent, or an agent for the examination). ② Under the contract of this case, the plaintiff is allowed to use the system that the plaintiff has developed or is entitled to use (such as software and software that enables the transmission of the examination questions) for the operation and performance of the examination center (this case's examination applicants' registration and management), and the plaintiff's domestic source income of a foreign corporation subject to withholding under Article 93 subparagraph 9 (b) of the Corporate Tax Act, which provides the above-mentioned examination team with the information on the examination team's own knowledge and experience, and thus, the plaintiff's remaining information on the industrial, commercial, or scientific knowledge or know-how's consideration.

On the other hand, Article 34 (1) of the Value-Added Tax Act provides that "a person who receives the service from any of the following persons (excluding the case where the service supplied is supplied for a taxable business) shall collect value-added tax at the time of the payment of the price, and pay it to the head of the competent district tax office having jurisdiction over the place of business or domicile under the conditions as prescribed by the Presidential Decree by applying Articles 18 (4) and 19 (2) mutatis mutandis." Thus, where a person who receives the service from a nonresident or a foreign corporation and pays the price is supplied for the taxable business, he/she has no liability to pay value-added tax. Thus, even if the person who uses the examination problem in this case is not the actual team, the plaintiff is supplied for the taxable business of value-added tax which provides the examination problem in this case to the applicant again, and therefore, the part of the disposition imposing value-added tax in this case is unlawful.

Therefore, as to whether the Plaintiff was supplied with the pertinent service from the company's company for taxable business, there is no evidence to prove that the Plaintiff collected the value-added tax from the examinee, etc. who applied for the examination of this case for each of the periods of 2, 200, 1, 2000, and 1, 201, which are the period subject to the part of the value-added tax among the dispositions of this case (it can be recognized that the Plaintiff started to collect the value-added tax from the applicant, etc. only from the first half of 2002). The Plaintiff cannot be deemed to have offered the service supplied from the company's company for taxable business during the period subject to the part of the value-added tax among the dispositions of this case. The Plaintiff's assertion also has no merit.

2. If so, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Tae-dae (Presiding Judge)

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