Seocho 2013west 3464 ( November 18, 2013)

A subsidy paid by a mobile communications company to an agency is legitimate to refuse a claim for correction, deeming that the subsidy is not a sales discount.

Since the transaction between the Plaintiff and the customer is different from the transaction partner, it is difficult to deem that the subsidy for the purchase of a device falls under the amount of direct deduction from the value of supply of the device because the transaction partner is different from the transaction partner.

Article 13 of the Value-Added Tax Act

2014Guhap3488 Disposition Rejecting Value-Added Tax

Co., Ltd 】

Head of the District Tax Office

September 19, 2014

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

1. Details of the disposition;

A. The Plaintiff is a virtual mobile communications service provider (Mole Virtual Netor) in 2009

During the taxable period of value-added tax, a device was sold to a customer by selling a device directly to a customer (hereinafter referred to as "direct sales method") or an agency, and an agency supplied a device by selling a device to a customer (hereinafter referred to as "agency sales method"), and a subsidy was granted to a customer when the customer agrees to use the device for a certain period of time or longer.

B. The Plaintiff filed a claim for the return and payment of value-added tax for the second term period of 2009 without deducting subsidies from the value of supply of the device x 20 x.. x. x. x. The Plaintiff paid subsidies to the Defendant in supplying the device x. As a result, the amount reduced should be deducted from the tax base x the amount of discount x the amount of value-added tax for the second term of 2009 x the amount of won x the refund.

C. The Defendant notified the Plaintiff to the effect that the request for correction for the direct sale method was adopted, but the request for correction for the agency sale method was rejected (hereinafter “instant disposition”).

(d) The plaintiff is dissatisfied with it 20 x 30 x. 】. Although the plaintiff was requested to adjudicate in the Tax Tribunal, the above request was 20 x x x x x x. The request was dismissed.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 5 (including each number, hereinafter the same shall apply), Eul evidence 1 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff sold the device to the agency and then the agency sells the device to the customer.

Unlike “the case where the Plaintiff sells a device directly to a customer”, a subsidy was paid to an agency under a consignment contract concluded between the Plaintiff and the agency. Therefore, even if the Plaintiff sells a device to a customer through an agency, the instant disposition based on the premise that the subsidy was paid to the customer is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) The Plaintiff entered into a contract on consignment of mobile communications services with a stock company 】 20 】.. 】 stock company 】 】 】 (hereinafter referred to as 】 】 】 】 】 】 】 ').

"A" and "B" (the plaintiff x x x x x) are entrusted to "A" and "B" are entered into this contract with the following contents in order to perform their entrusted duties and the duties incidental thereto:

Article 13 (Supply of Terminals)

"A" means the supply of a device to "B" each month after consultation on the opened volume and expected opening volume through the home shopping of "B", and the delivery to "A" for customers opened for sale is to be delivered directly to the customer on behalf of "B", and Article XIV (Fees).

Fees to be paid to the opening customers who have been attracting ‘B' shall be classified into the costs of the special agreement for broadcasting, the opening fees, and sales incentives.

Article 15 (Non-Special Agreement Expenses and Opening Fees)

(1) The term "non-special agreement column" means the cost of broadcast provided by "A" with the cost of home shopping broadcasting of "B", and each broadcast is conducted through consultation on the basis of the terms of broadcast of "B".

(2) Only once per customer who has subscribed to the telecommunications services of "A" shall be subject to "A" for a license fee including value-added tax.

'B' is to prepare and determine a separate estimate under the agreement.

Article 16 (Sales Promotion Subsidy)

'A' provides incentives to the opening customers who have subscribed to the telecommunications services on the basis of the ex-factory price of the device.

2) The Plaintiff entered into a contract on consignment of mobile communications services with the Plaintiff 20 x (20 x (3) x (3) x (4) x (3) x (4) x (3) x (

"A" and "B" (hereinafter referred to as "A") shall be entrusted to "B" for the attraction, management and other services of the mobile communications subscriber, and "B" shall enter into this contract with the following contents in order to carry out the entrusted services and the services incidental thereto:

Article 18 (Supply of Terminals)

① The supply price of a device is to supply the device within the limit of the surety insurance policy for payment performance, which the “B” enters the “B” for the “B” (the unit price of the device shall be based on the ex-factory price of the relevant monthly device).

(2) The supply quantity, supply type, etc. of terminals may be changed according to the policies of "A".

