If a business operator waives tax exemption receives input tax deduction for facilities, equipment, etc. and supplies tax-free goods, the settlement of input tax

If the business operator who has renounced the tax exemption increases the ratio of the estimated supply price of the tax exemption business to the total supply price at the time of purchase, the input tax amount already deducted should be calculated and settled again.

Article 6 of the Value-Added Tax Act

Article 12 of the Value-Added Tax Act

1. The plaintiff's claim is dismissed.

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

1. Details of the disposition;

가. 원고는 2000. 2. 1. ∇∇ ∇∇군 ∇∇면 ∇∇리 440-5에서 ∞∞양만이라는 상호로 뱀장어 양식을 목적으로 하여 피고에게 부가가치세 면세사업자로 등록한 사업자로, 원고가 공급하는 뱀장어는 원래 부가가치세법상 면제 대상에 해당하나, 원고는 수출하는 뱀장어에 대하여 부가가치세법 소정의 영세율 적용을 받기 위하여 2000. 11. 13. 면세포기신고를 함으로써 과세사업(수출)과 면세사업(국내 판매)을 겸영하게 되었다.

B. From November 30, 200, the Plaintiff purchased fixed assets, such as construction of fish farms and machinery, etc. (hereinafter “instant aquaculture facilities”) and reported on the refund of the input tax amount of KRW 326,361,325 won and KRW 540,71,458 for February 2, 2001, and KRW 540,771,458 for the purchase amount. The Defendant is liable to separate the actual amount from the input tax amount due to its common use for taxable businesses and tax-free businesses (hereinafter “common input tax amount”). The Defendant distributes the amount by proportion of the estimated supply amount of the total supply amount to the total supply amount for each taxable period to which the acquisition date belongs, based on the Plaintiff’s full deduction of the total amount of KRW 26,95,578 (the Plaintiff’s input tax amount as the input tax amount, KRW 32,636,130,500, KRW 2085, KRW 275,2015, KRW 20685,5165,2075.

C. After the Plaintiff’s declaration of waiver of tax exemption did not export snive snives, but supplied snives in Korea on March 23, 2002, and 17,800,000 won was generated, the Defendant imposed the instant disposition on the Plaintiff on March 13, 2002 pursuant to the provisions of Article 17(5) of the Value-Added Tax Act (hereinafter “Act”) and Article 63(1) of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17460 of December 31, 2001) on the ground that the ratio of the value of the tax exemption was increased by 10%.

D. On March 28, 2007, the National Tax Tribunal rendered a decision to the effect that the reduction rate of the price for the buildings and structures among the aquaculture facilities in this case shall be 10/100 under the Enforcement Decree of the Act (amended by Presidential Decree No. 17460, Dec. 31, 2001; hereinafter in this Article, referred to as the "Enforcement Decree") at the time of facility investment, which is not 5/100 calculated by the defendant. Accordingly, on April 3, 2007, the defendant made a correction to the effect that the reduction rate of the price for the buildings and structures in this case shall be 1,965,907 won out of the amount of the disposition in this case by applying the reduction rate of 10/100 to the above buildings and structures.

E. Meanwhile, until February 2002, the Plaintiff reported the refund of the input tax amount as a taxable entrepreneur. However, on April 28, 2006, the Plaintiff closed its business and registered the Defendant as a tax-free entrepreneur under the same trade name on May 8, 2006 without all the declaration of value-added tax, tax-free sales, and tax-free application.

Facts without dispute over the basis of recognition, evidence 1, evidence 2-1, evidence 2-2, evidence 3, each entry of evidence 1 through 5, and evidence 12, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Although the Plaintiff reported the waiver of tax exemption but actually operated only the tax-free business, the input tax amount for the instant aquaculture facility was not originally refunded since it fell under the tax-free business-related input tax amount under Article 17 (2) 4 of the Act. The value-added tax for the second term and the first term of January 26, 2000 for the second term and the second term of July 26, 2001 for each five-year exclusion period, counting from January 26, 2001 to July 26, 2001, respectively. Therefore, it is unlawful for the Defendant to regard the said input tax amount as the common purchase tax amount and calculate the refund amount and make the instant disposition by applying Article 17 (5) of the Act.

(2) Even if not, the Plaintiff’s provision of snick-snock only in the Republic of Korea is deemed tax-free, and thus constitutes grounds for excluding the amount of tax payable or the amount of tax refundable under Article 63(4) of the Enforcement Decree of the same Act. Therefore, it is unlawful to take the instant disposition by applying Article 63(5) thereof.

