Seoul Administrative Court-2012-Gu 41516 ( October 06, 2014)

Seoul High-2012-128 ( August 30, 2012)

Whether the fee paid to the fixed-term telecommunications service provider is excluded from the revenue amount from the revenue amount of the information service fee received by the audio information service provider;

If a provider of voice information service provides voice information service using the network of a fixed-term telecommunications company, and has a fixed-term telecommunications company receive information use fees on his/her behalf by contract and pays certain fees, all of the information use fees, including fees, shall be the revenue amount.

Article 9 of the Value-Added Tax Act;

Seoul High Court-2014-Nu-2760 ( dated 16, 2015)

주식회사 ㅇㅇㅇㅇ

ㅇㅇ세무서장

National Rotations

August 19, 2015

September 16, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court shall be revoked. The imposition disposition of each corporate tax and value-added tax imposed on the Plaintiff on January 2, 2012 and each disposition of notice of change in income amount issued on February 21, 2012 to the Plaintiff shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: (a) the part of the judgment of the first instance is dismissed or added as set forth in paragraph (2) below; and (b) the reasoning for the first instance judgment is the same as the part of the judgment, except for the addition of the judgment on the conjunctive argument made by the Plaintiff at the trial at the trial; and (c) thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act

2. Parts to be removed or added;

The 3rd party's 8th place of revenue shall be excluding the portion verified as unrecovered credit out of the omitted revenue amount.

After the 'the fifth point' in the first 9th place, the following shall be added:

(A) In the contract made between the plaintiff and the Ael Telecom, the purpose of this contract is to provide for matters necessary for the provision of telephone information services to the customers using the information provided by the plaintiff. However, in light of the other phrases and main contents of the contract of this case, it seems that it is merely an explanation about the transmission route of telephone information services.

After the 'the establishment of the 15th place' in the first place, the following is added:

(A) Whether the information user, who is the other party to the provision of information, should be identified is not an essential premise in establishing a contractual relationship, but a documentor is sent by a communications company, etc. on the other hand, even if the documentor is sent by the communications company, etc., this constitutes an agent or agent for the communications company, etc. that the plaintiff should have the information user under the instant contract with the Plaintiff and the communications company

After the 18th report, the following is added.

(7) Article 58(11) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 22043, Feb. 18, 2010; hereinafter the same) provides that “Where a telecommunications business operator under the Telecommunications Business Act provides telecommunications services to a user of another telecommunications business operator and allows another telecommunications business operator to collect the price therefor by proxy, the telecommunications business operator who provides the relevant telecommunications services may issue a tax invoice to another telecommunications business operator and deliver a tax invoice to another telecommunications business operator.” This recognizes an exception to the method of issuing a tax invoice by reflecting the characteristics of the telecommunications business under which the telecommunications business operator is strictly distinguished from the content and scope of the business and the installation and operation of the relevant facilities due to the common telecommunications business, the special telecommunications business operator, and the value-added telecommunications business. Therefore, even if the Plaintiff, the subject of

The following shall be added at the end of the 21st place:

【Plaintiff’s assertion” refers to the amount equivalent to 90% of the information usage fees actually received by the telecommunications company, etc., not all of the information usage fees incurred by the Plaintiff, which is inconsistent with the Plaintiff’s report of corporate tax (No. 21-1 to 4) by including the collection agency fees deducted by the telecommunications company, etc. in deductible expenses)

Attached - Attached 14 pages - 15 pages) shall be replaced by the relevant Acts and subordinate statutes attached to the written judgment of the court.

3. Judgment on the conjunctive assertion

A. The plaintiff's assertion

1) Even if the Plaintiff directly provided the instant service to the information user, it is impossible for the Plaintiff to exercise his/her claim at the time of the occurrence of the claim for information usage fees, since all authority and means regarding the claim for information usage fees are against communications companies, etc. Therefore, it shall be deemed that the time when the amount recovered and settled by the communications company, etc. arrives at the time of payment to the Plaintiff, as long as the amount collected and settled by the communications company, etc. is deposited to the Plaintiff, and thus, the instant disposition

2) According to the Plaintiff’s confirmation, from May 2007 to December 2007, the amount of unpaid claims out of the total amount of information usage fees of the pertinent year is KRW 402,811,921, KRW 718,60, KRW 560, KRW 549,515,665, and KRW 375,478,029, KRW 434,4379, KRW 5208, KRW 2008, KRW 472,96,072, and KRW 472,956,072, 209, and KRW 472,956,072, the amount of unpaid claims out of the total amount of information usage fees of the pertinent year, and KRW 718,60, KRW 508, and KRW 549,665, 209, cannot be deemed to have been attributed to the Plaintiff’s representative of the instant company, etc., because the amount of income already reported.