(3) A device supplied to "B" shall not be returned for any reason to "B" unless the device supplied to "B, such as the start of a defective monetary quality or the load of a device, occurs.

Article 19 (Management and Responsibility of Terminals)

(1) He/she shall manage the device supplied with "B" under the responsibility of "B", and shall be liable for compensation for the loss or loss of the device, such as theft, loss, damage, etc.

Article 20 (Fees)

Fees to be paid to the customer of the “A” kept by the “B” shall be divided into the opening and management fees.

Article 21 (Opening Fees)

(1) Only once per customer who has subscribed to the telecommunications services of "A" shall be paid to "A" as shown in this Agreement [Attachment 1. A, a special contract for the payment of goods and fees on consignment].

Article 22 (Management Fees)

(1) The management fees, including the value-added tax, for each customer who has subscribed to the telecommunications services, shall be paid to "A" as shown in this Agreement (a special agreement on the payment of consignment goods and fees).

Article 25 (Payment of Terminal Price)

(1) "A" shall issue a tax invoice to "B" as of the end of each month, and "B" shall pay "B" the price for the goods purchased on the 15th of the following month after the end of the delivery of the relevant month.

② If “B” violates the preceding paragraph without obtaining the approval of “B”, “B” shall pay damages for delay to “B” by applying the fixed deposit interest rate to the amount of goods delayed per day (including VAT): Provided, That if the payment date is not the business day of a financial institution that deals with “B” or is the holiday day of “B”, “B” shall be exempted from liability for delay compensation,” “B” and “B” shall be exempted from liability for delay compensation if the Plaintiff sells a device to customers through the agency.

The main contents of the agreement on the installment sale of mobile phones between the plaintiff, the agency, and the customer (hereinafter referred to as the "agreement on the installment sale in this case") are as follows.

Article 1 (Agreement of Installment Trade and Assignment of Claims)

1. "A" purchases a mobile phone from a 's (agency)' in accordance with the agreement on the purchase of a mobile phone, and the 'A' transfers a mobile phone to 'A (Plaintiff)' and 'A' accepts a mobile phone claim that has been acquired through the purchase of a mobile phone in the form of a mobile phone.

2. This Arrangement is established at the time of notifying "A" of the transfer of an installment claim through prescribed procedures, such as by directly checking the contractual terms such as the installment sale of a mobile phone and the transfer of installment claims.

3. The joint and several sureties of "A" confirms all the provisions of this Agreement with "B" and "B" and promises to perform all the obligations arising under this Agreement jointly with "A".

Article 3 (Restrictions on Ownership)

A cannot make a voluntary disposition, such as transfer, lease, and establishment of a pledge, of a mobile phone without the consent of "B" before full payment of the installment amount.

Article 4 (Duties of Purchasers)

1. "A" shall pay the installment to "B" in accordance with the terms and conditions of the contract with "B", and "A" shall continue to be paid in the case of loss of the device, theft, damage, fire, disaster, or other causes.

4. "A" shall pay the credit coverage fee to the 's cell phone purchase', and the 's disease' shall deposit the credit coverage fee paid by the 'A' to the bank account designated by the 'B'.

Article 5 (Determination of Purchase Terms and Conditions)

1. The mobile phone installment sale is made on the condition that the "A" opens the service of "B", and the "A" cannot use the installment sale method for the purchase of only the mobile phone.

3.The fees, interest, guaranteed premiums, etc. due to installment transactions shall be borne by "A".

4. Pursuant to the provisions of paragraph 3, "A" shall pay all the fees for installment payments at the time of purchase of cell phone units and installment payments at the time of installment payments at the time of purchase of cell phone units, and "the disease" shall be deposited into the bank account designated by "B".

4) In applying for the use of the services provided by the Plaintiff, the customer’s written confirmation of customer consent (as such).

The confirmation document of this case states "the name of the mobilephone," "the name of the mobilephone," "the number of months of the agreement" and "the number of months of the agreement".

[Reasons for Recognition] Unsatisfy, Gap evidence 6, 9, Eul evidence 2, the purport of the whole pleadings

D. Determination

1) Article 13(2)1 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010; hereinafter referred to as the "former Value-Added Tax Act") provides that "the amount of discount shall not be included in the tax base," and Article 52(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter referred to as the "former Enforcement Decree of the Value-Added Tax Act") provides that "the amount of discount under Article 13(2)1 of the Act shall be the amount of deduction of a certain amount from the ordinary supply value at the time of the supply of the goods in accordance with the payment of quality, quantity, and cost of delivery and supply in accordance with the above provision."

