Daejeon District Court 2013Guhap101363 ( October 01, 2014)

Cho Jae-chul2013 Before 2212 (No. 12, 2013)

Whether the plaintiff's business is considered as a job placement service or as a manpower supply business

Even a transaction using the so-called so-called so-called surrogate payment system, such circumstance alone cannot be viewed as a job placement business subject to tax exemption for the provision of human resources services operated by the human resources supply business. Therefore, the plaintiff'

Article 7 (Supply of Services)

Daejeon High Court 2014Nu11968 Revocation of Disposition of Imposing capital gains tax;

OO

00. Head of tax office

Daejeon District Court Decision 2013Guhap101363 Decided October 01, 2014

on October 2015 02

on 14, 2015

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The Defendant’s imposition of value-added tax of KRW 1,131,30 for the first period of value-added tax in 2008 against the Plaintiff on February 8, 2013, KRW 42,885,220 for the first period of value-added tax in 2010, KRW 131,922,540 for the second period of value-added tax in 2010, KRW 248,03,280 for the first period of value-added tax in 201, KRW 163,420,780 for the second period of value-added tax in 201, and KRW 97,061,750 for the first period of value-added tax in 2012 is revoked.

2. Purport of appeal

As set forth in the text.

1. Details of the disposition;

A. The plaintiff is a person who has registered his/her business in each trade name, such as "the HS Job Placement Service" and "JI Removal" in the ooo-dongo-dong 622-10.

B. On the premise that the personal services provided under the name of the HS job placement office (hereinafter referred to as the "personal services in this case") constitute the "job placement business, which is a value-added tax-free business", the Plaintiff did not report and pay a value-added tax equivalent to the issue amount of the sales account of the HS job placement office from the first half of 2008 and the first half of 2010 to the second half of 2012.

C. From September 6, 2012 to October 10, 2012, the Defendant: (a) determined that the Plaintiff actually engaged in human resources supply business, which is a taxable business, under the trade name of the Plaintiff, as the result of conducting a tax investigation with the Plaintiff from September 6, 2012 to October 10, 2012; (b) determined that the amount of income was calculated by including the value-added tax on the sales tax base of “JI Removal” operated by the Plaintiff; (c) on February 8, 2013, the Plaintiff issued a notice of imposition of the value-added tax of KRW 1,131,30 for the first period of value-added tax of KRW 42,85,220 for the first period of value-added tax of KRW 131,922,540 for the second period of value-added tax of KRW 248,03,280 for the first period of value-added tax of KRW 248,280 for the year 2011.

D. The Plaintiff filed a request for pre-assessment review on November 23, 2012, which was prior to the instant disposition, but was dismissed on January 17, 2013. The Plaintiff filed a request for a tax review again on April 22, 2013 regarding each of the instant dispositions, but was dismissed on July 12, 2013.

Facts that there is no dispute over recognition, Gap's evidence 1 through 4, Eul's evidence 1 through 7 (including each number); the purport of the whole pleadings

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

A. Summary of the plaintiff's assertion

The plaintiff introduced and arranged the employment of daily workers to the job offerers, and then received wages in lump sum at the request of the job offerers, and deducted 10% of the daily premium from daily workers upon delegation by the daily workers, and paid the remainder as daily allowance to daily workers. The personal service of this case constitutes an over-tax-free job placement business. Even if it constitutes a taxable business, the value-added tax should be exempted because it constitutes the over-tax-free job placement business. Even if it constitutes a taxable business, it goes against the principle of substantial taxation by making the plaintiff the total labor fee as the tax base.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Facts of recognition

① From January 8, 2007, the Plaintiff opened the HS Job Placement Service, a tax-free business, and reported and paid value-added tax by closing its business on August 11, 2009 and converting it into a taxable business. On April 12, 2010, the Plaintiff cancelled the registration of the taxable business and re-registered the business as a tax-free business.

Trade name, business number, date of commencement and closure, details of business

JI Removal 3****-5016 April 15, 2005, and supply of human resources on July 2, 2012

HS 3**-**-62037 January 8, 2007, supply of human resources on April 12, 2010

HS Job Placement Office 3**-**-41 January 8, 2007, supply of human resources on August 11, 2009

HS Job Placement Office 3**-**6670 April 2, 2010, human resources supply on July 12, 2012

② The Plaintiff sent daily workers recruited by the Plaintiff to the construction companies and manufacturers in the Yananansan and Asan area (hereinafter referred to as “construction companies, etc.”) and received daily wages from the construction companies, etc. based on the “work confirmation letter stating the number of service workers, the number of workers, the number of working days, and the details of daily labor cost,” and the “daily labor cost statement stating the labor cost”. The Plaintiff paid daily wages to the daily workers after deducting the amount of 10% from the total labor cost received from the construction companies, etc. The Plaintiff received the daily wages from the daily workers before receiving the labor cost, etc.

③ Daily workers did not enter into an employment contract with the Plaintiff, and most of the construction companies did not enter into an employment contract or prepare a written employment contract, even with the Plaintiff. However, the Company: (a) contracted the construction work from the SSGNR Co., Ltd. to the HNT; and (b) HNT entered the workers receiving from the Plaintiff into the construction site of SSGNR Co., Ltd.; and (c) at the time, the said workers entered into an employment contract with the TPPK. Of daily workers offered by the Plaintiff to the construction companies, LDK entered into an employment contract with the IW Construction Co., Ltd. on October 13, 201 with the SSGNR Co., Ltd.; and (b) SS entered into the employment contract on May 2, 2012 with the SSGNR Co., Ltd.

