The propriety of the disposition of this case in a false tax invoice, which constitutes input tax prior to business registration

Since purchase tax invoices related to construction services are time of supply for the date of approval for use of the building, it exceeds 20 days retroactively from the date on which the Plaintiff applied for registration of business, and thus, it does not constitute the object of

Article 9 of the Value-Added Tax Act

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s disposition rejecting the refund of value-added tax (amounting to KRW 158,166,905) and the disposition rejecting the refund of value-added tax (amounting to KRW 158,166,905) on May 19, 2006 against the Plaintiff, respectively, shall be revoked.

1. Details of the disposition;

가. 재단법인 00교유지재단(이하 '재단법인'이라고 한다)은 대한민국 내 ㅇㅇ인 교회의 예배전도, 교육, 구호 및 연보사업에 필요한 재산의 관리운영을 목적으로 설립된 법인이고, 원고는 위 재단법인에 소속된 교회이다.

B. On October 30, 2002, the Incorporated Foundation obtained a building permit from the head of Jung-gu Incheon Metropolitan City on October 21, 2003 and commenced February 21, 2003, but the "00 construction" in charge of building construction was suspended due to bankruptcy around 2004.

C. After October 14, 2005, the Incorporated Foundation newly constructed two buildings on the land owned by the Incorporated Foundation under its own burden and responsibility, and the Incorporated Foundation entered into an investment development agreement with 000 that grants 000 the right to use a new building free of charge for 15 years including the right to lease to a third party.

D. 00 completed two buildings for the purpose of neighborhood living facilities (hereinafter “instant building”) by awarding a contract to 00 comprehensive construction companies, etc., and obtained approval from the head of the Gu of Incheon Metropolitan City on December 2, 2005.

E. On December 31, 2005, the Incorporated Foundation opened a board of directors to determine the construction cost of 1,581,669,055 won, which was invested in the building of this case by 000 won. Since 000, the representative of the Plaintiff church, the Plaintiff church received a tax invoice (hereinafter referred to as the “tax invoice of this case”) from 00 on December 31, 2005, in order to deduct the input tax amount, where the Plaintiff registered his/her business for the rental business of the building of this case, the date of preparation from 000 to 1,581,69,05 won, and 1,58,16,905 won, for the purpose of deducting the input tax amount (hereinafter referred to as “tax invoice of this case”).

F. Next, on January 13, 2006, the Plaintiff filed an application for business registration with the director of the tax office having jurisdiction over the location of 000, 0-0 of Incheon ○○dong 0-0, and the type of business as a real estate rental business and received a business registration certificate for corporate entrepreneurs.

G. On January 25, 2006, the Plaintiff filed an application for refund of value-added tax on KRW 158,166,905, when filing a final return on the value-added tax for the second half-year portion in 2005, and filed a return on the input tax amount as KRW 158,16,905.

H. On the other hand, the Defendant: (a) deemed that the transaction time (the time of supply) of the tax invoice of this case was December 2, 2005, which is the date of approval for the use of the building of this case through on-the-spot verification investigation; (b) concluded that the input tax amount of the said tax invoice was not deducted on the ground that the Plaintiff’s input tax amount was not less than 20 days since it was retroactively calculated from January 13, 2006, which was registered as a business operator under Article 17(2)5 of the Value-Added Tax Act; and (c) issued a disposition to refuse the above application for refund on May 1, 2006, imposing the value-added tax (additional tax on negligent tax) 15,816,690 won for the second period of February 2005 (hereinafter “instant refusal and disposition of refund”).

[Ground of recognition] In without dispute, Gap evidence 1, 2, Gap evidence 3, Gap evidence 4 through 6, Gap evidence 8, Gap evidence 9-1, 2, Gap evidence 10-1, 2, Gap evidence 11, 13, Eul evidence 1, 2, Eul evidence 4-1, 4-2, and the purport of the whole pleadings

2. Whether the refusal of refund of this case and the disposition of imposition are lawful

A. The plaintiff's assertion

부가가치세법 제9조 제1항 제3호에 의하면, 제1호와 제2호의 규정을 적용할 수 없는 경우에는 재화의 공급이 확정되는 때를 재화의 공급시기로 규정하고 있는바, 이 사건 건물의 공급은 원고가 소속된 재단법인과 ㅇㅇㅇ 사이의 투자개발계약에 비추어 일반적인 재화의 공급과는 달리 기부채납이라고 하는 특수한 형태의 재화의 공급으로서, 그 공급시기는 공사비총액이 확정되어 기부채납절차가 완료된 때이므로, ㅇㅇㅇ이 차후 발생예정인 공사비까지 포함하여 총 공사비를 산정해 이 사건 세금계산서를 발행한 2005. 12. 31.이라고 할 것이다. 그런데, 그 때는 원고의 사업자등록 신청일인 2006. 1. 13.로부터 역산하여 20일 이내의 매입세액이므로, 당연히 매입세액을 공제하여야 할 것임에도 불구하고, 매입세액을 불공제한 이 사건 환급거부 및 부과처분은 위법하다.

