Article 6 of the Value-Added Tax Act

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s imposition of value-added tax of KRW 8,722,910 on September 22, 2014 against the Plaintiff on September 22, 2014 is revoked.

가. 원고는 〇〇 〇〇〇구 〇〇로〇〇번길 〇에 본점 사업장을 두고, 2014. 6. 19. 〇〇 〇〇구 〇〇동 〇-〇 외 7필지에 사업장을 둔 〇〇교회〇〇〇〇휴게시설을 원고의 지점(이하 '이 사건 지점'이라 한다)으로 사업자등록을 하였다.

나. 원고는 이 사건 지점 사업장 소재지에 건물을 신축하기 위하여 지점 설립 이전인 2013. 8. 22.경 〇〇건설 주식회사와 건물 신축공사에 관한 도급계약을 체결하였고, 2014. 1. 6.부터 2014. 6. 30.까지 위 건축공사와 관련하여 원고 명의로 합계 3,360,137,954원 상당의 매입세금계산서(이하 '이 사건 매입세금계산서'라 한다)를 발행받았다.

C. On July 25, 2014, the Plaintiff filed an application for the return and refund of the value-added tax for the first year of 2014, with the Defendant, who is the head of the tax office having jurisdiction over the place of tax payment of the instant branch, attached with the purchase tax invoice in the instant case, which was KRW 87,229,181, and the said input tax amount as KRW 87,229,181.

D. As a result of the on-site verification on August 21, 2014, the Defendant: (a) determined that the instant branch office filed an application for the tax return and application for refund of value-added tax; and (b) on August 25, 2014, notified the Plaintiff (the Plaintiff entered the instant branch as an addressee) of the advance notice of taxation that it would impose an additional tax on excess refund return amounting to KRW 8,722,918 pursuant to Article 47-3(1) of the Framework Act on National Taxes; and (c) on September 16, 2014, the Plaintiff submitted an application for early decision requesting the Defendant to immediately file an application for prior notice of taxation under the name of the instant branch office.

E. On September 22, 2014, the Defendant imposed and notified additional tax of KRW 8,722,910 on the instant branch in 2014 (hereinafter “instant disposition”).

바. 원고는 2014. 10. 15. 이 사건 지점 명의로 〇〇지방국세청장에게 이의신청을 거쳐 2015. 2. 17. 국세청장에게 심사청구를 하였으나, 2015. 4. 24. 기각되었다.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, 8, 9, 10 evidence, Eul evidence 1 through 4 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) With respect to the tax base return based on the purchase tax invoice in the name of the head office of the Plaintiff, the head office of YU only has jurisdiction over the Defendant, and there is no jurisdiction over the Defendant. However, the Defendant did not comply with the measure to require the Plaintiff to submit it to the head office of YU, the head office having jurisdiction over the place of tax payment of the Plaintiff’s head office. The instant disposition is against the principle of substantial taxation, the good faith principle, etc.,

2) Since a return of value-added tax on July 25, 2014 to the Defendant on the name of the instant branch without any obligation to pay value-added tax is null and void by a person who is not a taxpayer. Thus, the instant disposition based on the premise that the instant branch is a person liable to pay value-added tax is unlawful.

3) Even if a value-added tax return filed on July 25, 2014 is valid, a taxpayer should be notified of tax payment to the extent that the said return becomes liable for tax payment (see Supreme Court Decision 86Nu726, Jan. 31, 1989). The instant branch’s withdrawal of the said value-added tax return filed by the Defendant on September 22, 2014, which was the preceding day of September 29, 2014, against which the said return was received from the Defendant and became final and conclusive. Ultimately, the instant disposition was unlawful as against the instant branch, not the taxpayer.

4) In addition, even if the value-added tax return filed on July 25, 2014 is valid, the Plaintiff was on September 2014.

22. A written withdrawal submitted to the Defendant stating the withdrawal of the above return, and the effect of the said return was retroactively extinguished, and even if the said return was not extinguished, the said written withdrawal falls under “the revised return of tax base as provided in Article 45 of the Framework Act on National Taxes”. As such, the said written withdrawal was absorption into the revised return and extinguished on July 25, 2014. Ultimately, the instant disposition was deemed to have been made based on the value-added tax return as of July 25, 2014, which became null and void

5) Since the instant disposition was imposed on the Plaintiff who trusted the established rules of the National Tax Service, it constitutes a violation of the good faith principle or the Plaintiff’s declaration of purchase tax invoices under the name of the Plaintiff’s head office as the input tax amount of the instant branch, and thus

