Daejeon District Court 2009Guhap1770 (209.09.09)

Cho Jae-chul209 Before 1255 (No. 15, 2009)

Subject to the removal by the owner of the goods subject to expropriation, the goods are excluded from the taxable subject of compensation receipt.

It shall be excluded from taxable objects only if the owner of the goods subject to expropriation under the Public Works Act, etc. transfers the ownership of the goods to the operator and receives compensation on the condition that the owner of the goods removes

The contents of the decision shall be the same as attached.

1.The judgment of the first instance shall be modified as follows:

A. The Defendant’s imposition of value-added tax of KRW 21,980,520 in 207 against the Plaintiff on January 1, 2009 exceeds KRW 13,528,070 in the imposition disposition of KRW 21,980,520.

(b)to accept the plaintiff's request for money;

2. The total costs of the lawsuit shall be divided into two parts, and one part shall be borne by the plaintiff, and the remainder by the defendant, respectively.

1. Purport of claim

The imposition of value-added tax of KRW 21,980,520 on January 1, 2009 by the Defendant against the Plaintiff on January 1, 2009 shall be revoked.

2. Purport of appeal

The judgment of the first instance shall be revoked. The plaintiff shall be dismissed from his claim.

1. Details of the disposition;

"가 원고는 충남 ○○군 ○○읍 ○○리 136-1 대 441㎡'(이하 '이 사건 토지'라 한다) 와 그 지상의 시멘트 벽돌조 슬래브지붕 단층주택 및 점포 69.88㎡(이하 '이 사건 건 물'이라 한다) 및 조립식 경량철골조 2층 주택 49.73㎡(이하이 사건 조립식 건물'이라 한다)의 소유자인데, 1993. 11. 5부터 위 건물에서☆☆식당'이라는 상호로 음식점을 운영하고 있었다.", "나 ○○군수는 충남 ○○군 ○○읍 ○○리 127 빛 그 일원에서공익사업을 위한 토 지 등의 취득 및 보상에 관한 법률'(이하 '공익사업법'이라 한다) 제2조, 제4조가 규정 하는 공익사업인☐☐산 일원 유적정비사업'(이하 '이 사건 사업'이라 한다)을 시행하기로 하였는데, 이 사건 토지는 이 사건 사업의 사업지구에 포함되었다.",다 ○○군수는 2007. 7. 12 이 사건 사업지구 내의 토지소유자들에게 공익사업법 제16조, 같은 법 시행령 제8조 제1항에 의하여 보상협의를 요청하였고, 원고는 위 요청에 따라 2007. 12. 27 ○○군수에게 이 사건 토지, 이 사건 건물 및 이 사건 조립식 건물을 포함한 지장물 일체를 매도하였는데, 그 내역 및 보상액은 아래 표(이하 '이 사건 표1라 한다)의 기재와 같다.

D. On January 1, 2009, the Defendant rendered a disposition imposing value 21,980,520,520 won (the instant disposition hereinafter referred to as “the instant disposition”) after adding the Plaintiff’s value of value-added tax to the tax base for value-added tax return for the goods subject to value-added tax, on the following grounds: (a) the Plaintiff’s compensation amount for the entire obstacles on the instant land other than the instant assembly-type buildings, etc. (i) among the obstacles on the instant land (excluding the instant assembly-type buildings: 9. hereinafter referred to as “in this case’s obstacles” under the instant table) was deemed to be attributable to the supply of goods subject to value-added tax; and (b) the Defendant: (c) deemed that it was based on the supply of goods subject to value-added tax; (d) the value-added tax was KRW 182,775,000 (= 201,052,500 won); and (d) adjusted the Plaintiff’s tax base for value-added tax return

E. The Plaintiff filed an appeal with the Tax Tribunal on the instant disposition on February 26, 2009, but the Tax Tribunal rendered a ruling dismissing the Plaintiff’s claim on April 15, 2009. [Grounds for Recognition]

The facts without dispute, Gap evidence 2 through 8 (including each of the natural disaster cases), Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the disposition of this case is legal

A. Related Acts and subordinate statutes

The entries in the attached statutes are as follows.

B. The assertion and judgment

(1) Whether the sale of the instant building, etc. constitutes the supply of goods subject to taxation

(A) The plaintiff's assertion

With respect to the instant project, the first required was not the land including the instant building, but the instant building was the land where the instant building was located, and the obstacles, such as the instant building, were anticipated to be removed by the implementer. Therefore, even if the Plaintiff sold the instant building, etc. to the head of ○○○ head, who is the implementer of the instant project, and received the amount of compensation therefrom, this is merely limited to the amount of compensation for the removal of the instant land, and does not fall under the “supply of goods” under Article 6(1) of the former Value-Added Tax Act and Article 14(1) of the Enforcement Decree of the Value-Added Tax Act (amended by Act No. 915, Jan. 1, 2010; hereinafter the same shall apply) and the assets such as the instant building, etc. were not necessarily expropriated if the Plaintiff did not sell them to the head of ○○○○○ head. Thus, it is unlawful for the Defendant to impose the value-added tax on the assets such as the instant building, etc.

