Whether the amount used by association points constitutes a cumulative amount

The value that has been reduced by the amount equivalent to the points accumulated at the time of the first transaction from the value of supply in the second transaction is ultimately a direct deduction and reduction of the value of supply under the terms and conditions of settlement of the value of supply determined in advance between the business operator and the customer.

Article 29 of the Value-Added Tax Act (Tax Base)

2018Guhap58431

AAAA

BB

February 15, 2019

February 20, 2019

1. On April 27, 2017, the part in excess of the amount stated in the "political tax amount" column of the "political tax amount" column of the "tax amount requested for correction" stated in the "tax amount requested for the plaintiff on April 27, 2017 is revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

On April 27, 2017, the rejection disposition of each amount stated in the "amount of request for correction" in the table (attached Form 1) filed by the former defendant against the plaintiff on April 27, 2017 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is running the TV home shopping, computer, and mobile-based online shopping business.

The Plaintiff entered into a business partnership with various researchers operating each point and mileage1. On January 25, 2017, the Plaintiff: (a) operated the Plaintiff’s online shopping mall (www.S.S.com; hereinafter “instant shopping mall”); (b) operated the Plaintiff’s online shopping mall (www.com; hereinafter “instant shopping mall”); (c) operated the system for deducting the amount of settlement equivalent to the amount of payment from the amount of the online shopping mall’s online mall’s online site that is linked to the instant shopping mall’s online site; and (d) reported and paid value added tax included in the value added tax base from the second period through the first period from 2011 to 2016, including the amount of value added tax base. (b) On January 25, 2017, the Plaintiff rejected the Plaintiff’s claim for correction on the ground that the amount of use of the association points falls under the “amount of discount” in attached Form 17.

D. On July 25, 2017, the Plaintiff filed an appeal with the Tax Tribunal on July 25, 2017, but was dismissed on December 22, 2017. The Plaintiff’s respective entries in the facts of no dispute, Gap’s 4-6 evidence, Eul’s evidence No. 1 (including these numbers), and the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The issues of the instant case

Whether the amount of cooperation points used falls under the discount amount not included in the value-added tax base (supply value)

B. Relevant statutes

[Attachment 2] The entry is as follows.

(c) Fact of recognition;

1) The Plaintiff, as an operator of the shopping mall of this case, is concurrently engaged in the transaction of "direct sales" (the transaction of directly selling goods purchased by the Plaintiff from the supplier to the customer) and "entrusted sales" (the transaction of selling goods or services entrusted by the Plaintiff to the customer) (the transaction of selling the goods or services entrusted by the consignee, and the transaction of selling the goods or services to the customer in the position of the consignee).

B) In the case of direct sales, the sum of the supply values of the goods sold by the Plaintiff to customers becomes the Plaintiff’s VAT base, and the Plaintiff deducted the supply value of the goods from the amount of cooperation points used by the Plaintiff.

C) In the case of consignment sales, the Plaintiff shall pay to the consignee the remainder after deducting the consignment commission from the proceeds from the supply of goods or services settled by the customer. The proceeds from supply settled by the customer are recognized as the sales of the truster, and the total sum of the supply prices of the consignment commission is the Plaintiff’s value-added tax base. The sales price of the consignment goods is deducted as prescribed by the customer’s affiliation. However, the burden is attributed to the Plaintiff and thus deducted the Plaintiff’s consignment sales commission (the “basic contract” 21 to 22 pages).

(ii)type of association points;

가) 제휴 포인트는 제휴사의 성격, 적립ㆍ정산방법 등의 차이에 따라 ① XX카드 주식회사의 'CCC', ② OOO 플래닛 주식회사2)의 'GGG캐쉬백 포인트', XXXX티 주식회사의 'XX포인트', XXX비즈니스XXX 주식회사의 'DDD 마일리지', FFF페어 주식회사의 'FFF포인트', XXX 주식회사의 'XXXX "인트', 주식회사 EEE의 'EEE포인트', XXX 주식회사의PAYFREE포인트'(이하",①, ②의 포인트를 통칭하여 '제휴사 포인트'라 한다), ③ 주식회사 KKK(이하 위 각 제휴사의 회사명에서 '주식회사'를 생략한다)의 임직원포인트 및 설계사/대리점 마일리지 등(이하 '복지 포인트'라 한다), ④ 그 밖의 '출처불명 포인트'로 분류된다.

(B) The tax amount for a request for correction by points of association shall be as specified in the table (attached Form 3).