B. Determination

1) As to the first argument

A) According to Article 9(2) of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010; hereinafter the same), and Article 22 subparag. 1 of the former Enforcement Decree of the Value-Added Tax Act, in the case of ordinary supply, the time when the provision of services is completed is determined as the time of supply of services

Meanwhile, Article 40(1) of the former Corporate Tax Act (amended by Act No. 9898, Dec. 31, 2009; hereinafter the same) provides that "the fiscal year of accrual of earnings and losses of a domestic corporation for each fiscal year shall be the fiscal year which includes the date on which the concerned earnings and losses are finalized." Article 69(1) of the former Enforcement Decree of the Corporate Tax Act provides that "the fiscal year of accrual of earnings from the provision of the service shall be the fiscal year which includes the date on which the provision of the service is completed." Even if the right has an interval of time between the time and the time of the realization of the income, it shall be deemed that the income has accrued during each fiscal year is the fiscal year which includes the date on which the concerned income and losses are finalized." Article 40(1) of the former Corporate Tax Act provides that "The fiscal year of accrual of earnings and losses of the domestic corporation shall be the fiscal year which includes the date on which the right is established." It shall be determined that there is no possibility that the right can be more specific statutory limits than 20 years.

B) In light of the above legal principles, it is reasonable to view that the Plaintiff’s right to information usage fees can be objectively recognized at the time of the completion of the provision of the instant service. (3) The fact that the Plaintiff’s right to information usage fees can be collected by the communications company, etc. under the instant contract for the purpose of claiming information usage fees and receiving convenience is due to the following circumstances: (i) the Plaintiff’s exercise of its right by proxy to the communications company, etc.; (ii) the Plaintiff cannot be deemed as legally restricted to the Plaintiff’s exercise of its claim; and (iii) the Plaintiff’s exercise of its right cannot be deemed as being provided by the communications company, etc. for the purpose of claiming information usage fees and receiving convenience; and (iv) the Plaintiff’s claim for information usage fees can still be collected from the communications company, etc.’s ex officio termination of the user’s supply contract after the completion of the instant service; and (iv) the Plaintiff’s claim for information usage fees can still be collected from the communications company’s address and payment method.

Therefore, this part of the plaintiff's assertion is without merit.

2) As to the second argument

A) Article 67 of the former Corporate Tax Act and Article 106(1)1 of the former Enforcement Decree of the Corporate Tax Act provide that "where it is obvious that the amount included in the calculation of gross income has leaked out of the company, it shall be deemed as dividends, bonuses by the disposition of profits, other income, and other outflow from the company according to the person to whom it reverts, but where it is unclear, it shall be deemed that it

On the other hand, if a corporation fails to enter its sales in an account book despite the fact of sales, the total amount omitted from sales shall be deemed to have been leaked to a private company, barring any special circumstances. The revenue of a corporation leaked to a private company shall be disposed of as a bonus to the representative, as long as the ownership of the revenue is unclear. In this case, a special circumstance that the omission in sales is not leaked to a private company or the ownership of the omission in sales is obvious should be proved by the corporation asserting it (see, e.g., Supreme Court Decisions 98Du16347, Dec. 24, 199; 2001Du2560, Dec. 6, 2002).

B) In light of the above legal principles, the following circumstances are revealed to have been combined with the above evidence Nos. 20-1 to 5, Eul evidence Nos. 21-1 to 4 of the above evidence Nos. 21. (1) The defendant, around Apr. 2010, received data from the telecommunications company, etc. on or around July 2010, and issued the disposition of this case. (2) The defendant, at the time of inclusion in gross income, did not present an amount equivalent to KRW 616,945,920, KRW 273,341,36, KRW 17208, KRW 208, KRW 209, KRW 209, KRW 209, KRW 2797, KRW 960, KRW 2096, KRW 97, KRW 960, KRW 209, KRW 960, KRW 97, KRW 209, and KRW 986, KRW 209.

Therefore, the plaintiff's assertion on this part is without merit.

4. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.