2016Nu37265 Revocation of Disposition Rejecting Value-Added Tax Correction

KSVcom Co., Ltd.

The director of the tax office

Seoul Administrative Court Decision 2014Guhap64759 decided January 28, 2016

April 21, 2017

June 16, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The correction of each value-added tax stated in the separate sheet against the plaintiff by the defendant

Each rejection disposition shall be revoked.

1. Details of the disposition;

The grounds for this part of the judgment are as follows: "B" on July 20, 2012, "B" on July 20, 2012, 2 pages 2 of the judgment of the court of first instance [Attachment 1].

Except as otherwise expressly provided, the part corresponding to the judgment of the court of first instance (the part between the 5th parallel and the 8th parallel parallel of the court of first instance)

As such, Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act cited it.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff is a mobile communications service provider and its user has provided mobile communications services for a certain period.

section of the service charges received by the Plaintiff under the condition that the service charges are to be used by the Plaintiff

The Plaintiff subsidized the cost of entry. The Plaintiff is not a party to the mobile device supply transaction, and the supplier of the device is not a party.

Since there is no right to discount the amount, subsidies paid by the Plaintiff shall be required to provide mobile communications services.

The subsidy is the same as not receiving part of the amount or not receiving part thereof. Accordingly, the subsidy shall be transferred.

Since it falls under the "amount of discount" to be deducted, it should be excluded from the value-added tax base.

In the event that such subsidy is not considered as a discount rate of the mobile communications service fee, the final consumption

The principles of taxation, the principles of tax neutrality, and the principles of tax equality are contrary to the principles of tax equality.

Therefore, the instant disposition should be revoked as it is unlawful on a different premise.

(b) Related statutes;

The grounds for this part of the judgment are as follows: part of the corresponding part of the judgment of the court of first instance (the 14th judgment of the court of first instance).

Article 8(2) of the Administrative Litigation Act, the Civil Procedure Act

The reference shall be made pursuant to the main sentence of Article 420.

○ On 14 pages 14 of the first instance judgment, the following parts shall be added.

(1) The tax base for value-added taxes on the supply of goods or services shall aggregate of the following values:

(hereinafter referred to as "value of supply") shall be the value of supply: Provided, That value-added tax shall not be included therein.

1. Where payments are given in money, the payments;

○ The following shall be added to 14 pages of the first instance judgment: 5 pages:

2. The value of returned goods;

3. The value of goods which are damaged, damaged, or destroyed before they reach the person receiving the supply;

4. National subsidies and public subsidies;

5. Overdue interests prescribed by the Presidential Decree, which are paid due to delay in the payment of proceeds from supply.

6. The discount amount on the value of supply after the goods or services are supplied, which is determined by the Presidential Decree.

corporation: Amount of discount;

○ The following shall be added to 8 pages 14 of the first instance judgment:

Article 48 (Calculation of Tax Base)

(1) The tax base prescribed in Article 13 (1) of the Act shall be the price, charges, and fees received from the transaction partner.

Notwithstanding any other name, all monetary values in a quid pro quo relationship shall be included.

○ The following shall be added to 14 pages 12 of the first instance judgment:

▣ 전기통신사업법 ( 2009 . 3 . 13 . 법를 제9481호로 개정되기 전의 것 )

Article 36-4 (Prohibition, etc. of Support for Purchase Costs of Communications Terminal Devices)

(1) Telecommunications business operators are assigned radio frequencies under the provisions of Article 11 or 12 of the Radio Waves Act.

In cases of providing common telecommunications services, support for purchase costs of communications terminal devices necessary for the use of such services.

(b) sell at a lower price than the purchase price, cash payments, subsidization of subscription fees, and offer other economic benefits;

(including) No support shall be provided pursuant to this Article: Provided, That the following shall be provided:

this provision shall not apply to any person who is found to have been employed.

1. Key communications services provided by the same telecommunications business operator on the basis of the date of subsidization for purchase costs;

Where a user supports a user whose period of use is at least 18 consecutive months: Provided, That this shall not apply from the date of such support;

within 2 years, only once within 2 years.

