[Supreme Court Decision 2007Du15049 (No. 18, 2008)]

1. According to Article 16(1) of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006), Article 17(1) and Article 17(2)1-2 of the Value-Added Tax Act, and Article 60(2)3 of the Enforcement Decree of the Value-Added Tax Act, where an entrepreneur registered as a taxpayer supplies goods or services, a tax invoice shall be issued to a person who is supplied goods or services at the time of supply; where an entrepreneur supplies goods or services, a tax invoice shall be issued at the time of supply; where an entrepreneur supplied goods or services, the amount of a tax invoice shall be deducted from the amount of a tax invoice; and where a tax invoice is not issued, the input tax amount shall not be deducted from the amount of a tax invoice; where a tax invoice is delivered after the time of supply for the goods or services and is delivered within the taxable period to which the time of supply belongs; in light of the reasoning and records of the judgment below, the Plaintiff’s failure to obtain construction cost deduction from the Plaintiff Company or its remainder within the tax period.

2. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Supplementary High Court 2006Nu4776 (No. 22, 2007)]

The following facts are either not disputed between the parties, or acknowledged in full view of the purport of the entire pleadings in Gap evidence 1, Gap evidence 4, Gap evidence 6, Gap evidence 7, Gap evidence 14, and Eul evidence 3-1.

A. The plaintiff, who is engaged in real estate sales business, etc. with the trade name of "○○ Development", contracted the construction of a new neighborhood living facility on the ground of ○○○○○○○○○○○○○, with the construction cost of 2,226,40,000 (including value-added tax) and completed the completion inspection on September 21, 2004 and completed the registration of preservation of ownership for the above neighborhood living facility on September 21, 2004". On the other hand, on July 29, 2005, the plaintiff filed a tax invoice against the defendant on September 16, 2004, by asserting that the deduction of the remaining input tax amount among the above construction cost was omitted, and on the ground that the tax invoice issued on September 16, 2004 (including the supply price of 1,032,581,818,100,000 won and the tax invoice issued on September 29, 2004).

A. The plaintiff's assertion

The plaintiff was issued a tax invoice on September 16, 2004, which is within the taxable period to which the time of supply for the above neighborhood living facilities belongs from ○○ Construction, but lost the tax invoice. The plaintiff was omitted in the return of value-added tax for the second time on September 2004 due to the plaintiff's failure to know the fact of the loss, and thereafter, confirmed that the tax invoice for the supplier's custody was the same as the original on the tax invoice for the supplier's custody, and received the above request for correction. Thus, the plaintiff was not correct to receive the tax invoice within the taxable period to which the time of supply for the above neighborhood living facilities belongs. Thus, the disposition of this case based on the different premise is unlawful.

B. Relevant statutes

Value-Added Tax Act (amended by Act No. 7876 of March 24, 2006)

Article 9 (Transaction Time) (1) The supply of goods shall be the time provided for in the following subparagraphs:

1. When the goods are delivered, in case where the moving of goods is required;

2. When the goods are made available, in case where the moving of goods is not required; and

3. When the supply of goods is decided, in case where the provisions of subparagraphs 1 and 2 are not applicable.

(2) The time when services are supplied shall be the time when services are supplied or goods, facilities or rights are used.

Article 16 (Tax Invoice) (1) Where an entrepreneur registered as a person liable for tax payment supplies goods or services, an invoice stating the following matters (hereinafter referred to as "tax invoice") at the time prescribed in Article 9 shall be delivered to the person who receives the supply, as prescribed by Presidential Decree: Provided, That in cases prescribed by Presidential Decree, the time of delivery may vary

1. Registration number, name or denomination of the businessman who provides;

2. Registration number of the person who receives;

3. Supply value and value-added tax;

4. Date of preparation.

5. Matters prescribed by the Presidential Decree other than those under subparagraphs 1 through 4.

Article 17 (Payable Tax Amount) (2) The following input tax amounts shall not be deducted from the output tax amount:

1-2. An input tax amount, in case where the tax invoice as provided in Article 16 (1) and (3) is not delivered, or the whole or part of the matters to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as a “necessary entry item”) is not entered or entered differently from the fact on the delivered tax invoice: Provided, That the input tax amount in such case as prescribed by the Presidential Decree shall be excluded;

(6) Matters necessary for the scope of input tax amounts not deducted under paragraph (2) shall be prescribed by Presidential Decree.

