In a case where the Korea Land and Housing Corporation supplied apartment buildings below national housing scale and supplied balcony expansion services to some of apartment buildings, and the tax authority imposed value-added tax exemption, the case holding that the disposition imposing value-added tax is lawful on the ground that the above service is determined by the buyer’s choice and it cannot be deemed that the supply is ordinarily incidental to or necessarily incidental to the transactional practice of supplying apartment buildings exempt from value-added tax, on the grounds that the supply of the above service does not constitute a separate independent transaction subject to value-added tax.

Article 106 (1) 4 of the former Restriction of Special Taxation Act (Amended by Act No. 10406, Dec. 27, 2010); Article 51-2 (3) and Article 106 (4) 1 of the former Enforcement Decree of the Restriction of Special Taxation Act (Amended by Presidential Decree No. 22626, Jan. 17, 201); Article 1 (4) (see current Article 4) of the former Value-Added Tax Act (Amended by Act No. 11873, Jun. 7, 2013); Article 3 subparagraph 2 (see current Article 3) of the former Enforcement Decree of the Value-Added Tax Act (Amended by Act No. 24638, Jun. 28, 2013)

Korea Land and Housing Corporation (Law Firm Barun, Attorneys Kang Ji-hun et al., Counsel for the plaintiff-appellant)

Head of Seo-gu District Tax Office (Law Firm LLC, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2013Nu5189 decided July 10, 2014

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 106(1)4 of the former Restriction of Special Taxation Act (amended by Act No. 10406, Dec. 27, 2010); Articles 106(4)1 and 51-2(3) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22626, Jan. 17, 201); one of the objects eligible for value-added tax exemption refers to “supply of housing below the scale of national housing under the Housing Act.” Meanwhile, Article 1(4) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) provides that “The supply of services essential to the supply of goods that are the main transaction shall be deemed to be included in the supply of goods that are the main transaction.” Article 106(1)2 of the former Enforcement Decree of the Value-Added Tax Act provides that “The supply of goods is deemed to be included in the supply of goods as one of goods.”

2. Based on the adopted evidence, the court below acknowledged that the Plaintiff supplied the instant apartment to the buyers in the instant taxable period with the instant apartment to expand the balcony as to part of the apartment, and concluded a contract to expand the balcony supply of the instant apartment separately from the sales contract on supply of the instant apartment. The Plaintiff calculated and received the instant service separately from the sales price for the instant apartment, and the number of buyers of the instant apartment can choose whether to expand the balcony at the time of concluding the sales contract. The district where the balcony expansion apartment was supplied with the balcony expansion apartment as well as the balcony expansion apartment. Accordingly, the Plaintiff did not conclude the balcony expansion contract, and the alteration of the structure of the balcony and the details of the Building Act and the Housing Act, etc., comprehensively considering the following factors, the court below determined that the instant service constitutes a separate transaction from the supply of the instant apartment, which is subject to the imposition of value-added tax, on the ground that it does not necessarily constitute an independent transaction incidental to the supply of the instant apartment.

In light of the above provisions and relevant legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the supply of goods, which are essential annexed to the supply of goods, by omitting judgment of the plaintiff's assertion that the supply of the service in this case does not constitute a separate transaction separate from the supply of the apartment

3. Therefore, the appeal is dismissed, and the 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 Shin Young-chul (Presiding Justice)