단말기 약정보조금의 부가가치세법상 매출에 누리인정 여부

Abstract

Mobile communications business operators have been giving handset contract subsidies to consumers who agree to continue mandatory use of their mobile communication service for a certain period of time in order to secure more stable customers. In this situation, arguments is still progressing on whether handset contract subsidies should be excluded from the tax base of the value-added tax as discount amount of sales. In this connection, two remarkable judgments have been recently rendered. The Supreme Court Decision 2013Du19615 (Dec. 23, 2015) deems that the handset contract subsidies given by KT in a closed distribution system, since being discount amounts of sales related to the supply transaction between KT and its agencies, should be deducted from the value of supplied handsets. In addition, the Seoul Administrative Court Decision Guhap64759 (Jan. 28, 2014) views that the handset contract subsidies given by SKT in an open distribution system, since being discount amounts of sales related to the supply transaction, should not be deducted from the value of supplied handsets. Both Decisions above, though having something in common in viewing handset contract subsidies as discount amounts of sales relating to the supply transaction, suggest quite different conclusions. Consumers, though being given the same amount of handset contract subsidies while buying the same model of a handset, bear a different amount of value-added tax, depending on whether they subscribe for KT mobile service or SKT mobile service. This is because SKT, not directly being involved in the supply of handset transactions differently from KT, cannot have the subsidies deducted from the value of supplied handsets in the calculation of tax base of the value-added tax. This is contrary to the principle of neutral taxation. Looking into the payment scheme of handset contract subsidies, the subsidies have something to do with the mobile communications service transactions between mobile communications business operators and their consumers, irrespective of the type of handset distribution system. In addition, when concluding a mobile communications service contract with a consumer, if the mobile communications business operator gives the whole amount of handset contract subsidy to the consumer at a time, such a subsidy cannot be accepted as a discount amount of sales, since it does not meet the requirement for direct deduction. On the contrary, if the operator gives the subsidy to the consumer in such a way of deducting a certain amount from the monthly mobile communications service fees paid by the consumer, there is a possibility that the subsidy, being accepted as a discount amount of sales of the mobile communications service transaction, may be deducted from the tax base of the value-added tax. The writer cannot agree with any conclusion of the two Decisions.