Seoul Administrative Court-2014-Gu Partnership-57942

Seocho 2014 Schedules714, 2014west 715

The plaintiff's contract entered into with transfer sets is not a joint business but a service. However, roller fees out of money can not be considered as a consideration for the service.

The Plaintiff entered into a contract with the transfer company is not a joint business, but rather a service. However, rolling commission out of the paid amount cannot be deemed as a consideration for the service. In the instant land transaction, the Plaintiff cannot be deemed as an act of unfairly evading or reducing the tax burden.

Revocation of Disposition Imposing Corporate Tax

AAAAA

O Head of the tax office other than 1

November 20, 2014

July 16, 2015

August 20, 2015

1. The part of the judgment of the court of first instance that lost the Plaintiff against the head of the competent tax office that falls under the following order for revocation shall be revoked. The part that exceeds 338,56,800 won of the disposition of imposition of value-added tax of 1, 2008 against the Plaintiff on September 30, 201; the part that exceeds 351,837,970 won of the disposition of imposition of value-added tax of 543,515,390 won in 209; the part that exceeds 374,208,714 won of the disposition of imposition of value-added tax of 374,208,714 won of the disposition of imposition of value-added tax of 209; the part that exceeds 374,208,714 won of the disposition of imposition of value-added tax of 1,201, the value-added tax of 171,030 won of value-added tax of 201,4757

2. The plaintiff's remaining appeal against the defendant OO director is dismissed.

3. The appeal by the chief of the defendantOO office is dismissed.

4. One-half of the total litigation costs between the Plaintiff and Defendant OO head of the tax office shall be borne by the Plaintiff, and the remainder by Defendant O head of the tax office, respectively, and the appeal cost between the Plaintiff and Defendant O head of the tax office shall be borne by the head of the tax office of

5. The part arising between the Plaintiff and Defendant OO chief of the tax office out of the litigation costs shall be corrected to the effect that “the Plaintiff bears the burden of Defendant O chief of the tax office,” and the part arising between the Plaintiff and Defendant O chief of the tax office shall be corrected to the effect that “the Plaintiff bears the burden of Defendant O chief of the tax office,” respectively.

1. Purport of claim

A. Defendant OO director’s disposition of imposition of KRW 690,06,490 for the first year of 2008 against the Plaintiff on September 30, 201, the imposition of KRW 543,515,390 for the first year of 2009, KRW 771,028,650 for the second year of value-added tax in 2009, KRW 171,038,230 for the second year of 2010, and KRW 1,497,561,450 for the second year of 2010 for the second year of value-added tax.

B. On October 2, 2011, the head of the Defendant OO-Tax Department’s imposition of corporate tax of KRW 435,267,430 against the Plaintiff in excess of KRW 136,282,190, and the imposition of KRW 369,72,180, which exceeds KRW 156,894,370, among the imposition of corporate tax of KRW 369,72,180 in 201, shall be revoked.

2. Purport of appeal

A. The plaintiff (as to the defendant OO chief of the tax office)

The part against Defendant OO chief of the judgment in the first instance shall be revoked. The same shall apply to paragraph 1(a) of the purport of the claim.

(b) Defendant OO head of the tax office;

The part of the judgment of the court of first instance against the defendant OO chief shall be revoked. The plaintiff's claim against the defendant O chief shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows, except for dismissal or addition as follows, and thus, it shall be cited by Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

Parts to be dried or added.

○ 4. The 6th page “W” is deleted.

○ 6. Note 1 to 4, 7. The following shall be added to “(including each number)”:

Part 6 of the 6th page "2. argument and judgment" are "the legitimacy of the disposition of this case".

○ 6. 15. In the case of a "rawlling fee", the following amounts are added to "the service price".

○ Heading 5 to 12 pages 3 (C. Decision on the Disposition of Value-Added Tax in this case)

Sector) the following shall apply:

C. Determination on the disposition of value-added tax of this case

(1) The nature of the contract of this case

㈎ 원고와 BBB 등 사이에 2007. 12. 24. 체결된 합작계약서(갑 제6호증)의 기재에 의하면, BBB 등은 한국 거주 고객을 제외한 고객군을 대상으로 유치활동을 전개하고(제10조), 유치한 고객의 서울에서의 호스팅은 BBB 등이 담당함을 원칙으로 하고 관련된 비용도 BBB 등이 부담하도록 되어 있으며(제9조), BBB 등은 최초 6개월 까지 월평균 롤링턴오버 30억 홍콩달러 이상과 6개월 이후 월평균 롤링턴오버 50억 홍콩달러 이상을 보장하도록 되어 있고, BBB 등이 목표 턴오버 금액을 달성하지 못할 경우 원고는 본 합작계약을 해지할 수 있도록 되어 있고(제7조), 매출에서 커미션을 공제한 이윤을 원고가 40%, BBB 등이 60%의 비율로 배당하기로 되어있음(제4조)을 알 수 있는바, 이 사건 계약은 공동사업의 특징적인 표지라고 할 수 있는 수익의분배 이외에 비용과 손실의 정산에 관한 약정 내용이 없다는 점에서 원고가 주장하는 동업계약이라고 할 수는 없고, BBB 등은 스스로의 비용을 들여 고객의 유치라는 용역을 제공하고, 원고는 그 용역에 대한 대가를 지급하되, 그 대가의 지급방법을 이 사건 카지노가 위 고객들로부터 올린 매출에서 커미션을 제외한 금액의 60%로 정하는 내용의 용역계약으로 봄이 상당하다.

