National High Court Decision 2007Du1715 ( December 05, 2007)

Whether a lease service is provided during a lawsuit claiming payment, such as delivery of real estate and overdue rent;

It is reasonable to view that a lessor provided a lease service to each lessee by deeming that a lessor claims the repayment of deposit from the overdue rent and incidental expenses, the fact that a lessor claims the unpaid monthly rent and value-added tax.

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

Article 2 (Taxpayer of Value-Added Tax Act)

Article 7 (Supply of Value-Added Tax Act)

1. Of the instant lawsuit, the part of the Defendant’s claim for revocation of the tax amount exceeding KRW 887,936, out of the disposition imposing value-added tax on the Plaintiff on May 9, 2007, KRW 569,232, and KRW 921,930 for the second period in 2005.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s imposition of value-added tax of KRW 650,152 for the first term of 2005 against the Plaintiff on May 9, 2007, KRW 921,930 for the second term of 205, KRW 915,543 for the first term of 2006, and KRW 516,235 for the second term of 206 shall be revoked.

1. Circumstances of the disposition;

가. 원고는 강릉시 ☆☆동 1123-3 지상 5층 건물(이하 '이 사건 건물'이라고 한다)에 서 부동산 임대업을 영위하는 사업자로서 이 사건 건물 중 2층을 권★★에게, 지층을 박○○에게, 1층 중 일부를 장●●에게 각 임대하였다(이하 '권★★, 박○○, 장●●'을 통칭할 경우 '임차인들'이라고 한다).

B. The Plaintiff reported the value-added tax base on the leased revenues of the instant building as KRW 6,868,629 for the first year of 2005, KRW 3,000 for the second year of 205, and KRW 1,206 for the second year of 2006, respectively.

C. The Defendant calculated the value-added tax base for the first term portion of year 2005 on the basis of lease contract, tenant's business registration application, etc. after being pointed out by the Director of the Central Regional Tax Office for the under-assessment of value-added tax against the Plaintiff, 11,893,760 won, 10,443,37 won for the second term portion of year 2005, 7,730,684 won for the first term portion of year 2006, 4,572,104 won for the second term portion of year 2006, and on May 9, 2007, the value-added tax base for the second term portion of year 205, 3,002,950 won for the second term portion of year 2005, 650 won for the second term portion of year 205, 209, 21, 2930, 205 won for the second term portion of year 2005 won.

D. On May 14, 2007, the Plaintiff filed an appeal with the National Tax Tribunal on the appeal against the instant disposition, but was dismissed on December 5, 2007.

[Reasons for Recognition] Evidence Nos. 2, Evidence Nos. 3-1 to 4, Evidence No. 1-1 and 2-2, the purport of the whole pleadings

2. Whether the part of the instant disposition, which seeks revocation of value-added tax exceeding KRW 887,936, out of KRW 569,232, and February 2, 2005, among KRW 650,152, and KRW 921,930, among the instant disposition, is legitimate

According to the purport of each of the arguments in the statements in the Grounds for Appeal Nos. 1, 18, and 19 as a whole, the defendant issued a notice to the plaintiff on May 9, 2007 that the value-added tax of KRW 650,152 for the first period of year 2005, KRW 921,930 for the second period of year 2005, but the defendant issued a notice to the plaintiff on October 7, 2009 that the value-added tax of KRW 569,232 for the first period of year 2005, KRW 87,936 for the second period of year 2005, and KRW 114,914 for the second period of year 2005, and thus, if the above was corrected, it shall be deemed that there is no benefit in the lawsuit to seek revocation.

Therefore, the part of the instant lawsuit seeking revocation of the tax amount exceeding KRW 887,936 out of the amount of value-added tax exceeding KRW 569,232 out of KRW 650,152 among the amount of value-added tax for the first period of 2005, KRW 921,930 for the second period of 205, is legitimate.

3. Whether the remaining dispositions of this case are legitimate

A. The plaintiff's assertion

The Plaintiff leased the instant building to the lessee but filed a lawsuit for the termination of the lease contract and the delivery of the building, etc. However, it is unreasonable to impose value-added tax equivalent to deemed rent on the lessee without any judgment that the damages for the lessee should be deducted from the security deposit. Since value-added tax is imposed on the portion where the lease service did not occur due to the lessee’s failure to actually use or profit-making after the termination, the instant disposition was unlawful.

(b) Related statutes;

It shall be as shown in the attached Form.