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the Plaintiff violated the jurisdiction over the tax base return

부가가치세법 제6조 제1항은 '사업자의 부가가치세 납세지는 각 사업장의 소재로 한다'고 규정하고 있고, 같은 법 제7조 제1항은 '사업자에 대한 부가가치세는 제6조 제1항부터 제5항까지의 규정에 따른 납세지를 관할하는 세무서장 또는 지방국세청장이 과세한다'고 규정하고 있다. 그런데 이 사건 지점 사업장 소재지가 〇〇 〇〇구 〇〇동 〇-〇인 사실은 앞서 본 바와 같은바, 이 사건 지점의 부가가치세 납세지는 위 부〇〇 〇〇구 〇〇동이고 위 납세지 관할세무서장은 피고이므로, 원고가 이 사건 지점 명의로 피고에게 부가가치세 환급신고를 한 것이 관할을 위반한 경우에 해당한다고 볼 수 없다. 나아가 원고가 과세표준신고의 관할을 위반하지 않은 이상 피고에게 원고로 하여금 원고 본점의 관할세무서장인 □□□세무서장에게 과세표준신고를 할 수 있도록 조치하여야 할 의무도 없다. 따라서 이와 다른 전제에 선 원고의 이 부분 주장은 이유 없다.

2) Whether a return of value-added tax on July 25, 2014 was null and void

The place of tax payment of value-added tax is the location of each business establishment (Article 6(1) of the Value-Added Tax Act), and as seen earlier, the Plaintiff, a taxpayer of value-added tax, filed a return of value-added tax for the first period of July 25, 2014 with the Defendant, who is the head of the tax office having jurisdiction over the location of the place of business of the instant branch on July 25, 2014. Accordingly, the Plaintiff’s assertion on the different premise is without merit.

(iii) the time when the tax liability becomes final and conclusive;

In full view of Article 22(1) of the Framework Act on National Taxes, Article 10-2 subparag. 1 of the Enforcement Decree of the Framework Act on National Taxes, and Articles 48 and 49 of the Value-Added Tax Act, the first half value-added tax in 2014 is a tax that is determined and payable together with the return at the time of the scheduled return and final return by the Plaintiff, who is a taxpayer. Therefore, the first half value-added tax liability in 2014 was finalized when the Plaintiff filed a value-added tax return with the Defendant on July 25, 2014 in the name of the branch of this case. Accordingly, the first half value-added tax liability in 2014 was determined at the time when the Plaintiff filed a value-added tax return

4) Whether the return of value-added tax on July 25, 2014 became invalid or not

According to Gap evidence No. 7, the plaintiff filed a value-added tax return on July 25, 2014 to the defendant in the name of the branch of this case on September 22, 2014, by mistake, and the plaintiff filed the same case.

Article 45(1)2 of the Framework Act on National Taxes provides for the following: (a) as the Plaintiff’s duty to pay value-added tax for the first period of July 25, 2014 was established by the return of July 25, 2014; (b) the Plaintiff may not affect the liability to pay value-added tax for the first period of 2014 solely on the ground that the Plaintiff filed the withdrawal statement to the Defendant on September 22, 2014; (c) however, Article 45(1)2 of the Framework Act on National Taxes provides for the revised return system (Article 45 of the Framework Act on National Taxes) and the request for correction (Article 45-2 of the Framework Act on National Taxes). If the amount of tax refund stated in the return of tax base exceeds the amount of tax to be returned pursuant to the tax law, the person who filed the return of tax base by the due date shall submit the revised return of tax base and amount to the Defendant, and (d) the said revised return of tax base and amount may not be deemed to be attached to the Plaintiff’s (2).

5) Whether there are justifiable grounds

Under the tax law, in cases where a taxpayer violates various obligations, such as a return and tax payment, under the conditions as prescribed by individual tax laws, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, the taxpayer’s intent or negligence is not considered. On the other hand, such sanctions may not be imposed in cases where there are justifiable grounds for failure to perform his/her obligations, such as where the taxpayer was unable to know his/her duty, or where it is unreasonable to expect the party to fulfill his/her duty, etc. (see Supreme Court Decision 95Nu10181, Nov. 14, 1995). According to the following circumstances acknowledged by adding the purport of the entire arguments to the above evidence, i.e.,, where a corporate entity received purchase tax invoices related to the branch business in the name of the head office before its business registration, the corporate entity’s request for the deduction of the input tax amount under the relevant tax invoice cannot be construed to have been made immediately under the name of the Plaintiff’s head office.

3. Conclusion

Thus, the plaintiff's claim is dismissed as there is no ground.