2. A telecommunications business operator for whom six years have not elapsed since his commencement of key communications services.

Where supporting users of such common telecommunications services;

(2) Telecommunications business that intends to subsidize purchase costs of communications terminal devices pursuant to the proviso to paragraph (1).

A person shall determine the criteria, limit, etc. of his/her support (hereafter referred to as "standards for support" in this Article) and provide support.

report to the Korea Communications Commission thirty (30) days before the date of entry into force of this section and shall specify it in the terms and conditions.

(b) be implemented before 30 days have elapsed from the date of such assistance or report, which is different from the reported assistance criteria;

(3) A telecommunications business operator shall place of business or telecommunications business, so that users may know the guidelines for support.

notice at the place of business of a telecommunications business operator and a person acting for the conclusion, etc. of a contract;

at least 30 days prior to the enforcement date of the change, if such change is to be made disadvantageous to the user;

notice shall be given to the user, and at the request of the user, the period of use and the results of use of the user, and the support;

The amount of money actually provided shall be notified in accordance with the standards (hereinafter referred to as "the omitted").

(c) Relevant legal principles;

former Value-Added Tax Act (Amended by Act No. 11129, Dec. 31, 2011; hereinafter the same shall apply)

Article 13 (1) "The tax base for value-added taxes on the supply of goods or services" shall be as follows:

the sum of the value (hereinafter referred to as "value of supply") shall be the sum of the value of supply. "The provisions of this subparagraph provide for each subparagraph."

“If payments are made in money, the payments (No. 1), and if payments other than money are made.

The market price of goods or services supplied by the supplier himself/herself (No. 2), etc. and the former value-added tax.

Enforcement Decree of the Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same shall apply)

Article 48 (1) of the former Value-Added Tax Act shall apply to the tax base under Article 13 (1) of the former Value-Added Tax Act.

Proceeds, fees, fees, and any other money in a quid pro quo relationship, regardless of the pretext thereof, received from him;

§ 13(2) of the former Value-Added Tax Act.

subparagraph (A) provides that "amount not included in the tax base" and one of them shall be the same paragraph.

Subparagraph 1 of Article 52(2) of the former Enforcement Decree of the Value-Added Tax Act provides that "the amount of discount" is "the law."

The amount of discount prescribed in Article 13(2)1 shall be the quality and value of the supply of goods or services;

At the time of supply of goods or services in accordance with the settlement of quantity and delivery proceeds and other supply conditions.

amount to be deducted directly from the value of supply in the commerce. This provision provides that "......."

In relation to the supply of goods or services, such as quality, quantity, or settlement of the proceeds from supply in India, etc.

amount of discount which is directly deducted and deducted from the usual supply value due to the cause of the terms of supply, shall:

The time of occurrence is not limited to that prior to the time of supply for goods or services, and the method of deduction and deduction;

Supreme Court Decision 2001Du6586, 6593, 6609, 6616 Decided April 25, 2003;

623, 6630, 6647, 6654, 6661) When a supplier supplies goods or services, as such;

In addition to the receipt of only the remaining value after deducting and deducting a specified amount from the value of supply in commerce, the public

(1) If, after receiving the full amount of the payable value, the specified amount is returned or any other similar method

(1) may become a resident.

In the case of the interpretation of the declaration of intent between the parties on the contract, that issue.

the contents of the declaration of intention, the motive and circumstances in which such declaration of intention was made, and the declaration of intention.

The purpose of this Act, the parties' genuine will, etc. shall be comprehensively considered, and shall be in accordance with logical and empirical rules.

D reasonably interpreted (Supreme Court Decision 2004Da60065 Delivered on May 27, 2005, Supreme Court Decision 2004Da6065 Delivered on May 27, 2005, Supreme Court

Supreme Court Decision 2006Da15816 Decided September 20, 2007; Supreme Court Decision 2013Du19615 Decided December 23, 2015

see, e.g., see).

