Whether the application of special taxation provisions without notice violates the principle of good faith.

The case holding that a special taxation provision shall apply without notice if there is no waiver report, and it cannot be deemed that it goes against the principle of good faith in tax administration.

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

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

원고들은 중기를 매입하여 소외 ㅇㅇ중기주식회사에게 지입을 한 다음 그 회사명의로 중기대여업을 영위하는 지입차주들로서 사업개시당시 일반과세자로 사업자등록을 하고 사업을 운영하면서 부가가치세를 납부함에 있어 감가상각자산인 위 중기의 구입에 따른 매입세액을 피고로부터 공제받아 온 사실, 그런데 피고는 원고들이 신고한 1989년도 제2기분 부가가치세 공급대가의 합계액을 12월로 환산한 금액이 각 금 36,000,000원에 미달한다 하여, 부가가치세법 제25조 제1항 , 같은 법 시행령 제74조의 2, 제1항, 제3항의 규정에 의하여 원고들이 1990년도 제2기 과세기간부터 일반과세자에서 과세특례자로 유형전환된 것으로 인정하고, 같은 법 시행규칙 제23조의3, 제3항 에 의거하여 원고들이 그동안 부가가치세를 납부함에 있어 공제받은 매입세액에 대응하여 위 감가상각자산인 중기에 관하여 산출한 청구취지 기재 각 재고 납부세액을 1991. 7. 20. 원고들에게 부과고지하는 이 사건 부과처분을 한 사실은 당사자들 사이에 다툼이 없다.

According to Article 74-2 and Article 74-2 (2) of the Enforcement Decree of the Value-Added Tax Act which provides for the conversion of the taxable type, the plaintiffs should notify the head of the competent district tax office of the change in the case of a general taxable person by 20 days prior to the commencement of the taxable period. Thus, it was erroneous for the plaintiffs to recognize the change in the form of a special taxable person as a matter of course without notifying the above fact. Second, the defendant should be deemed to have established the practices of the general tax office that consider the person engaged in the above business as a special taxable person even if the price of supply for the calendar year is below 36,00,000 won, and the disposition of this case in violation of such practices violates the good faith principle, and further, the defendant's rejection of the special taxation by the National Tax Service and acceptance of the report as a general taxable person under the special taxation by the National Tax Service, and it should be deemed to have waived the plaintiffs' assertion that the plaintiffs should be subject to the special taxation.

First of all, the plaintiff's argument that Article 25 (1) of the Value-Added Tax Act provides that a private entrepreneur whose price including the value-added tax on the supply of goods and services for the calendar year falls short of the amount prescribed by the Presidential Decree shall be subject to special taxation. Accordingly, Article 74 (1) 1 of the Enforcement Decree of the same Act provides that if the total amount of the consideration for construction and mid-term rental business is less than 36,00,000 won as the plaintiffs, it shall be subject to special taxation. On the other hand, Article 74-2 and (1) of the Enforcement Decree of the same Act provides that where a general taxable person becomes subject to special taxation under Article 25 of the same Act with regard to the applicable period of taxation, the period of special taxation under Article 25 (1) of the same Act shall be 10,000 won for the next calendar year from 20,000 won for the next year to 10,000 won for the next year without being notified that the provision of Article 25 (25) of the Act shall apply to the general business registration certificate.

Next, with respect to the plaintiff's second argument, Article 30 (2) of the Value-Added Tax Act and Article 78 (1) of the Enforcement Decree of the same Act provide that a person who wants to waive the tax period 10 days prior to the commencement of the tax period shall report to the head of the competent district tax office the waiver of the tax period, etc. which the person wants to waive shall be 10 days prior to the commencement of the tax period. In addition, there is no evidence to deem that the defendant received the notification from the plaintiffs only as a general taxable person without the special taxation person under the National Tax Service notice, and even if the defendant received the notification from the plaintiffs only as a general taxable person without the special taxation person under the above Acts and subordinate statutes, it cannot be deemed that the waiver of the special taxation under the above Acts and subordinate statutes has been made without the report of the waiver of the special taxation under the above Acts and subordinate statutes. Furthermore, in the case of a mid-term rental business operator such as the plaintiffs, even if the price of the first calendar year is below 36,000 won,00 won, it cannot be viewed as a general taxation practice.

Therefore, the plaintiffs' claims of this case seeking the revocation of the disposition of this case are all without merit, and the costs of the lawsuit are assessed against the losing parties. It is so decided as per Disposition.

November 25, 1992