Daejeon High Court-2014-Nu-12664 (O2, 2015)

Cho-2013-former-4054 ( November 22, 2013)

The supply of balcony expansion services is legitimate for the imposition of value-added tax on an independent transaction subject to value-added tax.

The supply of apartment balcony expansion construction services is an independent transaction subject to value-added tax, and is subject to additional tax at the time of failure to issue a tax invoice.

Articles 1, 12 and 16 of the Value-Added Tax Act

Supreme Court-2015Du48617 ( October 28, 2016)

In terms of transaction practices in the supply of apartments, ordinarily incidental or essential; or

The Defendants’ supply of this case’s service cannot be deemed as being incidental thereto.

B The instant added value added by deeming the Plaintiff as a separate independent transaction subject to value added tax

The tax disposition was legitimate.

Examining the foregoing provisions and relevant legal principles and records, the lower court’s aforementioned determination

Justifiable, contrary to the allegations in the grounds of appeal, the main transaction is essential to supply goods.

No error by misapprehending the legal principles on the supply of services, etc.

2. As to the grounds of appeal Nos. 2 and 3

Articles 16(1) and 32(1) of the former Value-Added Tax Act; Article 79-2 of the former Enforcement Decree of the Value-Added Tax Act

Paragraph (1) 7, the former Enforcement Rule of the Value-Added Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 269 on February 28, 2012)

Article 25-2 subparag. 3 of the Act provides goods or services to an entrepreneur in principle.

to a consumer who is not an entrepreneur, even though the tax invoice must be issued;

as one of the "business supplying the housing", which is a residential building supply business (in the case of self-construction of a residential building);

(including) in the case of an "tax invoice", to issue a receipt instead of exempting from the duty to issue the tax invoice.

set forth.

The court below held that the supply of this case's service can be the same as the supply of residential building itself.

It is difficult to see that construction services are essential to supply residential buildings to the extent that they are,

It is determined that it cannot be included in the residential building supply business exempt from the duty to issue a tax invoice.

was made.

Furthermore, the court below determined the expansion of balcony as separate from the supply of housing in the relevant regulations

The plaintiff also expands the balcony in addition to the sales contract for the apartment of this case with the buyer.

of this case, which is subject to value-added tax, is entered into a separate contract, and is supplied by the National Tax Service.

There is a reply to the purport that the receipt may be issued instead of the tax invoice.

merely because the supply of this case is exempt from value-added tax, a tax invoice, etc.

(1) If the duty to issue a tax invoice is not granted, the duty to issue the tax invoice is exempted;

It is difficult to deem that trust has been granted to believe that no tax has been imposed.

In light of the fact that the service of this case is naturally incidental to the supply of apartment on a national housing scale.

It is merely a mistake that it constitutes a tax exemption subject to value-added tax.

The Plaintiff did not pay value-added tax liability, etc. because it is merely a site or misunderstanding under statutes.

It determined to the effect that it is difficult to view that there is a justifiable reason.

Examining the foregoing provisions and relevant legal principles and records, the lower court’s aforementioned determination

It is justified and there is no reason to believe that the duty to issue a tax invoice is exempted.

There is no error by misapprehending the legal principles regarding the scope of “supply business” or “justifiable cause to escape penalty tax”.

(c)

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided by all participating Justices.

It is so decided as per Disposition by the assent of all participating Justices.

The AAAA

Daejeon, public housing, and the Director of the National Tax Service of the Republic of Korea

National Rotations

. 28, 2016

1. All appeals are dismissed.

2. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Article 106 (1) 4 of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 201) and Article 106 (4) 1 and Article 51-2 (3) of the Enforcement Decree of the Restriction of Special Taxation Act include "supply of housing below national standard housing size under the Housing Act" as one of the objects of value-added tax exemption.

Meanwhile, Article 1(4) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter the same) provides that “the supply of services essential for the supply of goods, which are main trading, shall be deemed to be included in the supply of goods,” and Article 3 subparag. 2 of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same) provides that “a service deemed to be included in the supply of goods, which is a main trading practice, is ordinarily recognized as being incidental to the supply of goods.”

Based on adopted evidence, the lower court acknowledged the following facts: (a) the Plaintiff supplied apartment buildings below national housing scale under the Housing Act to buyers in approximately 23 business districts, including **** district, and (b) supplied some households at the option of buyers in some business districts, and (c) provided the instant services that expand balcony for all households from the beginning in some business districts.

Then, even if the lower court concluded a balcony with the business district of this case on October 29, 2008 (amended by Presidential Decree No. 21098, Oct. 29, 2008), separately determines the procedures for structural alteration of the old balcony, etc. and the installation period (amended by Presidential Decree No. 24443, Mar. 23, 2013) under the delegation of Article 2 subparag. 14 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 2005-40, Dec. 8, 2005; Ordinance No. 2010-622, Sept. 10, 2010) separately from the purchase price of the apartment house under Article 38(1)3 of the former Housing Act (amended by Presidential Decree No. 11243, Jan. 26, 2012; Ordinance No. 22004, Mar. 4, 2012).