The early appellate court 2012 Mine5370

If the person is actually involved (such as the appointment of a manager) in the construction subcontract relationship (title name or lump sum subcontract), the name shall not be deemed the name lending.

The name "title name" and "Blanket subcontract" are the basis for determining whether a contractor who received a contract receives "an intention to substantially participate in a construction work" and "actual involvement" in the construction process becomes the criteria for determining whether the contractor has actually participated in the construction process, so the construction manager is deemed to have actually participated in the construction process, so the disposition of this case, which is judged as name name or processing tax invoice, and imposed on it, is unlawful.

Article 21 (Determination and Correction) of the former Value-Added Tax Act (Amended by Act No. 11608, Jan. 1, 2013)

2013Guhap1737 Revocation of Disposition of Imposition of Value-Added Tax

AA

Head of the North Mine District Tax Office

March 5, 2015

August 13, 2015

1. The value-added tax of 2000 won for the second period of 2011 against the Plaintiff on May 1, 2012 by the Defendant

The imposition disposition shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

(a) Conclusion, etc. of a contract for new construction works of AA;

The 00 Floor Co., Ltd. (the representative director: MaA, hereinafter referred to as "the 00 Floor") is a company established for the purpose of hanok construction, etc., and the plaintiff is a soil construction business, reinforced concrete construction business, etc.

KimB, which is a company established and worked as a director of 00 floors, is a person who has capabilities and experience in constructing hanok buildings, such as 000, while operating 00 floors.

On August 29, 2011, KimB entered into a construction contract with the Plaintiff on August 29, 201, with the contractor as JCC, the contractor as the Plaintiff, and with the construction cost of KRW 1.1 billion as 00,000,000, and with the construction cost of KRW 1.1 billion as 00,000,000, and with respect to the construction work to newly construct AAA, a hanok building, on the ground and on the land (hereinafter referred to as the “instant construction work”). On November 5, 2011, the contract was entered into for the change of the construction cost of KRW 0,000,000 from JCC to JA, and the contract was concluded for the change of the construction cost of KRW 0,000 on December 21, 201.

On October 4, 2011, the Plaintiff entered into a subcontract with the Plaintiff on the electrical, telecommunication, and fire-fighting part of the instant construction project with the subcontractor as the Plaintiff, the subcontractor as the 00 industry, and the contract amount as KRW 00,000,00. On November 5, 2011, the Plaintiff entered into a subcontract with the 00 floor between the 00 floor and the 00,000 square meters for the instant construction project with the subcontractor as the Plaintiff, the subcontractor as the 0th floor, and the contract amount as KRW 0,000,000,000,000 for the instant construction project, and entered the subcontract as the preparation date retroactively on August 30, 2011.

B. Issuance of tax invoices related to the instant construction

At the second half of 2011, the Plaintiff issued a tax invoice of KRW 000,000,000 in total value of supply to 00,000 won (representative: 00) who is an individual entrepreneur with respect to the instant construction project. The Plaintiff received a tax invoice of KRW 00,000,000 in total value of supply from 00,000,000 won, and a tax invoice of KRW 00,000,000 in total value of supply from 00,00

C. Defendant’s imposition of value-added tax

On May 1, 2012, the Defendant borrowed the name of the construction business to KimB as to the instant construction project. Since the actual executor of the instant construction project is not the Plaintiff or KimB, not the Plaintiff or 00 floors, the instant tax invoice was issued or received without real transactions, and thus, the Defendant issued a disposition imposing KRW 00,000,000 for the reason that the instant tax invoice was a processed tax invoice issued or received without real transactions (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 10, 23, and 32 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

As the Plaintiff actually participated in the instant construction, it cannot be said that the Plaintiff lent the name of the construction business to KimB, or issued or received the instant tax invoice without real transactions. Therefore, the instant disposition on a different premise should be revoked as it is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the instant disposition is lawful (whether the Plaintiff issued or received the instant tax invoice without real transactions)

(a) Facts of recognition;

On November 27, 2013, the Plaintiff was sentenced to a fine of KRW 5 million for a violation of the Framework Act on the Construction Industry by leasing the name in relation to the construction work of the instant construction work to the KimB from the Gwangju District Court 000 Godan00,000.

On December 3, 2013, the plaintiff appealed to the Gwangju District Court 000No000,000 on the ground that he did not lend his name to KimB, and the appellate court, on December 4, 2014, concluded that the plaintiff was not guilty of this case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case'.

On June 24, 2015, the Supreme Court dismissed the appeal and the above appellate judgment became final and conclusive (hereinafter referred to as "related criminal judgment").

B. Determination

Unless there are special circumstances to deem it difficult to adopt a factual judgment of the above criminal judgment in the administrative litigation, unless the judgment becomes final and conclusive (Supreme Court Decision 98Du10424 delivered on November 26, 199).

In light of the above legal principles, it is not guilty as to the violation of the Framework Act on the Construction Industry that the Plaintiff lent the name of the construction business to KimB in the relevant criminal judgment.

The final and conclusive facts are as seen earlier, and there is no special circumstance to deem it difficult to adopt a factual judgment of the relevant criminal judgment, and thus, the Defendant’s disposition of imposing the instant case on a different premise is unlawful.

Therefore, the plaintiff's assertion is justified.

4. Conclusion

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