증축공사 등 완료 후 세금계산서가 발급되어 사실과 다른 세금계산서에 해당함[국승]
Seocho 2014west 590 (No. 23, 2014)
issued a tax invoice after completion of the extension project, etc. and constitutes a false tax invoice;
A tax invoice is issued after the pre-announcement of taxation, etc., and the tax invoice is issued after the completion of construction work, such as approval for use, and the tax invoice is not an expression of public opinion that the decision of refund will not be corrected in the future.
Article 9 of the Value-Added Tax Act
2014Guhap74930 Disposition of revocation of Value-Added Tax Imposition
AAiopis Co., Ltd.
BB Director of the Tax Office
April 24, 2015
May 22, 2015
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s imposition of value-added tax of KRW 00,000,000 for the second term portion of 2012 against the Plaintiff on November 4, 2013 and KRW 00,00,000 for the first term portion of 2013 shall be revoked.
1. Details of the disposition;
A. On February 15, 201, the Plaintiff, a company established for the purpose of real estate leasing business, entered into a contract for the extension work with the IntegratedCC Construction Co., Ltd. (hereinafter referred to as “CC Construction”) on ○○○○-dong ○○○○○-○○ Diopib (hereinafter referred to as “instant building”).
B. The Plaintiff obtained approval for the use of the instant building on May 4, 2012, and completed registration for the preservation of ownership on June 28, 2012. Since then, the Plaintiff issued, fromCC Construction, a tax invoice of KRW 0,000,000 (i.e., tax invoice of KRW 2,000,000 + KRW 0,000,000,000 for January 1, 2013; hereinafter “instant tax invoice”).
Taxation Period
Tax Invoice
Date of issue
Value of supply (cost)
Amount of tax (source)
Items
2012 Second Period
September 10, 2012
00,000,000
0,000,000
Costs of extended construction works
October 24, 2012
00,000,000
0,000,000
Costs of extended construction works
1, 2013
March 15, 2013
00,000,000
00,000,000
Costs of extended construction works
April 23, 2013
00,000,000
00,000,000
Costs of extended construction works
May 3, 2013
00,000,000
00,000,000
Costs of extended construction works
May 6, 2013
00,000,000
00,000,000
Fees for System Control Works
May 6, 2013
00,000,000
00,000,000
The cost of interior works
guidance.
0,000,000,000
00,000,000
The Plaintiff reported value-added tax by deducting the instant tax invoice from the input tax amount by each taxable period, and paid KRW 0,000,000 for the second period of February, 2012. The Plaintiff was refunded KRW 00,000,000 for the first period of January 2013.
C. From August 6, 2013 to May 14, 2013, the Defendant issued a notice of imposition of value-added tax amount of KRW 00,00,00,000, on the premise that the time of supply for the instant construction project falls under the case where the instant tax invoice was issued after the time of supply, which is the date of approval for the use of the instant building, on the premise that the time of supply for the instant construction project falls under the case where the instant tax invoice was supplied after the time of supply, and that no deduction of the input tax amount of KRW 0,00,00,000, and the value-added tax amount of KRW 00,00,000 for the first period of February, 2012 was notified. On September 30, 2013, the Plaintiff requested the Defendant to submit data on the calculation basis of the anticipated notified tax amount and the basis of taxation pursuant to the notice of imposition, but received the Plaintiff’s reply from the Defendant on September 2, 2013.
D. On November 4, 2013, the Defendant imposed value-added tax of KRW 00,000,000 for the second term portion of value-added tax, and KRW 00,000,00 for the first term portion of value-added tax in 2013 on the Plaintiff (hereinafter “instant disposition”). Accordingly, the Plaintiff filed an appeal with the Tax Tribunal on January 8, 2014, and was dismissed on September 23, 2014.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3 through 8, 11, 12, Eul evidence Nos. 3 through 5 and 8, the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The plaintiff's assertion
1) The Defendant did not disclose the grounds for taxation while rendering the instant disposition, and applied the Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter “New Act”) rather than the Act at the time of disposition, which was unlawful.
2) The Plaintiff obtained approval for the use of the instant building on May 4, 2012, but actually paid the construction cost according to the completion level of the building. As such, the input tax amount of the instant tax invoice received after approval for the use thereof should be deducted.
3) The Defendant issued a notice of national tax refund to the Plaintiff and issued the instant disposition, which is unlawful against the principle of trust protection.
B. Relevant statutes
The entries in the attached Table-related statutes are as follows.
C. Determination
1) Determination on the first argument
On the other hand, after receiving the notice of taxation from the Defendant, the Plaintiff requested the Defendant to verify the calculation basis of the expected tax amount to be notified of taxation and the basis for taxation. The Plaintiff’s receipt of the notice of taxation (Article 11, 16, 38, and 39 of the Value-Added Tax Act) was not allowed to deduct the input tax amount of the tax invoice received after the supply period. The Plaintiff already appeared to have been notified of the answer and the calculation basis table. According to the evidence Nos. 5 and 6 of the Value-Added Tax Act, the Plaintiff’s application for pre-assessment review was made under Article 11, 16, 38, and 39 of the Value-Added Tax Act, which is the basis for taxation under the new law and is unreasonable. However, even if the new law is stated as the basis for taxation, it is not different from the fact that the tax invoice received after the approval date of the use of the building of this case constitutes the input tax invoice that is different from the fact that the Plaintiff had already received the notice of taxation prior to the above notice of taxation.
2) Determination on the second argument
According to the Plaintiff’s evidence No. 2, No. 1, No. 2, 4, 6, and 7, respectively, the 2G Construction, which is the construction work of the instant building, was notified the Plaintiff of the application for inspection of completion and approval for use on April 26, 2012 via EE construction offices, which are consulting engineers. The Plaintiff leased 5-7 stories of the instant building to Kim F from June 1, 2012 to May 31, 2017. The Plaintiff submitted an application for alteration of the 2G Construction Agreement to the 20G Construction, which is the first construction work of the instant building, on April 24, 2012, to the 20G Construction, which is the first construction work of the instant building, on the premise that the construction work of the instant case was completed at least KRW 0 billion, and the remainder of the construction work is completed by the 2G Construction, which is the first construction work of the instant building, to the 2G Construction System.
3) Judgment on the third argument
In general, in administrative legal relations, in order to apply the principle of the protection of trust to the acts of an administrative agency, the first administrative agency should name the public opinion that is the subject of trust to the individual, the second administrative agency should have a reason attributable to the individual when the statement of opinion is justifiable and trusted, and the third administrative agency should have conducted any act corresponding thereto. Fourth, by the administrative agency's disposition contrary to the above statement of opinion, the interests of the individual who trusted the statement of opinion should be infringed. Lastly, when taking an administrative disposition in accordance with the above statement of opinion, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du13592, Feb. 24, 2006).
According to Article 21(1)2 of the Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013), where there is any error or omission in the details of a final return filed by an entrepreneur, the Plaintiff’s assertion on this part is without merit, taking into account the following: (a) the tax base of value-added tax for the pertinent taxable period and the amount of tax to be paid or the amount of tax to be refunded for the pertinent taxable period; and (b) the Defendant made the instant disposition after making a decision of refund pursuant to the above Act and subordinate statutes; and (c) the Defendant cannot be deemed to have expressed the public opinion that the Defendant would
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.