The early 208 middle 2732

Appropriateness of the disposition in which the service charges paid to await at the taxable entertainment place have been included in the income amount

Although the service charge was written separately in a credit card sales slip, it is not deemed that the customer perceived and paid as the service charge reverted to the water, and the actual service charge does not constitute a service charge excluded from the tax base due to the fact that the service charge was paid in the form of the val, etc.

The contents of the decision shall be the same as attached.

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On December 6, 2007, the first instance court's decision against the plaintiff on December 14, 2007 (the plaintiff stated on December 15, 2010 as the plaintiff's written application for correction of claim, but appears to be a clerical error in the statement on December 6, 2007) attached 1. "The details of the imposition of "the details of the imposition of the defendant's Additional Tax Director" of the second instance tax office on December 1, 2007, "the details of the imposition of the defendant's Goyang Tax Office's disposition" attached to attached Form 2 of the second instance tax office on December 1, 2007, and "the details of the imposition of the defendant's Goyang Tax Office's disposition" in attached Form 2 of the second instance tax office on December 3, 2007 (the plaintiff stated on December 15, 2007 as the above written application for correction of claim, but all of "the details of the imposition of each defendant's "attached No. 3" in attached Form 3.

1. Details of the disposition;

A. The plaintiff is a business operator who actually runs an entertainment business (hereinafter above 7 entertainment business establishments) such as AAAAA Dong 96-4 'BBB BBS clubs', 'BBPPPPPPPPP or art clubs located in Suwon-si, 535-5 'BBS clubs located in Seocheon-si, Seocheon-si, MaM-si, 'BBS clubs', 'ZZZZZg or Art', 'OOOOOOOOPPPP or art clubs', 'PPP or art clubs located in Suwon-si, 96-4 'BBS clubs', 'BBS clubs', 'BBS', 'BPP or art club located in Seocheon-si, Macheon-si, 'BS', 'BBS', 'Broom', 'Broom', 'B200, 3005.

(C) Accordingly, the plaintiff's request for adjudication was made on December 6, 2007 by omitting the revenue amount of 2.3 billion won as stated in the separate sheet No. 1 to 3.3 (hereinafter "each service charge of this case"), and the head of the above tax office's 36,845,297 won, and the special consumption tax and education tax (from July 2004 to March 3, 2005)'s 40.7 billion won, and the remaining tax amount of 208 billion won were subject to the disposition of imposition of 3.3 billion won as stated in the separate sheet No. 1 to 3.3.7 billion won, and the remaining tax amount of 205 billion won were subject to the disposition of imposition of 3.7 billion won as stated in the separate sheet No. 1 to 13,856,80 won, the special consumption tax and education tax (from December 1, 2004 to 30 billion won).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, 11, Eul evidence 1 to 11 (including each number), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) The Corporation, who worked at each of the instant workplaces, is an independent business entity that, instead of the employees employed by the Plaintiff, directly attracts and manages customers through its own business, and is an independent business entity that lives through the service fees paid by the customer. Accordingly, since the credit card sales slip, etc. received a separate and written payment for the service charges, and the business income tax on the service charges paid to the Corporation was withheld and paid through withholding, the amount of service charges paid to the Corporation should be excluded from the Plaintiff’s sales. However, each of the dispositions of this case, which the Defendant calculated the tax base of the value-added tax and the special consumption tax by including each of the service charges paid to the Corporation by the Plaintiff from the Plaintiff’s sales, is unlawful.

(2) Even if each of the instant dispositions is lawful, the Plaintiff has withheld and paid business income tax on service charges paid to a person who works at each of the instant businesses, and there was belief that the pertinent tax authority did not raise any objection, and thus, the portion paid as the above service charges is not included in the tax base of value-added tax or special consumption tax. However, deeming that the entire service charges constituted Plaintiff’s sales, and imposing penalty tax on such omission is unlawful in violation of the principle of proportionality and the principle of excessive prohibition.

B. Relevant statutes

Attached Form 4. The entry in the relevant statutes is as follows.

(c) Fact of recognition;

(1) The Plaintiff is a business entity that actually runs each of the instant establishments, such as attracting customers and providing them with various convenience in each of the instant establishments, in so far as the instant establishment provides customers with entertainment, place, alcoholic beverages, etc.

In the case of sale, the amount equivalent to 15% of the sales has been paid.

(7) Each of the service charges of this case is the amount that the plaintiff did not report as the amount of income after being paid and processed as the service charges for the water among the income accrued from the businesses of each of the instant places of business, and its details are as the amount stated in the column of "service charges (sale)" in attached Table 1 to 3.

(8) Meanwhile, on November 25, 2005, the plaintiff was sentenced to one year and six months of imprisonment (four years of suspended sentence), two years and six months (four years of suspended sentence), and a fine of 4.8 billion won (four years of suspended sentence), and 15 billion won (four years of suspended sentence) and 25 years and 15 billion won (4 years of suspended sentence), and 206.3 years and six years of suspended sentence (4 years of suspended sentence), and 2.6 years and 4.8 billion won (2.6 years of suspended sentence), and 206.3 years and 2.6 years of suspended sentence (2.6 years of suspended sentence) and 2.6 years and 2.6 years of suspended sentence (2.6 years of suspended sentence) of imprisonment with prison labor (2005Da105, 205Da263 (merged)). The judgment of the Seoul High Court was reversed by 206.3 years and 16.6 years of final appeal against the above judgment (200.6 years and 16.3 years of suspended sentence).

