O. Value-added tax liability of open market sellers

A seller of goods in an open market has continuously and repeatedly sold goods to an operator of an open market without being employed or delegated by him/her, and the seller concludes a sales contract with the buyer and delivers the goods to the buyer. Therefore, there is a duty to pay value-added tax because the seller constitutes an operator.

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

Article 2 (Tax Liability Place of Value-Added Tax Act)

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay 106,987,090 won to the plaintiff Lee ○, who shall be paid 106,987,000 won to the plaintiff, 5% per annum from November 30, 2007 to the service date of a duplicate of the complaint of this case, from February 29, 2008 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment, 25,524,160 won to Lee ○, and 5% per annum from August 20, 207 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

The following facts may be acknowledged, either in the absence of dispute between the parties, or in the descriptions of Gap evidence 1 through 7 (including each number), 14, Eul evidence 1 through 5 (including each number), 10-3 through 5, 11 through 17, by integrating the whole purport of the pleadings:

A. Status of the parties

Plaintiff ○○ia, without registering its business, concluded a service use contract with an open market (limited to a cyber transaction place where goods are traded between a seller and a buyer through the service provided on the Internet site), an operator of the Open Market (limited to a house), ○○○○ Market (hereinafter referred to as “○○ Market”) and registered as a member, and sold goods in the above open market from June 2004. Plaintiff ○○○○○○○ (hereinafter referred to as “○○○”) registered as a trade name, “○○” around June 2004, and registered as a member, and sold goods from 2003 to ○○○○ as a member in addition to selling goods after registering as a member.

B. Open market operation method

(1) The open market seller shall freely register as its members and sell its goods to the operator of the open market and pay fees for each sales case to the operator of the open market. In addition, the operator of the open market shall provide and manage cyber trading places and systems only so that the transaction of goods may be conducted between the seller and the buyer, and shall not sell or purchase goods on behalf of the member who sells or purchases the goods. The operator shall not directly purchase goods from the seller.

(2) Some open market operators confirm that, in the event that the buyer and the seller conduct electronic commerce transactions, the seller received the buyer’s payment and kept the goods delivery and the provision of services for a certain period, and then implement the settlement deposit system that pays the seller the price. However, the above system is operated in the name of trade protection service in 00.

(c) Imposition of value-added taxes and global income taxes;

(1) The Seoul Regional Tax Office: (a) registered in the above Open Market as well as the Plaintiffs from the ○○○○ Market and its members, except for those who seem to have been temporarily sold because the sales frequency is small and medium, the head of the Seoul Regional Tax Office created taxation data only for those who engaged in sales activities through several times as the Plaintiffs and notified the head of each tax office.

(2) On June 1, 2007, the head of Yangcheon Tax Office imposed the value-added tax and general income tax on Plaintiff Lee Jong-soo on the grounds that Plaintiff Lee Jong-soo did not report the sales of the goods sold through the open market. On July 15, 2007, the head of Seocheon Tax Office imposed value-added tax on Plaintiff Lee Jong-soo on the ground that Plaintiff Lee Jong-tae did not report the sales of the goods sold in the name of individual member (hereinafter the disposition of this case, referring to the disposition of this case, hereinafter the

D. Circumstances of each disposition of this case

(1) On April 18, 2007, the head of the tax office, prior to the instant tax disposition, notified the Plaintiff Lee ○-soo of the tax notice on June 12, 2007, stating the revenue amount, tax base, calculated tax amount, etc.

(2) The Plaintiffs did not receive a tax invoice concerning the purchase of goods sold by them, and the said head of the tax office did not deduct the input tax amount when calculating the value-added tax on the Plaintiffs.

(3) In calculating the global income tax on Plaintiff Leecheon-do, the head of the Yangcheon-do Tax Office determined the amount obtained by deducting the amount obtained by multiplying the amount of income by the simple expense rate (87.6%) from the amount of income in 2004, on the ground that there is no data on necessary expenses, as the amount of income. In 2005, the standard expense rate was applied 78.9% in the case of 2005 (as above, the Plaintiff did not have any reason to apply the necessary expense rate differently in 204 and 2005, and thus, the said disposition imposing global

E. The Plaintiffs’ payment of value-added tax and global income tax

In accordance with each of the instant dispositions, the Plaintiff, including the additional dues, paid 10,000,000 won (global income tax) on November 30, 2007, and 96,987,090 won on February 29, 2008 (=value-added tax + KRW 80,337,930 + global income tax + KRW 16,649,160), respectively, and the Plaintiff, ○○ was paid KRW 25,524,160 (value-added tax) on August 20, 2007.

