Board of Audit and Inspection ( Board of Audit and Inspection, 2012.04.12)

The fact that service fees are paid to the relevant employee is not confirmed, and it shall not be deemed as service fees not included in the total amount of income.

It is difficult to recognize that service charges have been paid solely due to the difference between the details of service charges and the time and amount of account transfer from the head of a Tong.

Article 13 of the Value-Added Tax Act

2013Guhap153 Revocation of Disposition of Imposition of Value-Added Tax, etc.

South AA

1.B Director 2.CC Head

June 21, 2013

August 23, 2013

1. All of the plaintiff's claims are dismissed.

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

On January 5, 2012, the head of Defendant BB Tax Office revokes the imposition of the traffic, energy and environment tax (including education tax) on the Plaintiff on January 5, 2012, the first half of the value-added tax on the first half of the year 2009, the first half of the value-added tax on the second half of the year 2009, the imposition of the OOOOOwon among the individual consumption tax (including education tax) on January 2009, and the individual consumption tax (including education tax) on April 2009 and the individual consumption tax (including education tax) on the individual consumption tax on July 2009, and the imposition of the OOOwon among the OOO won on the first half of the year 209, and the imposition of the tax on the global consumption tax on the first half of the 2009 that belongs to the Plaintiff on January 1, 201.

1. Details of the disposition;

A. The Plaintiff operated an entertainment drinking house (hereinafter “instant main shop”) with the trade name “DD” in the underground space of OO-gu O-dong 125-16 O-dong 125-16 O-dong.

B. From March 8, 2011 to May 26, 201, the director of the regional tax office determined that the Plaintiff conducted a tax investigation with respect to the Plaintiff, and that “OOOOO was omitted from sales, and that it was falsely reported to the Defendants as if the Plaintiff paid OOOOO to the account under the name of the JJ head of the sales division of the instant main office of the instant main office, and as if the Plaintiff paid the OOOG to the entertainment receptionist Kim GG, etc.”

C. Accordingly, on January 5, 2012, Defendant BB head of the tax office imposed on the Plaintiff, on the Plaintiff, on January 11, 2012, on the first half-year value added, on the second half-year value added, on the second half-yearly value added, on the first half-yearly value added, on the first half-yearly value added, on the second half-yearly value added, on the second half-yearly value added, on the second half-yearly in 2009, on the second half-yearly in 2009, on the individual consumption tax, on the individual consumption tax, on the individual consumption tax, on the second half-yearly in 209, and on the third half-year individual consumption tax, on the first half-yearly in 208, on the other half-year global consumption tax, and on the other half-year global consumption tax, on the first half-yearly in 209 (hereinafter referred to as the “instant disposition”).

D. The Plaintiff appealed and requested an examination to the Board of Audit and Inspection, but the said request was made October 11, 2012.

was dismissed.

[Based on Recognition] The facts without dispute, Gap evidence 1, 2, and 7 through 9 (each number included, and hereinafter the same shall apply), Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition of this case, based on the premise that the plaintiff did not pay the service fees to KimG, was unlawful, since the plaintiff paid the service fees to KimG.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) On November 26, 2010, GimG drafted a written confirmation to the following purport:

In 2009 DD, the annual total amount of OOOO was present for nine months, but it is not recognized by the person himself/herself, and in fact, OOOO was employed for two months each, and no one was working for ten days or more in the month, and it was not received every day.

2) On April 6, 2012, KimG drafted a written confirmation to the following purport:

I submitted to the head of the OO on November 26, 2010 a letter of confirmation that there was no receipt of service charges from OOOOO-dong 125-16 DD, but this submitted a false letter of confirmation to the head of the OO on November 26, 2010 that the income tax and health insurance premiums are too large and that the income tax and the insurance premiums would be reduced if you deny the receipt; and

In fact, since 2008, the service fee was paid in DD (FF at the time) from 2008, and the service fee was paid in cash to HH bank account and II bank account, and in this regard, the service fee was paid in cash, and the true signature was affixed on the service fee payment ledger.

3) From January 2009 to August 8, 2009, GG signed a service charge payment ledger (hereinafter referred to as the “instant ledger”) to the effect that it received the service charge of the following amount:

Period

Service charges (won)

on 01. 01

OOO

on 02. 02

OOO

on 1, 2009

OOO

oly 2009 04

OOO

on 05.09

OOO

oly 2009 06

OOO

on 1, 2009

OOO

on 08, 2009

OOO

Total

OOO

4)The details of money transferred by the Plaintiff to an account in the name of KimG from January 2009 to July 2009 are as follows:

Date and

Amount (won)

on January 23, 2009

OOO

on 14, 2009

OOO

on October 26, 2009

OOO

on October 30, 2009

OOO

on 18, 2009

OOO

Total

OOO

5) GG testified from this Court to the following purposes:

○ Around November 26, 2010, he submitted a written confirmation to the effect that he had not received service charges in DD around 2009, and that he had worked as a part-time worker during the locking period. However, the written confirmation is not true.

○ himself has received the bank’s account or cash service charges while working in DD around 2009.

○ entered the fact that he has received service fees as true in the service fee payment ledger.

○ The ICJ is a person who has paid service fees to his own account in around 2009, with the head of DD.

○ The total amount of service fees paid by the DD to it is long time, or it is recognized that the OOO or it has been paid in cash with the bank account and cash, and that it has received the above amount as much as the amount recorded in the DD’s payment ledger is recognized.

The reason why ○ himself submitted a written confirmation on November 26, 2010 is that, if he acknowledges the total amount of service charges as above, the income tax and health insurance premiums were imposed too much, and therefore, he denied this because he did not reach an income tax and health insurance premium to the employees of the tax office.

