[부가가치세부과처분취소][집38(2)특,477;공1990.10.1.(881),1976]
Whether the supply of services for expansion or reconstruction is subject to value-added tax if the operator of the expressway rest area acquired the management and operation right to donated facilities to the Korea Highway Corporation by expanding or rebuilding such facilities, but fails to meet the cost of such management and operation (affirmative)
Even if the operator of a resting area of an expressway increased or reconstructed and was unable to separately recover the expenses for renovation and reconstruction from the above construction works to the Korea Highway Corporation, if the operator of the resting area is premised on a quid pro quo relationship between the existing facilities and the acquisition of the right to manage and operate the resting area and the right to manage and operate the facilities increased or reconstructed for a certain period specified in the contract for the operation of the resting area, it is ultimately impossible to deny a substantial and economic quid pro quo relationship between the above donation and the acquisition of the right to manage and operate the facilities. Therefore, the construction of the said rebuilding facility constitutes a supply of the service subject to value-added tax.
Article 7 of the Value-Added Tax Act
Bolim Development Co., Ltd., Counsel for the plaintiff-appellant
Head of Cheongju Tax Office
Seoul High Court Decision 88Gu9321 delivered on December 8, 1989
The case shall be remanded to the Seoul High Court on the ground that the part against the defendant, other than the part against the defendant, of the death cancer rest area 1984, is reversed and remanded to the Seoul High Court.
All remaining appeals by the defendant and the plaintiff are dismissed.
The costs of appeal dismissed shall be assessed against each party.
1. As to the Plaintiff’s ground of appeal
According to the reasoning of the judgment, the court below found that there was no error in the misapprehension of the legal principles regarding the construction cost of the Korea Highway Corporation's 20th anniversary of the construction cost of the 1974.8.12. The remaining 6th anniversary of the construction cost of the 2th anniversary of the 198th anniversary of the construction cost of the 2th anniversary of the 3th anniversary of the 3th anniversary of the 197th anniversary of the 5th anniversary of the 198th anniversary of the 2th anniversary of the 196th anniversary of the 5th anniversary of the 196th appraisal price of the 2th anniversary of the 2th anniversary of the 1st anniversary of the 196th anniversary of the 5th anniversary of the 5th appraisal price of the 5th anniversary of the 5th appraisal price of the 196th anniversary of the 5th appraisal price of the 196th anniversary of the 2nd appraisal price of the 5th anniversary of the 198th appraisal price of the 2nd.
2. As to the Defendant’s ground of appeal
According to the reasoning of the judgment below, on the basis of the above-mentioned facts of recognition, the court below held that each disposition imposing value-added tax on the part of the dead cancer rest area falling under the above part is unlawful, on the ground that the plaintiff can only use the expanded and reconstructed facilities within the contract period, and is not granted the right to use them for a certain period regardless of the contract period. Furthermore, on the ground that the gross sales profit from the use of all the facilities including the increased and reconstructed products was paid fees and deposits for the use thereof, the service was not paid for the use thereof. Thus, the supply of the service is not paid for the non-payment of the value-added tax under Article 7 (3) of the Value-Added Tax Act, since the service subject to value-added tax is not supplied for the first and second term portion in 1983, second term portion in 1985, second term portion in 1985, second term portion in 19, second term portion in 196, second term portion in 1986, second term portion in 1984.
However, the reason why value-added tax was imposed on the donation in the relationship between the donation of a facility and the acquisition of the right to manage the facility is because the donation was made at a cost and the acquisition of the right to manage the facility is considered to be in a substantial economic relationship. According to the above evidence, even though the plaintiff did not take any procedure for preserving the part of the facility in this case, it can be recognized that the plaintiff, while operating the rest area using the existing facility, was under the premise that the plaintiff had a right to manage and operate the facility, but the plaintiff had a right to manage and operate the facility in addition to the existing facility for the period specified in the contract for operating the existing facility. Thus, it cannot be denied the actual and economic quid pro quo between the above donation and the acquisition of the right to manage the facility (the first instance court determined that based on the above facts recognized by the court below, the plaintiff paid the cost for the use of all the facilities including the rebuilding facility to the non-party only because the plaintiff did not take any procedure for preserving the part of the facility, which is a relatively need for the maintenance and operation of the facility.
Therefore, even though it is clear that Plaintiff’s construction and donation of the above expansion and rebuilding facilities are the price for the supply of the services subject to value-added tax, the lower court determined to the effect that this is not subject to value-added tax as a free supply of services, since no consideration exists for the above donation, and thus, it cannot be deemed that the lower court erred by misapprehending the legal doctrine on the subject of value-added tax, and it is obvious that such illegality has affected the conclusion of the judgment. Therefore, the lower court’s judgment on the grounds that points out this error is with merit and is not exempt from reversal
The Defendant also appealed to the portion exceeding KRW 60,729,412 out of the value-added tax for the second term portion of the value-added tax, which was lost by the lower court, but the above portion of the appeal is not indicated in the petition of appeal or the appellate brief, and this part of the appeal is dismissed.
Therefore, among the part against the defendant in the original judgment, the part against the defendant other than the part against the part against the defendant excluding the part against the second half of 1984, and the case is remanded to the court below for further proceedings consistent with this Opinion, and the defendant's other appeal and the plaintiff's appeal are dismissed. It is so decided as per Disposition
Justices Kim Yong-ju (Presiding Justice)