Cho Jae-2016-3439 ( December 5, 2016)

From the beginning to the beginning, it was scheduled to use religious facilities not for rent, and therefore, additional tax on the refund amount in this case is justifiable.

Since it was planned to use religious facilities for rent from the beginning to the beginning, the refund of this case itself was erroneous from the beginning, and thus, additional tax on the refund of this case is justified.

The additional tax on excess refund return under Article 47-4 of the Framework Act on National Taxes, the additional tax on payments and refund refund under Article 47-5, and the additional tax reduction and

2017Guhap228 Disposition of revocation of Imposition of Additional Tax

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00. Head of tax office

July 18, 2017

September 19, 2017

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

Value added tax for the first period of February 4, 201 201 imposed on the Plaintiff on February 4, 2016 KRW 42,977,270;

Each imposition of value-added tax of 39,689,730 won for the second period of 2011 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is widely known to the head of PPPP Z located in 000:00 00 o,000 o, 000. On April 10, 2009, the Plaintiff obtained a new construction permit of the building, which is a religious facility (hereinafter referred to as the “building of this case”) on the ground of 00:00 o 00 o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o

B. The Plaintiff, from October 1, 201 to June 30, 201, newly constructed the instant building on the ground of 00 Dong 000-0 from October 1, 201, and registered real estate rental business with the above 00 Dong 00-0 land as its place of business on December 28, 2010, and was refunded total value-added tax amounting to KRW 16,363,630 (hereinafter “the instant refund amount”) during the second to second to 2011 with respect to the construction of the instant building from the Defendant during the taxable period from December 28, 2010 as follows.

Classification 2010. 2nd 2011. 1st 2011

Sales Schedule-----

Purchase Table 545,454,00 won 845,45,000 won 272,727,000 won 1,63,636,000 won

Taxing KRW 54,545,000 84,545,000 won 27,273,000 won 66,363,00 won

C. Investigation into the Plaintiff of the V regional tax office

1) As a result of investigating the source of new construction of the instant building against the Plaintiff, V regional tax office imposed gift tax by deeming that the Plaintiff’s mother JJ donated it to the Plaintiff, but the Plaintiff filed a tax judgment, and the Tax Tribunal decided to the effect that it should re-examine the actual use of the instant building and impose taxes.

2) After re-auditing the source of the instant newly built building from December 22, 2015 to January 13, 2016 by a V regional tax office, the instant building is a religious facility exempt from value-added tax, and the Plaintiff’s mother home year was not subject to gift tax as it contributed property to a public interest organization.

3) On December 28, 2015, the Plaintiff had reported the closure of real estate rental business and the revised return of value-added tax on December 28, 2015, during the said tax investigation period, and paid the instant refund in full.

4) While cancelling gift tax and concluding a tax investigation with respect to the Plaintiff, V regional tax office reviewed the Plaintiff’s revised tax investigation, and then notified the Defendant of the resolution on value-added tax to the effect that even if the Plaintiff paid the instant refund in full, it would impose the excess refund tax and the additional tax on insincere refund due to the Plaintiff’s failure to report and pay, even if the instant building was a religious facility that is not subject to value-added tax exemption.

D. On February 4, 2016, the Defendant issued a notice of correction and notification of KRW 42,977,270 for the first term portion of the value-added tax in 201 and value-added tax for the second term of the year 2011, which reflects the additional tax related to refund to the Plaintiff (hereinafter “instant disposition”).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on September 8, 2016 on May 4, 2016, but was dismissed on December 5, 2016.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 9, 12 (including paper numbers), Eul evidence 1, 4

Each entry of evidence, the purport of the whole pleading

2. Relevant statutes;

It is as shown in the attached Form.

3. The plaintiff's assertion and judgment

A. Summary of the plaintiff's assertion

The plaintiff asserts that there is a justifiable reason not to impose additional tax on the refund amount of this case, and specifically, the plaintiff asserts that ① voluntary payment on the land of the law and the refund amount of this case, ② the tax administration division of the defendant, ③ the period of lease report, ④ the exemption of additional tax on the size of infant facility, ④ the exemption of additional tax on the size of infant facility is applied in turn.

B. Determination as to the assertion of voluntary payment of the statutory site/repaid amount

The plaintiff argues that the imposition of additional tax is unfair on the ground that the pertinent building could not be refunded as a tax-free object at the time of the registration of the real estate rental business operator, and that the religious facility was voluntarily returned when he knew that the religious facility is not subject to the refund of the value-added tax.

However, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed under the conditions prescribed by individual tax laws in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, and the taxpayer’s intent or negligence is not considered, and it does not constitute justifiable grounds that do not cause the taxpayer’s breach of duty. However, if there are justifiable grounds for not being able to cause the taxpayer’s breach of duty, such as the taxpayer’s failure to know his/her duty is unreasonable, or it is unreasonable to expect the party to fulfill his/her duty, etc. (see, e.g., Supreme Court Decision 2003Du13632, Jan. 27, 2005). In this case, the Plaintiff’s failure to know that the building of this case cannot be refunded as a non-taxable business entity, cannot be deemed a justifiable ground for exemption from imposition of additional tax, and the circumstances that the Plaintiff paid for the refund of the amount of this case cannot be deemed as a justifiable ground for exemption from additional tax.

Therefore, the plaintiff's above assertion is without merit.

C. Determination as to the defendant's argument that the tax administration was erroneous

원고는, 원고가 부가가치세를 환급받고 임대실적이 없다는 것을 신고하는 동안에,피고는 적극적으로 원고의 사업장에 대한 세무조사를 하여 원고에게 적절한 세무지도를 하였어야 하지만 이를 하지 않았기 때문에 이 사건 가산세를 부과하는 것은 부당하다고 주장한다 �원고는 구 부가가치세법 사무처리규정(2013. 3. 29. 국세청훈령 제1986호로 전부개정되기 전의 것) 제57조 내지 제59조를 원용한다 �.

On the other hand, the duty to pay value-added tax is the non-party's return and payment system, and the duty to pay tax is first imposed on the taxpayer (Article 10-2 of the Enforcement Decree of the Framework Act on National Taxes). In this case, the Plaintiff is responsible for the return and refund of value-added tax. However, as the Plaintiff is, the Plaintiff is responsible for the return and refund of value-added tax on the instant building that is to be provided to a religious facility, which is a tax-free business, due to the Plaintiff's own fault that did not properly examine the relevant statutes.

Therefore, this part of the argument is without merit.

D. Determination on the assertion of reduction or exemption of penalty tax during the reporting period of value-added tax

The Plaintiff asserts that penalty tax may not be imposed for the above period since the Plaintiff filed a report on the closure of real estate rental business from December 28, 2010 to December 28, 2015 on the fact that the Defendant did not have any rental record.

As seen earlier, given that the instant building is provided for religious business, the value-added tax on the acquisition value of the instant building cannot be refunded from the time the Plaintiff acquired the instant building. However, even if the Plaintiff was paid value-added tax after business registration on December 28, 2010, and the Plaintiff discontinued its business on December 28, 2015, and returned the amount of refund on December 28, 2015, it is natural that the refund of the instant building was made in itself wrong from the beginning, and thus, penalty tax is imposed from that time.

가사 이 사건 건물 1층을 과세사업인 영유아시설로 보았을 경우에는 구 부가가치세법 시행령(2013. 6. 28. 대통령령 제24638호로 개정돠기 전의 것) 제49조 제1항에 따라서 부가가치세를 신고한 과세기간동안에는 과세시간당 5%(6개월에 5%)의 비율에 의하여 환급액 자체를 감면받을 수 있다. 하지만, 원고도 자인하듯이 원고는 건축분쟁으로 인하여 이 사건 건물 1층을 이용하여 과세사업을 개시한 사실이 없기 때문에 과세사업의 폐업일을 확정할 수도 없어 위와 같은 부가가치세 환급액에 대한 감면을 받을수도 없다. 만일 원고가 이 사건 건물 1층을 과세사업장으로 보아 부가가치세 환급의반환을 다툴 경우, 이 부분에 대한 VV지방국세청의 증여세 조사가 다시 문제될 수도

section 1.

In the end, the plaintiff's assertion on this part is without merit.

E. Determination on the assertion that additional tax reduction or exemption is equivalent to the percentage of infant and child facilities on the entire building

The Plaintiff asserts that the first floor of the instant building is an infant facility subject to taxation, which is not a religious facility, and thus, the value-added tax should be refunded. As such, the part of the instant disposition, which was divided by at least 1/6 of the area occupied by the first floor of the instant building in the entire building, should be revoked.In light of the Plaintiff’s preparatory document dated 18, 2017 and the abstract of the core dispute point on August 3, 2017, the Plaintiff was scheduled to use the entire building including the first floor of the instant building as a religious facility, etc. for the purpose of leasing it, and even at the time of the building permission on April 10, 209, the Plaintiff did not have an intention to lease the first floor of the instant building. Accordingly, the Plaintiff’s assertion that value-added tax was refunded to the entire building of the instant building for the purpose of securing construction cost, which was not the contractor of the instant building, and thus, this part of the Plaintiff’s claim is inconsistent with this Opinion.

Therefore, the plaintiff's assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.