Asan Social Welfare Foundation (Law Firm Chungcheong, Attorneys Bailment-young, Counsel for the defendant-appellant)

The Director of the Pacific District Office

June 12, 2014

Seoul Administrative Court Decision 2012Guhap18936 decided December 14, 2012

1. The plaintiff's appeal is dismissed.

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

The decision of the first instance is revoked. The defendant's disposition of refusal against the application for refund of value-added tax of 323,071,80 won for the first term of 207 (including additional tax; hereinafter the same shall apply), value-added tax for the second term of 2007, value-added tax of 211,125,910 won for the second term of 207, value-added tax for the second term of 208, value-added tax of 46,546,280 won for the second term of 208, value-added tax for the first term of 209, value-added tax for the first term of 732,489,110 won for the first term of 209, and the first term of 3,085,814,165

1. Quotation of judgment of the first instance;

The reason why the court's reasoning is stated in this decision is as stated in the reasoning of the judgment of the court of first instance except for the dismissal of part of the judgment of the court of first instance as stated in the following Paragraph (2). Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

A. Article 15 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 21480, May 6, 2009; hereinafter the same) of the first instance judgment provides that the part of the first instance judgment [the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 21634, Jul. 22, 2009; hereinafter referred to as the "Enforcement Decree of the Value-Added Tax Act] shall be written.

(b) Forms 3 through 20 of the decision of the first instance shall be followed by the following parts:

2) Determination

A) Article 17(7) of the former Value-Added Tax Act (amended by Act No. 9617 of Apr. 1, 2009) which applies to each of the dispositions of this case provides for the method of calculating the amount of input tax not deducted from the amount of output tax pursuant to delegation to Article 61(1) and (4) of the Enforcement Decree of the Value-Added Tax Act, which provides for the method of calculating the amount of input tax not deducted from the amount of output tax, shall be an order issued by the President pursuant to Article 75 of the Constitution with respect to the matters specifically determined and delegated by the Act. Meanwhile, in light of the contents and legislative intent of Article 61(1) and (4) of the Enforcement Decree of the Value-Added Tax Act, each of the above provisions cannot be deemed to be merely an example of the method of calculating the amount of input tax in any other way at any time without proceeding to the order of calculating the amount of input tax under each of the above provisions or, in principle, it shall be calculated in accordance with each of the above provisions (see Supreme Court Decision 2014Du16181, etc.

B) However, considering the facts and evidence cited earlier, Gap evidence Nos. 14 and Eul evidence No. 14 (Ga number omitted), and Eul evidence No. 2 and the purport of the whole pleadings, the new building of this case is structurally connected to the building and the building of the library, which was used by the plaintiff in the operation of the Seoul Asan Hospital (hereinafter "existing building"), through connecting the passage, etc., and the plaintiff moves back to the new building of this case the collection office, image department, and parking lot of the new building of this case to the new building of this case, and it is recognized that the collection office, image department, and parking lot, etc. of the new building of this case were provided to patients as well as to patients who were located within the existing building of this case, and there is no counter-proof. It is difficult to view that the business conducted by the plaintiff in the new building of this case constitutes a business completely separate from the medical service business of the Seoul Hospital operated by the plaintiff in the existing building of this case, and it constitutes a new building of this case where the existing building of this case lacks medical service space to efficiently improve the existing building of this case.

C) Therefore, in light of the above legal principles and comprehensives of these circumstances, with respect to the Plaintiff’s common input tax amount which is difficult to clearly divide into a tax-free business or taxable business among the input tax amount for the first term of January 2007 and the second term of February 2007, which was already operated by the Plaintiff during the pertinent taxable period, it is reasonable to divide the scope of input tax amount not deducted from the output tax amount under Article 61(1) of the Enforcement Decree of the Value-Added Tax Act based on the total supply value of the Seoul Asan Hospital operated by the Plaintiff during the pertinent taxable period. Ultimately, the corresponding part of each of the dispositions of this case based on these methods cannot be deemed unlawful,

D) As to this, the Plaintiff asserts to the effect that: (a) even though the instant new building is not a building that was a building that was a building that was a building that was a building that was a building that was a building that was a building, the distribution of the common purchase tax amount based on the supply value of the existing building is against the proviso of Article 61(4) and Article 61(3) of the Enforcement Decree of the Value-Added Tax Act; and (b) it is unreasonable against the legislative intent of the Value-Added Tax Act that purports to maintain the principle of actual attribution.

