Whether Article 49-2 of the Enforcement Decree of the Act on the Calculation of Tax Base for Real Estate Rental Services conflicts with the parent law (negative)

Article 49-2 of the Enforcement Decree of the Tax Act is merely a specific calculation method on the market price of the service, which is a taxation requirement under Article 13 (1) 2 of the same Act, and cannot be viewed as a provision on the taxation requirement different from that under the parent law, or a newly establishing taxation requirement under the parent law.

Article 13(1)2 of the Value-Added Tax Act, Article 49-2 of the Enforcement Decree of the Value-Added Tax Act, Article 50 of the Constitution

Plaintiff

Seoul Trust Bank Co., Ltd., Counsel for defendant-appellee

Seoul High Court Decision 82Na1511 delivered on August 25, 1982

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The defendant's attorney's grounds of appeal are examined.

1. Among the grounds of appeal, there is an error of interpreting Article 15 of the Value-Added Tax Act by wrong interpretation of the nature of the deposit for lease in real estate lease services, and there is an error of violating the rules of general transactions and the interpretation of Article 57 of the Enforcement Decree of the Value-Added Tax Act, Article 18 of the Framework Act on National Taxes, and Article 18 of the Enforcement Decree of the Enforcement Decree of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, the above reasons cannot be deemed to fall under any of subparagraphs of Article 11(1) of the Act

2. Of the debate on the appeal, Article 49-2 of the Enforcement Decree of the Value-Added Tax Act (Article 49 of the Enforcement Decree of the Value-Added Tax Act, it is clear that it is a clerical error) is invalid as a provision without delegation of the mother law. Article 49-2 of the Enforcement Decree of the Enforcement Decree of the Value-Added Tax Act provides the method of calculating the market price of the leased service based on the interest rate of time deposit for lease money or security deposit in the case where a business operator receives lease money or security deposit for lease money for lease except for the case where he receives lease money or security deposit for lease money for lease. Therefore, there is no basis to regard that a real estate lessor is contrary to the provisions of the Value-Added Tax Act.

In addition, Article 13 (1) 2 of the Value-Added Tax Act provides that the market price of goods or services supplied by the supplier shall be the tax base of value-added tax, and Article 49-2 of the Enforcement Decree of the Value-Added Tax Act provides that the market price of such goods or services shall be the tax base of value-added tax. Thus, the above provision of the Enforcement Decree is only limited to the determination of a specific calculation method concerning the market price of services, which is a taxation requirement under the parent law, and it cannot be deemed that the taxation requirement is

The discussion on this issue is groundless.

3. Regarding the violation of the Supreme Court precedents among the grounds of appeal, the court below held that since the real estate lease agreement of this case was concluded before the supply of real estate for business is excluded from the value-added tax exemption due to the revision of the Value-Added Tax Act on December 3, 1980, the value-added tax shall not be deemed to be included in the rental deposit because the value-added tax at the time of the contract is not considered at the time of the contract. Accordingly, the Supreme Court precedents on party members (79Nu313 delivered on April 8, 1980) held that the tax base of the special consumption tax for the special consumption tax shall be the amount which the manufacturer deducts the special consumption tax and the value-added tax for the relevant goods from the amount actually taken out. Thus, the above judgment of the court below in this case is inconsistent with the legal interpretation of

4. 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.

Justices Lee Lee Sung-soo (Presiding Justice)