Review Division 2019-0169 ( December 07, 2009)

Whether rent for real estate lease contract is the amount of actual rent

If the name of a building is not fulfilled due to the termination of a lease contract, it is only a settlement before filing a lawsuit to secure restitution, payment of damages, etc., which is higher than the actual rent, and there is no omission of part of the paid rent.

1. The Defendant’s disposition of imposition of value-added tax for the second term of 204 against the Plaintiff on October 1, 2009, the value-added tax for the second term of 2004, the value-added tax for the second term of 12,66,430 won, the value-added tax for the second term of 205, the value-added tax for 12,24,900 won, the value-added tax for the second term of 2005, the value-added tax for 11,830,250 won, the value-added tax for the first term of 206, the value-added tax for 11,408,720 won, the value-added tax for the second term of 206, the value-added tax for 14,048,610 won, the value-added tax for 10,414,980 won, the value-added tax for the second term of 207, the value-added tax for 1096,3708 won

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

The same shall apply to the order.

1. Details of the disposition;

A. From April 10, 202 to June 2009, the Plaintiff reported value-added tax on the rental income for the pertinent period on the premise that the Plaintiff is a real estate rental business entity who is engaged in real estate rental business, and a leB on November 8, 2004, on the premise that the rent from November 2004 to June 2007 is KRW 20 million per month (excluding value-added tax), and the rent from July 2007 to June 2009 for the rent from July 20, 2007 to June 2009 (excluding value-added tax).

B. The defendant confirmed on December 13, 2004 between the plaintiff and the leB that the rent for the building of this case is KRW 36 million per month under the reconciliation clause of the settlement protocol (Seoul Central District Court 2004Hun-Ga2792) between the plaintiff and the leB, and that the plaintiff was paid rent of KRW 36 million per month from the leB and reported as described in the above paragraph (a) by omitting any part of it, and on October 1, 2009, the defendant notified the plaintiff of the correction and notification of each value-added tax (hereinafter referred to as "the disposition of this case").

C. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on November 3, 2009, but the said request for examination was dismissed on December 7, 2009.

[Ground for Recognition: Facts without dispute, Gap 3 through 5 evidence, each entry of Eul 1 evidence (including paper numbers), the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In the event that a leB fails to perform its obligations following the termination of a lease agreement entered into with a leB, the Plaintiff’s settlement was made prior to the filing of a lawsuit with a higher rental fee in order to guarantee restitution and payment of damages, etc., and there was no omission of any part of the rent paid from leB, and thus, the instant disposition made on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On November 8, 2004, the Plaintiff entered into a lease agreement with 50 million won (excluding value-added tax), monthly rent of 20 million won (excluding value-added tax), and with respect to the instant building until November 7, 2006 (hereinafter referred to as “instant lease agreement”), and thereafter, entered into a lease agreement with 23 million won (excluding value-added tax) as of June 3, 2007, which set the lease term as the end of June 8, 2009.

(2) At the time of the conclusion of the instant lease agreement, the Plaintiff experienced a lot of difficulties due to disputes related to reputation between the former lessee (YCC) and suggested to prepare a protocol of settlement prior to filing a lawsuit with the former lessee with the rent of KRW 36 million higher than the actual ones in the future, which was to prevent such disputes. The leB considered that the rent of the instant building is below 10-15% compared to the market price of the instant building, and that there was no problem when the rent is paid at the time, and the Plaintiff requested the Plaintiff to submit a proposal for the lease agreement for three years at the time of filing a request to the Plaintiff for a settlement prior to filing a lawsuit.

(3) Accordingly, unlike the content of the instant lease agreement, leB prepared a written consent to the Plaintiff’s consent to apply for a settlement prior to filing a lawsuit with the court from November 8, 2004 to November 7, 2007, which states that the Plaintiff may not claim rent under the said protocol prior to filing a lawsuit against leB, and that he/she may use the written consent to the said protocol only for the purpose to be submitted to the court.

(4) On December 13, 2004, upon the Plaintiff’s request, the settlement was made between the Plaintiff and leB prior to the filing of the lawsuit (Seoul Central District Court 2004Gahap2792). The content of the settlement clause of the prior settlement protocol prior to the filing of the lawsuit (hereinafter “instant settlement protocol”) is as follows.

① Upon the termination of the contract due to the expiration, termination, etc. of the lease term (at the request of leB, the Plaintiff stated the lease term in the application for settlement prior to the filing of the lawsuit three years), leB shall order the Plaintiff to present the instant building, and receive the balance of the deposit after deducting the overdue rent, taxes and public charges from the Plaintiff.

② A leB shall pay the Plaintiff the rent of KRW 36 million on the 10th day of each month until the completion of the surrender of the instant building. If a leB violates this, the Plaintiff may terminate the lease contract if the leB pays the late payment charge equivalent to 1% of the monthly rent, and if the leB fails on the two or more occasions, the Plaintiff may terminate the lease contract.

(3) A leB may not change the purpose, structure, etc. of the building of this case, install accessories attached thereto, transfer, resell, or offer security all or part of the right to lease and deposit money, nor use them for purposes other than those of lease without the consent of the plaintiff. In the event of violation, the plaintiff may terminate the lease contract.

④ In order to preserve or use the building of this case with the Plaintiff’s consent, leB did not claim any facility cost, premium, etc. for any name, except for the items attached thereto with the Plaintiff’s consent, and then ordered the Plaintiff to restore the building of this case to its original state.

(5) Pursuant to the instant lease agreement and the secondary lease agreement, leB paid to the Plaintiff KRW 22 million per month from around December 2004 to June 2007 (including value-added tax), and from around July 2007 to July 2009, 25.3 million per month to the Plaintiff’s bank account (including value-added tax) by transferring the amount of KRW 20 million per month from around July 2007 to around July 2009 to the Plaintiff’s bank account (the transfer from around December 2004 to May 206 to EE), and received a refund of KRW 50 million from the Plaintiff on September 11, 2009.

[Ground of Recognition: Facts without dispute, Gap 1 through 3 evidence, Gap 6-1, 2, Gap 7 evidence, Gap 8-1 through 7, Gap 9-1 through 25, Gap 10-1 through 6, Gap 11, and 15, Gap 11, and Eul 2's testimony and the purport of the whole pleadings]

D. Determination

According to the above facts, the Plaintiff filed an application for settlement prior to the filing of the suit with the consent of leB in order to prevent disputes arising between the lessee and leB regarding the order of the instant building, which may arise with respect to the instant lease agreement, and to enforce the implementation of the instant lease agreement with the leB after deliberation. Thus, the Defendant’s disposition based on the premise that the Plaintiff received rent of 36 million won per month from leB as rent for the instant building even if leB received some of the rent from leB, and reported value-added tax by omitting it (the settlement prior to the filing of the suit has the same effect as the judgment and executory power, some of the Plaintiff received rent for the instant building from DaD, and the remainder was paid in cash, and it is difficult to readily conclude that the rent for the instant building was 36 million won per month or 6 million won).

3. Conclusion

The plaintiff's claim shall be accepted with due reason.