[부가가치세부과처분취소][공1991.5.1.(895),1196]
(a) Whether it constitutes a supply of services, which is a taxable transaction under the Value-Added Tax Act, where the Seoul Metropolitan Government has made a contribution by acquiring the right of free use for 15 years with permission from the head of Seoul Metropolitan Government under the Urban Planning Act (affirmative);
B. Whether the judgment of the court below erred by the supply of goods constitutes the ground of appeal (negative)
C. In the case of paragraph (a) above, whether value-added tax is already included in the tax base of value-added tax (=total construction cost) and the total construction cost that is the market price of service (negative)
D. Time of supply for the service in the case of the above “A” (=time of donation)
A. In a case where the Plaintiff selected as a business operator of the amusement facilities in the Seoul Park Park in Seoul Special Metropolitan City as a business operator of the amusement facilities in the Seoul Park in the Seoul Special Metropolitan City and the Seoul Special Metropolitan City grants the Plaintiff the right to gratuitously use the amusement property for 15 years, the said amusement facilities are public facilities installed by the Plaintiff, not an administrative agency, as a business operator of the urban planning project under Article 6(1) of the Urban Park Act and Article 24(1) of the Urban Planning Act. Therefore, the ownership of the said amusement facilities belongs to the Seoul Special Metropolitan City, a management agency, upon completion of construction pursuant to Article 83(2) of the Urban Planning Act. Therefore, the Plaintiff’s donation by creating the said amusement movable property in the Seoul Special Metropolitan City constitutes the supply of services, not the supply of goods, and it constitutes the supply of services, which is a taxable transaction under the Value-Added Tax Act.
B. Although the Plaintiff’s creation of play movable property and donation to Seoul Special Metropolitan City constitutes the supply of services, it would be erroneous for the lower court to regard it as the supply of goods, but it does not affect the conclusion of the judgment.
C. In the case of Article 13(1)2 of the Value-Added Tax Act, the Plaintiff acquired the right to free use of the aforementioned play movable property in return for donation, which is paid for any consideration other than money, and the total construction cost, which is the market price of goods or services, shall be the tax base of value-added tax pursuant to Article 13(1)2 of the Value-Added Tax Act
D. In the case of Article 9(2) of the Value-Added Tax Act and Article 22 subparag. 1 of the Enforcement Decree of the Value-Added Tax Act, the right to use the service should be deemed to have been granted as the price for the provision of the service, and such provision is not deemed to have been made at the time of donation when the provision of service was completed under Article 9(2) of the Value-Added Tax Act and Article 22 subparag. 1 of the Enforcement Decree
(a)Article 1(3), Article 7(1) and Article 12(1)18 of the Value-Added Tax Act, Article 2 of the Enforcement Decree of the Value-Added Tax Act, Article 6(1) of the Urban Park Act, Articles 24(1) and 83(2) of the Urban Planning Act. Article 393(c) of the Civil Procedure Act, Article 13(1)2(d) of the Value-Added Tax Act, Article 9(2) of the Value-Added Tax Act, Article 2 subparag. 1 of the Enforcement Decree of the Value
A.B. (c) Supreme Court Decision 89Nu596 delivered on April 27, 1990 (Gong1990, 1180). (B) Supreme Court Decision 89Nu1797 delivered on February 27, 1990 (Gong1990, 811). Supreme Court Decision 89Nu3656 delivered on March 27, 1990 (Gong1991, 657). (a) Supreme Court Decision 90Nu6842 delivered on December 21, 1990 (Gong191, 657). Supreme Court Decision 89Nu3496 delivered on April 13, 1990 (Gong190, 1090), 90Nu40909 delivered on August 14, 1990 (Gong1990, 190).
Attorney Han Young-chul Development Corporation, Counsel for the plaintiff-appellant
Head of Ansan Tax Office
Seoul High Court Decision 89Gu11482 delivered on July 12, 1990
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The Plaintiff’s attorney’s ground of appeal is examined.
According to the reasoning of the judgment below, the court below determined that the non-party 1 corporation was selected from Seoul Special Metropolitan City in response to the invitation of investors in the facilities of the facilities of the facilities of the Seoul Special Metropolitan City on May 1, 1986, and the plaintiff succeeded to all rights and obligations concerning the creation of the above facilities and contributed 24,310,809,00 won from the above non-party company on February 2, 198 and completed the construction of the play property on November 1, 1988 and contributed 15 years to the Seoul Special Metropolitan City on March 3, 1989. The Seoul Special Metropolitan City, the installer of the above facilities, granted the right to use the above play property free of charge for the above 15-year period to the plaintiff. The court below rejected the plaintiff's revised return on May 1, 198 on the ground that the plaintiff supplied the above facilities to the Seoul Special Metropolitan City on the ground that it did not err in the law of 18th of the Value-Added Tax Act.
In light of the records, the above fact-finding by the court below is just and acceptable, and since the plaintiff, not an administrative agency, is a public facility installed as an urban planning project operator under Article 6 (1) of the Urban Park Act and Article 24 (1) of the Urban Planning Act, the ownership of the above play movable facilities shall be deemed to have been originally reverted to Seoul Special Metropolitan City, which is the management agency, upon completion of construction pursuant to Article 83 (2) of the Urban Planning Act. Therefore, even though the plaintiff's donation by creating the play movable property in this case to the Seoul Special Metropolitan City constitutes the supply of services, it is erroneous for the court below to consider it as a supply of goods, it does not affect the conclusion of the judgment.
On the other hand, the plaintiff acquired the right of free use in return for donation of the above play movable property. Accordingly, the total construction cost, which is the market price of goods or services, should be considered as the value-added tax base pursuant to Article 13 (1) 2 of the Value-Added Tax Act, and the value-added tax should not be considered as having already been included as the source of value-added tax. In addition, regarding the supply of the service in this case, it shall be deemed that the right of free use has already been granted as the price for the supply of the service in this case, and as such, it shall not be deemed as the supply of the service under the condition of deferred payment, which is divided and paid in installments during the entire period during which the right of free use exists. Therefore, the supply was completed at the time of donation, which is the time the provision of service was completed pursuant to Article 9 (2) of the Value-Added Tax Act and Article 22 subparagraph 1 of the Enforcement Decree of the Value-Added Tax Act.
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 Song Man-man (Presiding Justice)