Whether the difference portion can be seen as the supply of goods subject to value-added tax in cases where a sand with 10 cubic meters per truck is cut and the value of 8 cubic meters per truck is paid (affirmative)

If a person who collects and transports sand and sells 10 cubic meters for building and takes sand out and receives only the value of eight cubic meters for truck, this would substantially result in a donation with two-meters for the difference and be considered to be the supply of goods under Article 6(3) of the Value-Added Tax Act and Article 16(2) of the Enforcement Decree of the same Act, so the above donation portion is also subject to value-added tax.

Article 6 (3) of the Value-Added Tax Act, Article 16 (2) of the Enforcement Decree thereof

[Judgment of the court below]

The Director of Incheon Tax Office

Seoul High Court Decision 82Gu655 delivered on April 26, 1984

All appeals are dismissed.

The costs of appeal shall be borne by the plaintiff and the defendant.

1. We examine the Plaintiff’s ground of appeal Nos. 1 and 2 together.

Provided, That the grounds for supplemental appellate brief and supplementary appellate brief are examined to the extent of supplement in case of supplemental appellate brief filed after the deadline for submission.

According to the reasoning of the judgment below, the court below found that the plaintiff collected sand from the bottom of the sea and transported it to the cover area of the Incheon port, and if the loading company is the loading company, the non-party shipping company can load and unload it to the cover area and sell it. The above sand can be loaded up to 1.5 times the gross tonnage of the sand collected from the sea as above, and the weight is 1.8 tons per 1 cubic meter per 1 cubic meter of the weight of the sand collected from the sea. Thus, the sand loading quantity of each barge as stated in the detailed statement of the annexed sheet of the annexed sheet of the judgment below is identical to the description of the same list (C) and the plaintiff's transporting the sand to the above barge was below the cover area of the above barge due to the breakdown of the annexed sheet of the court below's judgment, and the court below determined that the above sand loading quantity of the barge was less than 1.8 tons per 3 meters per 1 cubic meter per 3 meters per 1 cubic meter per meter per weight, and thus the above evidence was not equivalent to 1.

Meanwhile, Article 6 (3) of the Value-Added Tax Act and the main sentence of Article 16 (2) of the Enforcement Decree of the Value-Added Tax Act provides that if an entrepreneur consumess goods produced or acquired in connection with his own business for personal purposes or for other purposes, or donates them to his customers or many unspecified persons, such goods as prescribed by the Presidential Decree shall be deemed the supply of goods, and thus, deeming the goods to be the supply of goods subject to a taxation where the entrepreneur donates the goods to his customers or many unspecified persons, shall not be included in the price of the goods which are the main transaction. Thus, even if the value of the goods donated is paid only by 10 cubic meters per ju, such a difference is substantially a donation by 2 square meters, and thus, it shall be subject to a value-added tax in view of the provisions of the Value-Added Tax Act.

In the case of the non-party shipping company, the cargo shipping company or the building company, which is the loading and unloading company, entered sand more than the actual carrying-in quantity into the water ledger and received only 8 cubic meters of sand from 10 cubic meters and 8 cubic meters of sand from 10 cubic meters of the water ledger. However, there is no evidence to prove it beyond the approval of the court below, and it is not possible to accept it even in the case of the claim itself.

2. Next, the defendant's grounds of appeal Nos. 1 and 2 are examined as well.

According to the reasoning of the judgment below, the court below acknowledged the fact that the amount of sand carried in and loaded in the plaintiff's sand field through loading and unloading work of the non-party shipping company in the case of the non-party shipping company is equal to the amount of loading and unloading of the above barge, but the non-party company issued a tax invoice for the quantity of sand loaded in the above barge in excess of the amount of sand loaded in the above barge in order to collect a large amount of loading and unloading charges determined at a reasonable price between the plaintiff and the plaintiff, and the fact that the total amount of sand carried out was set higher than the actual amount of sand loaded in the above barge in the course of loading and storing sand in the open space and that the amount of sand is approximately 10 percent in the course of loading and leaving the sand. Accordingly, the court below's findings of fact is justified, since it cannot be found that there is any error of law due to the violation of the rules of evidence.

The Supreme Court Decision 83Nu155 delivered on September 27, 1983, 1983, which points out the issue, is a different supporting material as alleged in its holding, and it is not appropriate to distinguish the issue from this case.

3. Therefore, the appeal by the plaintiff and the defendant is without merit, and each of them is dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Il-young (Presiding Justice)