early 208 Heavy3011 (Law No. 203. 20, 2009)

Service fees paid uniformly shall not be excluded from the tax base.

Regardless of service fees separately entered in credit card sales slips, etc., it is uniformly paid by a customer who takes charge of water an amount equivalent to a specified ratio of the customer's sales revenue, and thus cannot be viewed as service fees excluded from the tax base separate from alcoholic beverage sales proceeds, etc.

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

1. All of the plaintiffs' claims are dismissed.

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

피고 ☐☐세무서장이 2007. 12. 5. 원고 주식회사 AAAA나이트에 대하여 한 부가가치세(2005년 제1기분부터 2007년 제1기분까지) 459,144,680원, 특별소비세 및 교육세(2005. 9.분부터 2007. 6.분까지) 518,313,990원의 부과처분, 원고 주식회사 ☐☐☐☐드룸에 대하여 한 부가가치세(2005년 제1기분부터 2007년 제1기분까지) 39,509,030원, 특별소비세 및 교육세(2005. 9.분부터 2007. 6.분까지) 44,62730원의 부과처분 및 피고 ○○세무서장이 2007. 12. 5. 원고 주식회사 AAAA나이트에 대하여 한 부가가치세(2005년 제2기분 및 2007년 제2기분) 25,885,780원, 특별소비세 및 교육세(2005. 7.분부터 2005. 12.분까지, 2007. 7.분) 28,868,280원의 부과처분을 모 두 취소한다.

1. Circumstances of the disposition;

가. 원고 주식회사 AAAA나이트(이하 '원고 AAAA'라 한다), 원고 주식회사 ☐☐☐☐드룸(이하 '원고 ☐☐☐☐'이라 한다)은 각 ☐☐시 ☐☐구 ☐☐동 538-7에서 각각 'AAAA나이트'(이하 'AAAA'라 한다), '☐☐☐☐드룸'(이하 '☐☐☐☐'이라 한다)이라는 상호로 각 유흥업소를 운영하는 사업자들이고, 원고 주식회사 AAAA나이트(이하 '원고 AAAA'라 한다)는 ○○ ○○구 ○○동 812에서 'AAAA나이트'(이하 'AAAA'라 한다)라는 상호로 유흥업소를 운영하는 사업자이다(이하 위 3개의 유흥업소를 '이 사건 각 사업장'이라 한다).

B. As a result of the investigation of personal data integration conducted with respect to the Plaintiffs from June 20, 2007 to November 14, 2007, the △△△△△△ notified the Plaintiffs of the results that they handled the amount of income generated from each of the relevant workplace as a service fee of each of the relevant workplace during the period from September 2005 to June 30, 207 as a service fee of each of the relevant workplace, and that they reported by omitting it from the amount of income.

