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(영문) 대법원 2016.01.28 2015두48617
부가가치세부과처분취소
Text

All appeals are dismissed.

The costs of appeal are assessed against the Plaintiff.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal No. 1, Article 106(1)4 of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 201); Articles 106(4)1 and 51-2(3) of the Enforcement Decree of the Restriction of Special Taxation Act provide for “supply of housing below national housing scale under the Housing Act” as one of the objects eligible for value-added tax exemption.

Meanwhile, Article 1(4) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter the same) provides that “the supply of services essential for the supply of goods that are the main transaction shall be deemed to be included in the supply of goods, which are the main transaction.” Article 3 subparag. 2 of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same) provides that one of the services deemed included in the supply of goods, which is the main transaction, is “services generally recognized as being incidental to the supply of goods, considering that it is a transaction practice.”

Based on adopted evidence, the lower court acknowledged the following facts: (a) the Plaintiff supplied apartment buildings below national housing size under the Housing Act to buyers in approximately 23 business districts, such as Daejeon District, etc. during the instant taxable period; (b) as to some households upon the choice of buyers in a certain business district, and (c) supplied the instant service, which expands the balcony with respect to the entire households from the beginning in a part of the business district.

Then, the lower court, upon delegation of Article 2(1)15 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 21098, Oct. 29, 2008); Article 2 Subparag. 14 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 24443, Mar. 23, 2013).

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