단말기보조금과 부가가치세법상 에누리- 대법원 2015.12.13. 선고, 2013두19615 판결을 중심으로 -

In case that handset supply subject and subsidy disbursement subject are identical, the most notable feature of the sales contract between MTO and selling agent 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. The problem in this case lies in the contractual fact that the mobile telecom operators (“MTO”) is the seller against the sales agent. Nevertheless, under Supreme Court precedent, handset subsidy, which MTO pay, should not be included in VAT tax base, because it corresponds to sales allowance of handset supply. But, in case that handset supply subject and subsidy disbursement subject are not identical, under lower court precedent, handset subsidy, which MTO pay, should be included in VAT tax base, because it correspond to sales allowance related to handset supply, and not mobile communication services transaction. In this case, handset subsidy, which MTO pay, is just sales incentives relating to mobile communication services, in that it only reduces consideration about handset supply to agent’s customer, and not consideration about mobile communication services.