2. The costs of appeal shall be borne by the plaintiff.

The following facts are not disputed between the parties, or may be recognized by comprehensively considering the whole purport of the pleading in relation to the statements in Gap's evidence of 1 through 6, Eul's evidence of 1, 2, 3, and Eul's testimony of Kim Sung-jin.

(a) Trust contract and construction contract;

(1) On September 12, 1997, the Plaintiff Corporation entered into a trust agreement with the Korea Land Trust Co., Ltd. (the trustee company) with respect to the land size of 447 m2, 692.6 m2, Seocheon-gu, Seoul Special Metropolitan City, the Plaintiff Corporation owned the Plaintiff.

㈎ 원고 공사는 2000. 7. 31.까지 위 토지를 수탁회사에게 신탁한다(2000. 6. 22. 신탁기간이 2003. 7. 31.까지로 연장됨).

㈏ 수탁회사는 위 토지상에 지상 10층, 지하 4층인 오피스텔(이하 이 사건 건물이라 한다)을 신축·분양하고 원고 공사로부터 신탁수수료를 지급받되, 신탁계약 종료시 미분양분 및 분양대금 미회수분에 대하여는 수탁회사의 책임하에 정산한다.

on November 11, 1997, the Luxembourg trustee company decided the new construction work of the building at KRW 14,007,400,00 as construction cost to the Young Chang Construction Co., Ltd. (hereinafter the construction company) and ordered the construction work of the building at KRW 14,007,40,00. In the event of unsold parcels after the inspection of use on the building of the instant case, the construction company acquired all unsold parcels as the first selling price within six months, and agreed to pay the excess amount in full at the time of acquisition when the acquisition exceeds the unpaid construction cost.

B. Agreement on Acceptance of this case

Around December 199, when the instant building was completed but it was anticipated that the foreign exchange crisis would have deteriorated, and more than 101 family rooms were sold in lots, the trustee company entered into an agreement on acceptance of housing unsold in lots with the construction company on June 28, 200, as stipulated in the said agreement, as follows: < Amended by Presidential Decree No. 16424, Jun. 28, 2000>

(1) The contractor shall accept all units of 101 units unsold in lots.

The unpaid construction cost of KRW 7,003,700,000 shall be paid in kind in lots, but in June 200, the seller has entered into a sales contract with the trustee company and the buyer as the contractor company and set off the unpaid construction cost and the corresponding sales price.

Article 22 of the Civil Procedure Act (amended by Presidential Decree No. 1684, Jun. 30, 200; 200 million won; 20 million won; 30 million won; 30 million won; 40 million won; and 50% of the remainder of the acquisition amount shall be paid until June 30, 2001; 20% until June 30, 2002; 20% until June 30, 2003; and 30% until June 30, 2003. An unsold portion (excluding a substitute portion) may be sold to a third party (hereinafter referred to as an "user"); in such cases, a trustee company and a third party who has concluded a contract by the end of the contract shall have the remainder of the payment in installments deposited in the account designated by the trustee company (hereinafter referred to as the "sale in lots"), and a third party shall have the remainder of the payment in lots.

(d) Issuance, cancellation, and re-issuance of tax invoices;

(1) On June 28, 200, the trustee company entered into a sales contract with the construction company for the sale of 73 units equivalent to the unpaid construction cost among the buildings of this case with a total of 7,023,013,450 won. Under the contract for the sale of 19,313,450 units in excess of the unpaid construction cost, the trustee company entered into a sales contract for the total of 7,023,013,450 units of the building of this case. Under the contract for the sale of 73 units of this case, the truster company entered into a sales contract for the total of 7,003 units of the building of this case. Under the contract for the sale of 73 units of this case, the truster company entered into a sales contract for the total of 7,003,700,000 units of the building of this case, and the truster company entered into a sales contract for the sale of the goods of this case, and the truster company entered into a sales contract for the sale of this case.

She also concluded the sales contract with the construction company on September 30, 200 with regard to 102 and 103, and concluded the sales contract with regard to 260,000,000 won as the sales price, and 240,000,000 won as well as 28 units unsold in lots except for the payment in kind, and received the sales price. The plaintiff corporation prepared and issued at each time a tax invoice with the plaintiff corporation and the recipient company as the construction company.

(1) On August 7, 200, after the company pre-sale the unsold portion to the end user, the company entered into a contract for succession of rights and duties with the content that the company comprehensively transfers the rights and duties under each of the above parcelling-out contracts owned by the construction company to the end user with respect to the 33 units among the 73 units units of payment in kind and 2 units among the acquired units (hereinafter “instant units”) from August 7, 200, and with the consent of the trustee company, the company entered into a contract for succession of rights and duties (hereinafter “instant succession contract”). The Plaintiff Corporation entered into a new tax invoice with respect to the instant units from February 2, 200 to January 1, 200, with respect to the previous tax invoices prepared and issued by the Plaintiff Corporation and the supply user (hereinafter “instant tax invoice”).