In light of the above circumstances, it cannot be found a way to separately calculate the part corresponding to the tax-free business among the common purchase tax amount on the new construction of the new building of this case. The new building of this case is additionally established to solve the shortage of the space of the medical business operated by the plaintiff in the existing building, and as long as it is not determined that the plaintiff is not established as an independent place of business to conduct medical business, etc. after completely separating the existing building from the existing building, the value of the tax-free supply in the existing building of this case can be deemed as falling under the amount of tax-free supply under Article 61 (1) of the above Enforcement Decree necessary for the pro rata distribution of the common purchase tax amount related to the new building of this case. Thus, Article 61 (1) of the above Enforcement Decree can be applied in preference to the proviso of Article 61 (4) of the above Enforcement Decree. Accordingly, the plaintiff's assertion on the premise that it is different can not be accepted (On the other hand, the plaintiff's assertion that the new building of this case was related to the new building of this case of this case.

C. From 14th to 18th of the judgment of the court of first instance, “A direct parking lot shall not be deemed to have been established by the Plaintiff to run only the parking lot business without any connection with the medical business, and where it is confirmed in accordance with the Plaintiff’s parking lot management regulations that the Seoul Asan Hospital is related to the medical business, the parking lot shall be allowed for a certain time free of charge, but in the absence of such confirmation, it can be known that the parking fee is collected and provided for the taxable business.”

【The facts acknowledged earlier, evidence, and the purport of Gap evidence and evidence No. 17, etc., in a case where the direct parking lot is confirmed to be related to the medical service of the Seoul Asan Hospital based on the plaintiff’s internal regulations, it appears that the above hospital is receiving parking fees by allowing free parking for a certain period of time, and in a case where the plaintiff was parked without any connection therewith. Furthermore, even if the plaintiff was to receive parking fees at the parking lot, it cannot be readily concluded that the patient who was hospitalized in the above hospital is not at all related to the medical service, which is a tax-free business, and it can be included in the above parking lot even if the patient was not at the direct parking lot, but at least 30 minutes after entering the above parking lot (see evidence No. 17, No. 329, the record), and it is reasonable to readily conclude that the plaintiff’s main purpose of parking lot is to promote the medical service of the patient at the hospital without charge, and thus, it cannot be viewed that it falls under the 2-free business of the above Seoul Hospital.

D. From 4th to 10th 12th 10th 12th 10th 12th 12th 10th 12th 10th 10th 10th 10th 10th 10th 4th 10th 4th 10th 10th 4th 10th 10th 4th 10th 10th 10th 4th 10th 4th 4th 10th 10th 4th 10th 4th 10th 4th 10th 10th 10th 10th 10th 10th 1

Furthermore, even if the Plaintiff’s direct operation of a new parking lot and leased the above parking lot to the light industry from January 1, 2009 under the instant lease agreement, if it is confirmed that the light-day industry is related to the medical service of the Seoul ASEAN Hospital, such as the fee system of the above parking lot, at the new parking lot, it is allowed to park free of charge for a certain period of time, and it is provided to taxable business only without such confirmation. Unlike the fact that the new parking lot does not appear to be spatially divided from the existing building of the Seoul ASEAN Hospital, it cannot be found that there is a difference between the new parking lot and its operation entity, and that there is no particular difference from the existing parking lot in the substance of its operation such as its operation system and method. Furthermore, the Plaintiff’s argument that the above provision of the above parking lot for convenience and efficient operation of the parking lot by patients using the Seoul ASEAN Hospital, etc., can not be seen as constituting a violation of the principle of no taxation without the law on the new parking lot.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just as above. Thus, the plaintiff's appeal of this case is dismissed.

Judges Kim Dong-ok (Presiding Judge) Gyeong-gu