㈏ 원고는 이 사건 계약서의 제목이 "합작계약서"이고, 제1장 총칙에서 "CCC 사업을 공동으로 전개한다"고 규정하고 있으며, 제3장 제2조에서는 "계약의 당사자 쌍방이 본 합작사업을 영위함"이라고 규정되어 있는 등, 이 사건 계약서의 문언의 객관적의미가 합작사업 내지 공동사업을 영위하고자 하는 것이 분명하다고 주장하나, 계약의 성격이 무엇이냐 하는 것은 계약서의 표시만으로 볼 것이 아니라 그 계약의 본질적인 부분의 내용에 따라 구분하여야 할 것인데, 이 사건 계약서에 나타나는 "합작사업", "공동으로 전개", "당사자 쌍방이 합작사업을 영위함" 등의 표현은 이 사건 계약의 내용에 비추어 볼 때 계약당사자가 이익의 창출이라는 공동의 목표를 위하여 사업을 한다는 의미로 이해될 수 있는 것이므로, 이러한 계약서상의 표현만으로 이 사건 계약이 동업계약이라 할 수는 없다. 원고의 위 주장은 이유 없다.

㈐ 원고는 또 이 사건 계약서에는 이윤의 분배와 관련하여 "매출에서 커미션을 공제한 이윤은 갑 40%, 을 60% 비율로 배당"이라고 규정하고 있고(제4조 제2항), 이윤이란 이익을 추구하고 남은 돈으로서 만일 손실이 발생하면 이윤이 음(-)이 되므로 이역시 당사자 간에 배분하기로 하는 합의가 있는 것이라고 주장하나, 위 규정은 이 사건 카지노에서 BBB 등이유치한 고객으로부터 얻은 이윤을 배당하는 규정일 뿐 손실을 배분하는 내용이라고 볼 수 없을 뿐만 아니라 가사 위 규정이 원고가 주장하는 바와 같이 손실의 분담비율을 포함하는 약정으로 본다 하더라도 위 손실금액 중 BBB 등의 분담비율에 따른 금액을 원고가 BBB 등에게 청구할 수 있다고 보이지 않을 뿐만 아니라, 이 사건 계약은 쌍방의 당사자가 각각 영위한 업무내용에 따른 비용은 스스로 분담하도록 되어 있어 이 사건 계약과 관련한 사업의 총수익에서 총비용을 공제한 이익 내지 손실의 분담약정이라고 볼 것은 아니다. 원고의 위 주장 역시 이유 없다.

Sheblling fees are consideration for services

㈎ 아래의 사실은 당사자들 사이에 다툼이 없거나, 앞서 나온 각 증거와 갑 제22호증의 기재, 당심에서 한 한국OOOOO협회에 대한 사실조회회신 결과 및 변론 전체의 취지를 종합하여 인정할 수 있다.

1) Rawlsing commission is an amount equivalent to 1.2% to 1.6% of the total amount provided by customers to gambling, irrespective of their successs, in substitution of the amount of money paid to customers who are admitted to the game according to scamet contracts to attract rolling games (contract games).

2) A customer who attracts a normal overseas ticket company is not registered as a customer of a domestic casino, and thus a domestic casino does not directly pay rolling fees to the customer and pays it through the ticket company.

3) According to the contract of this case, profits from which the Plaintiff deducted from sales shall be distributed at the ratio of 40%, BB, etc. to 60% (Article 4(2)), and the key amount of the instant case paid by the Plaintiff to BB, etc. include rolling fees as follows:

[Attachment 6, Unit : Won]

Taxation Unit

A specialized solicitor;

Rawls’s Fees Payment

1, 2008

BB, etc.

3,194,906,320

1, 2009

BB, etc.

1,742,522,000

2, 2009

BB, etc.

3,607,454,000

1, 2010

BB, etc.

1,689,581,000

2010

BB, etc.

5,822,025,000

Total

16,056,488,320

㈏ 판단

1) Value-added tax is imposed on the transaction of “supply of services.” Since the Plaintiff’s rolling commission paid to BB, etc. including the key amount in the instant case is not the price for the service provided by BB, etc., the amount should be excluded from the value-added tax base. In light of the following circumstances, ① rolling commission is the money that is known to BB, etc. in the overall purport of factual relations and pleadings as seen earlier, namely, ① rolling commission is the money that is paid to customers admitted to a casino business operator regardless of a winning ticket; ② Article 4 of the instant contract provides that “the profits from sales less a coverback” is distributed to BB, etc.; ③ The Plaintiff’s payment of rolling commission to B, etc. is treated as the cost of sales; ③ It appears that the Plaintiff’s payment of rolling commission to B, etc. was not registered in the domestic casino, and thus, it cannot be seen that the Plaintiff’s payment was made to BB, etc. in light of the nature and nature of the service offered by BB, etc.

