[부가가치세부과처분취소][공1990.6.1.(873),1090]
Value-added tax shall be imposed where a constructor contributes to a local government by constructing a parking lot facility and obtains a license for free use (affirmative)
If the Plaintiff, a constructor, performed construction works of the instant parking lot facilities and donated construction works of the instant parking lot facilities at Msan, and the Msan City offered the right of free use as a consideration for the right of free use, and caused the Plaintiff to do so in order to save the budget as above, even if the ownership of the instant parking lot facilities is not reverted to Msan City by the Plaintiff’s donation, but is originally reverted to Msan City pursuant to the provisions of Article 83(2) and (5) of the Urban Planning Act, it constitutes a case where the Plaintiff supplied the instant parking lot facilities and the Plaintiff’s acquisition of the right of free use cannot be seen as an economic quid pro quo relationship between the Plaintiff’s donation of the instant parking lot facilities and the acquisition of the right of free use thereof. Therefore, it is evident that the Plaintiff’s construction and donation of
Articles 1, 7, 12(1)18, Article 2 of the Enforcement Decree of the Value-Added Tax Act, Article 18(1) of the Value-Added Tax Act, Article 83 of the Urban Planning Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant)
Attorney Cho Jae-chul et al., Counsel for the defendant-appellant
Head of tax office
Busan High Court Decision 88Gu1929 delivered on April 28, 1989
The judgment of the court below is reversed.
The case is remanded to Busan High Court.
The defendant's ground of appeal is examined.
1. For the following reasons, the lower court recognized the Plaintiff’s claim seeking the revocation of the tax disposition, on the ground that the instant tax disposition imposing value-added tax amounting to KRW 80,340,910 on the Plaintiff as of March 2, 198 was unlawful.
In other words, on January 25, 1986, Msan City: (a) concluded an agreement with the Plaintiff to allow the Plaintiff to gratuitously occupy and use only river pen facilities and parking lot facilities (hereinafter “the instant parking lot facilities”) for the period of 19 years after the Plaintiff’s completion of construction of the instant parking lot, on the ground that the Plaintiff’s construction of the instant parking lot facilities did not fall under the effect of supplying the instant parking lot facilities under Article 24 of the Value-Added Tax Act; (b) the Plaintiff’s ownership of the instant parking lot facilities at the time of completion of construction of the instant parking lot, which is located in the city of 200,07,040, after obtaining permission for the implementation of the urban planning project on December 24, 1986 and then selected as an investor on April 7, 200; and (c) the Plaintiff’s construction of the instant parking lot facilities at the time of completion of construction of the instant parking lot, which is an economic point of 30,000,000 won.
2. However, according to the relevant provisions of the Enforcement Decree of the Value-Added Tax Act, not only the supply of goods but also the supply of services is subject to value-added tax (Article 1(1)1 of the Act), “services” means all services and other acts other than goods, with property value (Article 1(3) of the same Act), and “supply of services” means providing services or allowing others to use goods, facilities or rights on all contractual or legal grounds, but the supply of services without receiving fees is not deemed the supply of services (Article 7(1) and (3) of the Act), and construction is also included in the scope of services (Article 2(1)1 of the Enforcement Decree). Since the provision of services is stipulated in the Enforcement Decree of the Value-Added Tax Act that a constructor bears all or part of construction materials, as duly determined by the court below, that the Plaintiff’s ownership of the instant parking lot facilities belongs to the Plaintiff’s free use of the instant parking lot at the time of the completion of the construction of the construction of the instant parking lot at the time of the Plaintiff’s free use of the instant parking lot.
Therefore, even though it is clear that the construction and donation of the parking lot facilities of this case fall under the supply of services subject to value-added tax (the defendant initially imposed the tax on the ground that it constitutes the supply of goods for the parking lot facilities of this case, but the court below asserted that the construction and donation of the parking lot facilities of this case fall under the supply of construction services to the extent that it maintains the identity of the basic taxation requirement). The court below held that the donation of the parking lot facilities of this case does not fall under the supply of goods, and even if it falls under the supply of goods, it is not subject to value-added tax solely on the ground that there is no economic relation. The court below erred in the misapprehension of legal principles as to the imposition of value-added tax, and it is obvious that such illegality affected the judgment, and therefore there is a reason to points out this issue, and the judgment below is not reversed
3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jae-sung (Presiding Justice)