Examination-2016-Supplementary -108 ( December 14, 2016)

The instant lease service does not constitute a leased house subject to tax exemption.

The instant real estate was used to provide various services necessary for the accommodation to many and unspecified persons under the business of a leased juristic person operating a lodging business, which constitutes a taxable service as a lodging business rather than a housing lease.

Article 1 of the Individual Consumption Tax Act and the tax rate, Article 2 of the Enforcement Decree of the Food Sanitation Act of the term "Enforcement Decree"

Disposition Imposing Value-Added Tax

00

00. Head of tax office

on October 2017 07

on 21, 2017

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of the first value-added tax on August 1, 2016 by the Defendant against the Plaintiff on August 1, 2016, xxx,xxx (including additional tax; hereinafter the same shall apply), xx,xxx, xxx, 2012, 2013, 2013, 200, 2013, 200, 2013, 200, 2014, 1st value-added tax,x,x,x,xx, xx, 200, 2014, 200, 2014, 200, respectively, is revoked.

1. Details of the disposition;

A. On May 20, 2002, the Plaintiff entered into a contract with xxxxx.x.x.x.x.x.x.x.x.xa (aaa 'a' 'a' ') on the instant real estate with xx.x.x.x.x.x.x.x.x.x.x.x.a' 'a' 'a') on the instant real estate with xxxxxxxxx.x.x.x.x.x.x.x.x.x.x. x. x. 1 year, but the period from x. 1 year, may be extended, 1 year, with the total supply price x.x.x. x.x. x. x. x. x. x. x. x. x. x. x. x. x. x. x. x. x. x. x. x. x. 1 year, one year, one year rent.

B. Aa is a corporation with the purpose of accommodation business and real estate leasing business, etc., and in return for the sub-lease business to the investors of the instant real estate, the Plaintiff paid rent under the above contract to the Plaintiff. However, the Plaintiff did not make business registration in relation to this, and did not report and pay the value-added tax on the instant lease services to the Defendant.

C. The Defendant: (a) conducted a tax investigation with respect to a Aa and conducted a business registration ex officio with respect to the Plaintiff by deeming that the instant lease service as a taxable entrepreneur under the Value-Added Tax Act is subject to value-added tax; and (b) deeming that the Plaintiff, the owner of the instant real estate, as a taxable entrepreneur under the Value-Added Tax Act, constitutes the subject of value-added tax; and (c) deeming that the date of commencement of business falls underxxx.x.x.x.x.x.x. to the Plaintiff as the real estate business, lease business, and non-residential building lease business; and (d) deeming the Plaintiff’s failure to report and pay value-added tax on the amount received from Aaa; and (d) deeming that the Plaintiff, as a taxable entrepreneur under the Value-Added Tax Act, failed to report and pay value-added tax on the amount received from Aa; and

The second half of the value-added tax in 2012, the second half of the value-added taxx,xx,xx,xx, and the second half of the value-added tax in 2013, the second half of the value-added tax in 2013,xx,x,xx,xx, and the second half of the value-added tax in 2014, the second half of the value-added tax in 2014 were notified of each correction and notification (hereinafter referred to as "each of the instant dispositions").

D. The Plaintiff dissatisfied with the request and filed a request for examination against the Commissioner of the National Tax Service, but was dismissed on December 14, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 1 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) The Plaintiff did not receive value-added tax on the instant lease services from Aa, and the instant lease agreement entered into with Aa does not include value-added tax on the tax items to be paid by the Plaintiff, and the Plaintiff paid relevant taxes on the premise that the instant real estate was sold in lots to the instant real estate and that the Plaintiff resided in the instant real estate or leased the instant real estate for the purpose of housing. Thus, the instant lease agreement constitutes a housing lease agreement subject to value-added tax exemption. Accordingly, each of the instant dispositions on different premise is unlawful.