2) In full view of the following circumstances, it is reasonable to view that the Plaintiff’s subsidy (hereinafter “instant subsidy”) was paid to a customer rather than an agent, by entering into an agreement to use the service for a certain period of time, based on the following circumstances revealed by adding up the aforementioned evidence and the purport of the entire pleadings. Thus, the instant subsidy cannot be deemed as related to the mobile device transaction between the Plaintiff and the agent. Therefore, the Plaintiff’s above assertion based on the premise that the instant subsidy was paid to the agent is without merit.

A) There is no provision that “where a customer agrees to use a service for a certain period of more than a certain period, the consignment contract entered into between the Plaintiff and the electronic Ireland” that “the Plaintiff shall pay a certain amount of subsidy to the customer 】”.

In addition, there exists a provision that "a consignment contract entered into between the plaintiff and our home shopping shall be paid a bounty on the basis of the ex-factory price of the device to the opening customer who has subscribed to the plaintiff's telecommunications services." However, the above provision does not specify the terms and conditions of payment of the bounty, the amount of payment, etc., and where the plaintiff and the customer agree to use the service for a certain period of time x (the customer) x the plaintiff agreed to pay a certain amount of subsidy to the customer

In light of the above circumstances, if the plaintiff and the agency agree in advance to use the service for a certain period of time or longer, the plaintiff cannot be deemed to have agreed to the agency that the plaintiff would pay a subsidy to the agency.

B) According to Article 36-4(1) of the former Telecommunications Business Act (amended by Act No. 10166, Mar. 22, 2010; hereinafter “former Telecommunications Business Act”), a telecommunications business operator shall not subsidize the purchase cost of a device necessary for the use of the service provided by him/her, but 'user 1 who satisfies certain requirements'. The Plaintiff provided a subsidy to a customer who concludes an agreement to use a device for a certain period of time, and as examined below, the customer's claim for the subsidy acquired is expected to have occurred through a contract concluded between the Plaintiff and the customer. In light of the above, it is determined that the instant subsidy constitutes a subsidy for the purchase cost of a device recognized under Article 36-4(1) of the former Telecommunications Business Act.

C) When entering into a service contract with the Plaintiff, the customer will prepare the instant confirmation document and submit it to the Plaintiff. Since the existence and amount of the subsidy to be paid to the customer is determined in the course of formulating the instant confirmation document, it is reasonable to deem that the customer’s claim for the subsidy arises from a contract entered into between

On the other hand, by transferring "the installment claim that was acquired by selling the device to the Plaintiff" in accordance with the instant installment transaction agreement, the Plaintiff acquired the installment claim against the Plaintiff. It seems that the Plaintiff settled the installment payment by offsetting the above installment claim against the Plaintiff.

D) Article 16(1) of the former Value-Added Tax Act; Article 59(1)3 of the former Enforcement Decree of the Value-Added Tax Act

According to subparagraph (a) where an entrepreneur registered as a taxpayer issues a tax invoice and then the amount added or deducted from the value of supply due to the termination of the contract, etc., the tax invoice may be revised and issued. If the Plaintiff alleged as the Plaintiff, “the amount reduced as a result of the payment of subsidies in supplying the device,” falls under the overcharge amount to be deducted from the value of supply of the device, this constitutes a case where the Plaintiff issued a tax invoice and then the amount deducted from the value of supply occurs. Thus, the Plaintiff did not have issued a revised tax invoice, even though it was possible to issue the corrected tax invoice reflecting the amount deducted from the original value of supply

E) The Plaintiff asserts to the effect that the facts of the instant case were identical to those of the Supreme Court Decision 2001Du6586 Decided April 25, 2003 (hereinafter “the New century case”). However, the New century case was approved to sell a mobile device using the CD method as of December 31, 1996 to early settlement of the CD method mobile service. The Plaintiff’s new provision of the subsidy was difficult to view that the Plaintiff’s new provision of the subsidy was related to the supply price of the new mobile device, while the Plaintiff’s new provision of the subsidy was not related to the supply price of the new mobile device that was not related to the supply of the new mobile device for a certain period of time after the expiration of the approval period. The Plaintiff’s new provision of the subsidy was difficult to view that the new provision of the subsidy was not related to the supply price of the new mobile device, on the other hand, that the new provision of the subsidy was not related to the supply price of the new mobile device.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.