Whether the agreed contract amount which has not been implemented due to the discontinuance of construction works shall be deemed the construction income amount.

If the contract is rescinded due to the dispute over the construction cost and the agreed contract amount has not been implemented subsequent thereto, dispositions based on such agreement shall be deemed to be unlawful unless there is a proof by the tax authority that the agreed contract amount belongs to the taxpayer's income.

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

Changwon District Court Decision 99Gu2960 delivered on August 10, 2000

1. The judgment of the court below is revoked. 2. On December 1, 1997, the defendant revoked the disposition of imposition of KRW 504,971,710 as corporate tax for the plaintiff and KRW 26,969,10 as corporate tax for the year 194 as well as KRW 54,398,50 as corporate tax for the special rural development tax for the plaintiff and KRW 26,969,100 as corporate tax for the year 194 as well as value-added tax for the two-term period

1. Details of the disposition;

The following facts are recognized that there is no dispute between the parties, or that there is no clear dispute in accordance with the whole purport of the pleading.

가. 원고는 1991. 5. 11. 소외 ㅇㅇ관광ㅇㅇ콘도체인 주식회사(나중에 그 상호가 주식회사 ㅇㅇㅇㅇ콘도 등으로 변경되었다, 이하 소외 회사라 한다)로부터 ㅇㅇ도 ㅇㅇ군 ㅇㅇ면 ㅇㅇ리 30-1 등 토지 상의 ㅇㅇ관광콘도미니엄 신축공사(이하 이 사건 공사라 한다)를 도급금액 11,218,000,000원(부가가치세 별도), 공사기간 1991. 5. 10.부터 1992. 12. 30.까지로 정하여 도급받았는데, 그 공사대금은 5회 분할하여 기성금을 지급하는 방법으로 그 공정율이 20%, 40%, 60%, 80%에 이를 때마다 매회 20억원씩, 공사준공 때 그 나머지를 지급하기로 하되, 원고의 기성신청을 받은 소외 회사가 7일 이내에 기성을 확정하여 확정 후 7일 이내에 기성금을 지급하고, 그 신청일로부터 2개월이 경과하는 때에는 시중금리에 준한 연체료를 부담하기로 하였다.

B. The Plaintiff paid corporate tax and value-added tax to the Defendant regarding the instant construction project as follows:

(1) The Plaintiff calculated the amount of income for the pertinent business year by multiplying the contract amount as set forth in the above paragraph (a) by the rate of work progress. In other words, the amount of income for the pertinent business year shall be 13.80% in the business year 1991; the amount of income shall be 363,303,400 won in the business year 1992; the amount of income shall be 226,603,600 won in the business year 1993; the amount of income shall be 2.02% in the business year 1993; the amount of income shall be 226,603,600 won in the business year; the amount of income shall be 1,50,170 won in the business year; and on the basis of this, the total amount of corporate tax for the pertinent business year shall be 19.5% in the business year; and on the basis of this, the total amount of income for the pertinent business year shall be 19.5% in the business year;

(2) On December 16, 1991, the Plaintiff requested the non-party company to pay a total of KRW 2,776,455,00,00 for the first payment of KRW 2,524,05,00 for the first payment of KRW 22.5% of the subscription rate of the instant construction project and value-added tax of KRW 252,40,405,00 for the first payment of KRW 2,76,45,00, and issued a tax invoice to the non-party company, and filed and paid the value-added

C. The plaintiff and the non-party company confirmed the non-party company's non-party company's construction work payment amount, etc. until the time through September 9, 1994, the non-party company's public notice of Sep. 14, 1994, and the plaintiff's non-party company's public notice of Sep. 14, 194 (Evidence Nos. 33, 34-1, 2). According to the above, the non-party company's amount to be settled to the plaintiff is 3,465,945,454 won including the total amount of 3,465,45,454 won including the total amount of 2,96,546,546 won including the value-added tax amount of 3,540,540,500 won, and 5,300,005,300 won for the non-party company's construction work payment.

D. After that, on October 5, 1994, the Plaintiff requested the non-party company to cancel the instant construction contract, and the non-party company consented thereto on the 24th of the same month, thereby cancelling the agreement.

E. On December 1, 1997, the Defendant imposed and notified the following corporate tax, value-added tax, etc. on the basis of the circumstances in the ruling in B, C, D, etc. on the Plaintiff on December 1, 1997 (hereinafter “instant disposition”).