2. Related statutes;

Article 2 (Tax Liability Place of Value-Added Tax Act)

Article 17 (Payable Tax Amount)

3. The assertion and judgment

A. The plaintiffs' assertion

(1) In light of the sales method of open market, the final supplier and actual supplier of the goods are open market operators, and the Plaintiffs only delivered goods and received sales proceeds according to the instructions of open market operators, and thus, the taxpayer under the Value-Added Tax Act is an open market operator. In addition, the Plaintiff agreed that the value-added tax on the sales of individual members should be collected and paid by the open market operator. Accordingly, the instant disposition imposing the value-added tax on the Plaintiffs, premised on the Plaintiffs as the taxpayer under the Value-Added Tax Act, is null and void in violation of the substance over form principle. Thus, the Defendant is obligated to return each of the Plaintiffs paid value-added tax, global income tax, and damages for delay.

(2) Even if the plaintiffs are liable for tax payment, ① the head of Seoul Regional Tax Office violated the plaintiffs' right to self-information control by collecting the plaintiffs' information from the apartment house and ○○○ Market, ② the defendant did not deduct the plaintiffs' input tax amount in the course of calculating the tax base and tax amount of value-added tax. ③ Although the tax base and tax amount of value-added tax are determined based on the actual amount revealed by the field investigation method, the defendant imposed an estimated tax in imposing tax against the plaintiffs, each disposition of this case is unlawful and invalid. Accordingly, the defendant is liable to return each paid value-added tax, global income tax, and damages for delay to the plaintiffs.

C. Determination

(1) Whether the plaintiffs are liable to pay the Value-Added Tax Act

A taxpayer under the Value-Added Tax Act refers to a person who supplies goods or services independently (Article 2(1)) regardless of whether they are for profit or not. The following circumstances acknowledged by the above facts and evidence submitted in this case, i.e., (i) the Plaintiffs continued to sell goods to an open market operator without public use or delegation by the purchaser and deliver the goods to the purchaser. (ii) The open market operator of the open market and the ○○○○○○ market provide online sales place to ensure that transactions of goods are conducted between its members by their own decision; (iii) the fact that the operator does not sell goods or services from its members; and (iv) the fact that the operator of the open market and the ○○○ market freely provides goods or services to an open market operator under the name of its business operator to promote the safety and reliability of transactions between its members; and (v) the fact that the operator of the open market and the operator of the open market freely performs the sale of goods or services, other than those of the seller, does not affect the sale of goods or services by its articles of association.

In addition, there is no evidence to acknowledge that there was an agreement between the plaintiffs and open market operators on the value-added tax on the sales of individual members to collect and pay the value-added tax on the sales of goods by the operator of the open market. Meanwhile, in the event that a purchaser pays the goods sold by a credit card, the fact that an open market operator is not a seller (individual member) but an operator of the credit card sales slip does not dispute the parties, but such circumstance alone does not lead to the obligation of the plaintiffs to pay the value-added tax as an operator of the open market.

(2) Whether the procedure of collecting data is legitimate

Article 35 of the Value-Added Tax Act and Article 170 of the Income Tax Act provide that public officials engaged in the business of the value-added tax may ask a person who has a transaction with the taxpayer when necessary for the performance of their duties, or investigate or order him to submit relevant books, documents or other things. ① The director of the Seoul Regional Tax Office, based on the right of inquiry and investigation as above, receives the data from ○○○○○ and ○○○○ Market, which are traded with the Plaintiffs, based on the right of inquiry and investigation as above. ② The director of each tax office notified the Plaintiffs of the advance notice of taxation on the amount of income, tax base, and calculated tax amount before rendering each disposition of this case based on the data submitted as above. ③ The materials submitted by ○○, etc. cannot be deemed personal information protected by the Act on the Promotion of the Use of Information and Communications

(3) Whether the failure to deduct input tax when calculating value-added tax is illegal

Article 17 of the Value-Added Tax Act provides that the amount of value-added tax payable by an entrepreneur shall be the amount after deducting the amount of output tax for the goods and services supplied by him. The tax invoice is not issued or received, but all or part of the requisite entries are not entered in the tax invoice, or the input tax amount before the registration of business under Article 5 (1) is not entered. This provision provides that the input tax amount before the business is registered under Article 5 (1) shall not be deducted. Thus, each of the dispositions of this case in which the Plaintiffs did not deduct the input tax amount for the goods and services used or to be used for the sale of the open market, is legitimate, unless the Plaintiffs did not receive the tax invoice for the

(4) Whether the imposition of estimated tax is illegal

According to Article 21(2) of the Value-Added Tax Act, the tax base and amount of value-added tax are determined by the method of real investigation. However, in calculating the tax base, if necessary account books and documentary evidence are nonexistent or important parts are insufficient or false, it is legitimate to impose value-added tax on Plaintiffs, unless they keep and keep necessary account books in calculating the tax base of the Value-Added Tax in this case.

C. Sub-committee

Therefore, the plaintiffs' claims of this case under the premise that the plaintiffs are not liable to pay taxes under the Value-Added Tax Act or each disposition of this case is unlawful and invalid are without merit.

4. Conclusion

Therefore, all of the plaintiff's claims of this case are dismissed as it is without merit. It is so decided as per Disposition.