(c) Fact of recognition;

(1) Conclusion of a lease contract and report on the commencement and closure of a lease business

(가) 원고는 2005. 4. 14. 권★★와 사이에 이 사건 건물 중 2층에 관하여 임대차 보증금 2,000만 원, 월차임 80만 원(부가가치세 별도), 임대기간 2005. 4. 14.부터 2006. 4. 13.까지로 하는 임대차계약을 체결하였고, 권★★는 그 무렵 위 임차부분을 인도받아 2005. 5. 3. 정글북 게임장이라는 상호로 개업신고를 하고 게임장을 운영하다 가 2006. 5. 4. 폐업신고를 하였다.

(B) On April 26, 2004, the Plaintiff entered into a lease agreement with Park ○○ on the ground floor of the instant building with a deposit of KRW 25 million, monthly rent of KRW 750,000 (excluding value-added tax), and the lease period from April 26, 2004 to April 25, 2005. The Park ○○ transferred the leased portion around that time, and reported the opening of the business with the trade name of the head of the Dong-gu K-si K-si, and operated the singing practice room on January 108, 2008.

(C) On March 31, 2003, the Plaintiff entered into a lease agreement between B/L and B/L on part of the first floor of the instant building with the lease deposit of KRW 30 million, monthly rent of KRW 1 million (excluding value-added tax), and from April 1, 2003 to April 1, 2004. The head of B/L was delivered the leased portion at that time and reported the commencement of the business on April 6, 2003 and operated the restaurant on July 25, 2005.

(2) The process of civil procedure between the Plaintiff and the Lessee

(가) 원고는 권★★를 상대로 이 법원 2006가단2366호로 차임 연체를 이유로 임대차계약을 해지하고 건물인도 및 연체 차임 등의 지급을 구하는 소를 제기하였고, 위 법원은 2008. 2. 13. '임대차계약이 권★★의 차임 연체로 인한 원고의 해지통지로 2006. 2. 8. 해지되었고, 권★★가 차임을 연체한 2005. 5. 14.부터 임차부분에서 퇴거 한 2006. 6. 30.까지의 차임(지연손해금 포함) 내지 차임 상당의 부당이득과 및 임대차 계약 기간인 2005. 4. 14.부터 2006. 2. 8.까지의 부가가치세 등을 임대차보증금에서 공제한다'는 취지로 판결하였다.

이에 대하여 원고가 이 법원 2008나754호로 항소하였으나, 위 법원은 2008. 10. 31. 임대차계약 해지일 이후부터 권★★의 퇴거일인 2006. 6. 30.까지의 차임 상당의 부당이득에 대한 부가가치세의 추가공제를 인정하는 것을 제외하고는 제1심 판결과 같은 취지로 판결하였고, 원고가 대법원 2008다93438호로 상고하였으나 2009. 2. 12. 기각되었다.

(B) The Plaintiff filed a lawsuit against Park ○-○ in order to cancel the lease contract on the ground of the delinquency in rent from rent to 2366 by this court, as 206Da12158, and sought payment of building delivery and overdue rent, etc. The above court decided on August 21, 2008 that "the termination notice of the lease contract was terminated on July 27, 2006 due to the Plaintiff's delinquency in rent from Park ○-○, and from May 26, 2006, from February 27, 2008, the possession and use of the leased portion was terminated to the effect that "the amount of unfair gains, etc. equivalent to rent (including delay damages) or rent is deducted from the lease deposit."

On April 24, 2009, the Plaintiff appealed from this Court No. 2008Na2514, and the above court rendered a judgment with the same purport as the judgment of the first instance except for the case where additional deductions, such as value-added tax and water supply and drainage fees, for the amount of unjust enrichment equivalent to the rent from the termination date of the lease contract to February 27, 2008, which is the end date of the use and profit-making of Park○, were recognized. The judgment became final and conclusive.

(C) The plaintiff filed a counterclaim against the plaintiff for the cancellation of the lease contract, delivery of building, overdue rent, etc. on the ground of the overdue delay of rent as the court's order 2005da10964, and the head of B/L filed a counterclaim against the plaintiff to return the lease deposit as the court 2007da906. The above court decided on October 13, 2005 upon the plaintiff's notice of termination due to the overdue delay in rent in the head of the lease contract on December 6, 2007, which was terminated on October 13, 2005. The head of B/L was the one who was in arrears from the plaintiff on June 1, 2005 to October 13, 2005, which was the date of termination of the lease contract, with the purport of deducting the remainder of the lease contract from the lease deposit to the value-added tax on March 26, 2003.

