2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 1/4 of the costs of lawsuit shall be borne by the Plaintiff respectively by the Defendant.

가. 원고는 2003. 2. 13. 피고에게 '☆☆'이라는 상호로 일반과세자 사업자등록(사업 의 종류 : 임대, 무역업)을 하고, 안산시 단원구 ★★동 949-8 지상에 철근콘크리트조평슬라브지붕 4층 기숙사건물(총 48개 호실, 이하 '이 사건 건물'이라 한다)을 신축하여 2003. 6. 5. 위 건물에 관하여 원고 명의의 소유권이전등기를 경료하였다.

B. The Plaintiff filed a voluntary declaration of value-added tax on the first quarter of 2003 with the Defendant to refund the input tax amount of KRW 72,960,000, out of the expenses incurred in the construction of the instant building, pursuant to Article 24(2)2 of the Value-Added Tax Act (hereinafter “the Act”), and received a refund from the Defendant.

C. From June 12, 2006 to October 27, 2006, the Defendant conducted a tax investigation on the Plaintiff’s real estate rental business, and the Plaintiff leased all 48 houses of this case to individuals who are not business operators during the taxable period of this case for residential purpose, and this disposition was rendered by adding the penalty tax of 14,727,216 on the ground that it constitutes the supply of goods as a self-supply under Article 6(2) of the Act.

D. On April 13, 2007, the Plaintiff appealed against the instant disposition and filed an appeal with the Tax Tribunal, but the Tax Tribunal dismissed the said appeal on June 30, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, 5, 6, Eul evidence 1-1, Eul evidence 2-1, Eul evidence 3-1, Eul evidence 4, Eul evidence 6-1, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff assumes that a disposition to impose a case is illegal for the following reasons:

(1) While the Plaintiff did not collect the value-added tax equivalent to the rental services actually supplied with respect to the leased portion of the instant building during the instant taxable period, the Plaintiff paid the value-added tax to the Defendant on the premise that all of it was collected by transaction.

(2) Since considerable parts of the instant building were not leased during the instant taxable period and remains as a public room, this part is not exclusively used for the Plaintiff’s tax-free business, and in light of the Plaintiff’s return and payment of value-added tax on the rent station supplied to the non-business entity for a considerable period prior to the instant taxable period’s filing of value-added tax, the Plaintiff renounced its status as a value-added tax-free business entity, and thus, the portion leased to the non-business

B. Defendant’s principal

(1) The instant disposition imposing a value-added tax cannot be deemed unlawful solely on the ground that the Plaintiff reported and paid value-added tax by deeming all the leased premises to be leased to a non-business entity as the sale of services, by deeming the leased premises to have been supplied to the Plaintiff pursuant to the relevant provisions of the law.

(2) Among the instant buildings, the part that was first leased to an individual during the instant taxable period constitutes an exclusive supply order for the tax-free business, and this part of the tax disposition is lawful. The Plaintiff supplied the leased service, and the imposition disposition of value-added tax on this part is legitimate. The part of the public room is deemed to have been discontinued by the Plaintiff. As such, this part of the building was also supplied to the Plaintiff under Article 6(4) of the Act, and all of the instant dispositions are lawful.

3. Whether the instant disposition is lawful

(a) Related Acts and subordinate statutes: To be written in annexed Form;

(b) Fact of recognition;

(1) 원고는 이 사건 건물을 신축하는 과정에서 ●●건축사무소라는 상호로 건축설계를 하는 이▣▣과 ▦▦종합건설 주식회사로부터 총 729,600,000원을 매입금액으로 하는 세금계산서를 교부받았다.

(2) After constructing the instant building, the Plaintiff leased part of the instant building to a non-business entity for the Plaintiff’s rental business, but some of the houses were leased to a non-business entity. Of the total 48 units of the instant building, 12 units of the instant building were first leased to a non-business entity in the second taxable period in 2005, and 29 units of the instant building were used during the said taxable period, and 6 units were already supplied to a housing prior to the said taxable period, and the remaining one units of the building were leased to a business entity (stock company ○○○).

(3) As to the leased portion after the construction of the instant building, the Plaintiff deemed that the leased portion was supplied as a house from the time of the instant tax disposition, and paid the value-added tax corresponding thereto.

[Reasons for Recognition] Facts without dispute, Gap evidence 2-1 through 3, Eul evidence 6, Eul evidence 1-1, 2-2, Eul evidence 2-1 through 4, Eul evidence 5-1 through 6-7, and the purport of the whole pleadings

C. Determination

(1) The provision deeming the goods to be supplied by the private supplier

Comprehensively taking account of Article 6 of the Act and Article 15(1)1 of the Enforcement Decree of the Act, where an entrepreneur deducts input tax, and where an entrepreneur uses goods acquired in connection with his business as a tax-free business, or where the remaining goods are supplied to the relevant entrepreneur at the time of discontinuance of the business, the said goods shall be deemed supplied to the relevant entrepreneur, and thus the entrepreneur is liable to pay value-added tax due to the supply of the said goods (Therefore, the allegation that the instant disposition of taxation is unlawful on the ground that the Plaintiff paid value-added tax on the said lease service by determining

(2) Scope of home care rooms supplied to the Plaintiff

(A) the portion leased as a house in the taxable period of the instant case;

1) Among the instant buildings, 12 houses were leased to non-business operators for the first time during the instant taxable period, and the Plaintiff already refunded the input tax amount for the construction of the instant building prior to the instant taxable period. According to Articles 6(2) and 12(1)11 of the Act and Article 15(1)1 of the Enforcement Decree of the Act, the value-added tax is exempted on the lease of the said 12 houses for the purpose of housing, and the said 12 houses are deemed to have been supplied to the Plaintiff due to the Plaintiff being refunded the input tax amount of the instant 12 houses for the use of housing.