(1) At the time of the cancellation of the instant construction contract, the amount of income shall be KRW 3,465,945,454 as indicated in the above C. (3) and the amount of KRW 1,225,868,216 calculated by subtracting KRW 2,240,07,238 of the above B. (1) as indicated in the judgment of the above B. (1) and imposed KRW 504,971,710 as corporate tax for the year 194 and KRW 26,969,10 as rural development tax for the year 194 (hereinafter “instant corporate tax, etc.”).

(2) From 3,465,945,454 won as stated in the above sub-paragraph (c) above, 941,895,494 won calculated by subtracting 2,524,050,000 won from 3,465,454 won as stated in the above sub-paragraph (2) as the tax base (as to this, the Defendant imposed 122,446,410 won of value-added tax for the second period of 1994 (as to this, the Defendant corrected 54,398,50 won of value-added tax after subtracting 523,445,454 won as stated in the above sub-paragraph (e) from the interest rate of 523,45,454 won as stated in the above sub-paragraph (e),

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case should be revoked because it is unlawful for the following reasons.

(1) As to the disposition of imposition of corporate tax, etc. of this case, the term of the construction work of this case is merely 19.95% according to the Plaintiff’s report of corporate tax as set forth in the above 1.B.(1). The settlement of construction work price as set forth in the judgment is not set according to such construction work completion, but at that time, the non-party company was under the circumstances where its business license will be cancelled due to the Plaintiff’s discontinuance of construction work, and as a result, the non-party company received the claim amount under the premise that the construction work of this case will resume and complete the construction work of this case under the premise that it will resume the construction work of this case and complete the construction work of this case. Thus, the construction contract of this case remains effective unless it was already cancelled at the Plaintiff’s request as set forth in the above 1.D., and there is no possibility of realizing claims equivalent to the amount of the settlement of construction work price due to the lack of funds of the non-party company.

(2) It is related to the imposition of value-added tax in this case. The reasons for the settlement of the construction cost in the judgment of Paragraph (1) are as shown in the above Paragraph (1). In fact, the Plaintiff did not provide the service in excess of the amount equivalent to 22.5% of the value-added tax return and payment as stated in the above Paragraph (2).

B. Relevant statutes

(1) According to Article 17(8) of the Corporate Tax Act (amended by Presidential Decree No. 4802 of Dec. 22, 1994; hereinafter the same shall apply), where a domestic corporation has concluded a long-term contract for the construction or manufacture of the domestic corporation, the profits and losses for each business year of the business year from the business year which includes the date of commencement of the construction or manufacture of the object to the business year which includes the date of delivery thereof to the contractor shall be included in the calculation of earnings and losses for the relevant business year as prescribed by Presidential Decree. In cases of calculating the total amount of income of the domestic corporation after the completion of the construction or manufacture of the object, the amount of income and losses for each business year shall be included in the calculation of earnings and losses for the relevant business year (referring to the amount prior to the amendment by Presidential Decree No. 1468 of Dec. 31, 199; hereinafter the same shall apply) and Article 37(1) of the Enforcement Decree of the Construction Contract Act shall be calculated by multiplying the amount of construction or manufacture under Article 17(8).

(2) According to Article 9(2) of the Value-Added Tax Act, the time when the service is supplied shall be the time when the service is supplied or the goods, facilities, or rights are used. Article 22 subparags. 1, 2, and 3 of the Enforcement Decree of the same Act provides that the time when the service is supplied shall be the time when the service is supplied, and Article 9(2) of the same Act provides that, in the case of ordinary supply, the time when the service is supplied is completed (Article 9(2) (Article 1), when the service is supplied on the basis of completion, interim payment, long-term payment, or under other conditions, or the continuous supply of the service is impossible by dividing the unit of the supply (Article 2 subparag. 2, 1, and 2, when the provision of the service is completed and the supply price is determined (Article 3).

C. Facts relationship

다음 사실은 갑9, 10, 12 내지 32, 36 내지 39, 41호증, 갑40호증의 1, 2, 3, 갑42호증의 1 내지 37, 갑11, 33 내지 35호증의 각 1, 2,을4, 5, 13, 14호증, 을15호증의 1, 2, 3의 각 기재와 원심증인 조ㅇㅇ의 증언, 원심법원의 주식회사 ㅇㅇㅇㅇㅇㅇ콘도에 대한 사실조회결과에 변론의 전취지를 종합하여 인정된다.