(d) Facts of recognition;

Change in each entry in Gap evidence 4 through 10, 48, 50, 55, and Eul evidence 10 (including each number)

In full view of the overall purport of the theory, the following facts can be acknowledged.

1) The Plaintiff’s mobile communications service to the user of the mobile communications service (hereinafter “user”).

It is a mobile network operator that provides.

에스케이네트웍스 주식회사 ( 이하 ' SK네트웍스 ' 라 한다 ) 는 원고의 이동통신서비스에

Affairs related to the Plaintiff’s mobile communications services by purchasing a device used from the manufacturer company;

agency (hereinafter referred to as "agency") is an affiliate of the Plaintiff that sells to the agency;

The agency sold the device directly to the user while carrying out the business of the plaintiff on behalf of the user.

2) Exceptions to the proviso of Article 36-4(1) of the Telecommunications Business Act amended on March 24, 2006

A discount board of a device for users whose period of use of the same telecommunications service is at least 18 consecutive months;

Recognizing the support of the cost of purchasing terminal devices by means of payments, cash payments, subsidization of subscription fees, etc.;

Paragraphs 2 and 3 of the same Article provide that the criteria for assistance shall be specified in the terms and conditions of use and shall be posted on the site.

(c)

Plaintiff’s Mobile Call Services (WDCMA) Terms and Conditions (hereinafter referred to as “WDCMA”) enforced on April 17, 2008

The main contents of the terms and conditions of use of the case are as follows.

Section 1. (Purpose) The purpose of this Agreement is to provide for the terms and conditions of the WMA services between the Plaintiff and the customer. Section 35 (Establishment of Terms and Conditions) The Plaintiff may establish a mandatory use period of not more than 24 months (hereinafter referred to as the “agreement period”) on condition that the customer purchases new subscription (including number transfer) or changes the terminal (hereinafter referred to as the “subsidies”). Section 36 (Provision of Subsidies) ① The Plaintiff may provide differential subsidies according to the terms and conditions set out in Article 35 and the contribution of the customer. (2) The Plaintiff shall separately pay the amount of the new terminal that is not able to sell at the place of business to which the contract was concluded with the Plaintiff. (3) If the Plaintiff establishes the agreement period, the amount of the subsidy, the return amount (hereinafter referred to as “the agreed period”), and the amount of penalty may not be paid for breach of contract at the expiration of the existing contract between the Plaintiff and the Plaintiff.

The period shall not be included in the agreed period of use. (1) In the case of any of the following subparagraphs, the customer shall be exempted from the obligation to pay the penalty under Article 38(1). (1) If the customer terminates at his/her home place within 14 days from the date of new subscription due to a defect in the monetary quality, the penalty shall be exempted or reduced in accordance with the following standards: (a) if the customer returns without prejudice to all the goods he/she has received at the time of purchase, such as the terminal, charging machine, wire ropes, auxiliary goods, the penalty shall be exempted. The returned terminal performance shall be reduced or exempted by up to 30% of the penalty: (3) The returned terminal performance shall not be reduced or exempted if the customer fails to return the terminal, or if the returned terminal performance has been damaged by the customer, the customer shall not be required to cancel the contract (only if it is able to present the relevant reasons to the customer, the terms and conditions of the agreement or the terms and conditions of the contract, or if it is not established within the terms and conditions of the contract:

3) A new contract for a service and a contract for installment trading of a terminal which a user prepares at an agency shall be:

One document shall be used, but the following matters shall be separately verified and signed:

(2).

(A) "The Agreement on the Field of T Basic Arrangement" in the "Additional Application and Confirmation" of a new service contract

period, after recording the agreed amount, “a terminal that the principal receives in return for the maintenance of the service during the agreed period.”

The amount of the subsidy has been fully notified, the termination of the service within the contract period, the change of name

do not confirm that the withdrawal of an agreement has the obligation to pay a penalty upon the withdrawal of the agreement. It shall be signed next to the content of the agreement.