다. 이에 따라 피고 ☐☐세무서장은 2007. 12. 5. 원고 AAAA가 합계 3,327,851,166원의 수입금액{별지1 '과세처분내역' 제1항의 '봉사료(매출)'란 기재와 같다}을 AAAA의 웨이터의 봉사료로 처리하고 수입금액에서 누락하여 신고하였다는 이유로 원고 AAAA에 대하여 부가가치세(2005년 제1기분부터 2007년 제1기 분까지) 459,148,680원, 특별소비세 및 교육세(2005. 9.분부터 2007. 6.분까지) 518,313,990원을 경정 ・ 고지하고(별지1 '과세처분내역' 제1항의 '부과내역'란 기재와 같다), 원고 ☐☐☐☐이 합계 289,531,479원의 수입금액{별지1 '과세처분내역' 제2항의 '봉사료(매출)'란 기재와 같다}을 누락하여 신고하였다는 이유로 원고 ☐☐☐☐에 대하여 부가가치세(2005년 제2기분부터 2007년 제1기분까지) 39,509,030원, 특별소비세 및 교육세(2005. 9.분부터 2C07. 6.분까지) 44,719,730원을 경정 • 고지하였으며(별지1 '과세처분내역' 제2항의 '부과내역'란 기재와 같다), 피고 ○○세무서장은 2007. 12. 5. 원고 AAAA가 합계 176,831,457원의 수입금액{별지1 '과세처분내역' 제3항의 '봉사료(매출)란 기재와 같다}을 누락하여 신고하였다는 이유로 원고 AAAA에 대하여 부가가치세(2005년 제2기분 및 2007년 제2기분) 25,885,780원, 특별소비세 및 교육세(2005. 7.분부터 2005. 12.분까지 , 2007. 7.분) 28,868,280원을 경정 ・ 고지하였다(별지 1 '과세처분내역' 제3항 '부과내역'란 기재와 같다. 이하 편의상 별지1 '과세처분내역'의 각 '부과내역'란 기재 피고들의 해당 원고들에 대한 처분을 통틀어 '이 사건 각 처분'이 라 하고, 원고별 위 각 해당 부과처분을 '이 사건 처분'이라고 하며, 별지1 '과세처분내 역'의 원고별 각 '봉사료(대출)'란 기재 금액을 통틀어 '이 사건 각 봉사료'라 하고, 원고별 각 해당 봉사료를 '0 사건 봉사료'라 한다).

D. The plaintiffs are dissatisfied with each of the dispositions of this case, and they filed an objection on March 12, 2008 on July 2008.

17. 조세심판원에 각 심판청구를 하였는데, 이에 대하여 조세심판원은 원고 ◆◆◆, ☐☐☐☐의 각 심판청구에 대하여는 2009. 4. 14. 위 원고들이 웨이터들에게 봉사료로 처리한 각 해당 금액이 부가가치세 및 특별소비세의 과세표준에서 제외할 봉사료에 해당하는지 여부를 재조사하여 그 결과에 따라 각 과세기간별 과세표준과 세액을 경정하라는 취지의 결정을 하였고, 원고 AAAA의 심판청구에 대하여는 2009. 3. 20. 위 이의신청이 국세기본법(2010. 1. 1. 법률 제9911호로 개정되기 전의 것, 이하 같다) 제66조 제6항, 제61조 제1항에서 정한 청구기간을 경과하여 제기되어 부적법하다는 이유로 위 원고의 심판청구를 각하하였다.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 30, Eul evidence Nos. 1, 2, 9, 10, 12 and 14 (including each number), the purport of the whole pleadings

2. Determination of Defendant ○○ Head of the Tax Office on the defense of the principal safety in the action against Plaintiff AA by the Head of the Tax Office

A. Defendant ○○ Head of Tax Office’s assertion

With respect to Plaintiff AA’s assertion that the disposition of this case by Defendant ○○○ Head of the tax office was unlawful, the head of Defendant ○○○ Head of the tax office, on the ground that the notice of the disposition of this case was served on December 10, 2007 and the objection was filed on March 12, 2008 after the lapse of 90 days from the notice of the disposition of this case, and thus, Plaintiff AA’s lawsuit is unlawful, and thus, without going through lawful pre-trial proceedings.

(b) Related statutes;

Attached Form 2. The entry in the relevant statutes (1) shall be as follows;

C. Determination

According to the provisions of Articles 55(1) and (2), 56(2), 61(1), and 66(6) of the Framework Act on National Taxes, an administrative litigation against a disposition under tax-related Acts cannot be instituted without going through a request for evaluation or adjudgment under the Framework Act on National Taxes and a decision thereon, notwithstanding the provisions of the Administrative Litigation Act. The request for evaluation shall be filed within 90 days from the date (the date on which a notice of disposition is received) on which the relevant disposition is known, and where a request for examination is to be made after going through a request for examination, it shall be filed within 90 days from the date on which the decision on the request for objection is notified (the date on which a notice of disposition is received). In this case, the request for evaluation shall be filed within 90 days from the date on which the notice of disposition is known (referring to the date on which the notice of disposition is delivered), and where the person who received the relevant disposition becomes aware of the fact that the relevant disposition was made by public announcement or other methods, but this shall be deemed as the other person who received the relevant disposition or the notice.