(1) On December 16, 191, the Plaintiff filed a claim for the payment of the first progress payment with respect to the non-party company of this case, claiming that the height ratio of the construction work of this case would be 2.5%, but the non-party company has continued to pay the completion payment while the height ratio of the construction work is merely 16%.

(2) For this reason, the Plaintiff continued to dispute the issue of the payment of the pre-paid construction work among the non-party companies on February 28, 1992, and the Plaintiff suspended the instant construction work on August 10 of the same year, on September 31 of the same year, notified the non-party company of the payment of KRW 2,616,768,00 for the pre-paid construction work, etc. as of September 31 of the same year, and subsequently, upon receiving part of the pre-paid construction work amount from the non-party company, the Plaintiff continued to perform the construction work on November 6 of the same year and completed the three-story concrete theory by the end of March 1993.

(3) After that, the non-party company did not pay the construction cost as requested by the plaintiff. On April 30, 1993, the plaintiff requested the non-party company to cancel the construction contract of this case for the payment of KRW 3,075,320,40, including overdue interests, and the non-party company requested the cancellation of the construction contract of this case on June 30 of the same year. In the process, the non-party company requested the plaintiff to resume the construction of this case on May 4 of the same year after the completion of the construction of this case, although the plaintiff did not comply with the request, the non-party company requested the plaintiff to resume the construction of this case on August 3 of the same year and around the 24th of the same month, the supervision of the supervising company on underground floor was merely 16% and it cannot be recognized as the fair rate of 22.5% of the plaintiff's assertion.

(4) 그러다가 소외 회사는 1994. 2. 16. 원고에게 위 (3)항 판시의 기성공사금을 인정하되 차후 콘도분양시 우선 지급하고 공사비 20%를 대물로 지불할테니 공사를 재개해 달라고 협조요청하였으나 원고가 이에 응하지 아니하였고, 이러한 상태에서 1994. 4. 20.경 ㅇㅇ군청으로부터 장기간 공사 중단 때문에 그 허가가 취소될 수도 있음을 통보받게 되자 같은 해 5. 초경 원고에게 그 공정율 14% 정도에 불과하다며 공사재개를 재차 요청하는 한편 이에 응하지 않을 경우 자체적으로 이 사건 공사를 재개하겠다고 통보하고, 같은 해 6.경 자체적으로 이 사건 공사를 일부 진행하기도 하였다.

(5) In this process, the non-party company attempted to implement the construction of this case by physical coloring another construction business operator, such as informing the plaintiff of the fact that the construction work is discontinued on or around June 27, 1994 that the plaintiff could only be confirmed. However, it is not easy for the plaintiff to properly raise funds necessary for the sale of the above container. In addition, the non-party company failed to do so on the wind that the plaintiff strongly made a strong objection on the ground of the contract breach.

(6) Accordingly, the non-party company determined that it would be improved to allow the plaintiff to resume the construction immediately and complete the construction, even if the construction is likely to be revoked due to the suspension of the construction of this case for a long period of time, and that the non-party company continued to maintain both-party relations with the plaintiff on September 9, 1994 and demanded during that period under the premise that the construction of this case would be completed and cooperate after completion, as the plaintiff requested to cooperate with each other. The non-party company sent a public notice requesting the plaintiff's cooperation for settlement as stated in the reasoning of the above 1.C., and sent to the non-party company the letter that the plaintiff accepted it as it is at the final settlement amount on September 14, 1994.

(7) However, a written confirmation of construction cost adjustment (Evidence No. 13) written around that time stated that the Plaintiff and the Nonparty Company agree to the total amount of construction cost settlement amount of KRW 3,812,540,00,000, construction cost receipt amount of KRW 512,540,000, and construction cost balance of KRW 3,300,000,000, but there is only the seal of the representative director of the Plaintiff Company, and there is no seal of the representative director of the Nonparty Company.

(8) 소외 회사는 1994. 9. 24. 원고에게 그 공사대금 지급 담보를 위하여 ㅇㅇㅇㅇ 콘도미니엄 26평형 회원권 192구좌 및 같은 53평형 회원권 10구좌에 대한 계약서(당시 1구좌당 입회금은 26평형의 경우 15,510,000원, 53평형의 경우 31,020,000원이다)들을 교부하면서 원고의 입회 하에 위 회원권들에 대한 분양계약을 체결하여 그 분양금을 공사대금에 우선 충당하고, 이 사건 공사의 완공 후 준공일로부터 이 상품권들이 원고에게 양도되는 것으로 하여 원고가 이를 임의 분양하는 방법으로 그 공사대금을 회수한다는 내용의 보관증을 작성해 주었다.