(2) the Corporation.

B) "T installment support" in a sales contract for a terminal means the installment period, total amount of support, etc. in column.

re-transferr (seller) and, i.e., installment claims based on a contract of installment sale with an agency, the plaintiff

in case of transfer, termination of mobile phones, suspension of use, temporary suspension, etc., the benefits of installment payments.

This suspension shall be made subject to the following signatures:

4) The type of the Plaintiff’s payment of subsidies to users is in accordance with the user’s purchase method of terminal devices.

D. Two parts are divided into two parts.

A) A user who purchases a device in lump sum and a mobile communications service subscription agreement with a user who purchases the device.

The plaintiff, on behalf of the user, grants to the agency a subsidy under an agreement with the user (the Board).

Gohap is a person who has paid a subsidy to the agency up to the corresponding value-added tax amount of the subsidy.

B Payment was made at one time (T Basic Agreement Form)

B) In a case where a user purchases a device by installment, the Plaintiff is around August 2010 from around 2008 to around August 201.

the Plaintiff received from the direct agency a claim for installment payments of the device from the user;

From September 2010, an agency may issue a license card corporation (hereinafter referred to as "one card")

was entrusted with the collection of the transferred mobile installment claim from one card, and thereafter the plaintiff has been thereafter entrusted.

When the user requests the user to pay the mobile communications service fee and the installment of the device each month, a certain amount;

The method of deducting the amount of the claim from the claimed amount at a discount was adopted (the supplementary support type to the T Agreement).

5) The amount of the instant subsidy is the type of device, the time when the mobile communications service contract is concluded, and the agreement;

The plaintiff may determine in consideration of the period, type of contract, whether installment is purchased, type of charge system, etc.

The amount has been determined in various ways.

E. Determination

In light of the above legal principles, the subsidy of this case is the old value-added tax as alleged by the plaintiff.

under Article 13 (2) 1 of the Act and Article 52 (2) of the Enforcement Decree of the same Act.

(1) is related to the transaction of supply of mobile communications services supplied by the Plaintiff, and is related to the transaction of mobile communications services.

The subsidy shall be determined in accordance with the terms and conditions of supply, and shall be the amount directly deducted from the mobile communications rate.

of this section.

However, the following circumstances that can be known in addition to the purport of the entire pleading in the above facts of recognition:

Comprehensively taking account of the foregoing, the subsidy of this case is to provide users with mobile communications services.

Subject to the use of fixed-term mobile communications services, for the purchase of devices by users;

Subsidies. The evidence submitted by the Plaintiff alone is sufficient to support the Plaintiff’s mobile communications service fee.

amount to be directly deducted under subsection (1) of the Value-Added Tax Act

There is no other evidence to acknowledge this. Accordingly, the subsidy of this case is on the rate of mobile communications.

The plaintiff's assertion that it constitutes a enjoyable amount and sought a refund of value-added tax already paid.

The instant disposition rejecting a request for a ruling is lawful.

① In the terms and conditions of use of the instant case, a new service contract, and a sales contract for a terminal, the instant case

The subsidy is provided in return for the maintenance of "the mobile communications service provided by the Plaintiff for a certain period."

It is clear that the subsidy in this case is a mobile communications service. Therefore, the subsidy in this case is a mobile communications service.

It can be recognized that there is "related to supply transaction".

2. However, in the terms and conditions of use of this case posted on the agency, the subsidy of this case is purchased.

It is clearly expressed in several clauses that the payment is made as part of the cost (No. 35).

section, section 36(2), section 36(2), and section 36(2) of a service contract and terminal to be prepared by a user at an agency

“The amount of terminal subsidies received in return for the maintenance of services during the agreed period of time” in the sub-sale agreement:

"The (terminal) installment support benefits" is clearly stated.

The terms and conditions of use of this case and the aforementioned statements in the service contract

The purchase cost of a device on condition that the Plaintiff’s perception or intent as a business operator uses a mobile communications service.

and the user also accepted this and entered into a contract to indicate that it is "support for use".

