Cho Jae-2013-Seoul Government-3013 ( October 15, 2013)

Subsidies for mobile phone terminals are not included in the value-added tax base because they fall under the discount amount.

Subsidies for mobile phone devices are applicable to the discount amount related to the supply of the device, and it cannot be viewed that the nature of the subsidy differs even if the time of direct payment to the subscriber or the time of attribution of the device differs from the time of supply of the device.

Article 13 of the Value-Added Tax Act

2014Guhap506444 The revocation of revocation of the request for rectification of value-added tax

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○ Head of tax office

November 18, 2016

January 20, 2017

1. The Defendant’s rejection disposition against the Plaintiff regarding the claim for rectification of value-added tax for the second period between the second period of April 2009 and the second period of December 2011 as shown in the Attachment No. 2009, which was issued against the Plaintiff 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;

A. Status of the parties

1) The Plaintiff is a business operator that runs the mobile communications service business and the mobile phone mobile phone sales business (hereinafter referred to as “phone”).

The Plaintiff sold a device to an agency in accordance with a contract on entrustment of business during the period from the second to the second period in 2009 to the second period in 2011, and the agency sold the device in an amount obtained by subtracting the subsidy for purchase of a device (hereinafter referred to as "subsidies") from the subscriber to the mobile communications service (hereinafter referred to as "subscriber") meeting certain conditions, such as complying with the contract on entrustment of business, and paid the price of the device during the agreed installment sales period.

The Plaintiff received the claim from the agency for the installment payment of the terminal price from the customer, and received the amount of the subsidy from the customer in the installment form, and reported and paid the value-added tax on the basis of the entire sales amount of the device before deducting the subsidy during the above taxable period.

The Plaintiff filed a claim with the Defendant for the correction of the amount of tax for each taxable period as stated in the “amount of tax to be reduced” column on the ground that the above subsidies fall under discount under the Value-Added Tax Act, but the Defendant rejected all of the Plaintiff’s claim for correction on April 22, 2013 on the ground that the subsidies do not fall under discount (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4 (including a provisional number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

(a) Facts of recognition;

1) The Plaintiff’s subscription to a new mobile communications service may set the contractual period for the mobile communications service, and may receive subsidies depending on whether or not the contractual period has been set. The Plaintiff publicly announced through an agency, website, terms and conditions of use, etc. that the Plaintiff may receive benefits equivalent to the subsidies depending on the insured’s contractual period, contribution ratio, etc., but the terms and conditions of the Plaintiff’s use of the

Article 35 (Establishment of Agreed Period)

1. A company may set a mandatory use period of not more than 24 months on condition that the customer will support the whole or part of the purchase cost of a device where the customer new subscription, number transfer, or change the terminal.

Article 36 (Payment of Subsidies)

1. The Company may provide differential subsidies according to the terms of an agreement established pursuant to Article 35, the degree of contribution to or terminal of customers.

(2) A company shall grant a subsidy only to a new terminal which has no opening capacity to sell at its operating shop.

(3) Matters concerning the setting of a contract period, the amount of subsidies, etc. shall be governed by individual contracts between a customer and a company.

Article 38 (Creation and Payment of Penalty)

(1) A customer who has received a subsidy by setting a contract period shall terminate the contract for use before the contract period expires, change of name, or expiration of the contract period, but if he/she withdraws the contract, pay penalty and penalty for breach of contract.

2) The Plaintiff agreed on the type, quantity, supply price, time of supply, place of delivery, etc. of a device to the agency based on the ex-factory price (Article 11(2) of the agency contract). The Plaintiff notified the agency of the subsidy determined in accordance with the subscription conditions and specified the requirements, etc. for such subsidy in the written consent to subscribe to the mobile communications service (the Plaintiff’s subscription period, installment period, subsidy, etc. directly stated in the Plaintiff’s written consent to subscribe to the mobile communications service).

An agency sold a device at the amount obtained by subtracting subsidies from a subscriber meeting certain support requirements (However, the amount of the device was to be received during the period of installment sale agreed upon), and transferred the claim to the Plaintiff. The Plaintiff was paid from the subscriber in the form of installment.

[Ground of recognition] Facts without dispute, entry of Gap evidence Nos. 7 through 23, purport of the whole pleadings

B. Determination

Article 13(2) of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201; hereinafter the same) provides that “the amount excluded from the tax base” is one of the above, and Article 52(2) of the Enforcement Decree of the same Act provides that “the amount of discount under Article 13(2)1 of the Act shall be the amount which directly deducts a specified amount from the ordinary supply value at the time of the supply of goods or services in accordance with the terms and conditions of the quality, quantity, delivery and payment of the goods or services, and other terms and conditions of the payment of the goods or services.” The above accumulated amount is not limited to the whole time of the supply of the goods or services, and there is no special limitation in the deduction and reduction method, and a supplier may return a specified amount only by deducting a certain amount from the ordinary supply value at the time of the supply of the goods or services, but also by returning it in whole or in part (see, e.g., Supreme Court Decision 2013Du15315.

Where the requirements for the provision of subsidies are met, the insured is to pay the remainder of the amount of the subsidy reduced to the agency during the installment period, and the agency was to be supplied with the device by the agency, and the agency transferred the installment claims to the insured to the Plaintiff and paid the purchase price of the device to the Plaintiff. The Plaintiff paid the insured with the subsidy for a certain period, and the insured was to pay the remainder of the subsidy from the Plaintiff on the monthly installment of the device, except for the subsidy paid by the Plaintiff. Even if the agency transferred the claim to the Plaintiff prior to the time of the Plaintiff’s payment of the subsidy to the Plaintiff, even if the agency transferred the claim to the Plaintiff prior to the time of the Plaintiff’s payment of the subsidy to the Plaintiff, it can be deemed that there was an agreement to reduce the amount of the subsidy from the supply price of the device on the condition that it sells the amount equivalent to the subsidy equivalent to the amount of the subsidy already planned to be paid by the Plaintiff and the agent prior to the subscription. In full view of these circumstances, the amount equivalent to the subsidy constitutes the amount of the Plaintiff’s agency’s supply price directly related to the device.

In addition, even if the time when the Plaintiff directly pays the subsidy to the subscriber without going through an agency and the time when the amount of the subsidy is attributed to the Plaintiff’s agency is different, it was planned to pay the amount of the subsidy deducted from the time of the supply of the device to the Plaintiff’s agency, and the Plaintiff’s direct payment of the subsidy to the subscriber or the payment of the subsidy by dividing it for a certain period was derived from the purpose of obtaining stable profits by allowing the subscriber to be provided with the mobile communications service for a certain period of time. Therefore, such circumstance alone is difficult to deem that the nature of the subsidy differs in essence from the case where the mobile communications business operator pays the entire subsidy at once to the subscriber at the time of subscription and the payment by dividing it for a certain period of time (it is difficult

Therefore, the instant disposition made on the premise that the subsidy does not fall under the discount amount is unlawful.

3. Conclusion

Thus, the plaintiff's claim of this case is accepted on the ground of the reasons.