2) In light of the fact that the plaintiff is entering into a contract by applying the payment rate of rolling commission differently to the professional recruiter, the head of the defendant's office of tax office asserts that rolling commission can also be seen as compensation for the provision of customer attraction service. However, the above defendant's assertion is without merit because the characteristic of rolling commission is not different by determining the payment rate of rolling commission differently according to the characteristics of the customer admitted by the plaintiff.

3) Therefore, rolling fees included in the instant issues should be deducted from the tax base of the instant value-added tax. However, when calculating the instant value-added tax after deducting the rolling fees from the key amount, the reasonable tax amount is as follows. As such, the part of the instant value-added tax disposition that exceeds the aforementioned legitimate tax amount is unlawful.

[Attachment 7, Unit : Won]

Taxation Period

Original Tax Base

Original notified Tax Amount

Tax base other than rolling fees

Justifiable Tax Amount

1, 2008

6,272,786,320

690,006,490

3,077,880,000

38,566,800

1, 2009

4,941,049,00

543,515,390

3,198,527,000

351,837,970

Second Period, 2009

7,009,351,400

71,028,650

3,401,897,400

374,208,714

1, 2010

1,554,893,000

171,038,230

-134,688,000

0

2010 Second Period

13,614,195,000

1,497,561,450

7,792,170,000

857,138,700

Consolidateds

3,673,150,210

1,921,752,184

○ 12 (B) Part 4 of the 12th part of the corporate tax disposition of this case is "(d)".

Pursuant to Section 12, “i.e., the type of wrongful calculation” shall be added in front of “the type of wrongful calculation.”

○ The following shall be added to the 13th page 16th:

B. The director of the Luxembourg asserts that even if the land of this case is not a non-profit asset, the purchase of the land of this case by the plaintiff is a abnormal lack of economic rationality and the cost borne by the plaintiff should be included in deductible expenses, and thus, the non-deductible expenses under Article 52 of the Corporate Tax Act (the provisions of each subparagraph of Article 88(1) of the Enforcement Decree of the Corporate Tax Act can be viewed as an exemplary provision) or the non-deductible expenses under Article 88(1)9 of the Enforcement Decree of the Corporate Tax Act (the provisions of each subparagraph of Article 88(1) of

On the other hand, Article 8 (1) of the Enforcement Decree of the Corporate Tax Act provides for an overall type of act with regard to "where it is deemed that Article 8 (1) of the Enforcement Decree of the Corporate Tax Act has unjustly reduced the burden of tax" under the delegation of Article 52 of the Corporate Tax Act, with regard to "where it is deemed that the burden of tax has been unjustly reduced" under subparagraphs 1 through 7, 7-2, 8, and 8-2 of the Corporate Tax Act, and subparagraph 9 provides for an individual and specific type of act, and subparagraph 9 provides that "other acts or calculation corresponding to those under subparagraphs 1 through 7, 7-2, 8, and 8-2 and other distribution of profits of the corporation", but the above type of act under subparagraphs 1 through 7, 7-2, 7-2, 8, and 8-2 shall be deemed to have been calculated in addition to those under subparagraphs 1 through 7, 7-2, 8, and 8-2.

As seen earlier, insofar as purchase of non-profit assets under Article 88(1)2 of the Enforcement Decree of the Corporate Tax Act does not fall under the case of purchasing the non-profit assets and bearing the expenses for the assets, it cannot be deemed that the purchase of the land of this case constitutes an act of unfairly evading or reducing the tax burden due to abnormal transactions that lack economic rationality between the specially related parties as asserted by Defendant OO head of the tax office, and there is no other evidence to acknowledge it. Thus, the assertion under Article 52 of the Corporate Tax Act or Article 88 subparag. 9 of the Enforcement Decree of the Corporate Tax Act of

2. Conclusion

Therefore, since the part of the disposition of the value-added tax of this case by the head of the defendantOO tax office exceeds the above legitimate tax amount and the disposition of the corporate tax of this case by the head of the defendantOO tax office is unlawful, it shall be revoked. Since the part of the judgment of the court of the first instance against the head of the defendantO tax office is unfair based on some conclusion, the part against the plaintiff, which exceeds the above legitimate tax amount, shall be revoked. The remaining appeal by the plaintiff is dismissed as without merit, and the part against the head of the defendantO tax office in the judgment of the court of first instance against the head of the defendantO tax office is just in conclusion. Thus, the appeal by the head of the defendantO tax office shall be dismissed as without merit, and the decision of the court of first instance shall be corrected as it is obvious that the part against the head of the defendantO tax office in the judgment