early 209Gu2321 ( December 16, 2009)

Scope of used cars subject to deduction of waste resources tax;

Used cars means used goods subject to input tax for recycled waste resources, even in cases of export after acquisition from an individual as clearly defined as a motor vehicle from the time of acquisition of a motor vehicle from a person who manufactures, assembles, or imports a motor vehicle to the time of de facto impossibility of maintaining its performance

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

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1. The Defendant’s disposition rejecting the refund of value-added tax against the Plaintiff on April 24, 2009 is revoked.

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

The same shall apply to the order.

쇠鹬 쇠鹬 3000 쇠鹬 3000

1. Details of the disposition;

A. The Plaintiff purchased and exported used cars with the trade name of “AA trade,” and exported them to a foreign country after purchasing 45 cars from January 2, 2009 to February 2 of the same year. On January 2009, the Plaintiff reported early refund of value-added tax of KRW 50,790,951 in total, including value-added tax of KRW 19,597,68 in value-added tax, and value-added tax of KRW 31,193,263 in value-added tax on February 2, 2009.

B. On April 24, 2009, the Defendant rejected an application for refund for the amount of KRW 37,547,342 of the value-added tax refunded for KRW 50,79 among the KRW 50,790,951 applied by the Plaintiff, by deeming that the Plaintiff purchased a new vehicle from an individual and exported the vehicle under the name of another person, instead of purchasing it from the automobile manufacturer, and excluding the special cases of deduction of value-added tax on recycled waste resources, etc. under the Restriction of Special Taxation Act, and rejected an application for refund for the amount of KRW 37,547,342 of the waste resources input tax for the instant vehicles (hereinafter “instant disposition”).

C. The plaintiff appealed and filed an appeal with the Tax Tribunal on May 25, 2009, but the plaintiff's appeal was dismissed on December 16 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, Eul evidence Nos. 1, 2, 3, 8, and 9 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

The instant automobiles constitute used cars clearly in accordance with the definition of used cars for recycling resources under Article 2 subparag. 5 of the Automobile Management Act (amended by Act No. 5104 of Dec. 29, 1995) and Rule 108(1) of the former Restriction of Special Taxation Act (amended by Act No. 9921 of Jan. 1, 2010; hereinafter “former Restriction of Special Taxation Act”) and Article 110(4)2 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037 of Feb. 18, 2010; hereinafter “former Enforcement Decree of the Restriction of Special Taxation Act”).

(2) The defendant's assertion

(A) The Automobile Management Act was amended by Act No. 5104 of Dec. 29, 1995, and the part concerning the definition of used cars under Article 2 subparag. 5 of the same Act was deleted. After that amendment, the Enforcement Decree of the Restriction of Special Taxation Act amended by Presidential Decree No. 17034 of Dec. 29, 2000, the scope of input tax deduction is changed from the used cars under the former Automobile Management Act to the automobile under the Automobile Management Act (limited to used cars). The disposition of this case is legitimate to exclude the application of the special taxation of this case, considering the purpose of the special taxation system for the exemption of input tax deduction for recycled waste resources and used goods under the Restriction of Special Taxation Act, which is to promote the collection and recycling of recyclable waste resources and used goods.

(B) Even if the instant automobiles are used as used cars as alleged by the Plaintiff, the Plaintiff actually purchased the instant automobiles from the automobile manufacturer, which is a taxable business entity, and thus, it is not acquired from the “person who is not engaged in a taxable business for value-added tax” under Article 108(1) of the former Restriction of Special Taxation Act, Article 110(1) of the former Enforcement Decree of the Restriction of Special Taxation Act, or the “simplified taxable person” under Article 25 of the Value-Added Tax Act, and thus does not constitute

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the instant automobiles constitute used cars

Article 108(1) of the former Restriction of Special Taxation Act provides that where an entrepreneur who collects the waste resources and used goods for recycling purposes acquires any waste resources and used goods from the State, local governments or other persons prescribed by the Presidential Decree by December 31, 2009, and manufactures, processes, or supplies them, an amount calculated by multiplying the acquisition value of the used goods by 10/110 may be deducted as his input tax amount from his output tax amount under Article 17(1) of the Value-Added Tax Act, and Article 110(4)2 of the former Enforcement Decree of the Restriction of Special Taxation Act provides that an automobile under the Automobile Management Act (limited to used goods) shall be subject to the input tax amount under Article 108(4)2 of the former Enforcement Decree of the Restriction of Special Taxation Act (limited to used goods subject to the input tax amount for recycling resources). In addition, the used goods under the Automobile Management Act shall not maintain their performance from the person who manufactured, assembled, or imported a motor vehicle to the date of actual acquisition of the motor vehicle.

