Suwon District Court-2016-Gu Partnership-67982 ( November 29, 2017)

Cho-2015-China-4606 (Law No. 16.30)

Whether the public charges collected by the commercial manager along with the management services are included in the tax base.

In the case of public utility charges included in the management expenses received from the occupants, the Plaintiff shall receive the contract management expenses in accordance with the contract with the separate company, and the Plaintiff shall only choose to pay the public charges on behalf of the Plaintiff, but it cannot be deemed that the electricity charges paid by the Plaintiff on behalf of the Plaintiff should be deducted from the output tax amount of the Plaintiff.

Article 13 of the Value-Added Tax Act, Article 48 of the Enforcement Decree thereof

2017Nu89751 Revocation of Disposition rejecting to correct a value-added system

Plaintiff Appellants

AA

Defendant, Appellant

000 director of the tax office

November 29, 2017

on October 2018 07

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

1. Purport of claim

The Defendant’s value-added tax on October 1, 201 for the first time, KRW 4,90,199, KRW 5,257,543, value-added tax for the second time, KRW 6,173,545, and Type 2 value-added tax for the first time, 2012 for the Plaintiff on October 1, 2014.

A disposition rejecting reduction or correction of KRW 6,861,038 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Quotation of the reasons for the judgment of the first instance;

The reason for this judgment is as follows: Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act shall apply to the reasons for the judgment of the first instance except to dismiss or add part of the judgment of the first instance as follows:

○○ 3 side 8 side 8 side 8 side 8 side 2009 (except for the part in the table) was closed on July 1, 2009, and was disposed of as of July 1, 2009 by official administrative disposition on September 4, 2009.”

○ 4 4. 8.9 Happed as follows.

“In fact that there is no basis or dispute for recognition, Gap No. 1 to 4, 6, 7, and Eul No. 2

include, hereinafter the same shall apply), "the purport of the whole pleading"

The ○ 4th parallel 13th parallels to 20th parallels are as follows:

“The Plaintiff agreed to pay the direct management fees, including the electrical management fees, different from the management services fees, to the BB at the time of the instant service contract. Accordingly, the Plaintiff, during each taxable period of value-added tax, received and paid the electric charges and value-added tax imposed on the instant building by the Korea Electric Power Corporation in installments to the occupants of the instant building, and only paid them to the Korea Electric Power Corporation. Therefore, the electricity fees paid by the Plaintiff on behalf of the occupants of the instant building should be excluded from the tax base of each value-added tax of the instant case.”

○ 5. 5. 5. 5. to 9.

(B) It is naturally included in the tax base as a matter of course inasmuch as the Plaintiff issued a tax invoice for the portion of electricity charges and paid value-added tax on its own, as long as the Plaintiff paid the said tax on behalf of the Plaintiff, instead of simply allocating, collecting, and paying the electricity charges to be paid by the occupant, who is the actual user of the goods, is the price for the supply of services under the service contract between the Plaintiff and BB.

○ 6th page, "date of decision" means "date of service of written decision".

○ The 6th 5th 5th son’s co-owned day shall be regarded as “legal holiday”.

○ 6th 9th 9th 8th 11th 1st 1st 200.

D. Whether the instant disposition is lawful

1) Relevant legal principles

Article 17(2) subparag. 1-2 of the Value-Added Tax Act provides that "if an input tax invoice is entered differently from the actual date of preparation of a tax invoice," the term "if the remaining date of transaction is verified under Article 60(2)2 of the Enforcement Decree of the Value-Added Tax Act, it shall be deemed that the above amount of input tax is identical to that of the actual date of preparation of the tax invoice (if the tax invoice is entered in the actual date of preparation of the tax invoice, the date of preparation of the tax invoice shall be stated in the actual date of the tax invoice, but it shall be deemed that the tax invoice is less than 10,000 if the tax invoice is entered in 20,000,000,0000 won or less than 10,000 won or less than 20,000 won or less, it shall be deemed that the tax invoice is less than 17,000 won or less than 2,000 won, and thus, it shall not be deemed that the tax invoice or 17,07.