2) The Defendant had been able to provide the Plaintiff with administrative guidance, etc. to the effect that the instant lease is subject to taxation prior to each of the instant dispositions. This case’s disposition was unlawful in violation of the principle of trust and good faith and the principle of trust protection, as long as the Plaintiff was aware of the instant real estate as a house even when aa runs a lodging business, and the Defendant was also aware of the instant real estate, and the Plaintiff was also aware of such trust.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The instant building, which belongs to the instant real estate, is a main complex building with the underground and the groundxx floors, where there are neighborhood living facilities, cafeterias center, sanda, etc., from the underground second to the second floor above the ground, and the instant real estate, etc., which is the guest room from the third to the fourth floor above the ground, are located in the guest room. The purpose of the guest room is apartment. The instant real estate is apartment. The instant household appliances such as TV and air conditioning, etc., and household appliances such as furnitures, bedrooms, and bedclothess and kitchens attached thereto, and bathing goods, etc. are provided inside the instant real estate.

2) On November 26, 2007, Aa was registered as the main business of leasing real estate to the Defendant on November 26, 2007 as the business type, food cultivation, brokerage of service travel, real estate management, and parking management, etc., and operated aax business in the instant building with the trade name called Aaxxxx, and reported and paid value-added tax on the price for which the Defendant received the Defendant with the service site.

3) The website of aa states that the following content and the following information are provided to the guests with various daily convenience services, such as bedclothess, furnitures, washing clothes, cleaning, cleaning, etc., as well as that the guests can use the feet center, sabs, etc. in the instant building:

Aa located between BB and CC, the business-centered center, is the first domestic service site that only has the highest advantages among condominiums, Laos, and apartment functions, and is the first service site.

Aa, which has a total number ofxx guest rooms on the groundx floor and undergroundx floor, is close to bB, IT venture businesses, trade and financing-related facilities, and is equipped with the optimal infrastructure to conduct business in a distance of two minutes from the x call space of 00 calendars, each guest room is formed with a perfect residential environment with a bath room, TV, washing machine, free of charge, high-speed wireless Internet, as well as a high-class shower system.

The services of the special-class hotel and the environment are able to be economically invested, the perfect office environment and infrastructure have been created, and the reasonable satisfaction in Aaa which could have been able to see the bad daily life.

4) The main contents of the instant rental agreement between the Plaintiff and Aa are as follows.

Lease and Management Entrustment Contract

For the purpose real estate: The owner of the real estate for the purpose of this case (hereinafter referred to as "A") and the owner of the real estate for the purpose of this case (hereinafter referred to as "A") are entrusted by the owner A with all of the lease and management of the real estate for the purpose of this case from the owner A, and the lease and management entrustment contract is concluded as follows

Article 1 (Period of Contract) (1) The period of lease and management of the above target real estate shall be x.x.x.x.x.x.x.x.x.x.x.x.x.x.x. 1 year;

(2) A and B may extend this contract by the method of yearly adjustment of the amount of rent for one year, taking into account lease, market price, etc.

Article 2 (Determination and Payment of Rent) (1) The annual rent shall be determined at 00 - 00 - 00 - 2 -.x% of the total supply price under the supply contract (based on no taxes and public charges and non-deductible standards), and Eul shall be paid in advance by the immediately preceding quarter of each quarter.

(2) B shall have the authority to receive the subleases and the subleases.

(3) The difference between the amount of rent paid in advance to A and the amount of sublease income accrued from the operation of B shall be deemed to be reverted to B without settling accounts between A and B.

Article 3 (Liability for Taxes, Taxes and Charges) Payment of various expenses, such as aggregate land tax, property tax, rental income tax, and other taxes imposed on the owner pursuant to the building management rules, such as special repair reserve, common facilities, and fire insurance premiums, shall be disposed of at the responsibility of A: Provided, That in cases of unpaid households with special repair reserve, common facilities, and fire insurance premiums, the rent under Article 2 (1) shall be deducted directly from the rent.

(hereinafter omitted)

5) From x.x.x.x.x to x.x.x.x.x. of the same year, the Defendant conducted a corporate integration investigation with respect to Aa, and denied aa to the deductible expenses for an amount equivalent to the value-added tax, etc. included in the rent amount, on the premise that aa is engaged in a serviced Lesoring business.