(3) 또한 ※※아쿠아시스템 및 ※※ P&O; 발행의 각 2001. 1. 8.자 매입세금계산서는 실제로는 2000. 10. 30.에 수취한 것이므로, 그 매입세액을 2000년 2기에 포함하여 환급세액을 재계산하여야 한다.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether the input tax amount related to the tax-free business is

The Plaintiff reported the waiver of tax exemption on November 13, 200 and reported the refund of the input tax as a taxable business entity until February 2002; the Plaintiff did not report the application of tax exemption until the closure; and the Defendant calculated the input tax amount for the instant aquaculture facilities in proportion to the scheduled supply rate of the total supply amount by deeming the input tax amount for the instant aquaculture facilities as common purchase tax amount; and on the basis of the Plaintiff’s report that he will export the whole snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick sn.

(2) Whether the case constitutes grounds for excluding the re-assessment of the refund

The term "exclusive use for taxation" means that an entrepreneur concurrently operates a taxable business and a tax-free business produces or acquires goods subject to the deduction of the input tax amount for the purpose of the tax-free business. In this case, the consumption of the goods subject to taxation without the burden of value-added tax is the result of the failure to generate the output tax for the created value-added business. Therefore, Article 6(2) of the Act and Articles 15 and 49 of the Enforcement Decree of the Act provide that the taxation should be promoted by deeming the portion exclusively used for the tax-free business as the supply of the goods. Article 63(4) of the Enforcement Decree of the Act provides that if the input tax amount is deemed as the deducted depreciable assets through the method of calculating the tax base pursuant to Article 6(2) of the Act and Article 49(1) of the Enforcement Decree of the Act, if the input tax amount was increased in the subsequent taxable period, it shall not be deemed that the above provision should be applied again to the extent that it is unlawful for the Plaintiff to use the remaining assets in the long term after calculating the input tax amount.

(3) On January 8, 2001, each tax invoice on January 8, 2001

먼저 2001. 1. 8. 발행한 것을 기재된 세금계산서(을 제7호증)2매의 실제 거래일이 그 기재와 달리 2000. 10. 30.이라는 주장에 대하여 보건대, 이를 뒷받침하는 듯한 을 제8호증(입금표)의 기재는, 앞서 본 각 증거에 을 제11호증의 기재를 더하여 인정할 수 있는 다음과 같은 사실, 즉 이 사건 양식장 시설의 건축물은 2000. 12. 10. 착공된 점, 원고는 피고에게 을 제7호증을 매입세금계산서로 신고하였고, 이는 ※※아쿠아시스템 및 ※※P&O;의 2개 업체에서 각 발행한 것으로 되어 있는 점 등에 비추어 믿기 어렵고, 달리 이를 인정할 만한 증거가 없다. 따라서 이 부분 원고의 주장은 받아들이지 아니한다.

(4) Therefore, the Defendant’s disposition of this case is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

B. Relevant statutes

Value-Added Tax Act

Article 6. Supply of Goods

(1) The supply of goods shall be a delivery or transfer of goods pursuant to all contractual and legal grounds.

(2) Where an entrepreneur directly uses or consumes goods produced or acquired in connection with his/her own business for his/her own business, those prescribed by Presidential Decree shall be deemed the supply of goods.

§ 11. Application of the zero tax rate

(1) The zero tax rates shall apply to the supply of the following goods or services:

1. Exported goods;

○ Article 12 Tax Exemptions

(1) The supply of the following goods or services shall be exempted from value-added taxes:

1. Unprocessed foodstuffs (including agricultural products, livestock products, fishery products, and forest products for food), and agricultural products, livestock products, fishery products, and forest products not for food produced in the Republic of Korea, which are prescribed by Presidential Decree;

(4) With respect to the supply of goods or services subject to the application of the zero tax rate under Article 11 or falling under paragraph (1) 11, 13, or 16, for which value-added tax is exempted under paragraph (1), an entrepreneur may not be exempted from value-added tax under the conditions as prescribed by the Presidential Decree.

○ Article 17 Tax Amount payable

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as "paid tax amount") shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as "purchase tax amount") from the tax amount on the goods and services supplied by him/her (hereinafter referred to as "sales tax amount"): Provided, That where an input tax amount exceeds the output tax amount, it shall be a refundable tax amount (hereinafter referred to

1. The tax amount for the supply of goods or services used or to be used for his own business;

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The following input taxes shall not be deducted from the output tax amount:

4. The input tax amount related to the business of supplying goods or services exempt from the value-added tax (including the input tax amount related to speculation) and the land-related input tax amount as prescribed

(5) Where the input tax amount is used or consumed for the business of supplying goods or services for which the value-added tax is exempted under paragraph (1), the relevant business operator shall recalculated the payable or refundable tax amount and pay it to the head of the competent tax office along with the final return for the relevant taxable period under Article 19, as prescribed by the Presidential Decree.

Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17460 of December 31, 2001)

Article 15 (Scope of Private Supply)

(1) The goods deemed the supply of goods under Article 6 (2) of the Act shall be as provided for in the following subparagraphs:

1. Goods used or consumed for a business that supplies goods or services exempt from value-added tax;

Article 47 (Report on Waiver of Tax Exemption)

(1) Where the supply of goods or services exempted from the value-added tax under Article 12 (1) of the Act becomes subject to the zero-rate tax rate under Article 11 of the Act, or the scientific research organization or technology research organization under subparagraph 1 of Article 37 supplies such goods or services, the entrepreneur who wishes not to be exempted from the value-added tax under Article 12 (4) of the Act shall make a report thereon to the head of the competent tax office without delay pursuant to Article 5 of the Act, along with

1. Personal information of the business operator;

2. Goods or services subject to the waiver of tax exemption; and

3. Other reference matters.

(2) The businessman who has filed the report under paragraph (1) shall not be exempted from value-added tax for three years from the date of the report.

(3) If the businessman who has filed the report under paragraph (1) desires to be exempted from the value-added tax after the expiration of the period under paragraph (2), he shall submit the business registration certificate delivered under Article 7 (3) along with the report on application of tax exemption stating the following matters, and if the report on application of tax exemption is not submitted, he shall be deemed to have continuously waived the

○ Calculation of Tax Base for Private Supply, etc., Article 49

(2) Where part of depreciable assets used for a taxable business are used for tax-free business, the tax base shall be the amount calculated by the following formula. In such cases, the latter part of the main sentence of paragraph (1) shall apply mutatis mutandis to the number of taxable

1. Buildings or structures:

The acquisition value of the relevant goods;

X (1-)

10

X The number of taxable periods elapsed, X (part of the tax exemption project)

100

Value of the tax-free supply in the taxable period to which the date of use belongs / Total value of the taxable period to which the date of use belongs

Article 61 (Method of Calculating Purchase Tax Amount)

(1) Where an entrepreneur runs a taxable business and a tax-free business, the input tax amount related to the tax-free business shall be calculated on the basis of actual attribution, and an input tax amount which is commonly used for a taxable business and a tax-free business and thus the actual attribution is not distinguishable (hereinafter referred to as "common input tax amount") shall be calculated by the following formula: Provided, That when a preliminary return is filed, it shall be calculated in accordance with the ratio of the total supply price

Purchase tax amount related to the tax-free business = Common purchase tax amount X

Tax-free Supply Price

Total supply value

○ Article 63 Re-Calculation of Tax Amount or Tax Amount Returned

(1) The re-calculation of the payable tax amount or the refundable tax amount under Article 17 (5) of the Act shall apply only where the difference between the ratio of the input tax amount on the depreciable assets to the tax-free supply price, or the ratio of the tax-free use area on the total amount of supplies, and the ratio of the tax-free use area on the total amount of supplies, and the ratio of the tax-free use area on the total amount of supplies, after the deduction under Article 17 (1) of the Act and Articles 61 and 61-2 of this Decree, and the ratio applied to the taxable

(2) The tax amount to be added to or deducted from the tax amount to be paid, or to be added or deducted from the tax amount to the tax amount to be refunded in accordance with the re-assessment of tax amount to be paid or the tax amount to be refunded in accordance with the provisions of paragraph (1) shall be an amount calculated by the formula in the following subparagraphs.

1. Buildings or structures:

The tax amount added or deducted = the input tax amount of the goods concerned.

X (1-)

10

X-Expecence of the taxable period

100

o)ratio of, or increase or decrease in, the value of duty-free supplies;

The ratio of area

(3) In applying the provisions of paragraphs (1) and (2), where the calculation is made in proportion to the ratio of the value of tax-free supply to the total value of supply in the taxable period to which the date of acquisition belongs, it shall be re-calculated on the ratio

(4) Where the provisions of Article 49 are applied, paragraphs (1) and (2) shall not be applied.

(5) In calculating the number of taxable periods elapsed under paragraph (2), if any asset is acquired as depreciable assets after the start of the taxable period, or if the relevant asset falls under paragraph (1), it shall be deemed that the relevant asset or the relevant goods fall under paragraph (1) on the start of the taxable period.