After that, ○ himself re-established a written confirmation around April 26, 2012 in order to hear the talk that the Plaintiff suffered difficulties due to the said written confirmation and to see the truth.

○ himself was working in DoD from 2008 to 2009, and was working in other amusement establishments prior to DoD.

[Basis of Recognition] The non-contentious facts, Gap evidence 3 to 6, Eul evidence 3, witness KimG's testimony, and the whole purport of the pleading

D. Determination

1) Article 13(1)1 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201) provides that "the tax base of value-added tax on the supply of goods or services shall be the price received, but shall not be included in the value-added tax," and Article 48(1) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013) provides that "the tax base shall include receipts that a food service provider receives from a trade partner, charges, or any other monetary value regardless of the price received from the trade partner," while Article 13(9) provides that "the tax base shall include receipts that provide services or personal services, and the amount of the individual consumption tax shall not be included in the individual consumption tax invoice, receipts, or credit card sales slips under Article 32-2 where the person receives entertainment, eating or drinking, and the amount of the individual consumption tax shall not be included in the tax base.

Meanwhile, Article 127 (1) 8 of the Income Tax Act provides that a person who pays service charges as prescribed by the Presidential Decree to a resident or non-resident in Korea shall withhold income tax from such resident or non-resident, and that "service charges as prescribed by the Presidential Decree" under Article 127 (1) 1 and 2 of the Enforcement Decree of the Income Tax Act provides that a business operator (including a corporation) provides food and accommodation services, and provides services at a taxable entertainment place under Article 1 (4) of the Individual Consumption Tax Act and enters the amount of the service charges of a person who provides services under subparagraph 1 (f) of Article 42 of the Enforcement Decree of the Value-Added Tax Act separately from the value of the supply (limited to cases where the service charges are not appropriated as his own income) separately from the value of the supply in the invoice, tax invoice, receipt, or sales slip of credit card, and that if it is confirmed that the service charges are supplied to the person who actually receives the service charges and the service charges, the service charges are supplied to the person who actually receives the service charges and the service charges.

In full view of the above provisions, where an entrepreneur supplies food and accommodation services or personal service sales slips, etc. and enters the employee’s service fees received along with the above fees separately from the tax invoices, receipts, credit card sales slips, etc., and it is confirmed that the employee actually paid the service fees, the service fees are not included in the tax base of value-added tax and individual consumption tax, but are not included in the total income, and the employee’s service fees are simply entered in the sales slips, etc., not included in the tax base of value-added tax and individual consumption tax but not included in the total income

2) 살피건대， 앞서 거시한 증거와 인정한 사실에 변론 전체의 취지를 더하여 알 수 있는 다음과 같은 사정들， 즉 ① 김GG이 2010. 11. 26. '2009년 DDD에서 봉사료로 OOOO원을 지급받은 사실이 없다'는 취지의 확인서를 작성한 점，② 원고는 김GG에게 봉사료로 OOOO원을 지급하였다고 주장하나， 이 사건 대장에는 원고가 2009. 1.부터 8.까지 김GG에게 봉사료로 합계 OOOO원을 지급하였다는 취지로 기재되어 있는 점，③ 원고는 2009. 1. 23.부터 7. 18.까지 김GG에게 봉사료로 합계 OOOO원을 송금하였다는 취지로 주장하나， 임JJ 명의의 계좌에서 김GG 명의의 계좌로 금원을 송금한 내역은 이 사건 대장의 봉사료 지급 내역과 그 지급 시기 및 액수가 상이하여 위 송금 내역만으로는 원고가 2009. 1. 23.부터 7. 28.까지 김GG에게 봉사료로 합계 OOOO원을 지급하였다고 인정하기에 부족한 점，④ 김GG이 2012. 4. 6. 작성한 확인서 및 김GG의 증언(아래에서 살펴보는 바와 같이 위 확인서 및 위 증언은 그 내용을 그대로 믿기 어렵다) 외에는 달리 원고가 김GG에게 현금으로 봉사료를 지급하였다고 인정할 만한 증거가 없는 점，⑤ 김GG은 2012. 4. 6. 'DDD에서 근무하면서 봉사료를 지급받았다'는 취지의 확인서를 작성하였으며， 이 법정에서 이와 유사한 취지로 증언하였으나，㉮ 김GG은 2010. 11. 26. '2009년 DDD에서 봉사료로 OOOO원을 지급받은 사실이 없다'는 취지의 확인서를 작성하였는바， 원고가 봉사료를 지급하였다고 주장하는 2009년과 근접한 시기에 작성된 2010. 11. 26.자 확인서가 그로부터 약 1년 4개월이 경과된 후에 작성된 2012. 4. 6.자 확인서보다 더 신빙성이 있다고 판단되고，㉯ 김GG은 이 법정에서 '2008.부터 2009.까지 DDD에서 근무 하였고， DDD 이전에 다른 유흥업소에서 근무한 적은 없다'는 취지로 증언하였으나， 김GG에 대한 과세자료 등에 의하면 김GG은 2001.부터 유흥업소에서 근무한 것으로 보이는 등 김GG의 증언은 다른 증거와 배치되는 부분이 있으므로， 김GG이 2012. 4. 6. 작성한 확인서 및 김GG의 증언은 그 내용을 그대로 믿기 어려운 점 등을 종합하면， 원고가 김GG에게 봉사료로 OOOO원을 지급하였다고 볼 수 없으므로， 원고의 위 주장은 이유 없다.

3. Conclusion

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