6) The Plaintiff reported and paid value-added tax to the Defendant on the lease services from the second to the first period of 2015 to the first period of 2017 on the premise that it is subject to the imposition of value-added tax.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 6, Eul evidence Nos. 3 through 7, the purport of the whole pleadings

D. Determination

1) Whether the instant lease is subject to value-added tax

Article 12 (1) 12 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter referred to as the "former Value-Added Tax Act") provides that one of the objects of value-added tax exemption is the lease of a house and land appurtenant thereto, which is prescribed by the Presidential Decree," and Article 34 (1) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter referred to as the "former Enforcement Decree of the Value-Added Tax Act") limits the scope of the object of value-added tax exemption to the lease of a building and land appurtenant thereto used as a Si residential (excluding the case of residence for business).

On the other hand, whether a lessee constitutes a lease of a house subject to value-added tax exemption shall be determined on the basis of whether the lessee actually uses the house as a permanent residence on the basis of the objective purpose of using the building in question. In light of the fact that the purpose of the provision on the lease of a house subject to value-added tax exemption is to reduce the lessee’s burden of value-added tax at a social policy level, it shall be determined on the basis of the lessee’s actual usage of the leased house (see, e.g., Supreme Court Decision 2013Du125, Jun. 13, 2013).

The following circumstances, i.e., (a) provided the Plaintiff to re-user the real estate after the lease of the real estate from the Plaintiff. As such, the issue of whether the lease of this case constitutes the subject of value-added tax exemption should be determined on the basis of the usage actually used by the consumer of the final lease of the real estate. (2) However, (a) provides various daily convenience services, such as bedclothes, furniture and lary, cleaning, cleaning, etc., for the purpose of running a strawing business, and (b) the guests are able to use the straws center, sandba, etc. in the building of this case, rather than the rental business of the house; (c) the Plaintiff’s business form can be seen as a lodging business rather than the rental business of the house; and (a) the Plaintiff’s Internet homepage provided the first domestic straws service, and provided the special hotel service, etc. with value-added tax-added tax-free services; and (d) the Plaintiff’s rent and rent for the house of this case as well as rent for the house of this case.

2) Whether the principle of predictability and predictability is violated

On the other hand, inasmuch as the service site business conducted on the instant real estate is deemed as a lodging business subject to value-added tax, the Defendant, in principle, may impose value-added tax on the Plaintiff for the past taxable period until the exclusion period for imposition of value-added tax expires, and the same applies even if the Plaintiff had no intention or negligence or had no possibility of expectation for failure to report and pay value-added tax. Accordingly, the Plaintiff’s assertion is groundless.

3) Whether the principles of trust and good faith, and the principles of trust protection, are violated

In tax and legal relations, the principle of trust and good faith and the principle of trust protection are exceptional legal principles applicable only to cases where there are special circumstances deemed that the protection of taxpayer’s trust is consistent with the justice even if there is a sacrifice of the principle of trust and good faith. Therefore, in order to apply the principle of trust and good faith or the principle of trust protection to a tax authority’s act, the trust granted by the tax authority through the public opinion statement, etc. should have an average taxpayer reasonable and justifiable expectation (see, e.g., Supreme Court Decision 2011Du5940, Dec. 26, 2013). In addition, in general, in order to apply the principle of trust and good faith to a tax authority’s act in tax and legal relations, the tax authority must issue a public opinion statement that is subject to trust to the taxpayer, and there is no reason for the taxpayer to believe that the tax authority’s opinion statement is justifiable and trust, and the taxpayer’s act should be conducted in trust and what is the taxpayer’s interest should be infringed (see, e.g., Supreme Court Decision 2015Du15272, etc.

C) In the instant case, there is no evidence to deem that there was an official opinion of the administrative agency that the instant leased service is exempt from value-added tax, or that the tax authority granted the Plaintiff the trust that the Plaintiff would not impose value-added tax. Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

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