Article 1 of the Value-Added Tax Act; Article 3 of the Enforcement Decree

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 are assessed against the Plaintiff, and the remainder are assessed against the Defendant.

A. The Plaintiff, a corporation engaged in cooling and heating equipment construction business, machinery equipment construction business, etc. using underground heat, as indicated below (hereinafter referred to as "the supply content of this case") 1 through 14 during the first value-added tax period of 2010, and during the second value-added tax period, performed installation work for heating apparatus installation of 00 won in total supply value to livestock farmers, etc. (hereinafter referred to as "the construction of this case") during the second value-added tax period, and filed a value-added tax return with the Defendant as sales amount subject to zero tax rate.

B. The Defendant’s construction of this case executed by the Plaintiff on January 5, 2011 (the Restriction of Special Taxation Act, December 31, 201)

Article 105(1)5(c) of the Restriction of Special Taxation Act (amended by Act No. 11133, hereinafter referred to as "the Restriction of Special Taxation Act") excludes the application of zero-rate tax under the Restriction of Special Taxation Act for the supply price, and imposes the imposition of KRW 000 for the first year value-added tax (hereinafter referred to as "the disposition in this case") in 2010 after correcting the value-added tax originally reported by the plaintiff, on the grounds that the supply of agricultural machinery under Article 1(1)1 and (3) of the Value-Added Tax Act, and Article 2(1)1 of the Enforcement Decree of the Value-Added Tax Act (hereinafter referred to as "construction service").

C. On March 23, 2011, the Plaintiff filed an appeal seeking the revocation of the instant disposition with the Tax Tribunal, but was dismissed on July 19, 201.

[Ground of Recognition] The facts without dispute, Gap evidence 1 to 5, Eul evidence 1 to 3, and 10, and evidence 12 (including evidence with each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Other equipment and appliances included in the instant construction are goods attached to the heating apparatus, and the instant construction includes various installations, but this constitutes the supply of services essential to the supply of goods (heating apparatus) that are the main transaction, and the instant construction ought to be deemed the supply of goods pursuant to Article 1(4) of the Value-Added Tax Act. Accordingly, the instant disposition that deemed the instant construction as the supply of construction services is unlawful.

(2) The supply details of this case 6 to 18 are the details of supply of heating apparatus for swine breeding business, and according to the Korean Standard Industrial Classification, agriculture is divided into the livestock industry, crop cultivating business, crop cultivating, and livestock combined farming business, and livestock industry is included in agriculture under Article 105(1)5 of the Restriction of Special Taxation Act, Article 105(1)5 of the Restriction of Special Taxation Act, and Article 3(3) [Attachment Table 1] of the Special Cases Concerning the Application of Value-Added Tax Rates and Tax Exemptions for Agricultural, Livestock, Fishing, Fishing, and Fishing Machinery and Petroleum Products (hereinafter referred to as the "Special Cases") shall also apply to livestock machinery and livestock industry. Accordingly, the supply of heating apparatus installed for raising pigs 6 to 18 of the supply details of this case shall be subject to zero-rate tax rate pursuant to subparagraph 17 of the attached Table 1.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) First, whether the Plaintiff’s second assertion, that is, the heating apparatus installed for the raising of pigs, is an agricultural machine governed by the zero tax rate under Article 105(1)5(c) of the Restriction of Special Taxation Act and Article 3(3) [Attachment 1] 17 of the Special Provisions.

(A) Article 105(1)5 of the Restriction of Special Taxation Act, Article 2(1) of the Special Provisions on the Application of Value-Added Tax Rates and Tax Exemption, etc. (amended by Presidential Decree No. 22575, Dec. 30, 2010; hereinafter referred to as the "former Special Provisions") provides that "farmers" shall include livestock industry as well as livestock industry among those who engage in crop cultivation, livestock industry, or crop cultivation and livestock complex farming among agriculture under the Korean Standard Industry Classification. However, Article 105(1)5(c) and (4) of the Restriction of Special Taxation Act define "agricultural machinery and livestock industry" as a parallel classification, and Article 3(3) and (4) of the Special Provisions on the Restriction of Special Taxation shall also apply to "agricultural machinery and livestock industry" as well as "agricultural machinery and livestock industry subject to zero-rate tax" and each of them shall be excluded from "agricultural or livestock industry subject to zero-rate tax" in accordance with attached Table 1.