A) ① On August 23, 2007, when the Plaintiff entered into the instant service contract and the instant electricity fee payment contract with BB on August 23, 2007, the Plaintiff paid KRW 19,000,000 per month from BB in return for performing management services of the instant building, including inspection of electricity, water, gas, and public charges and charges for the management of the building of this case, and the Plaintiff agreed to settle electricity, water, gas, and other rental fees with the actual cost paid instead by the Plaintiff. ② The Plaintiff received from the occupants of the instant building during each taxable period of value-added tax by separating them from other management expenses and notifying them to the Korea Electric Power Corporation by including them in management expenses, and the amount was paid to the Korea Electric Power Corporation in the name of BB, and each of the value-added tax of this case calculated by adding the aforementioned charges to the tax base (tax amount) of the Plaintiff’s tax base (tax amount

In addition, comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 5, 8 through 11, and Eul evidence No. 3, the following facts can be acknowledged: ① The plaintiff's electric utility fee paid to the Korea Electric Power Corporation in the name of BB in relation to the building of this case during each of the tax periods of this case was 231,903,224, which is the total supply value of the tax invoice of this case; ② The plaintiff's electric utility fee notified to the above occupant during the above tax period due to the omission of the notification of electric utility fee in the process of changing the tenant of the building of this case; and ② the total amount of the electric utility fee

B) In light of the aforementioned legal principles, the above facts of recognition, and the following circumstances acknowledged by the above quoted evidences, even if the Plaintiff paid the electricity fee to Korea Electric Power Corporation in the name of BB for the convenience of occupants of the instant building during the respective value-added tax period, such circumstance alone does not lead to the deduction of the electricity fee imposed on the instant building from the tax base of value-added tax reported and paid by the Plaintiff at his own option after the Plaintiff paid the electricity fee imposed on the instant building under the instant service contract.

Therefore, the plaintiff's assertion cannot be accepted.

(1) The current system of the Value-Added Tax Act adopting the tax credit Act at all stages;

The Do has the function of mutual verification between taxpayers, and where the calculation of the amount of tax and mutual verification are conducted for each taxable period in order to operate properly the function of mutual verification due to the characteristics of value-added tax, the preparation and issuance of a tax invoice shall be done normally within the taxable period to which

However, the instant tax invoice was issued only after around 2014 when the taxable period had already elapsed from the first to the second period of 2012, which was the taxable period of each of the instant value-added taxes, and the BB had already been closed at the time of issuance, and thus, it cannot be allowed to deduct the input tax amount by the instant tax invoice. Accordingly, the instant disposition rejecting the instant claim for correction, which allowed the deduction of the input tax amount from the tax base of each value-added tax to the input tax amount on the instant tax invoice from the first to second period of 2012, is lawful.

② The Plaintiff asserted that, as seen earlier, the electric utility charges of the instant building should be excluded from the tax base on the tax invoice issued by the Plaintiff against BB on the ground of the mere substitute payment of the tenant electric utility charges.

However, according to the above facts and the above quoted evidences, the Plaintiff, at the time of the instant service contract, was entrusted with the management of the instant building by BB, as well as the tax and public charges, which are the administrative affairs, such as energy management, electric power inspection and management, and the calculation of the amount of energy consumption subject to the settlement of actual expenses, and agreed to receive contract fees, and to pay the direct management fees, such as electricity fees, etc., in return for the entrustment. On the same day, the Plaintiff entered into the instant electricity payment contract with BB, and entered into the instant electricity payment contract with BB, and subsequently made an agreement with the Korea Electric Power Corporation for the settlement of actual expenses, such as electricity fees (including value added tax) paid to the Plaintiff (the Plaintiff paid the full amount of the electricity charges imposed on the instant building even if the total amount of the electricity charges received from the occupants of the instant building falls short of the electricity charges imposed on the instant building). Furthermore, the Plaintiff voluntarily recognized that the sales tax invoice for the supply of electricity is made according to the volume of electricity consumption to the occupants of the instant building.

In light of the above circumstances, it is reasonable to view that the management service duties performed by the Plaintiff at the time of the instant service contract include the payment of direct management expenses, such as the calculation of electric charges, taxes and public charges, the management of electric charges, and the electricity charges. Therefore, the Plaintiff’s payment of the electric charges for the instant building, as well as other management service duties, shall be in a quid pro quo relationship with the contract management expenses paid by the Plaintiff under the instant service contract.

③ Even if the Plaintiff did not know of the closure of BB until around 2014, the Plaintiff’s failure to report the value-added tax in 2011 and 2012, solely on the ground that “BB’s discontinuance of business” was not subject to the Plaintiff’s deduction of the input tax, or that the Plaintiff did not impose an additional tax on the Korea Electric Power Corporation with respect to the electric charges and value-added tax, other than the electric charges that the Plaintiff paid to the Korea Electric Power Corporation in lieu of BB pursuant to the instant service contract, and that the Plaintiff received and paid the electric charges that the Plaintiff paid to the Korea Electric Power Corporation on behalf of BB pursuant to the instant service contract, separately from the electric charges that the Plaintiff received to the Korea Electric Power Corporation, “for the occupants of the instant building,” and on behalf of the Plaintiff for convenience (Supreme Court Decision 2007Du9778 Decided 207).

The addition of the attached Acts and subordinate statutes shall be made on the nine pages.

2. Conclusion

If so, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal shall be accepted, and the judgment of the court of first instance shall be revoked