(9) The Plaintiff, while directly paying each of the instant service charges to the pertinent Party, has received the signature of the Party on the Service Fee Payment Book, submitted the Service Fee Payment Book (Evidence A) with the evidence. However, there is no evidence suggesting that the content corresponds to the amount of the service fee separately stated in the credit card sales slip, etc., and there is no other objective financial data, etc.

(10) According to the Plaintiff’s statement (Evidence No. 12) and the former half (Evidence No. 13) prepared in the third country of the investigation of the above individual tax base against the Plaintiff, the Plaintiff issued a credit card sales slip by dividing it into service charges, but the Plaintiff issued at will to meet 25% of the daily amount paid by the customer as service charges, not the actual service charges, and the amount recorded in the service fee payment ledger is not the actual amount of 25% of the total amount paid to the wawawawa, but the total amount paid is not the actual amount paid to the wawawawa, and the signature on the service fee ledger received from the wawawater working at each of the instant workplaces, and answer to the purport that the signature on the service fee ledger is his own, but there is no fact that the service fee was actually paid in the service fee ledger, and even if the service fee was received, it is different from the amount entered in the service fee ledger.

(11) The Plaintiff withheld the amount equivalent to each of the service charges of this case as the business income of each of the relevant wazers, and paid it to the competent tax office.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 5, 6, 8, 11 through 17, Eul evidence Nos. 11 through 18, 20 through 26 (including each number), and the purport of the whole pleadings

D. Determination

(1) Article 48(1) of the Enforcement Decree of the Value-Added Tax Act provides that "the tax base under Article 13(1) of the Value-Added Tax Act includes all monetary values related to consideration received from a trade partner, regardless of the pretext thereof," while Article 48(9) of the same Act provides that "a business operator shall provide food and accommodation services or personal services, and enters the service charges of the end-of-life workers (including free-time employees) along with the consideration in a tax invoice, receipt, credit card sales slip under Article 32-2 of the Act separately from the consideration in a case where it is confirmed that he/she has paid the service charges to an employee for the current year, the service charges shall not be included in the tax base: Provided, That the same shall not apply to cases where the business operator appropriates the service charges as his/her income from his/her own, but the same shall not apply to the receipt of the special consumption tax (including the amount prior to amendment by Act No. 8829, Dec. 31, 2007; hereinafter the same shall apply).).

According to the above provisions, if a business operator enters the service charges of employees in credit card sales slip, etc. separately from the consideration for the provision of his service, the service charges are not, in principle, included in the tax base of value-added tax and special consumption tax, and in this case, the "employee's service charges" means the amount which the customer pays with the intention to directly belong to the employee who provided the service in question as the consideration for intangible services, such as the speech, friendship, and consideration, which are provided by the business operator in connection with the provision of service, separate from the consideration for

Therefore, in cases where a business operator supplies food and accommodation services or personal service, and enters the service charges of employees received along with the price separately from the price on credit card sales slip, etc., if it is confirmed that the service charges were paid to the relevant employee, the service charges shall not be included in the tax base of value-added tax and special consumption tax, but the mere fact that the service charges were separately entered in credit card sales slip, etc. cannot be deemed as the service charges excluded from the tax base of value-added

(2) In light of such legal principles, we examine whether each of the instant service charges constitutes “service charges of employees” under Article 48(9) of the Enforcement Decree of the Value-Added Tax Act and Article 2(1)11 of the Enforcement Decree of the Special Consumption Tax Act, which are excluded from the tax base of value-added tax and special consumption tax.

As seen earlier, the service charges issued at each place of business of this case are separately stated in the credit card sales slip sales slip No. 1. However, there is no objective evidence that the plaintiff can recognize that the amount equivalent to the service charges stated on the above credit card sales slip No. 8, and each certificate (Evidence A. 21, 22, and 23) presented by the plaintiff was convicted of evading value-added tax by such unlawful means as falsely entering the service charges No. 8, 9, and 10, and the plaintiff's assertion that the service charges of this case were not included in the payment method of the service charges of this case under the premise that the payment of the service charges of this case is not recognized as the grounds for recognizing the fact that the service charges of this case were not included in the payment method of the service charges of this case 8, i.e., the amount equivalent to the sales of the credit card sales by each place of business, i., the amount equivalent to the sales of each of the above service charges of this case, and 25% of the total service charges of this case.

(3) On the other hand, the plaintiff has withheld and paid business income tax on service charges paid to waits working in each of the businesses in this case, and the pertinent tax authority has not raised any objection thereto. Thus, it is alleged that 40% additional tax on the omission of sales should be illegal in violation of the principle of proportionality and the principle of excessive prohibition. Thus, it is difficult to view that the defendant collected and paid business income tax on the premise that the plaintiff paid each of the service charges in this case to waits and received it without any particular objection, and it is difficult to view that the tax base amount of the business income tax is entirely recognized as service charges. Under the tax law, it is difficult to view that the taxpayer's intentional negligence or negligence as administrative sanctions imposed under the Act in order to facilitate the exercise of the right to impose taxation and the realization of tax claims, and that the taxpayer's imposition of additional tax on the omission of sales should not be considered as a justifiable reason (see, e.g., Supreme Court Decision 2004Du13050, Apr. 1, 2004).

3. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed in its entirety as it is without merit. It is so decided as per Disposition.