Seocho 208west 1086 (Law No. 26, 2008)

Appropriateness of a disposition of calculating the tax base for a merchandise coupon based on data

The base of a game room is calculated on the basis of the data on the current status of purchase of merchandise coupons, but it is not inconsistent with the place of business.

The contents of the decision shall be the same as attached.

1. The Defendant’s imposition of value-added tax of KRW 45,903,160 on January 10, 2008 against the Plaintiff on January 10, 200 shall be revoked.

2. The litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

A. From December 12, 2005 to July 31, 2006, the Plaintiff operated a horse game room in the trade name of ○○○○○○○○-dong 366-112, which is called “○○○○○○○○○” (hereinafter “instant game room”) and paid a certain amount at the user’s expense if the user collects a certain amount of money at the game cost and the user emphasizs the game conditions.” However, the Plaintiff reported and paid the value-added tax for the first term portion of the value-added tax in 2006 with the tax base of 30,240,000 won in relation to the operation of the instant game room.

C. After that, through the data on the sales status of merchandise coupons reported by a merchandise coupon dealer to the Korea Game Industry Development Institute, which is a foundation, he revealed that he purchased merchandise coupons 84,679 from "○○○○○○○-dong 366-11, 206 to March 2006," and notified the Defendant of taxation data by determining that he purchased merchandise coupons 84,679 from "○○○○○-dong 366-11, 2006 to "○○○○○○-dong 366-11, 2006."

D. Accordingly, the defendant calculated the amount of merchandise coupon payments by multiplying the quantity of merchandise coupon purchased by the plaintiff with gift certificates by 5,000 won per gift certificate, and calculated the value of supply by dividing it by 95% as an average dividend rate, 95% as well as by 1.1, which is the aggregate ratio of value-added tax and value-added tax. On January 10, 2008, the defendant imposed value-added tax 48,200,800 won on the plaintiff on January 10, 2006, but found and corrected that there was an error in calculation during the lawsuit of this case, reduced the above value-added tax amount to 45,903,160 won (hereinafter referred to as the "disposition of this case"). [The grounds for recognition], "No dispute exists, Gap, 3, 4-8, 48-1, 2, 42 and 4 (including each evidence number)."

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff purchased merchandise coupons in Chapter 4,515, Chapter 4,338, and Chapter 4,288, respectively, from January 2006 to March 2, 2006, and there was no purchase of merchandise coupons in Chapter 84,679, which are the basis for the instant disposition. The “○○○○○○○○○-dong 366-11, which is the game place address in the data on the sales status of merchandise coupons, is not the same as the Plaintiff’s place of business, and the “0-00-00, which is written as the contact address,” is not the Plaintiff’s contact address, but the said data was voluntarily prepared by the merchandise coupon issuer and the general seller, and thus, credibility is not recognized. Thus, it cannot be readily concluded that the Plaintiff purchased merchandise coupons in Chapter 84,679, which are recorded in the above data solely on the ground that the game place is similar to the Plaintiff’s place of business.

(2) Even if the Plaintiff purchased the gift certificates 84,679 from January 2006 to March 2, 2006, the game of this case is practically gambling and gambling income does not create added value. Thus, the income of the above game room does not constitute value-added tax taxable object.

(3) Even if the import of the instant game room is subject to value-added tax, the value of gift certificates paid by the Plaintiff to the game room user should be deducted in calculating the tax base of value-added tax. Money paid by the game room user is the consideration for the provision of an opportunity to acquire gift certificates, namely, for the provision of merchandise coupons and the provision of a service using merchandise coupons, and thus, the taxable object of value-added tax on the instant game room is limited to the provision of a service using the game machine. On the contrary, deeming the value of supply of the instant disposition as the total cash input in the game machine would result in the payment of value-added tax in excess of the total revenue of the instant game room, and thus contravenes the Constitution and the substantial principle

(b) Related statutes;

It is the same as the entry of the attached statutes.

(c) Fact of recognition;

(1) The Plaintiff’s operating content of the instant game room

(A) According to the Plaintiff’s business registration certificate, the trade name of the instant game room is △△○ Island, ○○○○○○○○-dong 366-11, 000-00 for business registration number.

(B) The Plaintiff used the phone number of 00-00-00 in operating the instant game site, which is the same as the phone number of the game site operated by the formerB, as seen thereafter.

(C) On December 12, 2005, the Plaintiff received an existing game room and opened the game of this case. On May 12, 2005, the transferor violated the criteria for free gift handling on the grounds that the transferor violated the criteria for free gift handling prior to the Plaintiff’s transfer, and then closed the business from May 1, 2006, after receiving a 30-day business suspension disposition from the head of ○○○ head on March 21, 2006, and eventually closed the business on July 31, 2006.

(2) The details of the operation of the game room in BB.

(A) From November 26, 2003 to August 8, 2006, JeonB operated the game site similar to the instant game site in the trade name, namely, from ○○○○○○○-dong 366-11 to ○○○○○○ Island, the former game site was operated separately. At the time BB’s game site used 00-00-00 telephone numbers identical to the instant game site.

(B) On August 14, 2006, after the closure of the game of this case, the Plaintiff acquired and operated the game of this case, which was operated by the formerB from August 14, 2006, but transferred the game of this case toCC, which was closed on September 13, 2006.

(3) The contents of the operation of the KimA's game room

(A) From December 1, 2005 to July 4, 2006, KimA operated a game room similar to the instant game site in the name of ○○○○○○○ △△△○○○○○○ 616-34 from 2006 to 2006.

(B) While operating the above game site, KimA used the phone number of 00-00-000, and the address where the above phone number was installed is indicated as ○○○○○○○○○○○○○○○○○ 616-34 △△△△○○○.

(4) Details of the current sales status of merchandise coupons (certificate No. 6-2)

The specific contents of the current status of the sale of the gift certificates for light goods (monthly) issued by the SPP are as follows:

[Ground of recognition] The facts without dispute, Gap 1-3, 11 evidence, Eul 5 and 6 evidence (including each number), the fact inquiry results on the case of this court, the purport of the whole pleadings

D. Determination

In principle, the existence of facts that are subject to taxation requirements is in the administrative litigation that seeks to revoke the illegality of taxation (referring to Supreme Court Decision 88Nu5624 delivered on January 24, 1989, etc.).

With respect to this case, as seen earlier, there is no business registration number or the name of the representative of the game site that purchased merchandise coupons, and only its trade name, address, and contact address are recorded. The 00 ○○○○-dong 366-11, which is one of the address of the game site that purchased merchandise coupons, does not coincide with the Plaintiff’s business registration certificate’s address, i.e., the 366-12 floor on ○○○○-dong 366-11, ○○○○○-dong 366-11, and there was a game room separately registered as the 1st and 2nd floor on ○○○-dong 366-11, which is recorded in the above merchandise coupon sales status data. Even if it is difficult to recognize that the Plaintiff’s contact address and 6th floor on 60 ○-dong 366-11, which is recorded in the above data on the sales status of merchandise coupons as Defendant’s assertion, and there is no other evidence to acknowledge that the Plaintiff’s contact address and 6th part of this case’s game.

Therefore, the instant disposition based on the premise that the Plaintiff purchased the said gift certificates is unlawful without having to examine further.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.