(B) Regarding the instant case, the heating systems listed in the supply details Nos. 6 through 18 of the instant case are “livestock machinery and materials for livestock industry established in a stable,” and they are not prescribed as zero-rate under Article 105(1)5(d) of the Restriction of Special Taxation Act, and Article 3(4) [Attachment 2] of the Special Provisions, and the supply value for the supply content Nos. 6 through 18 of the instant supply among the instant construction cannot be applied to the zero-rate tax rate.

(2) Next, we examine whether the installation works on the instant supply Nos. 1 and 5 of the supply details, among the instant construction works, constitute the supply of a heating machine to which zero tax rates apply.

(A) The purpose of applying zero tax rate to agricultural machinery as prescribed by the Presidential Decree under Article 105(1)5(c) of the Restriction of Special Taxation Act is to supplement the shortage of human resources in rural communities and to contribute to the improvement of agricultural productivity. In light of this purpose, the supply of agricultural machinery as prescribed in Article 3(3) [Attachment 1] of the Special Cases Concerning Agricultural Machinery governed by the zero-rate Tax Ordinance with the delegation from the above Article 105(1)5(c) is the supply of goods under Article 1(1)1 and Article 1(2) of the Value-Added Tax Act, and the supplier is a corporation engaging in construction business.

(나) 부가가치세법 제1조 제4항， 부가가치세법 시행령 제3조 제2호， 제4호는 주된 거래인 재화의 공급에 필수적으로 부수되는 재화 또는 용역의 공급을 주된 거래인 재화의 공급에 포함되는 것으로 간주하도록 규정하고 있다. 그런데 갑 제5호증， 을 제9， 11， 13 내지 18호증(각 가지번호 붙은 서증 포함)의 각 기재에 변론 전체의 취지를 보태어 보면， 이 사건 공사 중 지열히트펌프를 이용한 난방기 설치공사는 지하공 천공， 시추공 보호자재의 설치， 작업장 기초작업， 착정장비의 조립과 해체， 장비 운반， 송풍기 와 배관의 설치， 지열히트펌프의 설치와 같은 공정으로 이루어져 있고， 난방기 외에 터보팬송풍기， 컨트롤박스， PVC관， 주름관 및 엘보， 지하공 보온재， 패널 자재 등 기기가 포함되어 있으며， 전기보일러를 이용한 난방기 설치공사 역시 난방기(전기보일러) 설치 외에 배관 및 온도제어， 전기전원공사 등 공정으로 이루어져 있고， 난방기 외에 출열조， 팬코일유닛， 배관 등 각종 기기가 포함되어 있는 사실을 인정할 수 있는바， 이와 같이 난방기를 제외한 나머지 기기들과 난방기 자체의 설치를 제외한 나머지 작업공정은 모두 난방기를 공급받는 농가에서 난방기가 제대로 작동하도록 하기 위하여 반드시 필요한 것으로서 거래의 관행으로 보아 통상적으로 난방기의 공급에 부수하여 공급되는 재화 또는 용역이라고 봄이 옳다.

(C) In addition, the heating apparatus listed in Nos. 1 through 5 of the supply content of this case falls under the supply of "agricultural heating apparatus that is subject to the zero tax rate of value-added tax" under Article 105(1)5(c) of the Restriction of Special Taxation Act, and Article 3(3) [Attachment 1] 17 of the Special Cases, and the supply value of the heating apparatus set forth in Nos. 1 through 5 should be applied to the supply value of the heating apparatus.

(D) On the premise of this, the reasonable amount of value-added tax for the first period period of 2010 is calculated again, and the amount of the sales tax is 000 won deducted from the total amount of 000 won (No. 1 or 5 supply x 000% x 10%). The amount of the penalty tax is 000 won deducted from the amount of 000 won (=additional penalty tax entered in the tax invoice + 000 won + the amount of the penalty tax for the underpaid and overpaid return + 000 won + the penalty tax for the underpaid and overpaid return + 000 won). Therefore, the reasonable amount of value-added tax is 00 won (=00 won + 0000 won, and less than one).

(3) Therefore, the imposition of value-added tax on the first term portion of 2010, which exceeds the legitimate tax amount of KRW 000, is unlawful, and the imposition of the remainder and value-added tax on the second term portion of 2010 is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and it is dismissed as it is without merit. It is so decided as per Disposition.