3) The customer may accumulate a certain percentage of association points in purchasing goods or services in the shopping mall in this case, and use the accumulated association points as the payment amounting to one won per point. The method of settlement between the Plaintiff and the association members based on the accumulation and use of association points in the shopping mall in this case is as follows: (a) CCC Plaintiff shall deduct an amount equivalent to the CCC (2.5%) amount accumulated at the time of the first transaction that is settled with a new card from the new card in cash or from the new card, after deducting the amount equivalent to the CCC’s cash that was used at the time of the second transaction from the shopping mall in this case (Article 3(1), Article 5(5) and Article 9(3) of the CCC Agreement (Article 3(1), Article 3(5) of the CCC Agreement).

B) The Plaintiff shall pay, in the shopping mall in this case, the cash equivalent to 3% of the annual amount of payment (3% of the settlement amount) accumulated at the time of the first transaction by the customers of the members of the GGG Capital Services in the instant shopping mall (Article 4 of the “online shopping mall cooperation contract” in Article 10 of the A), and receive, in the instant shopping mall, cash equivalent to the GG Capital Points points used at the time of the second transaction in the instant shopping mall (Article 5(1) of the “Agreement on the Online Suspension of the GG Capital Services” in Article 5(1) of the “Agreement on the Electronic Suspension of the GG Capital Services” (Article 3 of the A).

C) In the shopping mall of this case, the Plaintiff shall pay the cash equivalent to Z points (3% of the settlement amount) accumulated at the time of the first transaction by the customers of the members of the site for the operation of the ZZ in the shopping mall of this case. The Plaintiff shall be paid the cash equivalent to the Z points used in the shopping mall of this case from the ZZP cooperation contract (Article 6(1) and Article 7(1) of the “GS SHP cooperation contract” (Article 14).

(D) The Plaintiff and the NHNB platform are to share half of the DD mileage amounting to 1% (0.5%) of the settlement amount accumulated at the time of the first transaction by the customers of the NHNNS platform in the shopping mall in this case. If the sum of the accumulation amount and the second transaction amount during each settlement period (from the 26th day of the preceding month to the 25th day of the current month), the Plaintiff shall pay the difference to the NHNS platform, and if the amount used is more than the amount used, the difference shall be paid to the Plaintiff (Article 15 of the A). The Plaintiff shall not pay the difference from the 6th day of the FF point in this case to the Plaintiff (Additional Agreement on DDF store additional .5). The Plaintiff shall set aside the FF point at the rate of 10% of the total trading amount of the members of the FFF exemption website in the shopping mall in this case, and the Plaintiff shall not pay the balance from the 7th day of the settlement amount in this case.

F) The Plaintiff shall pay the cash equivalent to 3% of the drup point (e.g., 3% of the settlement amount) accumulated at the time of the primary transaction of the customers of the members of the member shop of the instant shopping mall in the shopping mall in this case, and shall receive the cash equivalent to the dup point used in the shopping mall in this case from the dup point (Article 7 of the “dup point No. 17’s 3’s dup point contract (e.g., dup)”).

(g) In the shopping mall of this case, EE points are set aside in proportion to 1% of the settlement amount when the primary transaction of the members of EE site customers is made in the shopping mall of this case, and the Plaintiff pays cash equivalent to 1.8% of the settlement amount to EE, and receives cash equivalent to the EE points used in the shopping mall of this case (which is not used after exchange with AA& Point among them) from EE (Article 5(6) and Article 7 of the CE Points (Article 5(7))).

아) XXFREE포인트 이 사건 쇼핑몰에서 XXXX 운영 XXFREE멤버십 회원고객의 1차 거래 시 결제금액의 2%의 비율로 XXFREE포인트가 적립되고, 원고는 결제금액의 2%상당의 현금을 웅진코웨이에 지급하며, 이 사건 쇼핑몰에서 사용된 XXFREE포인트 상당액에서 위 포인트의 2% 상당액을 공제한 현금을 웅진코웨이로부터 지급받는다(갑 제19호증 '제휴계약서' 제4조, 제5조, 제6조).

4) The executives, employees, etc. of the association companies may use the welfare points received from the association companies as payment for the purchase of goods or services in the shopping mall in this case. However, a certain percentage of welfare points are not accumulated as to the purchase of goods or services in the shopping mall in this case. The Plaintiff shall receive cash equivalent to the welfare points used in the shopping mall in this case from the association companies, and the executives, employees, etc. of the association companies shall pay an amount equivalent to 5.5% of the net sales of goods or services purchased from the shopping mall in this case (excluding value-added tax, cancellation of value-added tax, return amount, etc. from the total sales) purchased from the shopping mall in this case (Article 7 of the General Association (KK).

