단말기 가격할인과 부가가치세 과세표준의 산정

Abstract

The mobile telecommunication service has been provided in Korea since 1980s. A handset for mobile phone service ("mobile phone", "MP") is indispensable for the provision of such service. The regulations regarding the radio communication has set the licensing regime for the MP since its beginning of the services. After the market development in late 1990, the licensing regime was deregulated such that the license for using the MP was deemed to be given through the service subscription contract between mobile telecom operators("MTO") and end-users. On the other hand the mobile telecommunication service has been regulated by the telecommunication business law, which specified the rules regarding the licensing regime for MTOs' MP sales business, and its marketing. Major terms and conditions in typical consignment sales contract between MTO and sales agent have been based upon such regulations, which has been modified several times from the beginning till today. The most notable feature of the sales contract lies in the transfer of ownership of MP. According to the contract terms, the MTO may assume the seller status of MP, whereas the agent is the buyer of MP. However, it is the MTO who is the seller of MP against the end-users in the mobile phone subscription contract. A sort of discrepancy is occurring in the context of identification about who is seller of MP. Such discrepancy is invoking interpretation issues regarding the rules specified in the value added tax law("VAT law") which defines some conditions for the non-inclusion of tax base benefit. Non-inclusion of tax base may be accepted in case of the sales of goods the price of which are discounted between seller and buyer. The problem in this case lies in the contractual fact that the MTO is the seller against the sales agent, whereas the price discount is done through the provision of the monetary subsidy by the MTO in favor of end-users.