Incheon District Court 2012Guhap4580 (2013.04.04)

Board of Audit and Inspection 2012 depth0096

The business operator registered as a human resource supply business, and the total amount including fees and wages is considered to have been paid as an account, and is included in the human resource supply business.

The job placement service is to arrange necessary human resources and receive service fees only, and the value of supply is to be the value of supply. However, the total amount, including service fees and wages, shall be regarded as being paid as an account per month.

Article 12 of the Value-Added Tax Act

2013Nu11682 Revocation of Disposition of Imposition of Value-Added Tax, etc.

KimA

Deputy Director of the Tax Office

Incheon District Court Decision 2012Guhap4580 Decided April 4, 2013

November 27, 2013

January 8, 2014

1. Revocation of a judgment of the first instance;

2. Of the instant lawsuits, the part of the claim for revocation of the first term value-added tax on October 1, 2009 and the second term value-added tax on October 1, 2005 shall be dismissed.

3. All remaining claims filed by the Plaintiff are dismissed.

4. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s imposition of value-added tax for the first period of October 1, 2009, the first period of value-added tax for the first period of 2005, the second period of value-added tax for the second period of 2005, and the imposition of value-added tax for the first period of 2006, March 1, 201, and the imposition of value-added tax for the second period of 2006, shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. All of the claims filed by the plaintiff are dismissed.

1. Details of disposition;

A. The Plaintiff is a business operator who engages in job placement, removal, and remodeling in the trade name of OO-gu OO-dong 325-2 from BB development at O-si.

B. The plaintiff sent daily workers who will work at the construction site to CCC Development Co., Ltd. (hereinafter "CC Development") for the period from 1 to 2006 during which value-added tax is imposed (hereinafter "service provided by the plaintiff for CCC development") and determined that the service in this case is eligible for exemption from value-added tax due to job placement services, and the plaintiff filed a request for a review of the CCC development's invoice (100, 2005, 205, 100, 2006, 200, 100, 2006, 200, 2000, 2000, 200, 200, 200, 200, 100, 200, 200, 200, 200, 200, 20, 200, 200, 200, 200, 200.

The public official in charge at the time received a request for examination from the Board of Audit and Inspection by the plaintiff and the telephone, and the plaintiff did not separately receive a request for examination from the Board of Audit and Inspection with the knowledge that the plaintiff received the request for examination from the Board of Audit and Inspection. However, at the time, the plaintiff did not separately receive a request for examination from the Board of Audit and Inspection. After that, the public official in charge at the time confirmed that the request for examination from the Board of Audit and Inspection was not submitted to the Board of Audit and Inspection and Inspection, and submitted a request for examination from the Board of Audit and Inspection on December 22, 2010. However

E. Accordingly, the Defendant revoked the KRW OO of value-added tax for the first term of 2006 and KRW OO of value-added tax for the second term of 2006, except for the instant Disposition No. 1 for which the exclusion period has already expired. On March 1, 201, the Defendant issued a correction and notification of KRW OO of value-added tax for the first term of 2006 and KRW OO of value-added tax for the second term of 2006 (hereinafter “the instant Disposition”). The Plaintiff requested the Board of Audit and Inspection for the instant Disposition No. 2 on May 18, 201, and the Board of Audit and Inspection dismissed the request for review on June 21, 2012.

Grounds for Recognition: Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, 17, 18, Eul evidence Nos. 1 through 4, Eul evidence Nos. 11, 14, 15 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the request for revocation of the first disposition of this case is legitimate

ex officio, we examine the legitimacy of the claim for revocation of the First Disposition.

As seen earlier, the Defendant filed the instant lawsuit against the instant Disposition No. 2 without undergoing a request for examination by the Board of Audit and Inspection, but without undergoing a request for examination by the Board of Audit and Inspection or a trial by the Tax Tribunal. The instant claim for revocation of the instant Disposition No. 1 is unlawful (it cannot be deemed legitimate due to the instant claim for revocation of the instant Disposition, even if a public official belonging to the National Tax Service provided a somewhat inaccurate guidance on the method of objection against the instant Disposition No. 1), as it violates Articles 55 and 56 of the Framework Act on National Taxes (it cannot be deemed that the instant claim for revocation of the instant Disposition No. 1 was lawful). In addition, even though the Plaintiff filed a request for dismissal of the objection against the instant Disposition No. 2 on April 8, 2010 on May 18, 2011 with regard to the request for examination by the Board of Audit and Inspection as to the instant Disposition No. 2, the instant claim for revocation of the instant disposition after the lapse of the period of 90 days on May 18, 20190.

3. Whether the second disposition in this case is legitimate

A. The plaintiff's assertion

After arranging human resources for daily workers in the CCC development, the Plaintiff received wages from the CCC Development in a lump sum with the request for the CCC development and the delegation by its panel, and paid wages to the Plaintiff after deducting 10% from the cCC development fees. The instant services provided by the Plaintiff for the CCC development constitute a human resources supply business, not a human resources supply business, and thus the value-added tax should be exempted.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

In full view of the following circumstances, the Plaintiff’s evidence Nos. 3, 8, 10, and 18, Eul’s evidence Nos. 3, 4, 5, 8, 9, 10, and 18, and the overall purport of the pleadings, etc., it can be acknowledged that the Plaintiff had engaged in the human resources supply business subject to value-added tax from 2005 to 2006. Therefore, the disposition of this case based on the premise that the Plaintiff engaged in the human resources supply business is lawful, and the Plaintiff’s assertion is difficult to accept.

1) According to Article 12(1)13 of the former Value-Added Tax Act (amended by Act No. 915, Jan. 1, 2010) and Article 35 subparag. 2(e) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 22043, Feb. 18, 2010), a person who intends to operate a fee-charging job placement service shall be exempted from value-added tax for personal services supplied by a job placement office and other counseling centers prescribed by Ordinance of the Ministry of Strategy and Finance. Article 19(1) of the Employment Security Act provides that a person who intends to operate a fee-charging job placement service shall register with the Governor of a Special Self-Governing Province, the head of a Si/Gun/Gu having jurisdiction over the location of the principal place of business. Article 47 subparag. 1 provides that a person who conducts fee-charging job placement service without

However, the Plaintiff registered a business entity (general taxable person) with the name of "B development" as "CB construction, demolition, remodeling, and supply of human resources" on July 4, 200, but only changed the type of business to "job placement service" on May 20, 2010 after the lapse of the taxable period of the Disposition 1 and Disposition 2. It is difficult to view that the Plaintiff had operated a job placement business during the period of the Disposition 2. The Plaintiff did not receive any wage from "CCC workers" on the premise that the Plaintiff would not receive any new job placement service for the first 6-year basis for the supply of human resources under the premise that the Plaintiff would not receive any new job placement service for the first 6-year basis for the recruitment and supply of human resources under the premise that the Plaintiff would not receive any new job placement service for the first 6-year basis for the recruitment and supply of human resources under the premise that the Plaintiff would not receive any new job placement service for the first 6-year period."

5) Furthermore, if the Plaintiff issued the instant tax invoice with regard to the duty-free business, the value of supply is not subject to the fee, but can not be regarded as the value of supply, including the fee and the wage, as the Plaintiff did. In this respect, the Plaintiff’s assertion is difficult to accept.

4. Conclusion

The judgment of the first instance is revoked. The part concerning the claim for revocation of the first disposition among the lawsuits in this case is dismissed, and all remaining claims of the plaintiff are dismissed.