Meanwhile, with respect to the scope of recycled waste resources and used goods subject to deduction of input tax amount related to value-added tax, Article 58-2 (3) 8 of the Enforcement Decree of the Restriction of Tax Reduction and Exemption Act (amended by the Presidential Decree No. 13804, Dec. 31, 1992) provides for the first time that used cars under the Automobile Management Act (amended by the Presidential Decree No. 15976, Dec. 31, 1998). This provision also provides for the same contents as in the Enforcement Decree of the Restriction of Special Taxation Act (amended by the Presidential Decree No. 15976, Dec. 31, 1998). In light of the fact that the Automobile Management Act was amended by Act No. 5104, Dec. 29, 1995, the part concerning the definition of used cars under Article 2 subparag. 5 of the Restriction of Special Taxation Act was deleted, and the amendment of the Enforcement Decree of the Restriction of Tax Reduction and Exemption of Motor Vehicles Act was made within 1.

However, with respect to the concept of used cars under the general rules of the Restriction of Special Taxation Act, it is clearly defined as the "automobile from the person engaged in the business of manufacturing, assembling, or receiving cars to the time of de facto being unable to maintain its performance." The general rules of the National Tax Service do not have the effect of binding on the court or the people, but can be used as one material in interpreting the tax law, so long as it can be used as a single material, it should be viewed as a used car from the time of the acquisition of the automobile by the vehicle manufacturer, etc., and it should be interpreted as the purchase of a new car when the vehicle is purchased in another person's name immediately from the time of the acquisition of the automobile by the vehicle manufacturer, etc., without reasonable grounds, by means of a reduced interpretation of the above common rules of the Restriction of Special Taxation Act, it shall not be permissible in light of the principle of tax equity, which is the basic ideology of the tax law. Even if the provisions of the definition of used cars under the general rules of the Restriction of Special Taxation Act are somewhat inconsistent with the purpose

In light of the above, it is difficult to issue a tax invoice under the name of the AA trade operated by the Plaintiff, and the Plaintiff’s purchase of the instant automobiles upon request from the other 28 persons, and the Plaintiff again purchased the instant automobiles by requesting them from the other 28 persons, and there is no dispute between the parties or between the parties. In accordance with the relevant provisions, the instant automobiles were used cars from the time of their acquisition by the other 28 persons, and thus, the instant automobiles were used cars from the time of their acquisition by the other 28 persons, and thus, the instant automobiles purchased from the other 28 persons and exported by the Plaintiff constitute used cars.

(2) Whether the other party to the purchase satisfies the conditions

Article 108 (1) of the former Restriction of Special Taxation Act provides that where an entrepreneur who collects recycled waste resources and used goods acquires any recycled waste resources and used goods from the State, local governments or other persons prescribed by the Presidential Decree, and manufactures, processes or supplies them by December 31, 2009, an amount calculated by multiplying the acquisition value of the used goods by 10/110 may be deducted as his input tax amount from his output tax amount under Article 17 (1) of the Value-Added Tax Act, and Article 110 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that "other persons prescribed by the Presidential Decree" under Article 108 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act refers to a person who is not engaged in a taxable business for value-added tax (including cases where he concurrently operates a taxable business and a taxable business

However, even if the Plaintiff purchased the instant vehicle from the Gu, x, 28 individuals, the Plaintiff should be deemed to have purchased and exported the instant vehicle from the “a person who is not engaged in a taxable business of value-added tax” as prescribed by Article 110(1) of the former Enforcement Decree of the Restriction of Special Taxation Act, and if it is determined that it would not be different from the acquisition from the manufacturing company due to the substance of the transaction, it is not clear in its judgment criteria, and it is not permissible as a arbitrary interpretation that is obviously contrary to the law.

(3) Sub-decisions

Therefore, since the plaintiff purchased used cars from individuals and exported them, the amount calculated by multiplying the acquisition value of the automobile of this case by 10/110 under Article 108 (1) of the Restriction of Special Taxation Act and Article 110 (1), (3) 4 and (4) 2 of the former Enforcement Decree of the Restriction of Special Taxation Act can be deducted as the input tax amount from the output tax amount under Article 17 (1) of the Value-Added Tax Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.