B. Relevant statutes

It is as shown in the attached Table related statutes.

C. Determination

(1) Whether the instant building is supplied with goods or services

앞서 든 증거에 의하면, 재단법인을 건축주로 한 건축허가가 나와 있는 상황에서 000이 재단법인과의 투자개발약정에 따라 자신의 비용부담과 책임 하에 주식회사 00종합건설, ㅇㅇㅇㅇ공사, 주식회사 000시스템 등에 도급주어 이 사건 건물을 완공하게 하였고, 이후 재단법인은 곧바로 자기 앞으로 이 사건 건물에 관한 소유권보존 등기를 경료한 사실을 인정할 수 있는바, 이는 000이 스스로 건축주가 되어 이 사건 건물에 관하여 일단 자신 앞으로 소유권보존등기를 마친 후 비로소 재단법인에게 소유권이전등기를 마쳐주는 경우와는 달리 000이 제3자를 이용하여 건축주인 재단법인에게 건설용역을 제공한 것으로 봄이 상당하다.

(2) Time of supply for the construction service of this case

Article 9(4) of the Value-Added Tax Act provides that the time of supply for services shall be determined by the Presidential Decree when the term "the time of supply for services" is "the time of supply for services" under paragraph (4). Accordingly, Article 22 of the Enforcement Decree of the Value-Added Tax Act provides that the time of supply for services shall be determined by the Presidential Decree; (1) in the case of ordinary supply, when the supply for services is completed (Article 1); (2) in the case where services are supplied on completion basis, interim payment, long-term installment or on other terms or where services are continuously supplied or the unit of supply is unable to be partitioned (Article 2(2)); and (3) in the case where the provisions of subparagraphs 1 and 2 are not applicable, the time of supply for each service is completed and the price of supply is determined (Article 3(d)); and (2) in the case where an exceptional case where the time of supply for services is deemed to have not arrived even after the completion of the supply for services is determined, the general time of supply for services shall be completed (Article 196(2.4.94.5Du.4.196.4.24.4.4.4.4.4.4.4.6.4.294.4.4.

In the case of the instant construction services, since the supply price can be determined by 000 at the time of the completion of the service provision, the time of the completion of the service provision should be deemed the time of supply for the service. According to Article 18 of the Building Act, if the owner wishes to use the building after completing the construction work of the building for which the building permit was obtained or the report was filed, the owner is filing an application with the permitting authority (Paragraph 1), and if the owner is unable to use the building or make it available for use (Paragraph 2), and if the owner obtains approval for use, it is deemed that the construction service in this case was completed on December 2, 2005, which is the date of approval for use of the building in this case. Thus, it is reasonable to deem that the construction service in this case was completed as the time of supply for the construction service in December 2, 2005.

As to this, the Plaintiff asserted that there was a remaining construction work even after the date of approval for use. However, there is no evidence to prove that there was a remaining construction work after the date of approval for use, and there is no reason for the Plaintiff’s above assertion.

(3) Whether the input tax amount related to the instant construction services is the input tax amount prior to registration

Article 17 (2) 5 of the Value-Added Tax Act excludes the input tax amount before the registration of the business in order to secure the faithful implementation of the registration of the business, but the proviso and Article 60 (9) of the Enforcement Decree of the Value-Added Tax Act provides that the input tax amount may be deducted within 20 days retroactively from the date of application for the registration of the business, recognizing exceptions. In determining whether the input tax amount prior to the registration of the business is subject to deduction, the transaction period (in the case of the supply of goods) stipulated in Article 9 (2) of the Value-Added Tax Act shall be the standard.

However, since the Plaintiff’s input tax amount related to the construction service of this case is the time of supply on December 2, 2005, the Plaintiff’s input tax amount calculated retroactively from January 13, 2006, which exceeds 20 days after the Plaintiff’s application for business registration, does not constitute the subject of the input tax deduction. Therefore, the Plaintiff’s assertion on a different premise is without merit, and the refusal and disposition of refund of this case are lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is without merit and it is so decided as per Disposition.