[부가가치세부과처분취소][공1990.6.15.(874),1180]
(a) Where an urban planning project operator installs underground passages and commercial buildings and contributes them to local governments and obtains permission for free use of such underground shopping districts, whether it is a transaction subject to value-added tax (affirmative);
(b) In cases under paragraph (1), the tax base of value-added tax (=total construction cost)
(c) A case of denying the establishment of non-taxation practices regarding the donation of public facilities in return for the right of free use; and
A. In a case where the Plaintiff obtained a permit for the implementation of an urban planning project for the construction of underground roads and commercial buildings by attaching an additional pipe which contributes all the facilities after the completion of construction to the Incheon Metropolitan City Mayor, Incheon Metropolitan City and implemented it, and the permission for the free use of the above underground streets and commercial facilities for 15 years is in a substantial and economic relationship between the right to contribute the above facilities and the right to use the facilities. Thus, in a case where the free use of the above facilities was permitted for a separate disposition based on a separate Act and subordinate statute, and in a case where the disposition is revoked, it may be revoked, and even in a case where the ownership of the facilities is revoked, the donation of the above underground roads and commercial facilities constitutes a transaction subject to the imposition
B. In the case of paragraph (1), the provision of construction services for underground and commercial facilities falls under the scope of supply of services under Article 7(1) of the Value-Added Tax Act, and the Plaintiff acquired the right to use the facilities in return for the above services. Therefore, the value-added tax base should be the total amount of the market price, that is, the construction cost under Article 13(1)2 of the Value-Added Tax Act
C. A case where a person, other than an administrative agency on July 1, 1977, in which the Value-Added Tax Act was enforced, constructed public facilities with the permission of an administrative agency and received permission for gratuitous use from him/her more than 10 times, but there was no case where the value-added tax was imposed by the tax authority, such circumstance alone cannot be deemed as having established a non-taxable practice.
(a)(c)Articles 7(1) and 12(1)18(b) of the Value-Added Tax Act; Article 13(1)2(c) of the Value-Added Tax Act; Article 18(3) of the Framework Act on National Taxes;
A. Supreme Court Decision 89Nu1797 delivered on February 27, 1990; 89Nu3496 delivered on April 13, 1990; 88Nu11773 delivered on April 24, 1990; 89Nu947 delivered on April 27, 1990; 89Nu3656 delivered on March 27, 1990; 89Nu3656 delivered on March 27, 1990
Incheon Development Corporation (Attorney Park Jong-sung, Counsel for the plaintiff-appellant)
The Director of Incheon Tax Office
Seoul High Court Decision 88Gu9833 delivered on December 16, 1988
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The grounds of appeal No. 1 are examined.
According to the reasoning of the judgment below, the court below recognized that the plaintiff's act of acquiring the right of free use of the above underground shopping mall for 15 years from October 20, 1981 by attaching an additional pipe which donated the whole of the facilities after completion from the head of Incheon Metropolitan City and Incheon Metropolitan City to the total area of 24-3 and 27 parcels of land in Jung-gu, Incheon Metropolitan City, Jung-gu, 157, a store of 1,964.95 square meters and stairs 2,521.8 square meters and implemented a permit for the implementation of an urban planning project with a 1,964 square meters of store and stairs 2,521.8 square meters of a building, which had been installed in Incheon Metropolitan City and Incheon Metropolitan City, after completion of the completion inspection, and obtained the permission for free use of the above underground shopping mall for 15 years from January 29, 198, the court below determined that the plaintiff did not have the right of free use of the above underground shopping mall under the Enforcement Decree of the Value-Added Tax Act.
In light of the records, the court below's decision that the taxation disposition of this case, which the plaintiff did not regard the act of donation of underground passage and commercial facilities of this case as the supply of goods and considered it as the supply of goods, did not constitute a reason to revoke the disposition of this case by mistake or this point alone, is justified, and the decision of the court below does not constitute a trade subject to value-added tax on the ground that the act of donation of underground passage and commercial facilities of this case can not be denied on the ground that the use of the above facilities is permitted as a separate legal basis and can not be revoked in certain cases, and that the disposition can not be revoked in certain cases, and it does not affect the ownership of the facilities. Thus, the decision of this case is just and there is no error in the misapprehension of legal principles as to donation and consideration relation as argued in the grounds for appeal.
The grounds of appeal No. 2 are examined.
Since the provision of the instant construction services falls under the scope of supply of services under Article 7(1) of the Value-Added Tax Act and the Plaintiff’s acquisition of the right to use the instant facilities in return for the said services is as seen above, the instant value-added tax base should be the total amount of the construction cost, namely, the market price of the said services pursuant to Article 13(1)2 of the Value-Added Tax Act, and there is no argument
The ground of appeal No. 3 is examined.
In comparison with the records and the judgment of the court below, the court below erred in the misapprehension of the judgment on the plaintiff's argument that the non-taxation practice has been established in the same case as the plaintiff's argument, since it is evident that such a mistake of the court below is rejected, since it did not affect the conclusion of the judgment, and it cannot be viewed that the judgment of the court below erred in the misapprehension of the judgment, since it did not affect the conclusion of the judgment, and therefore, it cannot be viewed as the grounds for reversal of the judgment, since the court below's error did not affect the conclusion of the judgment.
Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-sung (Presiding Justice)