[Reasons for Recognition] Facts without dispute, entry of Gap evidence Nos. 1-3 and 6-24 (including more than one number), and the result of the on-site inspection by this court is the purport of the whole pleadings.

1) Relevant legal principles

A) Article 29(1) and (3) of the former Value-Added Tax Act (amended by Act No. 1523, Dec. 19, 2017; hereinafter the same shall apply) provides for the amount of money for sale or services supplied to a certain person during the taxable period subject to the disposition of this case, which is subject to the former Value-Added Tax Act prior to the wholly amended by Act No. 11873, Jun. 7, 2013; the former Enforcement Decree of the Value-Added Tax Act applies to the amount of money for sale or services supplied; however, there are differences between the value of the goods and the amount of money for sale or services supplied to such person under the same provision and the order and expression of the provisions of the former Value-Added Tax Act (amended by Act No. 1523, Dec. 19, 2017; hereinafter the same shall apply); however, Article 29(1) and (3) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 278, Feb. 27, 201) provides the value of the goods or services.

B) In light of such legal principles, where an entrepreneur has accumulated the points corresponding to a certain percentage of sales in the primary transaction of supplying goods or services to a customer, and subsequently, in the secondary transaction of supplying goods or services to the customer, and then deducts the value equivalent to the accumulated points and makes payments in cash, etc., the value reduced equivalent to the accumulated points in the secondary transaction constitutes the amount of discount, which is ultimately a direct deduction and reduction of the value of supply under the pre-determined terms and conditions of settlement of the consideration for supply between the entrepreneur and the customer. In other words, the points accumulated in the primary transaction are merely a numericalization of the terms and conditions of the discount agreement made between the customer and the customer at the time of the primary transaction, and it cannot be included in the amount of the secondary transaction. Furthermore, the same applies to the case where the entrepreneur has accumulated the points to the first customer in the secondary transaction of supplying the goods or services with the aforementioned accumulated points, and thereafter, the amount of the second transaction cannot be deducted from the price of supply to the customer in advance.

Meanwhile, even if enterprisers settle the points used for mutual aid in secondary transactions for a certain period of time, etc. with regard to the points used for mutual aid and pay the difference amount as a settlement amount, this would result in compensating each other of the losses arising from the supply price deduction exceeding the points accumulated respectively on the premise that not only a specific secondary transaction but also a continuous settlement relationship with the entrepreneurs are set aside and used in advance.

As a result, many enterprisers share risks arising from the integration and operation of the system of mutual aid by accumulating points, while inducing the active purchase by expanding the target transactions eligible for mutual aid. In other words, accumulated points are merely indicated by numericalizing the discounted amount pursuant to the discount agreement that is commonly concluded with customers, and even if used in the second transaction with the supplier himself/herself, it is not possible to receive settlement payments from other enterprisers even if used in the second transaction. Furthermore, settlement payments between different enterprisers are calculated based on the results of the integrated settlement agreement and continuous transaction conducted separately from the second transaction. Accordingly, even if they receive settlement payments from other enterprisers who are not the entrepreneurs according to the settlement agreement, they cannot be seen as having relation to the supply of the second transaction. In full view of the aforementioned circumstances, it is difficult to view that the accumulated points amount should be included in the amount of discount, not in the amount of discount, but in the amount of secondary transaction (see, e.g., Supreme Court en banc Decision 2016Du52589, Aug. 26, 2016).

A) In the case of direct sales, the Plaintiff and the partner companies entered into a business partnership, and the partner companies set aside a certain percentage of partnership points in the first transaction of purchasing goods or services at the member stores of the association companies, such as the shopping mall in this case, and the customer is entitled to a discount in the payment when he purchases goods or services from the member stores of the association companies, such as the shopping mall in this case using the accumulated association points. The accumulated association points in the first transaction are merely a numericalized representation of the terms of the discount agreement as agreed on to the customer at the time of the first transaction, and the customer’s discount in the payment amount using the association points when he purchases goods or services at the shopping mall in this case at the time of the second transaction is ultimately entitled to a direct deduction in accordance with the pre-determined terms and conditions of use.

B) In the case of consignment sale transaction, in light of the content of the basic contract and transaction practices between the Plaintiff, the consignee, and the trustor, when purchasing goods or services in the shopping mall in the instant case, the trustor appears to have agreed to discount of the settlement price following the use of association points, and as such, there was an express or implied agreement between the Plaintiff and the trustor on the basis of the cause of the foregoing discount, the reasons for application, the number of deductions, etc., and accordingly, the consignment sales commission, which is the price for the consignment service, was directly deducted (see, e.g., Supreme Court Decision 2014Du298, Jun. 23, 2016). Accordingly, the Plaintiff accumulated a certain percentage of the purchase price at the time of the first transaction as an association store and accumulated cash equivalent to that at the time of the second transaction, and even if the accumulated point is used at the time of the second transaction, it cannot be deemed that the first agreement and the second agreement were made differently from each of the above transactions.