④ The Plaintiff issued a sales invoice stating the total labor cost received from a construction business entity, etc. as the supply value, but did not receive the amount equivalent to the value-added tax separately from the construction business entity.

⑤ With respect to the amount paid to daily employed workers, the Plaintiff prepared a statement of daily earned income directly and submitted it to the head of a tax office quarterly. The details of the submission are as follows:

The total amount of daily income paid for the total amount of income for the year of accrual.

20101,483,314,950 won 1,483,314,950 won 1,8861,35,480,80 won

20113,491,058,200 won 3,491,058,200 won 3,763,249,841,261 won

(6) The Plaintiff filed a civil petition with the head of the Seo-gu Daejeon Regional Employment and Labor Agency by asserting that the Plaintiff had not received retirement allowances from the representative of the SESGNR Co., Ltd. on May 22, 2012, against LJY, JYJ, PMW, PSS, PSO, and LSS, instead of retirement allowances, the Plaintiff paid the same amount as the amount of retirement allowances to the SESGNR Co., Ltd. In addition, the Plaintiff filed a petition against the head of the Seo-gu Daejeon Regional Employment and Labor Agency on March 27, 2011, claiming that the amount of retirement allowances was not paid from the representative of the SESGNR Co., Ltd. from March 27, 2011 to May 7, 2012. However, the Plaintiff received an amount equivalent to KRW 4,50,000,000 from the retirement allowances, and the Plaintiff voluntarily withdrawn the said amount on July 24, 2012.

7) As to the fact that the representative director of LNS East Co., Ltd. was sentenced to imprisonment for 6 months with prison labor for not paying wages to 14 workers who arranged their labor in violation of the Labor Standards Act in Daejeon District Court Decision 2008 High Court Decision 2008 High Court Decision 1145, the Plaintiff was sentenced to a two-year suspended sentence. At that time, CISD asserted that 14 workers are not the Defendant (CISD) who was dispatched the Plaintiff who was the director of the job placement office, but was rejected.

8. The defendant recognized exemption from personal services provided by the plaintiff to HNT

Facts without any dispute, Gap's evidence Nos. 20, 21, 23 through 33, 36, Eul evidence No. 8 (including each number), Eul's witness KBS, KY's testimony in the first instance court, DH companies, UJ Construction Industry Co., Ltd., KWC Co., Ltd., CEC Co., Ltd., Ltd., KBK, KB design Co., Ltd., DBK, WBK, and HNT, the fact-finding results in the fact-finding conducted by this court on DITJ and the whole purport of the arguments.

2) As to whether the instant personal service constitutes a job placement service

A) Article 12 (14) of the former Value-Added Tax Act (amended by Act No. 11608, Jan. 1, 2013) provides that "one of the items eligible for value-added tax exemption is "the supply of human resources services that are professionally provided by persons prescribed by Presidential Decree". Article 35 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24359, Feb. 15, 2013) provides that "personal services under Article 12 (1) 14 of the Act shall be independent services (including where several concurrent businesses provide services that are not essential to taxable businesses) (including where several operators provide services that are independently incidental to taxable businesses)," and Article 12 (3) and (5) of the former Enforcement Decree of the Value-Added Tax Act provides that "the provision of information on job placement services to job seekers or job seekers, which is one of the main agents of the supply of value-added tax, shall be excluded from the Korea Standard Industrial Classification."

B) The following facts revealed in light of the above facts: (i) if the Plaintiff provided job placement services, it is difficult to view that the Plaintiff’s remaining provision of job placement services with the contractor is exempt from value-added tax on the ground that it is hard to view that the Plaintiff’s provision of job placement services with the contractor, etc. was exempt from value-added tax, and (ii) the Plaintiff received money from the contractor, etc.; (iii) the Plaintiff’s daily wage payment statement was prepared and submitted to the head of the tax office; (iv) the Plaintiff’s direct request for the payment of retirement allowances to the employees sent by the Plaintiff; and (v) in the case of HNT, the Plaintiff’s direct employment contract was concluded with the WBK, the contractor, etc., and thus, it was difficult to view that the Plaintiff’s request for job placement services with the contractor’s free job placement services was also exempt from value-added tax solely on the grounds that the Plaintiff’s demand for job placement services, such as job placement services, and that it was difficult to view that the Plaintiff’s demand for the Plaintiff’s full payment of job placement services, etc.

3) As to the calculation of the tax base

According to Article 13(1)1 of the former Value-Added Tax Act and Article 48(1) of the Enforcement Decree of the same Act, the tax base of value-added tax shall be the price received in money, and shall include all monetary values in a quid pro quo regardless of the pretext such as money, fees, fees, and any other pretext received from a trader

In light of the above facts, it is reasonable to view the total amount as the value-added tax base, since the Plaintiff received not only the brokerage fee for the supply of the instant personal services from the construction enterprise, etc., but also the entire labor cost.

4) Sub-determination

Therefore, each disposition of this case based on the total amount of money including labor cost received by the Plaintiff is lawful, and the Plaintiff’s claim seeking revocation of each disposition of this case based on different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.