(B) Facts of recognition

1) On December 27, 2007, the main contents of the sales contract that the Plaintiff entered into with the head of ○○○○ Gun to sell all stolens on the instant land including the instant building (hereinafter “instant sales contract”) are as follows (hereinafter “A”) and “B” refers to the Plaintiff, respectively.

1. All obstacles outside the copy of the register of the building within 136-1 of ○○○○○-gun, Nam-gun, ○○○○-gun, Nam-gun, among the indications of the property (the same as the calculation report of

Article 1 "B" means that "B" moves (transfer) to March 31, 2008, and "B" means the payment of compensation for sale or purchase (transfer) in the amount of KRW 82,897,350 (W82,897,350).

Article 2 Section B does not raise any civil or criminal objection even if ‘A' voluntarily removed (transfer) if ‘B' does not move (transfer) by the date specified in Article 1.

2) According to the instant sales contract, the head of ○○○○○ had the Plaintiff paid the sales price in full for the instant and prefabricated buildings on the same day, and completed the registration of ownership transfer relating thereto. [Grounds for recognition]

Facts without dispute, Gap evidence 6, Eul evidence 5, the purport of the whole pleadings

(C) Determination

“1) We examine whether there was “one supply” under Articles 1(1)1 and 6(1) of the former Value-Added Tax Act with respect to the instant building among obstacles to purchase by consultation. The term “supply of goods subject to value-added tax” means the transfer or transfer of goods under a summary or legal cause. Here, delivery refers to the transfer of possession of the goods, and the transfer of ownership on the real estate is not a legal status. As seen earlier, insofar as the ○○○○ head completed the registration of ownership transfer of the instant building pursuant to the instant sales contract on December 27, 2007, it constitutes “one supply” under Articles 1(1)1 and 6(1) of the former Value-Added Tax Act. Ultimately, this part of the allegation to the effect that the sale of the instant building does not constitute “the supply of goods subject to value-added tax” under Article 1(1)1 of the former Value-Added Tax Act, or that it does not constitute “the sale of the goods subject to imposition of value-added tax” under Article 4(1) of the Enforcement Decree of the Value-Added Tax Act.

2) Next, as to whether there was "supply" under Articles 1(1)1 and 6(1) of the former Value-Added Tax Act during the second period of 2007, which is the taxable period of the instant disposition, on the part other than the building of this case among the obstacles of this case (2) through (9) of the title of this case

In light of the records on No. 6’s evidence alone, it is insufficient to acknowledge it, and there is no other evidence to acknowledge it (In light of the above facts, the Plaintiff’s relocation (transfer) to March 31, 2008 and payment of compensation to the head of ○○○○○○) as to the remainder of the obstacles except the building of this case among the obstacles of this case. Thus, the part on the remainder of the obstacles of this case, among the dispositions of this case, is unlawful in this regard.

(2) Whether Article 14(4) of the Enforcement Decree of the Value-Added Tax Act is invalid

(A) The plaintiff's assertion

Article 14(4) of the Enforcement Decree of the Value-Added Tax Act provides for the restriction on property rights of people who can only be governed by law beyond the delegation scope of the mother law that provides for matters necessary for the supply of goods subject to imposition of the Value-Added Tax Act, and thus, it is null and void because the owner of the goods subject to expropriation in the expropriation procedure under the Public Works Act, etc. discriminates against the case of removal of the goods under the condition that the owner of the goods subject to expropriation remove the goods concerned and without any justifiable reason.

(B) Determination

As seen earlier, Article 14(4) of the Enforcement Decree of the Value-Added Tax Act intends to exclude the ownership of the goods subject to expropriation under the Public Works Act from the object of value-added tax only in cases where the owner of the goods receives compensation on condition of removing the ownership. In light of the purport and purpose thereof, it cannot be deemed that the same violated the principle of equality by excluding the case of arbitraryly stipulated in the above provision without reasonable grounds. Moreover, the provision itself does not provide for cases where the goods are not subject to taxation. Thus, it cannot be deemed that the restriction on property rights of the people beyond the delegation scope of the mother law is not imposed. Thus, this part of the assertion is without merit.

(c) Calculation of justifiable tax amount;

As seen earlier, since the transfer of the instant building constitutes the re-supply of composition subject to taxation only among the obstacles in the instant case, if the Plaintiff calculates a reasonable tax amount by adding the value of KRW 112,490,182 (i) (i.e., the value of supply to KRW 123,739,200/1.1) to KRW 42,754,546, which was declared as the value-added tax base for the second term portion in 2007, then such reasonable tax amount shall be KRW 13,528,070 as indicated in the separate tax calculation sheet 1.

3. Conclusion

Therefore, the part of the disposition of this case which exceeds 13,528,070 won, which is the above legitimate tax amount, is unlawful. Thus, the plaintiff's claim of this case is accepted within the above recognized scope, and the remaining part is dismissed as it is without merit. The judgment of the court of first instance which partially different debate is unfair, and it is so decided as per Disposition.