According to the above provisions and the legal principles as to whether the objection filed by the plaintiff AA was filed after the lapse of the time limit for filing the objection, the head of the tax office of the defendant ○○○ Tax Office sent the notice of the instant disposition against the plaintiff AA by registered mail to ○○○○○, 793 Dong-dong 904 Dong 508, and was not returned after the notice was delivered to the plaintiff A on December 10, 2007, but there was no evidence to prove that the above BB delegated the right to receive registered mail against the plaintiff AA on December 10, 207, and thus, the notice of the instant disposition against the plaintiff ○○○ Tax Office to the plaintiff AA by registered mail was not properly notified to the plaintiff ○○○○○○ Office's representative director of the plaintiff AAB on December 10, 207.

3. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' principal

The term "wewelters" in each of the instant workplaces are independent of the employees employed by each of the Plaintiffs, who are employed by each of the instant workplaces, and independently attractd and managed customers by using their philds, and through the service fees paid by customers. Therefore, the service fees paid towewelter should be excluded from the sales of the Plaintiff, while the service fees paid towelter should be included in the individual sales of each of the instant workplaces, and the Defendant calculated the tax base of the value-added tax and the special consumption tax of this case by calculating the tax base of each of the instant dispositions.

(b) Related statutes;

Attached Form 3. The entry in the relevant statutes (2) shall be as follows.

(c) Fact of recognition;

(1) The Plaintiffs are business operators running each of the instant establishments, including, in the instant place of business, attracting customers in each of the instant places of business, and allowing them to provide various convenience to customers in each of the instant places of business.

(2) In preparation for the case of failure to recover the credit sales at the time of the employment of each of the instant places of business, the Plaintiffs received approximately KRW 3 million or KRW 5 million from them, and there has been a deduction of the said amount from the said deposit the amount that was not paid or not paid to the Plaintiffs from the respective customers in charge of the instant places of business.

(3)waters in each of the instant places of business have been in charge of providing services, such as ice ice, salking, loan procurement, acting driving, etc., as their customers, with their own customers. However, without having to find special water, and with respect to the customers who found each of the instant places of business without finding any water, waters set forth by the sequences in order among them provided the above services.

(4) The Plaintiffs issued a credit card sales slip in which main and service charges are divided to customers who pay by credit card (the credit card has been issued with a credit card sales slip in which service charges are not separated in cases where the credit card is a corporate card or where the sales amount is less than 100,000 won). The ratio of sealing feed to the sales amount on the card on the card on the credit card sales (the total of main and salary ingredients) is not fixed (0%-49%).

(5) Meanwhile, customers who have used each of the instant places of business made a lump sum payment of service charges with credit cards, cash, etc., and paid money directly to the wazers who provided the said services to them, such as the “Woo,” etc.

(6) However, in the case of sales by credit cards with 25% of the sales revenue in the case of sales by cash without being paid separately from the plaintiffs. Accordingly, if the customers in charge of the transaction are calculated by cash, the Party shall prohibit the remainder after deducting 25% of the sales amount from the sales amount in the accounting office of each business place of this case (in the case of sales by credit cards, each Party shall be deducted from the pre-paid deposit) and in the case of sales by credit cards, the amount equivalent to 15% of the sales amount has been paid.

(7) Each of the service charges of this case is the amount that the plaintiffs did not report as the amount of income after being paid and processed as the service fee for the water among the amount of income accrued from the businesses of each of the pertinent businesses in this case. The details are as the amount stated in the column of each of the "service charges (sale)" for each of the plaintiffs in the attached Form 1.

