[부가가치세부과처분취소][공2006.2.15.(244),264]
The meaning of "supply before closure of business" under the proviso of Article 21 (1) of the Enforcement Decree of the Value-Added Tax Act.
The proviso of Article 21(1) of the Enforcement Decree of the Value-Added Tax Act provides that "if the time of supply for goods supplied prior to the closure of business arrives after such closure of business, the time of such closure of business shall be deemed the time of supply." In light of the legislative purport of the proviso and the context thereof, the meaning of "supply prior to the closure of business" in the above provision is not limited only to the case where the whole or part of the goods are delivered or transferred before the closure of business, but also to the case where the cause of such delivery or transfer occurs prior to such closure of business, such as the act that constitutes the cause of the delivery or transfer of the goods, i.e., the other party to the supply, the time, and the value of the goods, even if the time of supply determined
Article 9 (1) of the Value-Added Tax Act, proviso to Article 21 (1) of the Enforcement Decree of the Value-Added Tax Act
Plaintiff 1 and one other (Law Firm Dain, Attorneys Kim Jae-hun et al., Counsel for the plaintiff-appellant)
Head of the High Tax Office
Seoul High Court Decision 2004Nu18674 delivered on July 22, 2005
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
The proviso of Article 21(1) of the Enforcement Decree of the Value-Added Tax Act (hereinafter “Enforcement Decree”) provides that “if the time of supply for the goods supplied prior to the closure of business arrives after such closure of business, the time of such closure of business shall be deemed the time of supply.” In light of the legislative purport and the context of the above provision, the meaning of “supply prior to the closure of business” in the above provision is not limited to the case where the whole or part of the delivery or transfer of the goods is made before the closure of business, but it constitutes an act causing the delivery or transfer of the goods, i.e., the other party to the supply, the time of the supply, and the amount of the contract determined by the time of supply pursuant to the main sentence of Article 21(1) of the Enforcement Decree of the Value-Added Tax Act,
The lower court determined that the Defendant’s disposition that imposed the value-added tax by deeming that the supply of goods was at the time of supply after the date of the closure of the pertinent facility under the proviso to Article 21(1)9 of the Enforcement Decree, was lawful, in the instant case where the Plaintiffs received the down payment upon entering into a contract to sell the instant facility with the instant housing association on February 29, 200 when they run a business using the instant golf practice course facilities, and received the down payment from the instant housing association on March 31, 200 after the closure of business on March 21, 200, and transferred the said facility from May 2, 2000.
In light of the above legal principles, the above judgment of the court below is just, and there is no error of law by misunderstanding the legal principles as to the interpretation of the proviso of Article 21 (1) of the Enforcement Decree or the concept of supply under the Value-Added Tax Act, etc., which affected the conclusion of the judgment, as otherwise alleged in the ground of appeal. Since the transfer of the facility in this case is transferred to a non-business position after the closure of the business, the transfer of the facility in this case is based on the premise that the transfer of the facility in this case constitutes a supply before the closure of the business, and thus can only be subject to value-added tax pursuant to the legal fiction of self-supply of the remaining goods at the time of the closure
Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)