Enforcement Decree of the Value-Added Tax Act

Article 60 (Scope of Input Tax Amount) (2) Cases prescribed by the Presidential Decree referred to in the proviso to Article 17 (2) 1-2 of the Act means any of the following subparagraphs:

1. Where the businessman who has made an application for the business registration under Article 7 (1), has received as to the transaction until the delivery date of the business registration certificate under Article 7 (3), the resident registration number of the businessman or his representative entered;

2. Where some of the necessary entries of the tax invoice delivered under Article 16 (1) of the Act are erroneously entered, but the fact of transactions is confirmed in view of the relevant tax invoice and other necessary entries or discretionary entries;

3. A tax invoice delivered after the time of supply for goods or services, which is delivered within the taxable period to which the time of supply belongs;

C. Determination

Article 9 (2) of the Value-Added Tax Act (amended by Act No. 7876, Mar. 24, 2006; hereinafter referred to as "the time when the service is supplied") provides that "where an entrepreneur registered as a taxpayer supplies goods or services, the time when the service is supplied shall be the time when the service is supplied or goods, facilities, or rights are used," and Article 16 (1) provides that "where an entrepreneur registered as a taxpayer supplies goods or services, the invoice stating the following matters (hereinafter referred to as "tax invoice") at the time prescribed in Article 9 may vary from the time of delivery as prescribed in the Presidential Decree: Provided, That where the time of supply is prescribed by the Presidential Decree, Article 17 (2) provides that "the input tax amount in the following subparagraphs shall not be deducted from the output tax amount, and Article 16 (1) 2 provides that "where the tax invoice is not delivered under Article 16 (3) 1 through 4 (hereinafter referred to as "necessary entry items or part of the input tax amount under Article 16 (2) of the Enforcement Decree of the relevant tax invoice shall be excluded:

In light of the above-mentioned relevant laws and regulations, the plaintiff should be issued a tax invoice between July 1, 2004 and December 31, 2004, when the construction of the above neighborhood living facility was completed by ○○ Construction to obtain an input tax deduction based on the issue of the tax invoice. As alleged by the plaintiff, as to whether the plaintiff received the tax invoice from ○○ Construction on September 16, 2004, the issue from ○○ Construction to ○○○ Construction, the first instance court's testimony, ○○○○○○○○ Construction, and the fact that the plaintiff did not believe that the testimony of 5, 8, 13, 15, and 15, and the fact that the plaintiff did not issue the tax invoice to the plaintiff at the time of delivery of the tax invoice to ○○ Construction, and there is no other evidence to acknowledge that the plaintiff did not issue the tax invoice to ○○ Construction, as a whole.

Therefore, the plaintiff's assertion on the premise that the plaintiff was issued a tax invoice from ○○ Construction within the above taxable period is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Changwon District Court 2006Guhap314, 2006)

Litigation costs shall be borne by the plaintiff.

1. The plaintiff contracted the new construction of the building on the ground of ○○-ri 965-2 (hereinafter "the building of this case") on September 21, 2004 to ○○ Construction Co., Ltd., ○○○ ○○ Do, ○○ Do, and completed registration of preservation of ownership on the building of this case. On July 29, 2005, the plaintiff asserted that on September 29, 2004, when the return of value-added tax was made on September 16, 2004, the tax invoice (the supply price of this case 1,032,581,818, value-added tax amount 103,258,182, and "the tax invoice of this case") that was issued on September 16, 2004, the plaintiff submitted a request for correction of the tax base and tax amount ("the tax invoice of this case") by submitting the tax invoice of this case, which did not belong to the plaintiff's tax invoice of this case.

2. Accordingly, the plaintiff himself loses the tax invoice of this case within the taxable period to which the time of supply of the building of this case belongs but later finds it again and submits it to the defendant, and thus, the plaintiff's request for correction of this case was made. Thus, the plaintiff's refusal to deduct the input tax amount under the tax invoice of this case is alleged to be unlawful. Thus, Article 17 (2) 1-2 of the Value-Added Tax Act provides that "if the tax invoice under Article 16 (1) is not issued, the input tax amount shall not be deducted from the output tax amount received unless the tax invoice under Article 16 (1) is delivered," and Article 16 (1) provides that "if the goods or services are supplied to the person registered as a taxpayer, the tax invoice shall be delivered at the time prescribed in Article 9," and Article 9 (2) provides that "the time of supply or the goods, facilities or rights are used, and the plaintiff's assertion that the new construction of this case was completed on September 21, 2004 and the plaintiff did not use the tax invoice within the whole tax invoice.

3. If so, the plaintiff's claim is without merit and it is so decided as per Disposition.