2) As seen above, the Plaintiff asserts the waiver of tax exemption. As such, Article 12(4) of the Act provides that: (a) the supply of goods or services subject to zero tax rate; (b) the lease of houses and their appurtenant lands, which are prescribed by the Presidential Decree; (c) the authors, writers, and other persons prescribed by the Presidential Decree provide vocational services, such as human services, religion, charity, academic activities, relief; and (d) specific scope of objects subject to waiver of tax exemption; and (c) procedures for waiver of tax exemption are delegated to the Presidential Decree. However, Article 47(1) of the Enforcement Decree of the Act provides that where the supply of goods or services exempt from value-added tax is subject to zero tax rate; and where a certain academic research organization or technical research organization supplies such goods or services, the entrepreneur who wishes to be exempted from value-added tax shall file a report on waiver of tax exemption with the head of the competent tax office; and (d) in the case of housing lease services, the procedure for waiver of tax exemption under the Enforcement Decree of the Act can not be made; and (d) the Plaintiff’s assertion is without merit.

3) On the other hand, the Plaintiff argues that the Enforcement Decree of the Act provides for the declaration of waiver of tax exemption and the procedures for registration only for the part of the supply of goods and services subject to the waiver of tax exemption under the Act, such as the supply of housing lease services. However, the Act provides for the waiver of tax exemption under the Act, but the Enforcement Decree does not provide for the subject of the declaration of waiver of tax exemption and the procedures for registration under the Act

On the other hand, the tax exemption system under the Value-Added Tax Act is to reduce the burden of value-added tax on consumers by relaxing the authenticity of the burden of the tax exemption, which is the fundamental purpose of which is to reduce the burden of the operator's value-added tax as the zero-rate tax system. Thus, the provision of the Act only on the part of the tax exemption target is to prevent the increase of the consumer's tax burden due to unilateral waiver of the tax exemption target in excess of the scope of the tax exemption target provided by the Act, but to ensure that the waiver of the tax exemption system can not be implemented within the scope of the administrative legislation. In addition, in the case of the tax exemption target, there may be more favorable cases to waive the tax exemption from the business operator's standpoint because there is the input tax amount collected from the business operator at the time of purchase of raw materials, etc. used to produce the tax exemption goods. However, in light of the purport of the tax exemption system above, the Enforcement Decree of the Act is merely the reflective effect of the tax exemption system to relieve the consumer's tax burden, and thus, the Plaintiff's assertion is rejected.

(b)the portion leased to the business entity during the period of this case and the portion of the official

1) The facts that one room was leased to ○○, a business operator, during the instant taxable period, are as seen above, and therefore, the above one room cannot be deemed to have been supplied to the Plaintiff on the ground of a tax-free business exclusive. However, since the Plaintiff supplied the leased services using the above one room to ○○, a business operator, using the said one room, the Plaintiff is subject to added value corresponding to the above supplied leased services, and thus, the amount exceeding the tax amount imposed on the above leased services out of the instant disposition that deemed the above one room as the supply of goods is unlawful.

2) As seen above, the provision of goods is deemed to be a factory laboratory during the taxable period of this case. In certain cases, it is intended to impose value-added tax by treating the goods as goods purchased by a business operator as a final consumer and, on the other hand, by using the goods as goods purchased by a business operator as a final consumer, thereby failing to impose value-added tax at all. In light of the purport of this Act, in light of the purport of this Act, the Plaintiff cannot be deemed to have used the above 29 units as a final consumer’s position without leasing the said 29 units. Accordingly, the Defendant asserted that the above 29 units of the building of this case should also be deemed to have been supplied to the Plaintiff. However, it cannot be deemed that the Plaintiff’s business was conducted by each subparagraph of the building of this case, and the Plaintiff cannot be deemed to have discontinued the above 29 units of the building of this case, and this part of the Defendant’s assertion is not accepted.

(c) Justifiable tax amount;

In full view of the aforementioned review, value-added tax is imposed on only 12 houses supplied to non-business operators and only 2 services supplied by the Plaintiff to ○○○○○, Inc. for the instant taxable period. Meanwhile, if the whole purport of the pleadings is shown in Gap evidence 6, Eul evidence 1-2, Eul evidence 5-6, and Eul evidence 7-6, 12,80 of the Plaintiff’s purchase price is 141,12,80, and 12,80 among the instant buildings to ○○○, 12,00, 70,000 won and 2, 141,340,650, 65, 14, 12, 288, 207, 207, 306, 47, 706, 70, 707, and 707, 207, 306, 300, 147, 207, etc. of the Plaintiff’s tax base amount to be imposed.

(4) The theory of lawsuit

Therefore, the portion exceeding 16,713,180 won, which is a legitimate tax amount, of the instant disposition, is unlawful.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.