The early appellate court 2015No1671

Since the lessee leased the instant officetel in order to use it for the recreation business, it is difficult to regard it as a housing rental service, as the lessee received a vehicle including value-added tax.

The Plaintiff, including the value-added tax on the rent for rent, received rent from the lessee. Since the Plaintiff received rent for rent including the value-added tax, or was calculated as the amount including the actual value-added tax, the instant disposition that imposed value-added tax on the lease business of the instant officetel is legitimate in light of these circumstances.

Articles 26 and 31 of the Value-Added Tax Act, and Article 41 of the Enforcement Decree of the same Act

2016Guhap5040 Revocation of Disposition of Imposing Value-Added Tax

IsaA

The Director of Gangnam District Office

April 8, 2016

May 13, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant revoked the disposition of imposition of value-added tax of KRW 730,640 for the first term of January 201, 201, KRW 706,610 for the second term of February 2011, KRW 682,850 for the second term of January 2012, KRW 658,820 for the second term of February 2012, KRW 830,200 for the second term of January 2013, KRW 770,140 for the second term of February 2013, and KRW 773,060 for the first term of January 2014.

1. Details of the disposition;

원고는 2010. 2. 3. 서울 〇〇구 〇〇〇로 〇〇〇, 10층 1004호(〇〇동, 〇〇오피스텔)를 취득한 후(이하 '이 사건 오피스텔'이라 한다), 2010. 4. 1. 숙박업(휴양콘도 운영업, 서비스드 레지던스업)으로 사업자등록을 하였다가 2010. 6. 29. 폐업신고를 하였고, 2014. 6. 2. 매도하였다.

On December 1, 2014, the Defendant deemed that the Plaintiff provided leased services during the period of possession of the instant officetel, and made business registration ex officio, and determined and notified each of the value-added taxes from January 201 to January 2014, as stated in the purport of the claim (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3 through 5 (including a provisional number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not receive value-added tax from the lessee, and thus, did not have the obligation to pay the value-added tax. Moreover, the Plaintiff visited and consulted with the person in charge of Gangnam Tax, and trusted that the person in charge of such visit uses the officetel for residential purposes would not have registered the business. Nevertheless, the Defendant issued the instant disposition, and thus, the instant disposition was unlawful against the principle of trust protection.

B. Determination

According to Article 26 (1) 12 of the Value-Added Tax Act and Article 41 (1) of the Enforcement Decree of the same Act, value-added tax shall be exempted on rental of housing (excluding residential cases for business among buildings used for commercial residence).

However, in addition to the statements in Gap evidence 3 and Eul evidence 3, the plaintiff leased the instant officetel to AAAA corporation on March 25, 2010 (Article 2 of the lease agreement provides that "the purpose of Article 2 is to acquire rent by operating the instant officetel as a long- and long-term stay-term rental facility) and the plaintiff received the amount of value-added tax after receiving the rent from 1,100,000 won from April 1, 2010 to 1,000 won, including value-added tax, after filing a report on closure of the business, after deducting the value-added tax. ② The plaintiff leased the instant officetel to BB, BB, 1,00,000 won on December 12, 2012 (Article 2 of the lease agreement provides for the purpose of acquiring profit by operating the instant officetel, and Article 80 of the Agreement provides that the amount of rent shall be 00,000 won and 500,010,010,000 won and 05,00.

According to the above facts, all of the lessees of the instant officetels are corporations that are stock companies, and rent the instant officetels in order to obtain lease proceeds by operating the instant officetel or to promote the conversion into a hotel. In addition, the Plaintiff, including the value-added tax on rent, was to receive a rent from lessees, and the Plaintiff also received a rent, including the value-added tax, or calculated as an amount including the value-added tax (Article 31 of the Value-Added Tax Act, is liable to collect and pay value-added tax in the event that a business operator supplies goods or services (Article 31 of the Value-Added Tax Act), and whether the business operator actually receives value-added tax from the person who receives the goods or services, or whether the business operator is responsible for failing to collect the value-added tax or not, does not affect the tax liability). Considering these circumstances, it is difficult to view that the Plaintiff provided the instant officetel

Furthermore, even if the Plaintiff’s use of the instant housing as a residential purpose, hearing from a tax official that did not permit business registration, and filed a report on business closure, insofar as it is difficult for the Plaintiff to deem that the instant officetel was provided for housing rental services, the instant disposition cannot be deemed contrary to the principle of trust protection.

Therefore, the plaintiff's assertion is not accepted.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.