Whether the input tax amount for the construction work shall be deducted;

In the event that the executor transfers the land and the right to implement the project for the construction of commercial buildings in the absence of bankruptcy while the Si is performing the construction work, the transferee is entitled to deduct the input tax amount for the construction of commercial buildings in the event that the transferee pays the land and the right to implement the project after taking over the obligation

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

1. The Defendant’s imposition disposition of value-added tax for the second period of 2007 imposed on the Plaintiff on December 1, 2009 (110,737,960) and value-added tax for the second period of 2008 (71,54,000) shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. Around September 2008, the Plaintiff, a business operator running a new construction and sales business of a building, newly built ○○○○-dong 550-3 land (hereinafter “instant land”) on the third underground floor and the third underground floor and the tenth underground floor living facilities (hereinafter “the instant commercial building”).

B. On September 30, 2003, the commercial building of this case was originally owned by the non-party 1 △△ Construction Co., Ltd. (hereinafter referred to as the "△△ Construction"), which had the non-party 1 △△ Construction Co., Ltd. (hereinafter referred to as the "△△△ Construction") newly constructed construction, but the new construction was suspended due to the bankruptcy of △△ Construction among the construction of the underground excavation of the land of this case for the new construction, and △△ Construction claimed a lien (hereinafter referred to as the "right of retention of this case") on the land of this case with the claim for the construction price of this case, as the secured claim.

C. After that, as the Plaintiff acquired the instant land on July 19, 2007 and newly built the instant commercial building, △△ Construction paid KRW 1,450,000 in return for the waiver of the instant lien (hereinafter “payment”), and received a tax invoice from △△ Construction, and thereafter deducted the input tax amount.

D. In conducting an audit against the Defendant, the Commissioner of the National Tax Service issued a corrective order that the Plaintiff deducted the input tax amount as above even though the waiver of the instant lien is not subject to value-added tax. Accordingly, on December 1, 2009, the Defendant issued a corrective order that the Plaintiff correct and notify the Plaintiff of the value-added tax amounting to KRW 110,737,960 for the second period of 2007, and value-added tax amounting to KRW 71,54,00 for the second period of 208.

E. On February 24, 2010, the Plaintiff sought revocation of the instant disposition from the Commissioner of the National Tax Service, but was dismissed on May 17, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1, 2, 4 through 7, and the purport of the body before oral argument

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The instant payment, which is subject to value-added tax, paid the proceeds from the construction of underground excavation of the instant land that is subject to value-added tax, so the instant payment-related input tax amount should be deducted (hereinafter referred to as “principal 1”).

(2) The Plaintiff paid this case by reliance on the reply of the National Tax Service website that no value-added tax is imposed on the same payment as the instant payment, and the Defendant issued the instant disposition against its trust. Therefore, the instant disposition is contrary to the principle of trust protection (hereinafter referred to as the “principal”).

B. Defendant’s assertion

The payment of this case is paid for the waiver of the lien, and such waiver of the lien does not fall under the transaction subject to value-added tax, and even if it falls under such transaction, the payment of this case is the cost related to the acquisition of the land of this case, and thus the input tax amount related to the payment should not be deducted.

C. Relevant statutes

It is as shown in the attached Form.

D. Determination

(1) According to the statements in Gap evidence Nos. 3 through 5, △△ Construction received the land acquisition price of this case and the construction price for the building of the commercial building of this case from the non-party bank and eight mutual savings banks (hereinafter referred to as the "sub-party bank"), and entrusted the land of this case to the non-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party.

According to the above facts, it is reasonable to deem that the payment of this case is repaid by the Plaintiff who acquired the obligation for the construction cost of destroying underground lots on the land of this case, which △△ Construction bears for △△ Construction. Therefore, the input tax amount related to the payment of this case is the tax amount on the construction work of destroying underground lots on the land of this case used by the Plaintiff for the new construction project of the commercial

(2) On the other hand, the Defendant asserts that the input tax amount related to the payment of this case constitutes the input tax amount related to the land that should not be deducted. Thus, Article 17 (2) 4 of the Value-Added Tax Act (amended by Act No. 9268 of Dec. 26, 2008) provides for the input tax amount related to the business that supplies goods or services exempt from value-added tax (including investment-related input tax amount) and the land-related input tax amount as prescribed by the Presidential Decree. Article 12 (1) 12 of the same Act provides for the supply of land as the supply of goods or services exempt from value-added tax. Article 60 (6) of the Enforcement Decree of the same Act provides that the Defendant’s purchase tax amount related to the construction of the housing site and the construction cost of the land related to the construction of the new housing site related to the construction of the new housing site and the construction cost of the new housing site related to the construction of the new housing site and the construction cost of the new housing site related to the construction of the new housing site.

(3) Ultimately, the instant disposition is unlawful without further review as to the assertion 2.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.