Appellate Court 2015No1039 ( October 14, 2015)

A lessor is liable to pay value-added tax even if the custodian of the lessor embezzleds rents.

Even if a building manager embezzled, it is difficult to see that the leased object to the lessee itself exceeds the scope of delegation, and the failure to deliver rent is only an internal circumstance, and since the supply of rental services is completed, the Plaintiff is obligated to pay value-added tax as a person who has supplied the services independently for the business under the Value-Added Tax

2015Guhap7651 Revocation of Disposition of Imposition of Value-Added Tax

EAA 1

BB Director of the Tax Office

April 28, 2016

May 19, 2016

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

The Defendant’s imposition of KRW 00,00,000 (including additional taxes) for the first half of 2009 against the Plaintiffs on July 21, 2014 and the imposition of KRW 0,00,000 (including additional taxes) for the second half of 2009 against the Plaintiffs on October 1, 2014, respectively, shall be revoked.

1. Details of the disposition;

A. The plaintiffs possessing 1/2 shares in the Seoul 00-Gu 000-Y-X △△△ building (hereinafter referred to as the “instant building”) are the entrepreneurs who jointly leased the instant building. However, the plaintiffs delegated all of their authority to this △△, such as entering into the instant building lease contract and receiving rent, etc., to this △△, and appointed this △△ Kim○ as the administrator, and had this △△△ and Kim○ (hereinafter referred to as “△△, etc.”) manage the instant building.

C. Since the lease of the instant building to KRW 00,00, a lessee, around 2009, the △△, etc. was subject to criminal punishment for eight months due to the fact that he/she embezzled the building by using it for personal purposes while on his/her duty while being kept for the plaintiffs.

D. The Defendant conducted an investigation on value-added tax related to the lease of the building of this case on July 2014, and confirmed that the Plaintiffs were omitted from the sales amount of KRW 60 million in 2009, and approximately KRW 28 million in the rent for the second time in 2009, which was entrusted with the management of the building of this case, and subsequently assessed the value-added tax again to the Plaintiffs on July 21, 2014 (including additional tax), and on October 209, the Plaintiffs issued a notice of correction and correction of KRW 200,000,000 (including additional tax) for the first time in 2009 and KRW 20,000 in 209 for the second time in 209 (including additional tax).

E. The Plaintiffs filed an appeal with the Director of the Tax Tribunal on February 6, 2015, against which they were dissatisfied with the instant disposition, and received a decision of dismissal from the Director of the Tax Tribunal on July 14, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Gap evidence No. 5, Gap evidence No. 6, Eul evidence No. 1, Eul evidence No. 2 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

This case’s building management, which was delegated to this △△, arbitrarily leased the building to a third party without the Plaintiff’s permission, and embezzled it for personal purposes by receiving rents. Since the Plaintiffs did not know the fact of the lease itself and did not actually receive rent income, it cannot be deemed that they supplied leasing services under the Value-Added Tax Act. Accordingly, the disposition of this case is unlawful.

B. Determination

Article 1(1) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jul. 1, 2013; hereinafter the same) provides that the value-added tax shall be imposed on the “supply of services” (Article 1(1) of the former Value-Added Tax Act). Article 2 Subparag. 1 provides that a person who independently supplies services for a business is liable to pay the value-added tax, and Article 7(1) provides that the supply of services is either the provision of services or the use of goods, facilities, or rights due to all contractual or legal grounds, and Article 9(2) provides that the time when the services are supplied or the use of the goods, facilities, or rights is used. In addition, Article 58(1) of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jul. 1, 2013) and Article 58(1) provides that where a trustee or agent transfers goods under his/her name and directly delivers a tax invoice to the truster or principal.

According to the above facts, it is difficult to see that this case’s building was leased to 00 cubic and 00 billion won, etc., and it is also difficult to see that this case’s building was leased to the Plaintiffs, and that it was not delivered to the Plaintiffs, but it is only an internal situation between the Plaintiff and the △△, etc., as alleged by the Plaintiffs. Therefore, even though the Plaintiffs were unaware of, or did not actually receive rent from, the fact that the building was leased to the Plaintiff, as alleged by the Plaintiffs, it is deemed that this △, etc. was completed by leasing the building of this case to 00 cubic and 00 won, etc. under the status delegated by the Plaintiffs, who are real estate rental business operators, and the supply of rental services was completed by receiving the fee. Accordingly, according to each of the above provisions, the Plaintiffs are obligated to pay value-added tax as a person who independently supplied the service for business purposes under the Value

Therefore, the disposition of this case is legitimate, and the plaintiffs' assertion disputing it is without merit.

3. Conclusion

If so, all of the plaintiffs' claims are without merit, they are dismissed. It is so decided as per Disposition.