Whether all tax invoices issued as of the date of preparation after the time of supply for services may be deemed false tax invoices.

If the date of preparation of the tax invoice is different from the actual transaction date, and the transaction is confirmed as stated in the tax invoice, the input tax amount shall be deducted if the taxable period to which the date of preparation belongs and the transaction period to which the transaction date belongs are the same.

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

1. On January 16, 1996, the Defendant revoked the disposition of imposition of value-added tax amounting to KRW 4,438,240 for the second term of 195 against the Plaintiff on January 16, 1996.

1. Details of the disposition;

The following facts are either disputed between the parties, or acknowledged by the whole purport of the pleading in the descriptions of Gap evidence 1, Gap evidence 2-1, 2-1, 3-2, Gap evidence 5-1 through 5, Gap evidence 6, Gap evidence 9, Eul evidence 1-1, 2, 3, and Eul evidence 2, and there are no objections.

A. The Plaintiff and Nonparty 2 (hereinafter the Plaintiff et al.) entered into a construction contract with Nonparty 1,925,220,00 won (including value-added tax) as to the construction work for the extension of the 9th floor of the above building on October 1994 and entered into an additional contract with Nonparty 189,860,000 won (including value-added tax) for construction work for the total construction work for the extension of the 9th floor of the above building with Nonparty 189,860,000 won on the ground of 4,000 square meters 4,000 square meters, and the total construction work amount was 2,015,000 won on the ground of 194,000 won on the ground of 4,000,0000,000 won, and the construction work was completed by Nonparty 2,150,015,000 won.

B. The Plaintiff et al. paid the above construction cost to the non-party company as indicated in the column for the payment of the construction cost in the separate sheet and the issuance of the tax invoice. A tax invoice was issued by the non-party company as indicated in the item column for the issuance of the tax invoice for the second period of October 25, 1995. In filing the preliminary return of the value-added tax for the second period of October 25, 1995, the Plaintiff et al. attached the tax invoice Nos. 8 and 9 (the total purchase tax amount of KRW 37,734,767, and the input tax amount to be deducted to KRW 37,734,734,545, which exceeds the above input tax amount, and filed an application for early refund of KRW 33,69,778 (=37,74,545-4,034,767).

C. However, the head of ○○○ Tax Office (after the commencement of the business of the Defendant) shall be deemed to have been on May 6, 1995, when the supply of the above services for the construction of the building was completed. Therefore, the tax invoice listed in [Attachment Table Nos. 8 and 9 issued as of the date of completion of the construction work after the time of supply] shall be deemed to have been refunded KRW 33,69,778 on the ground that the preparation date of the requisite entry date constitutes a tax invoice different from the fact, under Articles 17(2)1 and 16(1)4 of the Value-Added Tax Act (amended by Act No. 4808 of Dec. 22, 1994; hereinafter the same shall apply) and thus, the said tax amount shall be deemed to have been deducted from the total input tax amount of KRW 37,734,545 on the ground that the said tax amount shall be deducted from the total input tax amount of KRW 4,438,7464,737.

2. Whether the disposition is lawful;

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful as it is in accordance with the grounds for disposition and the relevant laws and regulations. (1) The plaintiff agreed to pay the construction price in proportion to the sale price at the time when the contract of the above construction contract was entered into with the non-party company. Upon receiving the sale price in accordance with the above construction contract, the plaintiff paid the non-party company the construction price as stated in the separate sheet and received the tax invoice as stated in the separate sheet issuance column. In such a case, the tax invoice is issued as stated in Article 22 subparagraph 2 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 14471 of Dec. 31, 1994; hereinafter the same shall apply). Thus, the tax invoice Nos. 8 and 9 cannot be deemed as the date of preparation of the tax invoice different from the fact, and even if it is not so, if the nature of the input tax credit under the tax invoice is not proven, and if it is proved that the non-party company bears the duty to pay the tax amount, it cannot be viewed as a false tax invoice.

(b) Related statutes;

(1) Article 9(2) of the Value-Added Tax Act provides that the time when the service is supplied shall be the time when the service is supplied or the goods, facilities, or rights are used. Paragraph (4) of the same Article provides that matters necessary for the time of supply under paragraphs (1) and (2) of the same Article shall be prescribed by Presidential Decree. The main sentence of Article 22 of the Enforcement Decree of the same Act provides that the time of supply for the service under Article 9(2) of the same Act shall be governed by the following provisions: (a) where the service is supplied on completion basis, interim payment, long-term installment or other conditional terms, or where the service is supplied on condition that the unit of the supply is continuously supplied, the time when each part of the price is

(2) In addition, Article 17(1) of the Value-Added Tax Act provides that the amount of value-added tax to be paid by an entrepreneur to the Government (hereinafter referred to as the “paid tax amount”) shall be the tax amount calculated by deducting the tax amount under each of the following subparagraphs (hereinafter referred to as the “in-house tax amount”) from the

