Seoul Administrative Court 2013Guhap22420 ( November 22, 2013)

Seocho 2013west0315 (2013.07.04)

The private goods of this case have the nature of incentives or equivalent thereto which can not be included in the tax base of value-added tax.

The instant gift is a cash that is ultimately reverted to all customers who join the Internet telecommunications line service, and its purpose is to promote sale and build a market, etc., and thus, it is difficult to see it as the cost of the business agency’s service in light of the fact that the purpose of the instant gift is to be uniformly paid according to the trading volume or the premium pursuant to the prior agreement.

Articles 13 and 17 of the Value-Added Tax Act

2013Nu52409 Revocation of Disposition of Imposition of Value-Added Tax

Co., Ltd. 000

00. Head of tax office

Seoul Administrative Court Decision 2013Nu22420 decided November 22, 2013

August 19, 2014

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim and appeal

1. Purport of claim

The Defendant’s disposition of imposition of value-added tax of KRW 9,642,440 for the first term of January 8, 2009, KRW 41,78,50 for the second term of February 2009, KRW 42,520,050 for the first term of January 2010, and KRW 10,018,060 for the second term of February 2010 is revoked.

2. Purport of appeal

It is so decided as per Disposition.

1. Details of the disposition;

A. The Plaintiff is an Internet business-related agency with the primary business of attracting subscription to communication circuits, such as the Internet, and managing communication circuits services, which is the Plaintiff’s main business. The Plaintiff is a business of attracting subscription to communication circuits, and a 00 bit (hereinafter referred to as “00 bit”) and a 00 bit (hereinafter referred to as “00 bit”) as the Plaintiff’s business agency. The Plaintiff’s business agency operates the business of attracting subscribers such as super-high speed Internet, Internet telephone, Internet TV, etc., and received a sales agency fee in return.

B. The 00 bit and 00 bitp are all located in 00 :00 00 -00 -00 00 -,000 - 00 bit, the representative of 00 bitp is 00 -00 - which is the representative of 00 bitp, and 00 - which is 00 bits between the Plaintiff and the Plaintiff, the duties of 00 bits were actually performed.

C. From April 2009 to 2010, the Plaintiff issued a purchase tax invoice on the basis of the sum of the sales agency fees for cash company supplies to the subscribers, and reported and paid the value-added tax by the method of deducting the entire amount of the tax as the input tax amount. However, the Plaintiff was issued a purchase tax invoice by the amount excluding the amount of cash company supplies from other sales agencies, even though it had engaged in the same transaction with 59 other sales agencies.

D. After the tax investigation conducted on the plaintiff, and as a result, it was revealed that the cash company's goods 00,000,000 won out of the transaction for which the plaintiff is entitled to the deduction of the input tax amount (hereinafter "the private goods amount of this case") was not paid from the plaintiff to the plaintiff but paid to the plaintiff directly to the plaintiff. The defendant issued a revised notice of the amount of value-added tax on November 8, 2012, on the ground that the amount of the private goods of this case cannot be included in the inducement agency fee in the calculation of the purchase tax received by the plaintiff, and the amount of tax cannot be deducted as the input tax amount, and on November 8, 2012, the previous tax amount cannot be deducted as the input tax amount.

[Ground of recognition] Facts without dispute, Gap evidence 1, 4, Eul evidence 1-1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In preparing a sales agency contract between April 000 and April 009, the Plaintiff agreed to pay a sales agency fee as an amount including cash company goods. Accordingly, the Plaintiff received a purchase tax invoice containing cash company goods, which is the price for the service provided from 00 ec.g., 00 ec., the entire amount of the relevant tax should be deducted as an input tax amount. The instant disposition is unlawful.

B. Relevant statutes

Article 1 (Purpose of Contract)

The purpose of this Agreement is to stipulate on behalf of the Plaintiff all the matters pertaining to the conduct of sales by proxy, on behalf of the Plaintiff, of attracting customers to use the super-high speed Internet and Internet telephone and Internet TV goods provided by the Plus.

Article 3 (Details of Sales Agency)

1. Invitation of customers who use the super-high speed Internet, etc. offered by Plus Co., Ltd.;

2. Provision of commodities to the customers at the above attraction;

V.(Duty to pay for private goods of 00 cl.s.)

1. 00 ec.b. 00 e.s. c. c. 10 e.s. c. 10 e.s. c. 10 e.s.s. 1

[1]

Article 7 (Where the Plaintiff is responsible for the payment of private goods)

1. Notwithstanding the provisions of Articles 3 and 5, if the Plaintiff wishes to be responsible for the goods to be provided to the customer held by 00 bits, the 00 bits shall immediately inform the Plaintiff of the specifications to be provided to the customer in transit.

2. In this case, the Plaintiff shall be subtracted from the amount of sales agency fee to be paid to the 00 bits.

It is as shown in the attached Form.

