[부가가치세부과처분취소][하집1988(3.4),540]
Whether "Building kimchi" is subject to deduction of constructive purchase tax amount under Article 17 (3) of the Value-Added Tax Act (affirmative)
"Dried kimchi" means the construction of kimchi and then re-dried the heat wind of 50 through 60 degrees east by using mechanical facilities, and then inserting it into the math, and the construction of kimchi containers by inserting three through four grams in one wing paper if it is as it is. As such, it is reasonable to view that the construction of kimchi belonging to the scope of unprocessed food as simple processed food under Article 10 (1) of the Enforcement Decree of the Value-Added Tax Act is not only the primary processing to the extent that the nature of original products does not change," under Article 28 (1) of the Enforcement Decree of the Value-Added Tax Act, the "Dried kimchi" constitutes the exemption of value-added tax under Article 12 (1) 1 of the Value-Added Tax Act, Article 28 (1) of the Enforcement Decree of the same Act, and Article 10 (1) of the Enforcement Decree of the same Act, and thus, it constitutes the exemption of value-added tax under Article 17 (3) of the same Act.
Articles 12 and 17 of the Value-Added Tax Act, Articles 28, 62 of the Enforcement Decree of the Value-Added Tax Act, Article 10 of the Enforcement Rule of the same Act
Clean Food Co., Ltd.
Head of Pyeongtaek Tax Office
The Defendant’s disposition of imposing value-added tax of KRW 9,403,840 (the sum of KRW 904,930 for the first term portion in July 1986 and KRW 8,498,910 for the second term portion in the same year) on the Plaintiff on July 15, 1987 shall be revoked.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
The plaintiff is the KON Products manufacturer. The plaintiff purchased dry kimchi from the non-party Han Food Co., Ltd. (1: 17,275,780 won, 156,347,90 won: 2: 156,347,90 won) and used it as raw material for the surface of the kimchi container and filed a value-added tax return after deducting the relevant constructive purchase tax amount (1: 82,65 won, 82,665 won, 7,445,18 won: 2: 7,48 won, 7,45,188 won). On July 15, 1987, the fact that the defendant imposed value-added tax on the plaintiff on the ground that the dry Kimchi purchased by the plaintiff is not subject to value-added tax-free goods, and thus it is not subject to dispute between the parties concerned.
The defendant asserts that the disposition of this case is lawful on the ground of the above disposition grounds and applicable provisions of law, and the plaintiff argues that the above dry kimchi is subject to deduction of fictitious purchase tax amount. Thus, considering whether the dry kimchi of this case is subject to deduction of fictitious purchase tax amount, Article 17 (3) of the Value-Added Tax Act first provides that an entrepreneur operating a manufacturing business shall include agricultural products, livestock products, fishery products, or forestry products (Article 62 (1) of the Enforcement Decree of the Value-Added Tax Act includes those which have undergone primary processing as provided for in Article 28 (1) of the same Enforcement Decree) as raw materials to be supplied with tax exemption, the amount calculated under the conditions as prescribed by the Presidential Decree may be deducted as input tax amount. Article 12 (1) 1 of the Value-Added Tax Act provides that the above dry kimchi of this case is exempted from value-added tax; Article 28 (1) 1 of the Enforcement Decree of the same Act provides that the manufacturing business shall be excluded from packaging of unprocessed food products; Article 12 (2) of the Enforcement Decree of the Value-Added Tax Act;
In this case, in full view of the testimony of the witness Park Young-chul and the whole purport of the argument as a result of the party member's verification, the non-party Han Food & Drug Co., Ltd., after manufacturing kimchi, re-dried the heat of 50 to 60 degrees east by using mechanical facilities, and then supplied it to the plaintiff. The plaintiff can be recognized that the plaintiff made the dried Kim-chi container by putting it up in Han-gu and 3 through 4 girs in Han-gu if it is as it is, then it can be recognized that the plaintiff made the dried Kim-chul. As seen above, it is a simple processed food under Article 10 (1) of the Enforcement Rule of the Value-Added Tax Act, which is within the scope of the non-processed food products, and construction of the dried Kim-gu by using mechanical facilities does not exceed the extent of "the primary process of the original products to the extent that its nature does not change," so it constitutes tax-free goods under Article 12 (1) 1 of the Value-Added Tax Act, Article 28 (10 (3) of the same Act.
Thus, the defendant's disposition of imposing value-added tax is illegal because the dry Kimchi in this case does not constitute tax-free goods, and the defendant's disposition of imposing value-added tax is illegal. Thus, the plaintiff's claim in this case seeking revocation is justified, and the costs of lawsuit are assessed against the losing defendant.
Judges Lee Jae-hoon (Presiding Judge)