(9) However, on October 5, 1994, the Plaintiff requested the non-party company to cancel the instant construction contract on the grounds that it is difficult to supply and demand the instant construction project before the lapse of one month, and the non-party company received the above request on the 24th of the same month, the instant construction project was rescinded. At that time, the Plaintiff waived all the construction liabilities and obligations to the non-party company as the contractor of the instant construction project, and submitted a written waiver of the construction project that will be extinguished in the future.

(10) 한편, 원고가 작성한 1993. 5. 31.자 ㅇㅇ콘도미니엄 신축공사 공사원가 산출서(을15호증의 1, 2, 3)에 의하면, 순공사원가 11,049,470,000원, 집행원가 2,020,209,682원, 일반관리비 175,390,232원, 이자 비용(지급이자 - 수입이자) 332,083,258원, 총집행실질원가 2,527,295,885원으로 산정, 기재되어 있고, 그 외에는 원고의 장부 내용이 불비하여 그 동안의 총공사비를 제대로 확인할 수가 없다.

D. Determination

(1) The part concerning the claim in paragraph (1) above

First of all, the above b. (1)'s calculation of 'standards for the completion of construction or manufacture of the object' as stated in the above b. (1)' or 'standards for the completion of construction or manufacture' can be established, referring to the above b. (1)' or b. (1) related Acts and subordinate statutesC as to the above 19.95% of the amount of excess can be acknowledged, but it is reasonable to view that the above 1.c.'s work progress rate cannot be established because the plaintiff's actual construction cost (the cost of the construction in question) can not be determined because the above 2.0% of the amount of excess cannot be determined because the non-party company as the contractor's right cannot be seen as having confirmed the completed portion of the construction in light of its circumstances and contents, and circumstances before and after the construction in question, it cannot be viewed that the above 2.1.1.b. (1) related Acts and subordinate statutes are paid for the construction in question, and there is no possibility that the plaintiff's claim that the above 2.

In the above circumstances, it cannot be said that the Plaintiff generated, and reverted to the Plaintiff, earnings equivalent to the difference between the accrued construction cost and the agreed delay interest in the year 194 as stated in Paragraph (1) and the previous revenue amount in Paragraph (1).

Therefore, since the disposition of imposition of corporate tax, etc. of this case is illegal, the plaintiff's above assertion is justified.

(2) The part concerning the claim of the above A. (2)

B. In full view of the relevant laws and regulations in the judgment of Paragraph (2) and the above Paragraph (c) above, as shown in the judgment of Paragraph (1) of the above Paragraph 1, the settlement of the total construction cost input in the judgment of Paragraph (1) of the above Paragraph cannot be made by the plaintiff until the cancellation of the construction work of this case, and there is no other evidence to recognize otherwise, the plaintiff cannot be deemed to have provided services equivalent to the difference between the total construction cost input price and the previous supply price in the judgment of Paragraph 1.b. (2).

Therefore, the disposition imposing the value-added tax of this case is unlawful, so the plaintiff's above assertion is also justified.

E. Scope of revocation of the instant disposition

In light of the facts stated in the judgment, etc., it seems that the amount falls short of KRW 3,465,945,454 in the judgment of 1994 in light of the following facts: (a) the amount of the construction in question exceeds the amount of KRW 3,465,945,454 in the judgment of 1.e. (1); (b) the amount of the revenue or the supply value of the portion belonging to the plaintiff in 194 in question exceeds the amount of KRW 3,465,945,454 in the above 199; and (c) the amount of the revenue or the supply value belonging to the plaintiff in 194 exceeds the amount of KRW 3,465,945,454 in the above 3,465,454. However, it cannot be determined even if all the materials submitted by the date of closing the argument.

If the above circumstances are the same, there cannot be calculated a legitimate tax amount, and thus, the disposition of this case cannot be revoked in its entirety, and thus, it shall be revoked in its entirety.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the cancellation of the disposition of this case is justified, and the judgment of the court below is unfair with different conclusions, and it is so decided as per Disposition with the decision of the court below which accepted the plaintiff's appeal and revoked it.