[부가가치세부과처분취소][공1991.2.15.(890),657]
(a) Whether value-added tax is exempted in cases where a park facility is constructed in a Gun park and part of such facility is donated to the Gun and the Gun is granted free use right for such facility for a certain period (negative);
(b) Time of supply for services in the case of paragraph (1) (=when the construction of facilities is completed);
(a) Where a chain of service, which displays and operates art sculptures in a park, entered into a contract with the Namju-Gun on the condition that the Plaintiff would create a facility under his name and contribute all buildings and other permanent facilities other than sculptures among such facilities to the Southern-Gun, and be entitled to free use of the said facilities for a certain period of time from the Southern-Gun, and then complete the construction work of the park facilities with the burden of construction materials, etc. and contribute part of the facilities to the Southern-Gun, and complete the registration of ownership transfer thereof, it constitutes the supply of services, and there is an economic price relationship between the supply of such services and the acquisition of the right to use the said park facilities. Therefore, the supply of goods or services exempt from the value-added tax under Article 12 (1) 18 of the Value-Added Tax Act cannot be said to be the supply of goods or services.
B. The time of supply for the service through the construction of the facilities as referred to in the preceding paragraph and the contribution acceptance should be deemed to be the time when the construction of the facilities is completed or the procedure for the contribution acceptance is completed at the latest. On the contrary, the above service cannot be deemed to have continued to be supplied over the period prior to the existence of the right of free use as consideration.
Article 7, Article 12(1)18, Article 9 of the Value-Added Tax Act, Article 22 of the Enforcement Decree of the Value-Added Tax Act
Jeju Sejong Park Co., Ltd. (Attorney Lee Jae-in, Counsel for the plaintiff-appellant)
Head of Jeju Tax Office
Gwangju High Court Decision 89Gu250 delivered on July 24, 1990
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
As to the Plaintiff’s ground of appeal
In its reasoning, the lower court determined that the Plaintiff’s act of supplying the above services was lawful on October 19, 1987, based on the following facts: (a) the Plaintiff was a service provider operating the art sculptures in a park; (b) on May 15, 1986, within the Gun Park Nam-gun located in Southern-gun under the name of the facility; (c) concluded a contract with the Namju-gun to grant the right of free use of the above park facilities for a certain period of time; (d) the Plaintiff’s act of supplying the above services on the construction of the park facilities by bearing construction materials, etc. under the above contract; and (e) the Plaintiff’s act of supplying the above services on the construction of the above facilities constitutes a provision of the value-added tax for the period of 12 years and 6 months from October 19, 1987 to April 18, 198; and (e) the Plaintiff’s act of supplying the above facilities constitutes a provision of the value-added tax for free use of the facilities.
Therefore, the court below did not err in misunderstanding of facts or misunderstanding of legal principles as asserted by the plaintiff in the assistance disposition that the defendant's disposition of this case was lawful and maintained. The arguments are without merit.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Young-young (Presiding Justice)