원고가 이 사업 약정상 가지는 모든 권리를 양수하였으므로 독립된 사업자로서 이 사건 용역을 공급한 것으로 봄이 타당함[국승]
Seocho 2013west 234 ( October 26, 2014)
Since the Plaintiff acquired all rights under the business agreement, it is reasonable to deem that the instant service was supplied as an independent business operator.
The fact that the Plaintiff issued a tax invoice, that the supplied person received the input tax deduction, and that the Plaintiff acquired all the rights under the business agreement, and thus, supplied the instant service in the position of the entrepreneur.
2014Guhap13690 Revocation of Disposition of Imposition of Value-Added Tax
IsaA
Head of the tax office;
May 29, 2015
June 12, 2015
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The imposition of value-added tax of 000 won imposed on the Plaintiff on September 11, 2012 by the Defendant is revoked.
1. Details of the disposition;
A. The Plaintiff is running a certified judicial scrivener business in the OOO of the Seoul OOE OE under the OOEA. Around 2009, the Plaintiff issued each tax invoice of KRW 205 million on July 14, 2009 at the time of the OEAW (hereinafter referred to as the “instant redevelopment project”). Around December 24, 2009, the Plaintiff purchased two parcels of land within 109.1 square meters (hereinafter referred to as the “instant land”) in the OEA district redevelopment project (hereinafter referred to as “instant redevelopment project”). < Amended by Presidential Decree No. 21348, Jul. 14, 2009; Presidential Decree No. 21348, Dec. 24, 2009; Presidential Decree No. 22568, Dec. 4, 2009>
B. The Plaintiff filed a final tax return on global income tax on May 31, 2010 with the amount of KRW 25 million as other income without filing a value-added tax return on the provision of the above services.
C. The head of Gangnam Tax Office notified the Defendant of the taxation data according to the determination by the Commissioner of the National Tax Service that the instant service is subject to value-added tax. On September 11, 2012, the Defendant issued a notice of correction and notification of the OO of the value-added tax (hereinafter “instant disposition”). The Plaintiff filed an appeal with the Tax Tribunal on December 14, 2012, but the decision of dismissal was rendered on April 24, 2014.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3 (including branch numbers for those with additional numbers; hereinafter the same shall apply), Eul evidence No. 1, the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The instant services are not provided as an independent business entity by transferring the right to implement the instant redevelopment project to an OEAE (hereinafter referred to as “OEAE”) and the Plaintiff jointly and severally guaranteed the obligations of the OEAE and offered them to the OEAE, not to be supplied as an independent business entity. Even if the instant services are supplied as a business entity, the legal business entity operated by the Plaintiff is temporarily and indirectly provided without connection. Accordingly, the instant transaction is not subject to value-added tax.
(b) Fact of recognition;
1) On March 7, 2005, the OELW entered into a business agreement that transfers the right to implement the redevelopment project of this case to the OEM (hereinafter “instant business agreement”) on March 7, 2005, and the Plaintiff jointly and severally guaranteed the obligations under the said business agreement against OEM.
2) As the OELW market price spent more than 10 billion won in advance as the purchase price of the unregistered land, exceeding 15 billion won in advance, and did not purchase the instant land, the terms and conditions of the instant project agreement were not fulfilled. On November 25, 2008, OELW stated that OE would demand damages of approximately KRW 7.2 billion when notifying the termination of the said agreement at OELW on November 25, 2008, and OELW made up a written waiver of the content that renounced the balance of KRW 2.8 billion out of the transfer price of KRW 17 billion on December 5, 2008.
3) On June 12, 2009, the Plaintiff raised an objection against the unilateral rejection of waiver at the OELW. On June 18, 2009, the OELW notified the Plaintiff of the fact that the Plaintiff raised an objection to the OELW.
4) On the same day, the Plaintiff agreed to transfer the remainder of the transfer price to the Plaintiff on the condition that the Plaintiff fulfilled the obligation portion not performed by the OELP under the instant business agreement. In the event that the Plaintiff waives all rights and obligations of the OELP Si related to the instant business agreement and receives any remainder from ○○○ Housing, the Plaintiff shall immediately pay the remainder to the Plaintiff.
5) After the Plaintiff provided the instant service, the OELW filed a claim for KRW 2.8 billion out of the remainder of KRW 2.8 billion on June 30, 2009 (the Plaintiff and OELW expressed their intent to waive the remainder of KRW 300 million on the same day) and received KRW 2.75 billion from OEM on July 2009 and December.
6) The details of the tax invoice issued to OEA in relation to the instant service are as follows.
7) The details of the tax invoice issued by the Plaintiff in relation to the instant service are as follows.
8) The Plaintiff discarded the said tax invoice on the ground that the amount of KRW 2.5 billion received from the OELW Si was other income not business income, and the OELW withheld taxes by deeming the said amount of KRW 2.5 billion as the Plaintiff’s other income.
[Ground of recognition] Facts without dispute, entry of evidence Nos. 2 through 14, purport of the whole pleadings
C. Determination
In light of the following facts and circumstances, it is reasonable to view that the Plaintiff was an independent business operator that provided the instant service to the OELW.
① The Plaintiff appears to have issued each tax invoice at least on the OELW’s OELA market, and it appears that at least recognized that the Plaintiff supplied the instant service as a business entity at the time of the issuance of the tax invoice.
② OELAC received input tax credits from the Plaintiff as a tax invoice, and there is no correction tax invoice issued by the Plaintiff.
③ The service of this case was agreed upon by the OELW market, a business operator, to supply the OELW, but failed to perform the service. Since the Plaintiff acquired all the rights under the instant business agreement while performing the said obligation, it appears that at least it appears that the Plaintiff supplied the instant service in the position of the business operator, such as OELW under the instant business agreement.
④ On May 4, 2005, the Plaintiff provided the OO-style with all services for the urban environment rearrangement project in the O-O district, and received the payment, and then reported and paid the value-added tax and the comprehensive income tax on it. Since the instant service appears to be similar to the services provided to O-styles in that it has the nature of the services as an agent, it would rather vary depending on whether the Plaintiff performed contractual obligations under a direct contract concluded with O-O-styles, and whether the Plaintiff performed contractual obligations under a direct contract with O-OELC, rather than on whether the Plaintiff performed contractual obligations under a direct contract with O-O-styles.
Therefore, the instant disposition is lawful, and the prior Plaintiff’s assertion cannot be accepted on a different premise.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.