D) Ultimately, the amount of association points used by the Plaintiff is part of the money that the business entity, including the Plaintiff, received as the consideration for the supply in the primary transaction with a customer. If the business entity, including the Plaintiff, is included in the value of the secondary transaction, then the total amount of the supply price that the business entity actually received exceeds the total amount of the money that the business entity actually received, thereby resulting in an unfair outcome under the substance-over-form doctrine.

E) In light of the content of the shopping mall transaction in this case, which is the subject of a claim for correction with respect to GGGgrosh points, and the fact that in order to charge points in cash, 3% of the charged amount should be borne separately. Even if it is possible to charge charge points by means of not paying fees, such as charging at ATSM devices, if using the charged points, benefits such as a credit card payment or credit card accumulation, etc., given when using the charge points, the use of the charge points would incur similar disadvantages when using the dgrosh points in cash. Under such circumstances, considering the reasonable choice expected from the parties to the transaction under the empirical rule, it is very doubtful that the shopping mall transaction in this case purchased the GGrosh points or dgrosh points in cash, which is the subject of a claim for correction with respect to cash payment. Accordingly, it is difficult to recognize that the Defendant bears the burden of proof as to the amount of the charge for the payment in cash submitted by the Plaintiff out of the 2nd transaction.

F) Even if the points are identical to those accumulated in the shopping mall in the case of DD mileage, FFE point, EE point, PAYREE point, even if the accumulated points and the points used in the shopping mall in this case are identical, the amount of use of points in each agreement made between the Plaintiff and the Plaintiff under each agreement made between the Plaintiff and the pertinent association does not coincide with the accumulated amount and the settled amount (DD mileage is the accumulated amount, the remaining three points are the accumulated amount), but it seems to be a problem related to income treatment for the subject to whom the difference is attributed, and taxation of corporate tax, etc., such as corporate tax, etc. accordingly, in full view of the following circumstances revealed in accordance with the aforementioned facts and the purport of the arguments, the amount of use of welfare points does not constitute the accumulated amount that is not included in the value of supply:

A) The welfare point system is to establish a business partnership with the Plaintiff in order to implement the agreement that an association member will set aside welfare points that can be used as means of settlement in the shopping mall in this case for executives and employees, etc., and where the above executives and employees, etc. receive a discount on the settlement amount in purchasing goods or services in the shopping mall in this case using welfare points, the association will pay the Plaintiff the total amount of welfare points used. Examining the substance and form of the above transactions, the association member may be deemed to have paid the price for the goods or services provided by the Plaintiff on behalf of the executives and employees, etc. at his own expense.

B) According to Article 29(3) of the former Value-Added Tax Act, “any monetary value received from a person who receives goods or services, regardless of the pretext thereof,” is included in the value of supply. Since the Plaintiff receives the full amount of welfare points used from a partner company in cash, welfare points in the Plaintiff’s position constitute “money value”. If the Plaintiff receives all or part of the price of goods or services provided to its officers and employees, etc., it constitutes “where the Plaintiff receives the payment in money.”

4) The amount of discount on points whose source is not known constitutes a cause for taxation disability favorable to a taxpayer as a tax base for value-added tax, and the facts necessary to determine whether the amount used by points whose source is known constitutes a discount amount, is within the Plaintiff’s control area. As long as the Plaintiff reported that the points whose source is known are included in the value-added tax base and filed a request for correction after deeming that the previous points are included in the value-added tax base, the burden of proving that the amount used by points whose

However, it is insufficient to recognize that the amount of points use of points whose source is unknown solely based on the evidence, data, etc. submitted by the Plaintiff falls under the discount amount, and there is no other evidence to acknowledge this differently, and the amount of points use of sources whose source is unknown does not fall under the discount amount not included in the supply value.

For the reasons as seen earlier, if the points of association are considered only as a discount amount, and welfare points and points whose source is unknown are not considered as a discount amount, the amount of a legitimate tax shall be the same as the amount indicated in the “political tax amount” column in the table (attached Form 1 / [Attachment 3], and the amount indicated in the “welfare point” column in the “political tax amount” column in the table (attached Form 3], and the portion exceeding the amount of a legitimate tax out of the instant disposition shall be revoked.

The plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are not made, and it is dismissed. It is so decided as per Disposition.