However, the input tax amount exceeding the output tax amount shall be the refundable tax amount (hereinafter referred to as the "tax amount"). Article 16 (1) 4 of the Enforcement Decree of the same Act stipulates that the tax amount for the supply of goods or services that were or are to be used for its own business under subparagraph 1 shall not be deducted from the output tax amount, and Article 16 (2) of the same Act provides that the input tax amount under each of the following subparagraphs shall not be deducted from the output tax amount, and where the whole or part of the requisite entry items (referring to the matters under Article 16 (1) 1 through 4; hereinafter the same shall apply) are not entered in the tax invoice submitted under subparagraph 1 or where the relevant contents are different from the fact: Provided, That the input tax amount in such a case as prescribed by the Presidential Decree shall be excluded, and Article 16 (1) 4 provides that the date of preparation as the entry item of the tax invoice. Meanwhile, Article 16 (2) of the same Act provides that even where part of the requisite entry items of the tax invoice are entered by mistake, if the relevant tax amount is verified by mistake, it does not include the facts under Article 17 (2) 2).

C. Determination

(1) Comprehensively taking account of the purport of arguments set forth in Gap evidence 3-1, 2, Gap evidence 4, 9, and Gap evidence 10-1 through 53, the plaintiff et al. agreed that the payment of the construction price shall be preferential payment of land balance (other miscellaneous expenses shall be 20% of the sale price) out of the revenue accrued from the sale in lots at the time of entering into the above construction contract with the non-party company from the 7th paragraph of the special agreement, and the 8th paragraph of the special agreement shall be paid in proportion to the sale in lots and shall not require a fair payment (Article 16 of the above construction contract in printed form shall be 198). The construction price received from the non-party company as part of the pre-sale price, and Article 17 shall be 198.39 of the above construction price received from the non-party company as part of the pre-sale price set forth in the 98.298 of the pre-sale price set forth in the table 1986.97.985

(2) Where an agreement is reached to pay the construction cost in accordance with the progress of construction works, it constitutes a supply of services on condition of the completion rate. If the payment date is not specifically stipulated, the date the completion rate of construction works is determined and the payment of the price is made, and it shall be deemed the time of supply for services corresponding to the progress rate at the time of receipt of each part of the said payment under Article 22 subparagraph 2 of the Enforcement Decree (see Supreme Court Decision 95Do1301, Jun. 14, 1996, etc.). The completion date of construction shall be deemed the date of completion of the supply of services. However, in the case of this case where an agreement to pay the construction price in accordance with the progress of sale without relation to the pre-construction price, it shall be deemed that the period from the date of completion of construction to the date of payment of the pre-sale price under Article 22 subparagraph 2 of the Enforcement Decree to the extent that the payment of the pre-sale price is clearly made by the date of completion of construction works (the date of actual payment of the construction price).

In addition, where the date of preparation of a tax invoice is different from the actual transaction date, and the transaction is confirmed according to the entry of the tax invoice, if the taxable period to which the date of preparation of the tax invoice belongs and the taxable period to which the transaction date belong are the same, the input tax amount on the fact of transaction shall be deemed as the case where part of the necessary entries under Article 60 (2) of the Enforcement Decree of the same Act are entered erroneously, and the input tax amount on the fact of transaction shall be deducted, but if the taxable period to which the date of preparation of the tax invoice belongs and the transaction date are different, the input tax amount shall not be deducted (see Supreme Court Decisions 92Nu4574, Feb. 9, 193; 95Nu634, Aug. 11, 1995; 95Do1301, Jun. 14, 1996).

(3) In this case, the tax invoice in the table No. 8 of the above (1) is based on the factual basis. (a) The time of supply for services corresponding to the price of the construction work is June 28, 1995. The date of the preparation of the tax invoice is different on July 31, 1995, and both are different. Thus, the contents are different from fact, and the taxable period to which the date of the preparation of the tax invoice belongs belongs belongs and the time of the actual transaction of services differs between each other. (b) The tax invoice in the table No. 9 of the table No. 1 of the attached table No. 9 is legitimate because the time of supply for services corresponding to the price of the construction work is the date of preparation of the tax invoice No. 31, Aug. 31, 1995; and (b) the date of preparation of the tax invoice No. 8 of the attached table No. 995, Sep. 22, 1995.

(4) However, as seen in paragraph (1)(b), the Plaintiff’s output tax amount for the second term portion of the value-added tax in 1995 is KRW 4,034,767, and the input tax amount to be deducted is KRW 4,108,00 on the tax invoice stated in paragraph (9). Thus, the disposition of this case imposing value-added tax is unlawful even if the input tax amount is not imposed exceeding the output tax amount.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is justified, and the costs of lawsuit are assessed against the defendant who has lost. It is so decided as per Disposition.