E. Disposition of this case

On October 10, 2002, pursuant to Article 22(2)1 of the Value-Added Tax Act, the Defendant: (a) supplied the instant heading room to the end-user under the Value-Added Tax Act is not the Plaintiff but the construction company; and (b) the Plaintiff’s tax invoice prepared and issued by the Plaintiff as the supplier constitutes a tax invoice stating differently the supplier, which is a requisite entry of the tax invoice; and (c) accordingly, imposed penalty tax as stated in the purport of the claim against the Plaintiff.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Of the acceptance agreement of this case, the agreement on the portion of payment in kind is not a legal payment agreement, but a general contract for sale in lots, which offsets the sale price and the amount of unpaid construction work. Furthermore, the acceptance agreement of this case on the portion of payment in kind and the portion of acceptance is merely a formal acceptance by the construction company to arrange the sale in lots on the premise that the unsold portion should be sold to the actual users. Accordingly, the agreement on the portion of payment in lots is merely a formal acceptance by the construction company to arrange the sale in lots on the premise that the sale in lots has been offered to the actual users. Accordingly, the registration of ownership transfer has not been made in the future of the construction company

Shebly, even if the trustee company deemed to have sold the instant heading to the construction company in accordance with the acceptance agreement of this case, the status of the sales contract for the instant heading prior to the execution of the supply pursuant to the sales contract was transferred to the end-user, so the construction company withdraws from the status of the buyer and the end-user succeeded to the status of the buyer, and thus, the Plaintiff Corporation directly supplied the instant heading to the end-user.

Article 22(1) of the Tax Invoice of this case cannot be seen as a false entry. Thus, the disposition of this case is unlawful.

(b) Related statutes;

Value-Added Tax Act

Article 6 (Supply of Goods) (1) The supply of goods shall be a delivery or transfer of goods pursuant to all contractual and legal grounds.

Article 9 (Transaction Time) (1) The time of supply of goods shall be as follows:

1. When the goods are delivered, in case where the moving of goods is required;

2. When the goods are made available, in case where the moving of goods is not required; and

3. When the supply of goods is decided, in case where the provisions of subparagraphs 1 and 2 are not applicable.

(3) Where an entrepreneur receives all or part of the price for goods or services before the time provided in paragraph (1) or (2) arrives, and at the same time issues a tax invoice provided in Article 16 or a receipt provided in Article 32 with respect to such price, the time of such issuance shall be deemed the time of supply for the goods or services, respectively.

(2) Where an entrepreneur falls under any of the following subparagraphs, an amount equivalent to 1/100 of the value of supply shall be added to the payable tax amount or deducted from the refundable tax amount:

1. If the tax invoice as provided in Article 16 (1) is not delivered, or the requisite entries of the tax invoice on the delivered portion are not wholly or partly entered, or are different from the fact;

Enforcement Decree of the Value-Added Tax Act

Article 14 (Scope of Supply of Goods) (1) The supply of goods as provided in Article 6 (1) of the Act shall be those as provided in the following subparagraphs:

1. Delivery or transfer of goods by means of cash sale, outdoor sale, installment sale, long-term installment sale, conditional sale, fixed-term sale, consignment sale, or other sales contract;

3. The delivery or transfer of goods as the price for the delivery of goods, under an exchange contract under which other goods are delivered or services are provided;

C. Determination

(1) We first examine the allegation that there was a supply of goods between the Plaintiff and the end user. As long as the company entered into a sales contract with the contractor for each of the instant units and set-off of the claim for the sale price and the obligation for the unpaid construction cost to the contractor, or the remainder, other than the very small amount of the sale price, was settled in cash, even if the contractor did not pay the balance of the payment in kind, it would be possible for the company to dispose of the instant units under its own responsibility or use them by itself. Therefore, the supply of goods under Article 9 of the Value-Added Tax Act should be deemed to have already been made. Accordingly, the Plaintiff’s assertion on the premise that there was no supply of goods between the Plaintiff and the end user from the beginning, and there was no supply of the goods between the Plaintiff and the end user and the construction company.

We examine the argument on succession contract with Luxembourg. If the sale contract for a building was rescinded prior to the imposition of value-added tax and the sale price already received was returned, the supply of goods can not be subject to value-added tax on such sale contract (see Supreme Court Decision 96Nu13941, Mar. 10, 198). However, the agreement that the sale price for the sale in lots can be sold to the end-user by the mediation of the construction company among the sale in lots is that the sale in lots should be directly concluded between the construction company and the end-user by the construction company's mediation before the expiration of the time of acquisition under the agreement on the sale in lots (see subparagraph 3 of the certificate, even if the construction company is liable for the payment of the sale in lots, it is cancelled between the construction company and the pre-sale trustee company and the end-user company, regardless of the fact that the sale in lots was newly purchased between the sale in lots and the end-user company and the end-user company, and thus, it seems that the sale in lots will not be new between the sale in lots and the seller company's.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as without merit, and the judgment of the court of first instance is just as it is with this conclusion, and the plaintiff's appeal is dismissed as without merit, and it is so decided as per Disposition.

Judges Lee Jong-sung (Presiding Judge)