[1] Whether the contractor may claim the amount of money against the contractor where the contractor agrees to pay the value-added tax in addition to the contract price when concluding the contract for construction work (affirmative)

[2] In a case where a tax invoice is delivered to an actual supplier of goods or services and a supplier on a tax invoice with knowledge of different circumstances, whether the input tax amount is deducted (negative)

[1] Where a contractor agrees to pay the value-added tax to the contractor separately from the contract price when concluding the contract for construction work, the contractor may claim the contractor to pay the amount equivalent to the value-added tax in accordance with the contract.

[2] According to the purport of Articles 16(1)1 and 17(2)1 of the former Value-Added Tax Act (amended by Act No. 4808 of Dec. 22, 1994), and Article 60(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14471 of Dec. 31, 1994), in cases where an entrepreneur who actually supplies and a supplier under a tax invoice are different from a supplier under a tax invoice, a tax invoice cannot be deducted or refundable unless there is any special circumstance that the supplier was unaware of the nominal title of the tax invoice. In such cases, the entrepreneur who actually supplied goods or services to a person who is not a person establishing a nominal legal relationship with the supplier, but a person who actually provided goods or services to a person who is not the supplier.

[1] Articles 105, 664, and 665 of the Civil Act / [2] Articles 16(1)1 and 17(2)1 of the former Value-Added Tax Act (amended by Act No. 4808 of Dec. 22, 1994), Article 60(2) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 14471 of Dec. 31, 1994)

[1] Supreme Court Decision 92Da2986 delivered on September 14, 1993 (Gong1993Ha, 2749), Supreme Court Decision 92Da48437 delivered on November 26, 1993 (Gong1994Sang, 192), Supreme Court Decision 95Da49738 delivered on December 6, 1996 (Gong1997Sang, 190), Supreme Court Decision 88Nu6665 delivered on June 27, 199 (Gong1989, 1178), Supreme Court Decision 90Nu73 delivered on April 27, 199 (Gong190, 1190), Supreme Court Decision 90Nu96439 delivered on June 25, 1993 (Gong19649, 1965) 97Nu943794 delivered on June 27, 1994).

Postal Service Corporation

Lee-hee (Attorney Lee Young-hoon, Counsel for the defendant-appellant)

Daegu High Court Decision 95Na5906, 5913 delivered on October 4, 1996

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

We examine the grounds of appeal.

According to the reasoning of the judgment below, while entering into the contract for the construction of this case with the plaintiff (Counterclaim defendant; hereinafter the plaintiff) and the defendant (Counterclaim plaintiff; hereinafter the defendant) based on macroscopic evidence, they agreed to pay 218,700,000 won including value-added tax as construction price to the plaintiff. The plaintiff did not have a comprehensive construction license and performed the construction of this case under the name of Samsung Construction Co., Ltd. and Han Master Construction Co., Ltd. and Han Master Construction Co., Ltd. without a comprehensive construction license, and suspended the construction of this case around the end of June 1993. The defendant acknowledged the termination of the contract for the construction of the above construction around the end of August of the same year. The defendant rejected the plaintiff's claim that 160,995,177 won including value-added tax, and 84,914,385 won including materials and expenses paid by the defendant on behalf of the plaintiff, 300% of the construction price refunded to the defendant, and 1700 billion won.

Where there is an agreement between the parties to the transaction to bear the value-added tax, the right to claim the payment of the amount equivalent to the value-added tax arises pursuant to the agreement (see Supreme Court Decision 92Da48437, Nov. 26, 1993). Therefore, the court below is justified in holding that the defendant is liable to pay to the plaintiff the amount equivalent to the fixed rate at the time of termination of the construction contract of this case among the construction contract of this case and the total sum of value-added tax

In addition, Article 17(2)1 of the former Value-Added Tax Act (amended by Act No. 4808, Dec. 22, 1994; hereinafter the same) and Article 60(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14471, Dec. 31, 1994) provide that an input tax amount shall not be deducted if all or part of the requisite entry items are not entered in the tax invoice submitted or are different from the facts. Provided, That if some of the requisite entry items in the tax invoice received exceptionally are entered in the tax invoice are verified as necessary or discretionary entry, it shall not be included in the tax invoice different from the facts. According to Article 16(1)1 of the same Act, if an entrepreneur’s registration number and name or title are declared as one of the necessary entry items in the tax invoice, and the purport of each provision is that the entrepreneur cannot be deemed as having fulfilled its functions different from the fact of supplying the tax invoice under Article 97(1)6 of the former Value-Added Tax Act.

However, according to the facts duly confirmed by the court below, even though the plaintiff performed the construction of this case, the tax invoice for KRW 34,080,792, including value added tax, was not issued to the defendant, and the defendant was not entitled to deduct or refund input tax for the construction work of this case from the tax authority, but on the other hand, the plaintiff could not issue or deliver the tax invoice under his name to the defendant, and the above Samsung Construction Co., Ltd. or Han-name Joint Construction Co., Ltd. was not allowed to issue or issue the tax invoice for the above Samsung Construction Co., Ltd. or Han-name Joint Construction Co., Ltd., and the defendant was aware of such fact. Thus, even if the plaintiff issued the tax invoice for the above Samsung Construction Co., Ltd. or Han-name Joint Construction Co., Ltd. to the defendant at the time prescribed in Article 9 of the Value-Added Tax Act, it was not possible for the defendant to submit it to the tax authority to make a lawful deduction or refund of input tax amount.

Thus, if the plaintiff did not issue a tax invoice for the above Samsung Construction Co., Ltd. or Han-name Construction Co., Ltd. to the defendant, and thus, the defendant suffered losses not subject to the deduction or refund of the input tax amount. Thus, the defendant's argument that the plaintiff did not issue a tax invoice to the defendant, which included the defendant's right to claim compensation for losses not subject to the deduction of the input tax amount in the amount equal to the plaintiff's right to claim compensation for the construction cost of this case.

Therefore, the court below's rejection of the defendant's argument is not appropriate without clarifying the purport of the defendant's argument, but it is legitimate in the conclusion that rejected the defendant's argument, and there is no error of law such as misapprehension of legal principles. The argument is without merit.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)