It is reasonable to see that the mutual agreement of both parties was reached.

③ According to the Plaintiff’s method of granting the instant subsidy as follows, the Plaintiff transferred the instant subsidy to the agency.

Use of a service that is a terminal purchaser by directly or through one card

in part of the price of the device to be paid to the agency that is the supplier of the device.

may be held as such.

In the case of T Basic Agreement Type, the agency shall have the amount equivalent to the subsidy of this case from the Plaintiff, and the service user

agency shall be paid (the agency shall be the agency) the remainder of the terminal except the amount of the subsidy in this case.

If monthly fees, etc. are settled in relation to the business entrustment of mobile communications services, etc. with the Plaintiff

in this case, the subsidy of this case shall be settled together).

In the case of TN support type, the agency shall transfer to the plaintiff the claim for installment payments for the user.

or after the transfer to one card, one card gives the Plaintiff the power to collect installment claims.

c. The Plaintiff’s claim against users for mobile communications charges and installment payments (or trends)

the agency (end the agency’s end) shall be the agency’s end

Where installment payments have been transferred, or one card (the collection of installment payments from one card).

In the case of being authorized, the full amount of the installment, including the subsidy, was paid.

④ When the Plaintiff claims the user to pay the mobile communications fare and the installment of the mobile device in an integrated manner.

Do. In most cases, first of all the claims rates under the terms of subscription to mobile communications charges;

After calculating the total amount and indicating value-added tax, items such as automatic payer, etc. are separately provided for;

The installment of the device shall be subject to the reduction of the subsidy of this case from the installment of the device (as to the deducted installment of the device

No value-added tax shall be collected in the transaction) The amount of the integrated fee was expressed (the Plaintiff shall be entitled to the charge)

The subsidy of this case shall be transferred on the basis of each description of No. 10 No. 14, 15, and 16, which is the written request for charges

The claim is asserted to have been directly deducted from new charges, but each of the above charges claim is subject to the disposition of this case.

The plaintiff's assertion is a claim for November 201, December 201, and January 201, which is not a taxable period that is not a taxable period.

The reason is without merit to examine.

(5) Article 36-4 of the former Telecommunications Business Act, which is the basis provision for subsidizing costs of purchasing terminals as seen earlier.

the terms and conditions of use of this case, a new service contract, and a contract to provide a terminal

the intent of the parties, the Plaintiff’s method of granting the instant subsidy, and the claimant’s claim for mobile communications charges, as shown in this section.

In full view of food, etc., the instant subsidy between the Plaintiff and users is from the mobile communications fee.

It is difficult to view that there was a mutual agreement with the intention to make the amount of direct deduction.

1. The Plaintiff considers that the instant subsidy does not fall under the discount of the mobile communications fee.

U.S. The Defendant shall make a device from the Plaintiff on the value-added tax and the agency on the mobile communications charges.

The value-added tax on installment payments has been paid in full, while the user has received mobile communications charges and devices.

A value-added tax on installment payments less an amount equivalent to value-added tax included in the subsidy of this case.

Since a portion is borne only, it asserts that it is contrary to the principle of final non-taxation.

Value-added tax is a transaction of "supply of goods or services" for creation of added value.

As a consumption tax subject to taxation, the Plaintiff’s supply is subject to tax collection as a unit of individual transaction.

to determine the supply transaction of mobile communications services and the supply transaction of devices supplied by the agency separately.

This is reasonable.

However, as seen earlier, the Plaintiff’s subsidy of this case and its value-added tax amount on the agency

the agency, in other words, a benefit to be paid by the user to the agency in connection with the terminal supply transaction;

payment on behalf of a part of the value of supply, and that the plaintiff and the user have paid to the agency;

The sum of the virtual value taxes is the value-added tax amount equivalent to 10% of the value of the terminal supply, which is final

It cannot be viewed as contrary to the principle of consumption taxation.

