마일리지에 대한 부가가치세 과세의 문제점 및 개선방안 연구

Abstract

The mileage program, one of the most widely known customer loyalty programs, has difficulty in defining its characteristic as well as identifying the tax treatment under the Value Added Tax Law in Korea due to the complicated associated transactions. The tax treatment on mileage was ruled under the administration interpretation, however, on February 18, 2010, it was enacted into law. On February 26, 2016, the presidential decree of the Value Added Tax Law was revised under the Lotte Shopping decision which sought to include only third-party accrued mileage into the taxable base. Despite the revision of the relevant tax law, there is a debate that such law did not fully consider and reflect the nature of the mileage program, therefore it is expected to be many tax disputes in the future. In this regard, this paper seeks to present the arguments as to why the third-party accrued mileage should be treated as sales allowance and therefore should also be excluded from the taxable base by discussing the issue of the current regulations and suggesting legislative improvement measures and practical supplementary solutions. The previous studies have been conducted before the revision of the relevant tax law when both self-accrued and third-party accrued mileage was taxed without distinction. It was focused on the consequences of such mileage taxation system including the double taxation, violation of property rights, etc., however, this paper focus on third-party accrued mileage and its implications under the current tax law. It presents the grounds that mileage is related to taxable transactions and meets the conditions to be treated as sale allowance based on the court cases for subsidy provided by open market and mobile carrier including the related EU cases. Accordingly, since mileage does not have any monetary value, there needs to be clarification that it does not constitute and it is different from sales incentive. Mileage has hybrid characteristics such as monetary value and rights to claim. Therefore, instead of analyzing the nature of mileage, this study seeks to distinguish the third-party accrued mileage from the third-party compensation mileage on an each type basis. This approach is intended to clarify the uncertainty as to whether the current regulation treats the compensation as a payable to the third party which is included in the taxable base, or whether it is an settlement amount, which is not included in the taxable base. In order to improve the clarification and the current legislation, it would propose that the definition of compensation would be “the amount to be received on behalf of the recipient of such supply, but excluding the settlement with no consideration”. Furthermore, if making a distinction between compensation and settlement would be difficult, it would alternatively propose for the practical supplementary measure that the tax invoice is issued to the settlement between mileage-related parties based on the LMUK case by U.K. Court of Appeal and the administrative interpretation of Australia. Even if there is political drive to include mileage in the taxable base, the mileage program still ne eds to be considered within the scope and basic principles of the Value Added Tax Law, which is the taxation of final consumer, and tax neutrality.