Value-added tax on sales commission paid by an entrepreneur who provides air transport services for transporting passengers and freight to a domestic tourer shall be subject to the deduction of input tax amount.

In the event that a foreign airline sells directly air tickets under its responsibilities and accounts by using a borrowed aircraft with payment of the fee for the entire century and transports passengers and freight to a domestic airline route, it shall be deemed an air transport service provider, and the value-added tax on sales commission paid to a domestic travel agent shall be subject to the deduction of the input tax amount.

Article 23 of the Value-Added Tax Act (Supply of Foreign Navigation Services)

2016Guhap82027 Revocation of Disposition of Imposition of Value-Added Tax

(State)AA and two others.

YThe director of the tax office

September 1, 2017

October 20, 2017

1. The imposition of each value-added tax (including each additional tax) on March 14, 2016 by the Defendant against the Plaintiffs (attached Form 1) shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

가. 원고 주식회사 AAAA(이하 '원고 AAAA'이라 한다)은 필리핀 항공사인 ZZZ항공 주식회사(이하 'ZZZ항공'이라 한다)와, 원고 주식회사 BB(이하 '원고 BB'라 한다)는 베트남 항공사인 YYYY항공 주식회사(이하 'YYYY항공'이라 한다)와, 원고 주식회사 CCCC(이하 '원고 CCCC'이라 한다)은 홍콩 항공사인 XXXX항공 주식회사 및 필리핀 항공사인 WWW항공 주식회사(이하 'WWW항공'이라 한다)와, 2009년부터 2014년 사이에 각 총판대리점계약(General SalesAgency Agreement, 이하 'GSA계약'이라 한다)을 체결하고, 국내에서 위 각 외국항공사(이하 '외국항공사'라 한다)의 항공권을 독점적으로 판매하는 권리를 취득한 회사들이다. 원고들은 외국항공사들과 개별항공기전세계약(Charter Service Agreement, 이하'차터계약'이라 한다) 또는 좌석일괄매수계약(Blockline Agreement)을 체결하여, 외국항공사에게 외국 도시와 국내 도시간 노선의 항공기 운항대가로 전세기이용료를 지급하고, 위 항공기 항공권(화물운송계약 포함) 일체를 매수하고 항공권 판매와 마케팅 전반에 관한 권한을 취득한 다음, 위 항공권을 일반 소비자들에게 직접 또는 다른 국내여행사를 통하여 판매하였고, 항공권 미판매시 손실은 원고들이 부담하였다.

B. From the first half of 2011 to the second half of 2014 Value-Added Tax period (Plaintiff BB’s second taxable period in 2014), the Plaintiffs paid sales commission (5% level of sales proceeds of airline tickets) to sales agencies for airline tickets, and deducted the input tax amount of the tax invoice received from the domestic tourr, and filed a value-added tax return.

C. On March 14, 2016, the Defendant determined that the amount of sales tickets sold by the Plaintiffs’ foreign airline tickets is not subject to value-added tax, and that the value-added tax paid by the Plaintiffs to domestic travel agents is not subject to input tax deduction. On March 14, 2016, Plaintiff AA made a disposition imposing value-added tax on Plaintiff BCC for the second period of 2014 from the first to the second period of 2014 (attached Form 1) as to the second period of 2014 (hereinafter “each taxation of this case”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 9 (including each number in the case of additional number), Eul evidence 1, the purport of the whole pleadings

2. Related statutes;

[Attachment 2] The entry is as specified in the relevant statutes.

3. Whether each taxation of this case is legitimate

A. The plaintiffs' assertion

The Plaintiffs paid the service charges for the entire century to a foreign airline through GSA agreement, passenger seat-to-land agreement, and purchased all airline tickets, and provided services for transporting passengers or freight under the responsibility and calculation of the Plaintiffs. The Plaintiffs are foreign airline operators under Article 23 of the Value-Added Tax Act and Article 32(1)1 of the Enforcement Decree of the Value-Added Tax Act, Article 11(1)3 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter the same shall apply) and Article 25(1)1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same shall apply) so that sales of the Plaintiff’s overseas airline tickets constitutes sales subject to zero-rate tax as an overseas airline service under each of the above provisions. The Plaintiffs’ payment to a domestic airline constitutes a sales amount subject to zero-rate tax.

B. Determination

(1) In light of the following facts and circumstances, each of the above evidence revealed in Gap evidence Nos. 10 and 11 (including each number), the plaintiffs purchased all air tickets operated by foreign airline through a charter party agreement or a seat-based purchase agreement, and sold them to the general consumers with the authority to sell airline tickets and marketing, and the plaintiffs incurred losses in the non-sale of airline tickets, taking into account the following: (a) the plaintiffs paid all of the expenses, including the crew's sojourn hotel agreement, the contents of the aircraft, newspapers, magazines and periodicals supply contract; (b) air cargo security service contract; (c) the post-going baggage transport contract; and (d) the sales commission for the domestic travel company, etc., the plaintiffs sold the airline tickets directly under their responsibility and account using the aircraft borrowed from the whole century by paying the service charges to the foreign airline; and (e) the air transport service by providing the passengers and freight to foreign cities and domestic routes.

Article 4 subparag. 1 of the Value-Added Tax Act provides that value-added tax shall be imposed on a transaction of supplying services by an entrepreneur (Article 1(1)1 of the former Value-Added Tax Act provides that value-added tax shall be imposed on a transaction of supplying services). Article 26(1)7 of the Value-Added Tax Act and Article 37 subparag. 1 of the Enforcement Decree of the same Act, Article 12(1)7 of the former Value-Added Tax Act and Article 31 subparag. 1 of the former Enforcement Decree of the Value-Added Tax Act stipulate that passenger transport services by an aircraft are exempted from value-added tax. Article 23 of the Value-Added Tax Act and Article 32(1)1 of the Enforcement Decree of the Value-Added Tax Act provide that passenger transport services by an aircraft shall be exempted from value-added tax, and Article 25(1)1 of the former Enforcement Decree of the Value-Added Tax Act provides that passenger transport rights are excluded from value-added tax, but it does not constitute an airline’s right to own air transport rights.

The value-added tax on the goods or services supplied by the business operator for his/her own business may be deducted as the input tax amount under Article 38 of the Value-Added Tax Act and Article 17 (2) of the former Value-Added Tax Act, unless it falls under the input tax amount not deducted under Article 39 of the Value-Added Tax Act and Article 17 (2) of the former Value-Added Tax Act. The sales commission paid by the plaintiffs to the domestic tourr shall be deemed the expenses corresponding to the sales of foreign airline tickets, which are the plaintiffs' sales. Since there is no ground to view the value-added tax amount as the input tax amount not deducted under Article 39 of the Value-Added Tax Act and Article 17 (2) of the former Value-Added Tax Act, it is reasonable that the sales commission paid by the plaintiffs to the domestic tourr shall be deducted as the input tax amount (the air transport service provided by the plaintiffs shall be subject to the zero-rate tax rate because

Secondly, each taxation of this case, based on the premise that the sales price of the plaintiffs' airline tickets is not subject to value added tax, and that the sales fee paid by the plaintiffs to domestic tourers is not subject to input tax deduction, should be revoked because each taxation of this case is unlawful.

4. Conclusion

Thus, the plaintiffs' claims shall be accepted for all of the reasons.