[부가가치세부과처분취소][미간행]
[1] The meaning of "business operator" under Article 2 (1) of the Value-Added Tax Act
[2] The case holding that the housing association under the Housing Construction Promotion Act constitutes an unincorporated organization deemed as a corporation under Article 13 (1) 1 of the Framework Act on National Taxes, and that the housing association's sale of apartment buildings and commercial buildings in excess of the national standard scale constitutes an independent business entrepreneur who supplies goods and thus the said housing association becomes liable to pay the value
[1] Article 2(1) of the Value-Added Tax Act / [2] Article 13(1)1 of the Framework Act on National Taxes, Article 2(1) of the Value-Added Tax Act
[1] Supreme Court Decision 88Nu5754 delivered on February 14, 1989 (Gong1989, 437), Supreme Court Decision 92Nu525 delivered on July 24, 1992 (Gong1992, 258), Supreme Court Decision 93Nu1053 delivered on May 11, 1993 (Gong1993Ha, 1744), Supreme Court Decision 97Nu6100 delivered on April 13, 199 (Gong199Sang, 99Sang, 97Nu1453 delivered on April 13, 199)
High Court Decision 201Na1448 decided May 1, 2011
Head of Geumcheon Tax Office
Seoul High Court Decision 2002Nu5674 delivered on May 1, 2003
The appeal is dismissed. The costs of appeal are assessed against the defendant.
Article 2(1) of the Value-Added Tax Act provides that a person who independently supplies goods or services for a business purpose is a person liable for value-added tax, regardless of whether it is for profit-making purpose. Here, a person who independently supplies goods or services for a business purpose refers to a person who provides goods or services for a continuous and repeated intention in the form of business to create a value-added (see Supreme Court Decision 97Nu6100 delivered on April 13, 199) and Article 2(2) of the Value-Added Tax Act provides that an individual, a juristic person, an unincorporated association, a foundation, or any other organization shall be included in the taxpayer under paragraph (1).
According to the records, the Korea Housing Association is established on March 7, 1995 under the provisions of Article 44 of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 9, 2003; hereinafter referred to as the "Housing Construction Promotion Act"), which is authorized by the head of Gwanak-gu in Seoul Special Metropolitan City. The housing association of this case aims to remove the Hanyang-do Housing (20 households) which is a project implementation district and to contribute to the creation of a pleasant residential environment and the promotion of the welfare of its members, and to establish the association regulations, establish the association's association's organization as an organization, which is a decision-making organization and its representative, and establish the association's association's new apartment construction business as an independent association, regardless of the change of its members' withdrawal from the association's membership, and establish the association's new apartment construction business as an independent association and to supply the remaining land in the name of the association's association in excess of the size of the housing of this case.
Meanwhile, Article 13(1) of the Framework Act on National Taxes provides that an organization meeting the requirements of each subparagraph of paragraph (1) shall, as a matter of course, be deemed a juristic person in the application of tax-related Acts, and a juristic person meeting the requirements of paragraph (2) of the same Article among the organizations not so, shall be deemed as a juristic person, but such an organization shall be deemed as a juristic person in the application of tax-related Acts, and it shall not be interpreted that an organization deemed a juristic person meeting the requirements of paragraph (1) of the same Article is also required to maintain continuity and homogeneity. Thus, it shall not be deemed that the instant housing association does not constitute an organization deemed a juristic person under Article 13(1)
Although the reasoning of the judgment below is somewhat insufficient, the decision of the court below is just in holding that the disposition of this case, which imposes value-added tax on the plaintiffs who are its members, is unlawful even though the housing association of this case is an unincorporated organization deemed to be a juristic person under Article 13 (1) 1 of the Framework Act on National Taxes as an independent business operator for the above general sale transaction, although it bears an obligation to pay value-added tax, and it is not erroneous in the misapprehension of legal principles as to taxpayers under the Value-Added Tax Act and organizations without legal personality, or in
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Zwon-won (Presiding Justice)