2014 Heavy 2970 ( October 21, 2014)

It is difficult to see that the service charges equally divided to the employees belonging to the service association through the service association organized by employees constitute service charges not included in the amount of sales.

- it is difficult to regard that the customer’s payment of non-specified service charges to employees and the payment of equal amounts to employees belonging to the service association is not limited to employees who have provided services such as ice, etc., but can not be deemed to constitute a service charge not included in the sales, because it does not constitute a service charge.

Article 13 of the Value-Added Tax Act Article 48 of the Enforcement Decree of the Value-Added Tax Act

2015Guhap663, revocation of disposition imposing value-added tax, etc.

1. AAAA Convention Convention;

2. BBBB Convention;

3. KimCC;

DD Head of the tax office

January 12, 2016

January 27, 2016

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

The imposition of the value-added tax on November 15, 2013 by the Defendant against the Plaintiff KimCC and the imposition of each corporate tax and value-added tax on the same details as the Plaintiff, AAAAA Convention Convention, BBB Convention, etc. are revoked.

1. Details of the disposition;

A. From 2007 to 2007, Plaintiff KimCC operated each type of wedding in the name of Hoyang-dong 1039-3 to AABB Convention, and operated each type of wedding in the name of BBB Convention from ○○○○ ○○○○○ Dong, and the name of BBBB Convention. On January 6, 2011, Plaintiff KimCC converted the AABB Convention into Plaintiff BBBBB Convention (hereinafter “Plaintiff”) and then converted the BBBB BB Convention into each corporation on July 1, 201 (hereinafter “Plaintiff”) and around that time, Plaintiff Company operated the marriage funeral business.

B. The Commissioner of the National Tax Service shall conduct a tax investigation on the Plaintiffs from April 24, 2013 to July 2, 2013.

As a result, the plaintiff KimCC excluded 1,398,814,920 won during the taxable period from the second half of 2008 to the first half of 2011; 521,00,908 won during the taxable period from 2011 to 2012; and 328,308,182 won during the taxable period from 2011 to 2012 for each customer’s payment of 328,308,182 won during the pertinent taxable period (hereinafter “instant service charges”); however, it cannot be deemed that the instant service charges are excluded from the tax base; thus, the plaintiffs should include the service charges in the tax base of value-added tax and corporate tax (income).

C. The Defendant determined the sales of the Plaintiffs according to the above findings of the investigation, and based on this, 2013.

11. 15. As indicated in the attached Form No. 15. The value-added tax was imposed on Plaintiff KimCC, and each corporate tax and value-added tax was imposed on Plaintiff KimCC (hereinafter collectively referred to as “instant disposition”).

D. The Plaintiffs filed an appeal seeking revocation of the instant disposition with the Tax Tribunal on May 1, 2014, following an objection on December 27, 2013, but the Tax Tribunal rendered a decision to dismiss the said claim on October 21, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 5 (including paper numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs, on behalf of their employees, have an amount equivalent to 5% of the food ceremony of their customers.

The Service Fee was received as a service fee and was established at the Council composed of the employees who provide the service. Since the above Service Fee was voluntarily distributed to the employees who actually provided the service in salary society, the Service Fee is not attributed to the Plaintiffs, but it is attributed to the employees who actually provided the service, and should be excluded from the sales amount of the Plaintiffs.

B. Determination

1) According to Article 13(1)1 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) and Article 48(1) and (9) of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013), where it is confirmed that the service charges of employees are paid to the relevant employee separately from the charges for the provision of his/her service, the service charges are not, in principle, included in the base of value-added tax unless the entrepreneur has any circumstances such as including the inclusion of his/her own service charges in his/her income.

In this case, the "employee's service fee" means the amount that the customer pays to the employee who provided the service in question as the price for intangible services, such as the behavior, kind of care, etc. of the employee who provided the service in connection with the business operator's supply of the service. In addition, even if the service fee meets the above requirements, if the business operator appropriates the service fee as his income, he shall return to the tax base for value-added tax in principle.

2) principal u300, in light of these provisions, the service charges of this case are excluded from the plaintiffs' sales.

We examine whether the employee's service charges are applicable. According to Gap evidence Nos. 5 through 18, Eul evidence Nos. 2 and 3, the plaintiffs received 5% of the food service charges from customers while running a food service business, and credit card sales slip issued to customers divided the food service charges and service charges, the employees of the food hall operated by KimCC and the employees of the plaintiff company are equally divided into the service charges of the plaintiffs (hereinafter referred to as the "the plaintiff KimCC") and the total amount of service charges received from the plaintiffs are paid to the employees belonging to the plaintiff's association in principle, and the defendant KimCC does not receive the service charges from customers regardless of the company that intends to provide the service at various events, and the company is not entitled to receive the service charges of the plaintiff's members. The company is not entitled to receive the service charges of the 10th of the contract prepared between the plaintiff KimCC and its employees, and the company is entitled to receive the service charges of the plaintiff's members with the payment of the service charges of the 5th of the service charges.

However, the whole of the evidence duly admitted as a whole is as follows.

In other words, without distinguishing between the plaintiffs' employees who use the wedding hall from what kind of service (food and wedding service) is supplied by the plaintiffs' employees or who provide intangible services, such as behaviors, friendship, consideration, etc., the plaintiffs are equally allocated 5% of the food service unit at will. The customer's receipt points, ② it is difficult to view that the customer paid the service charge of this case to directly belong to the employee who provided the services such as ice ice, etc. separately from the user's use of the wedding hall or the user's price for the provision of the goods or services. ③ In light of the details of the payment of the service charge of this case, there are no data to recognize that the above employee received the service charge of this case separately from the employee's work, and thus, it is difficult to view that the employee's payment of the service charge of this case is difficult to view that the service charge of this case was actually made to the customer who used the wedding hall, as well as the employee's payment of the service charge of this case.

3. Conclusion

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