(c) Fact of recognition;

1) From March 2009, the Plaintiff began to engage in a transaction with the 00-bits. At first, the Plaintiff received purchase tax invoices that the Plaintiff paid to the attracting customers, which did not include cash products, and entered into a sales agency contract with the following content (hereinafter “agency contract”) with the 00-bits for April of the same year.

Article 1 (Purpose of Contract)

The purpose of this Agreement is to stipulate on behalf of the Plaintiff all the matters pertaining to the conduct of sales by proxy, on behalf of the Plaintiff, of attracting customers to use the super-high speed Internet and Internet telephone and Internet TV goods provided by the Plus.

Article 3 (Details of Sales Agency)

1. Invitation of customers who use the super-high speed Internet, etc. offered by Plus Co., Ltd.;

2. Provision of commodities to the customers at the above attraction;

V.(Duty to pay for private goods of 00 cl.s.)

1. 00 ec.b. 00 e.s. c. c. 10 e.s. c. 10 e.s. c. 10 e.s.s. 1

[1]

Article 7 (Where the Plaintiff is responsible for the payment of private goods)

1. Notwithstanding the provisions of Articles 3 and 5, if the Plaintiff wishes to be responsible for the goods to be provided to the customer held by 00 bits, the 00 bits shall immediately inform the Plaintiff of the specifications to be provided to the customer in transit.

2. In this case, the Plaintiff shall be subtracted from the amount of sales agency fee to be paid to the 00 bits.

2) However, from April 2009 to 2010, the Plaintiff is stipulated in the above sales agency contract.

On the other hand, while taking the method of paying the instant private goods to the direct subscribers, the Plaintiff received the purchase tax invoice including the amount of cash goods from 00 bit or 00 bits, and the detailed details are as follows.

Customer Tax Invoice Amount and Direct Payment

00,127,127,00 won 100,822,754 won 26,304,246 won

1,363,114,700 won 615,508,500 won 747,606,200 won

Total 1,490,241,700 won 716,331,254 won 773,910,446 won

3) Meanwhile, as of June 22, 2010 at the customer satisfaction center questioning, the National Tax Service responded that, in the event that the business operator pays cash goods to the customer by the business operator on behalf of attracting the Internet access of the communications company and receiving agency fees, the tax base for the business operator's agency services is reasonable to be the total amount that the communications company should pay. On the other hand, as of June 8, 201, the customer's goods constitute entertainment expenses, and thus, it is reasonable to make the tax invoice between A and B only subject to the commission for solicitation.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 5, Eul evidence 1 to 4, and the purport of the whole pleadings

D. Determination by issue

1) Scope of services subject to value-added tax

Article 7 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201; hereinafter referred to as the "Enforcement Decree of the Value-Added Tax Act") provides that the provision of services subject to value-added tax shall be a comprehensive provision of services subject to taxation of value-added tax by providing services for all contractual or legal reasons, unless services are supplied without compensation or labor provided under an employment relationship. In addition, Article 13 of the Value-Added Tax Act provides that the amount of money received as the price of goods or services shall be determined as the tax base of value-added tax except in exceptional cases such as overcharge amount, the value of returned goods, and the value of goods damaged before arrival to the person receiving the goods, and the amount of money equivalent thereto shall not be deducted from the tax base. The "in this context," refers to money paid by a supplier in accordance with the trading quantity or future amount under an advance agreement for the purpose of developing a market for sales promotion, and thus, it is irrelevant to the determination of the price of supply in such goods or services.

Article 48 of the Enforcement Decree of the Value-Added Tax Act provides that all monetary values related to the supply of services, such as the price or fees, received from the transaction partner, shall be included in the tax base of value-added tax, and Article 17 of the Value-Added Tax Act provides that the amount obtained by deducting the tax amount (purchase tax) for the supply of goods or services used for the business from the tax amount of the goods or services supplied by the transaction partner

2) The legal nature of the instant private goods

The key issue in this case is whether the instant gift provided by the Plaintiff directly to the subscriber is the price for the services provided by 00 bits and 00 bits.

The following circumstances acknowledged based on the above facts, i.e., the Plaintiff, April 2009

Unlike the form of transaction in principle under the contract, the plaintiff directly provided the contract to the subscriber with the goods of this case. ② The plaintiff did not prepare the above sales agency contract for the 59 sales agencies other than 00 ecrates and 00 ecrates, and the purchase tax invoice received from them did not include the price of the goods in return for the services. ③ The price of the goods of this case is 00 ecrates or 00 ecrates or 59 ecrates, and ④ the price of the goods of this case is ultimately reverted to all customers who join the Internet communications line service of 0 ecrates, and its purport is 0 ecrates or 0 ecrates which are difficult to be included in the tax base for the plaintiff's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's e.

3) Accordingly, the instant disposition that did not deduct the amount of the instant goods as the input tax amount.

The plaintiff's assertion on a different position is justified and it cannot be accepted without further review.

3. Conclusion

If so, the plaintiff's claim is dismissed, and the judgment of the court of first instance differs from this conclusion.

Since it is unfair, it is decided to revoke the judgment of the first instance court, and it is so decided as per Disposition.