As to this, the plaintiff and the head of Si/Gun/Gu appealed in both the court 2008Na174 (principal lawsuit) and 280 (Counterclaim), and the above court decided to the same effect as the judgment of the court of first instance except for the case where additional deductions, such as water supply and sewerage charges, were acknowledged on April 24, 2009. The plaintiff appealed in Supreme Court Decision 2009Da39103, but was dismissed on September 10, 2009.

(3) The defendant's re-revision disposition and its calculation basis

The Defendant calculated the value-added tax base based on the date of reporting the opening and closure of the business, lease deposit, monthly rent, the result of civil action between the Plaintiff and the lessee, etc. while the instant lawsuit was pending, and again notified the amount of value-added tax to the Plaintiff, and the specific basis for calculating the amount of value-added tax is as follows.

(a) Tax base for the first period of January 2005: 12,396,274 ±11,269,340 won ¡À

(b) Tax base for the second period of 2005: 11,187,672 won ¡À1.1 =10,170,610 won; or

(c) Tax base for the first period of January 2006: 8,503,752 ±1 =7,730,683 won; or

(d) Tax base for the second period of 2006: 5,029,315 won ¡À1 = 4,572,104 won; or

(E) The tax base and amount of the instant disposition and the re-revision and notification disposition dated October 7, 2009

[Based on Recognition] Evidence B 1-1, 2, Eul evidence 2, 3, Eul evidence 4 through 6-1, 2, Eul evidence 7 through 9, Eul evidence 10-1 through 4, Eul evidence 11, 12-1, 2, Eul evidence 18, 19-1, 2-1, 19-2, and the purport of the whole pleadings

D. Determination

(1) Whether the computation of deemed rent is unreasonable or not

In a civil suit where the Plaintiff filed a lawsuit against the lessee for delivery, etc. of a building, the judgment that deducts the rent in arrears, the delay damages, and the amount of unjust enrichment equivalent to the rent from the lease deposit becomes final and conclusive. The Defendant calculated the lease deposit of the lessee and the number of days subject to taxation pursuant to Article 13(1)2 of the Value-Added Tax Act and Article 49-2(1) of the Enforcement Decree of the same Act and calculated the deemed rent by calculating the lease deposit of the lessee and the number of days subject to taxation is as seen earlier. Therefore, the Plaintiff’

(2) Whether the imposition of value-added tax on the period after the termination of the lease contract is unfair

(A) Even if a lessor’s termination notice of a building lease agreement was terminated and the lessee’s occupation is illegal possession, if the lessee continues to use the building without ordering it, and if the lessor also owns a lease deposit and deducts the amount equivalent to the monthly rent in the deposit, it constitutes a supply of services subject to value-added tax, and whether the lessee actually received the price as long as he/she provided services to another person upon receiving the price constitutes a supply of services subject to value-added tax. It does not affect the determination of whether the liability to pay value-added tax is established (see, e.g., Supreme Court Decision 2002Du8534, Nov. 28, 2003).

(B) On October 13, 2006, the lease contract between the Plaintiff and the head of Si/Gun/Gu was terminated as of October 13, 2006, and both the overdue rent and the delay damages were deducted from the lease deposit. Furthermore, the Defendant calculated the value-added tax base only until July 24, 2005, which is the day before the date on which the head of Si/Gun/Gu reports the closure of the lease contract, and the Plaintiff’s assertion that the value-added tax was imposed for

한편, 권★★는 임대차계약 해지일인 2006. 2. 8. 이후인 2006. 6. 30.까지, 박○○은 임대차계약 해지일인 2006. 7. 26.이후인 2008. 2. 27.까지 임차부분을 사용ㆍ 수익하였고, 원고는 이들에 대한 임대차보증금을 반환하지 아니하고 보유하면서 연체 차임과 그 지연손해금 및 차임 상당의 부당이득금을 공제하였는바, 이는 부가가치세의 과세대상인 용역의 공급에 해당한다 할 것이고, 나아가 피고는 이들의 폐업신고일을 기준으로 사용ㆍ수익 종료일 이전까지에 대하여만(권★★에 대하여는 2006. 5. 3.까지, 박○○에 대하여는 2006. 12. 31.까지) 부가가치세 과세표준으로 산정하였으므로, 원고의 이 부분 주장 역시 이유 없다.

4. Conclusion

Therefore, the part of the lawsuit in this case seeking revocation of the amount exceeding 569,232 won of value-added tax for the first term of January 2005, 650,152 won of value-added tax for the second term of February 2005, and 921,930 won for the second term of February 2, 2005, and 887,936 won is dismissed as it is unlawful. The remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition by the court below to have the defendant bear part of the costs of lawsuit in consideration of the circumstances where the defendant corrected the error