(8) The Plaintiffs had received the signature of the wazer who received the service fee payment ledger in direct payment to the pertinent wazers, and submitted the service fee payment ledger (Evidence A). However, there is no evidence suggesting that the contents are identical with the amount of the service fee separately stated in the credit card sales slip, etc., and there is no objective financial data that is not supported by other objective financial data, etc.

(9) The Plaintiffs withheld the amount equivalent to each of the pertinent service charges of this case as the business income of each of the pertinent wazers, and paid it to the competent tax office.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4 through 6, 8, 9, 11 through 29, Eul evidence Nos. 5 through 7 and 11 (including each number), and the purport of the whole pleadings

D. Determination

(1) Article 48 (1) of the Enforcement Decree of the Value-Added Tax Act provides that "the standards and taxes under Article 13 (1) of the Value-Added Tax Act include all monetary value related to the consideration received from a transaction partner, regardless of the pretext thereof," and Article 48 (9) of the same Act provides that "the service charges of an employee (including free-income earners) who receives within the consideration for the supply of personal services and the payment of such consideration shall be included in the tax invoice, receipt, credit card sales slip under Article 32-2 of the Act, etc. Where it is confirmed that the payment of the service charges has been made to the employee concerned, the service charges shall not be included in the tax base: Provided, That the same shall not apply to cases where the entrepreneur appropriates the service charges as his income from his own taxable entertainment places including receipts of special consumption tax (amended by Act No. 8829, Dec. 31, 2007; hereinafter the same shall apply) shall not apply in cases where the entrepreneur receives the service charges as his own income from the employee.

According to the above provisions, if a business operator enters the service charges of employees in credit card sales slip, etc. separately from the consideration for the provision of his service, the service charges are not, in principle, included in the tax base of value-added tax and special consumption tax, and in this case, the "employee's service charges" means the amount which the customer pays with the intention to directly belong to the employee who provided the service in question as the consideration for intangible services, such as the speech, friendship, and consideration, which are provided by the business operator in connection with the provision of service, separate from the consideration for

Therefore, in a case where a business operator supplies food and accommodation services or personal services and enters the service charges of employees, along with the price, separately from the price in the remaining card sales slips, etc., if it is confirmed that the service charges are paid to the relevant employee, the service charges shall not be included in the tax base of value-added tax and special consumption tax, but the fact that the service charges are simply entered in credit card sales slip, etc., the service charges are not included in the tax base of value-added tax and special consumption tax.

(2) In light of such legal principles, we examine whether each of the instant service charges constitutes “service charges of employees” under Article 48(9) of the Enforcement Decree of the Value-Added Tax Act and Article 2(1)11 of the Enforcement Decree of the Special Consumption Tax Act, which are excluded from the tax base of value-added tax and special consumption tax.

As seen earlier, credit card sales slip, etc. issued at each business establishment of this case separates service charges from the prime contractor. However, there is no objective evidence that the plaintiffs can recognize that the amount equivalent to the service charges stated on the above credit card sales slip of this case was actually paid to the employees, and it is difficult to find the fact that the service charges of this case were paid to the plaintiffs in light of the above facts as stated in subparagraph (b) 8., it is difficult to find the fact that the service charges of this case were paid to each of the above service charges of this case. As seen earlier, regardless of the amount equivalent to the service charges stated separately in credit card sales slip of this case, the plaintiffs' assertion that the service charges of this case were paid to each of the above service charges of this case 15% in the case of credit card sales, 25% in the case of cash sales, and each of the service charges of this case cannot be viewed as being included in the special consumption tax of this case under the premise that each of the above service charges of this case was paid to the customers of this case without distinction from alcoholic beverages, etc.

3. Conclusion

그렇다면 원고 주식회사 AAAA나이트, 주식회사 ☐☐☐☐드룸의 피고 ☐☐세무서장에 대한 청구, 원고 주식회사 AAAA나이트의 피고 ○○세무서장에 대한 청구는 모두 이유 없으므로 이를 각 기각하기로 하여 주문과 같이 판결한다.