부가가치세법상 비과세 사업관련 매입세액공제에 관한 고찰 – 대법원 2011. 9. 8. 선고 2009두16268 판결평석

Abstract

This article reviews an interesting decision rendered on Sep. 8, 2011, by the Supreme Court of Korea(2009du16268, “Subject Decision”) with respect to the deduction of input tax amount relating to the excluded transactions under the Korean value-added tax Act(“VAT Act”). Under the Article 7(3) of VAT Act, the supply of services without compensation such as the public broadcasting services shall not be considered as the supply of services(“excluded transaction”). The Subject Decision ruled that: (i) the input tax amount related to the excluded transaction shall not be deducted from the output tax amount since it should be treated in the same way as the input tax amount related to the exempted transaction which is expressly stipulated as one of non-deductible items under the Article 17(2) of VAT Act; (ii) the splitting rule based on the respective value of supply between the taxable transactions and the exempted transactions which are commonly run by one entrepreneur under the Article 61 of Presidential Decree of VAT Act(“Splitting Rule”) shall also apply to the entrepreneur running the taxable transactions and the excluded transactions; and (iii) notwithstanding, the Splitting Rule shall not apply to this case so far as it treats the TV broadcasting receiving fee(“Fee”) as the value of supply corresponding to the public broadcasting services since the Fee shall not be considered as the value of supply corresponding to the services. In my opinion, the rulings (i) and (ii) of the Subject Decision are appropriate not only because they made clear some ambiguity arising out of the prior precedents which look contradictory each other but because such rulings are theoretically in right line with the basic principle of the deduction of input tax amount under the VAT Act. By the way, when it comes to the ruling (iii), it leaves something to be desired in that the Subject Decision failed to provide an ultimate solution of this long-standing and entangled disputes between the public broadcasting entrepreneurs such as KBS, EBS and the tax authority. On the other hand, such attitude of the Subject Decision seems inevitable since it's not the responsibility of the court to seek for the appropriate splitting rule reflecting the characteristics of the public broadcasting services. The legislative and administrative efforts to resolve this matter shall be desired imminently.