In addition, as seen earlier, users who are end-consumers in the supply transaction of mobile communications services.

on the full amount of the mobile communications fee that cannot be deemed to have been directly deducted by the instant subsidy

Since value added tax is assessed, this part of the supply transaction also does not go against the final non-taxation principle.

c.

As a result, the Plaintiff’s subrogation on the payment of the instant subsidy for the user who is the end consumer.

Since the plaintiff's position is a third party, this part of the plaintiff's assertion is without merit.

7. Furthermore, the Plaintiff’s added value and maximum amount generated from the supply transaction of mobile communications services and devices.

In spite of the same value-added tax borne by a subsidiary consumer, a stock association which is another mobile communications business operator.

G. KT (hereinafter referred to as "K") and LOBPS Co., Ltd. (hereinafter referred to as "ELPS")

for the transaction, the amount of discount shall be recognized for the transaction and the amount of discount shall not be recognized only for the plaintiff

It argues that it causes a result contrary to the principles of tax neutrality and the principles of tax equality.

Tax neutrality, i.e., competition neutrality of tax is desirable for a taxation system that harms the equality of competition.

It is not a concept that is derived from economics, finance, or science. In the tax law, consideration shall also be given to the legislation.

Although the tax system has been accepted in principle as a single principle, the tax system must inevitably be economically economical.

Since tax neutrality must be strictly observed in all cases, there is no choice but to involve disadvantage, and therefore, tax neutrality can be strictly observed.

It is realized through harmonization with other ideas under tax law and the freedom of legislative formation by legislators.

Therefore, it is unconstitutional or unconstitutional that a specific tax system goes against the tax neutrality.

It cannot be viewed as the law.

On the other hand, a taxpayer shall be liable to pay taxes to achieve a specific economic purpose when engaged in economic activities.

Supreme Court Decision 2015Du2015 Decided April 7, 2017

49320) Tax law relations respect the legal form chosen by the parties and on the basis thereof.

Since the form should be formed, it should be based on the legal form actually conducted in private transactions.

When the Plaintiff enters the mobile communications service market in the 1980s, the mobile communications service provider.

there is a fact that there was a legal regulation prohibiting the supply of a device, but such regulation

The removal of the legal regulation from February 2008 that is the subject of the disposition of this case by around 1999.

9년 전인데 , 그 이후에도 원고는 총전과 마찬가지로 같은 계열사인 SK네트웍스를 단말

As seen earlier, the mobile communications service business was continued with the previous supplier.

The Plaintiff’s mobile communications service to users through the terms and conditions of use of the instant case and the application form for subscription.

under the condition of the supply, the Corporation has made it clear that it will assist the purchase cost of the device.

As long as the plaintiff's own choice is the legal form, it is inevitable to apply the tax law on the basis of such choice.

On the other hand, the KT commenced the mobile communications business before 199, and the above legal regulation is applicable.

Since the elimination of the terminal supply business, it was selected to operate the terminal supply business together, and as a result, the KT agency is an agency.

The amount equivalent to the subsidy provided to users through the terminal value shall be directly deducted from the value of supply of the device.

amounts to be included in the tax base of value-added tax as amounts related to the supply of terminals;

(see Supreme Court Decision 2013Du19615, etc.).

further, the users have purchased the device at the same time subscribed to the mobile communications service.

value-added tax is a consumption tax imposed on individual consumption, and the Plaintiff sells terminal devices;

As long as the case and the other business structure have been selected, the same type of mobile communications service business

(i) A single offense for the sole reason that the mobile communications service business and the mobile device sales business are combined;

State is not able to discuss tax neutrality or tax equality.

Therefore, this part of the plaintiff's assertion cannot be accepted.

3. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is with this conclusion.

Since the plaintiff's appeal is legitimate, the plaintiff's appeal is dismissed for reasons.

Judges Kim Jong-il

Judges Shin Jin-hee

Judges Lee Jae-chul

A person shall be appointed.