Suwon District Court-2015-Guhap-71247 ( November 24, 2016)

In case the lessee uses an officetel for the purpose of business for which input tax amount is deducted for the purpose of residence, the supply of goods is deemed legal.

In case where an officetel, which is a goods subject to the deduction of input tax after acquisition in connection with its own business, is directly used for the "business of supplying rental services to a permanent residential building exempt from the value-added tax", Article 6 (2) of the former Value-Added Tax Act and Article 15 (1) 1 of the former Enforcement Decree of the Value-Added Tax Act.

Article 6 (Supply of Goods)

Seoul High Court 2016Nu78600 Revocation of Disposition imposing Value-Added Tax

AA

00. Head of tax office

on October 26, 2017

on October 31, 2017

1. The plaintiff's appeal is dismissed.

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

Cheong-gu and purport of appeal

The judgment of the first instance court is revoked. The defendant's disposition of imposition of value-added tax of KRW 15,326,750 (including additional tax of KRW 5,846,151) on August 3, 2015 against the plaintiff on August 3, 2015 is revoked (including additional tax of KRW 5,846,151) (the claim of October 10, 2016 and the application for change of the cause of the claim and the statement of the petition of appeal as of August 7, 2015), "A clerical error," and each of the above written preliminary claims and preliminary appeals are all included in the purport of the above claim and appeal, and thus, are not

1. Quotation of judgment of the first instance;

The court's explanation on this case is identical to the reasoning of the judgment of the court of first instance except for dismissal or addition of part of the judgment of the court of first instance as follows. Thus, it is acceptable to accept this as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts to be removed or added;

○○ for the second reason, the 5th "Mag00" in the 5th sentence shall be replaced by "Mag00", and the 6th sentence shall add "after the registration of the real estate rental business has been made on September 16, 2009" as "after the registration of the real estate rental business has been made".

○ From 19 up to 17 pages 19 up to 5 pages are as follows.

As to the first argument “(1)”

(A) According to Article 12(1)12 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201; hereinafter the same) and Article 34(1) of the former Enforcement Decree of the Value-Added Tax Act (amended by Act No. 23162, Sep. 29, 2011; hereinafter the same), the lease of a building used for regular residence (excluding residential cases for business purposes) and land appurtenant thereto is exempted from value-added tax. In light of the fact that the purpose of the provision on the exemption of value-added tax is to reduce the burden of value-added tax on a tenant who is a consumer in terms of welfare or social policy, the determination of whether the building constitutes a lease of a building used for regular residence subject to exemption from value-added tax should be made based on whether the lessee actually used the building as a standard for objective use. In addition, the determination should be made based on the following Supreme Court Decision 201Du135, Jul. 13, 20197>

(B) In full view of the overall purport of the arguments in the statements or videos Nos. 8, 10, 11-1 through 3, 11-1, and 1, the Plaintiff’s registration as a general taxable person having completed the instant officetel’s business as the location of the instant officetel’s location; the contract prepared at the time of each lease agreement on the instant officetel between the Plaintiff and the Plaintiff, prior to 00, and Kim 00 is indicated as “business use”; and some of the other rooms of the instant officetel’s office in which the instant officetel is located are used for business purposes, such as a certified judicial scrivener office.

(C) However, in light of the above evidence, Gap evidence Nos. 2, 5, Eul evidence Nos. 3, Eul evidence Nos. 4-1, and Eul evidence Nos. 4-2, the plaintiff asserted that the plaintiff used the officetel of this case for residential purposes at the time of the trial, and that the plaintiff did not prove that the previous 00 and Kim 00 used the officetel of this case for residential purposes. In light of the above facts, it is reasonable to deem that the above tenant used the officetel of this case as a permanent residential purpose, and the fact recognized in the above Paragraph (b) alone is difficult to view that the rent of the office building for ordinary residential purposes should be determined according to the tenant's actual purpose of use. Thus, the plaintiff's intention to rent the office building for business purposes at the time of the conclusion of each above lease contract does not interfere with the determination as above even if the plaintiff intended to do so.

① The instant instant officetel lease agreement between the Plaintiff and the previous 00 includes the following: “Lessee agrees not to move to his/her address,” and “to confirm the defect at the time of moving to a facility, and the lessee shall restore to its original state and compensate for damage when loss or damage occurs.” The instant officetel lease agreement between the Plaintiff and the previous 100 includes the following: “Lessee shall not move to a moving-in report, and the lessor shall cooperate with the establishment of a right to lease on a deposit basis, and the lessor shall use options (to use a observer, drum, drum, drum, hump, hump, hump, hump, hump, etc.).” However, among the above options items equipped with the instant officetel, it is difficult to view it as items generally used as residential buildings and items ordinarily used in the office.

② Former 00 and Kim00 did not have registered the instant officetel as the location of the instant officetel. The instant officetel lease term of Kim 00 was from May 31, 2012 to May 31, 2014, and Kim 00 received wage and salary income from January 2012 to December 2014.

③ At the time of a request for pre-assessment review and a request for review by the Board of Audit and Inspection, the Plaintiff did not present any particular opinion on the fact that the instant officetel was used for residential purpose.

(D) If so, the lease of the instant officetel against the Plaintiff’s former 00, and Kim00 constitutes “the case where the instant officetel, which is the goods acquired in connection with the Plaintiff’s own business and subject to the deduction of the input tax amount, is directly used for the purpose of supplying the lease of a permanent residential building that is exempt from the Plaintiff’s value-added tax.” Therefore, it constitutes a case where the Plaintiff’s supply of goods is deemed under Article 6(2) of the former Value-Added Tax Act and Article 15(1)1 of the former Enforcement Decree of the Value-Added Tax Act. Therefore, the instant disposition by the Defendant imposing additional tax (in addition to the value-added tax for the first year of 200, the instant officetel is legitimate on the ground that the Plaintiff’s lease of the instant officetel to the former 00 is deemed to be subject to value-added tax due to the legal fiction of the supply of the instant officetel and thus, the instant officetel’s value-added tax amount is added to the tax base

According to Article 6(2) of the former Value-Added Tax Act and Article 49(1)1 and (4) of the former Enforcement Decree of the Value-Added Tax Act, where goods used in a taxable business fall under depreciable assets, the relevant goods are deemed to be supplied pursuant to Article 6(2) of the Act, the relevant goods should be reflected in the acquisition value of the relevant goods (1-5/100 x the number of the elapsed taxable periods).

○ 6th page 11 to 17 are as follows.

The Plaintiff asserted that the value-added tax should be calculated by reflecting the number of taxable periods elapsed at the time when the instant officetel was leased to Kim 00 as at the time that the Plaintiff used the instant officetel as a permanent residence. However, as seen earlier, the Plaintiff’s assertion that the instant officetel was used as a permanent residence is identical to the fact that the instant officetel was used as a permanent residence. As such, the Plaintiff’s assertion is without merit without having to further examine it.

○ The 7th page 2 "Glaver00" is changed to "Glaver00".

The following provisions shall be added between the 18th and 19th and the 14th and the 19th.

Article 15 (Scope of Private Supply)

(1) The goods deemed the supply of goods under Article 6 (2) of the Act shall be as follows:

1. Goods used or consumed for a business supplying goods or services exempt from value-added tax (excluding those for which the input tax amount is not deducted under Article 17 (2) of the Act);

○ From 11 up to 12th 4th eth eth eth eth eth eth eth eth eth eth eth eth eth eth.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.