(영문) 서울고등법원 2009. 08. 20. 선고 2009누2278 판결공통매입세액을 과세사업과 비과세사업으로도 구분하여 안분할 수 있는지 여부[국승]
Seoul Administrative Court 2006Guhap45401 ( December 17, 2008)
Whether a common input tax amount can be divided into taxable and non-taxable businesses
Where an entrepreneur operates both a taxable and non-taxable business, if there is a common tax amount that can not distinguish the actual attribution from the tax amount for goods, services, etc. used or to be used for both taxable and non-taxable business, it shall be possible to calculate the amount in cases where the entrepreneur concurrently operates
The contents of the decision shall be the same as attached.
1. The plaintiff's appeal is dismissed.
2. Costs of appeal shall be borne by the Plaintiff.
The decision of the first instance is revoked. The defendant's rejection disposition against the plaintiff on September 26, 2003 against the first term portion of 597,646,50 won for the year 2001, the second term portion of 2001, the second term of 2001, the first term portion of 168,474,080 won for the year 202, and the second term portion of 202 to 604,074,100 won for the second term of 202.
The court's reasoning for this case is that there is no difference between the input tax amount for the goods or services used or to be used for the non-taxable business and the input tax amount deducted under Article 17 (1) of the Value-Added Tax Act, and therefore, the plaintiff can affirm the application by analogy of Article 61 (1) of the Enforcement Decree of the Value-Added Tax Act to this case where the plaintiff concurrently operates the taxable business and the non-taxable business, and such analogical application does not contravene the principle of no taxation without law. Further, as alleged by the plaintiff, in this case where even though the receiving fees, etc. in this case constitute the national subsidy and the public subsidy, the actual reversion of the input tax amount related to the non-taxable business that the plaintiff concurrently operates and the non-taxable business is not clear, the above receiving fees, etc. shall not be deemed to be deducted from the total input tax amount, as stated in the reasoning for the judgment of the court of first instance, except for the case where Article 8 (2) of the Administrative Litigation Act
Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.