Cho Jae-2017-Magju-572 (Law No. 17, 2017)

Whether the construction works for expanding balcony provided by the Si corporation constitutes a taxable object of value-added tax.

It is reasonable to deal with whether the extension of balcony for the implementation company of the construction company constitutes a taxable object separate from the national housing construction services, as well as whether the supply of balcony to the buyer of the event constitutes a taxable object separate from the supply of national housing.

Article 106 of the former Restriction of Special Taxation Act (amended by Act No. 7003 of Dec. 30, 2003) Article 106 (Exemption, etc. of Value-Added Tax)

Gwangju District Court 2017Guhap1978 Disposition of Imposing Value-Added Tax

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BB Director of the Tax Office

November 29, 2018

on October 14, 2019

1. Of the instant lawsuits, the Defendant’s imposition of value-added tax of KRW 43,04,280 on October 18, 2016 against the Plaintiff on KRW 2,44,161,260, KRW 24,440,020 on the imposition of KRW 24,65,980 on the imposition of KRW 24,65,980 on the first half-year 2012, KRW 63,258,810 on the imposition of KRW 62,742,80 on the second half-year 2012, KRW 12,704, KRW 870 on the imposition of KRW 10,612, KRW 760 on the Plaintiff, KRW 2,35,248, KRW 170 on the imposition of KRW 20, KRW 240 on the imposition of KRW 24,60 on the Plaintiff, KRW 205, KRW 23815, KRW 2085.

2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of value-added tax against the Plaintiff on October 18, 2016, of KRW 44,161,260 for the second period of 201, KRW 24,65,980 for the first period of 2012, KRW 63,258,810 for the first period of 2012, KRW 12,704,870 for the first period of 2013, KRW 35,248,170 for the second period of 2014, KRW 62,238,190 for the second period of 2015, KRW 89,592,270 for the second period of 2015.

1. Details of the disposition;

가. 원고는 토목건축공사업 등을 목적으로 하는 법인으로 주식회사 YY주택과 특수관계에 있다.

B. On August 10, 201, the Plaintiff entered into a contract with the executor, a YPPP apartment construction company (hereinafter referred to as “instant executor”), for the amount of KRW 28,32,291,460, with respect to the construction of a new YPP apartment in Nam-gu, Nam-gu, Gwangju. On July 10, 201, the Plaintiff entered into a contract with the former YPPP apartment construction company (hereinafter referred to as “the contract amount of KRW 37,417,347,00 for the construction of a new YPPP apartment in the former YPP apartment in the area of national housing. Each of the above apartment units is an apartment unit below national housing scale. The instant executor carried out a project with respect to the former apartment units in the form of a balcony expansion, and the Plaintiff carried out the construction of balcony expansion in each of the above apartment units (hereinafter referred to as “the instant apartment units,” and the construction of balcony in the instant case is referred to as “the construction of the instant national housing”).

C. When the Plaintiff reported value-added tax from the second to the second half of 2011, the Plaintiff determined that the supply of the balcony service (hereinafter “instant service”) is included in the supply of the instant national housing subject to value-added tax exemption, and thus, reported value-added tax exemption on the instant balcony construction as tax exemption.

D. From July 5, 2016 to September 1, 2016, the commissioner of the Gwangju Regional Tax Office notified the Defendant of the taxation data that the instant service constitutes the subject of value-added tax as a result of the consolidated investigation with the Plaintiff. On October 18, 2016, the Defendant notified the Plaintiff of the taxation data that the instant service constitutes the subject of value-added tax. The Defendant notified the Plaintiff of the second period 44,161,260 won, the first period 24,65,980 won, the second period 63,258,810 won, the second period 63,258,810 won, the second period 2,704,870 won, the second period 35,248,170 won, the second period 2,238,170 won, the value-added tax 1,6238,190 won, the second period 2015, the second period 29,5297 won (including additional tax).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on January 13, 2017, but the Tax Tribunal dismissed the Plaintiff’s appeal on April 17, 2017.

F. Meanwhile, the Defendant, on March 22, 2017, deemed that there exist grounds for the Plaintiff’s assertion on the application of the common purchase tax by field in relation to the above request for a trial, reduced the amount of value-added tax to the Plaintiff KRW 2,15,960 in 201, KRW 215,960 in 201, KRW 515,930 in 2012, KRW 2,092, KRW 110 in 2013, KRW 15,117,50 in 2014, KRW 13,497, KRW 870 in 2015, KRW 15,93, and KRW 760 in 2015 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the part requesting revocation regarding reduced part of the instant lawsuit is legitimate

If an administrative disposition is revoked, such disposition shall lose its effect and shall no longer exist, and shall exist

A lawsuit seeking revocation against an administrative disposition is unlawful as there is no benefit of lawsuit (Supreme Court).

December 13, 2012 (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012).

ex officio, as seen in the foregoing, the Defendant may recognize the fact that the Plaintiff reduced the value-added tax amount of KRW 1,156,980 for the second period of March 22, 2017, KRW 215,960 for the first period of March 2012, KRW 515,930 for the first period of March 201, KRW 2012, KRW 515,930 for the second period of February 2, 2013, KRW 15,117,50 for the second period of February 15, 2014, KRW 13,497,870 for the first period of January 2, 2015, and KRW 15,93,760 for the second period of February 15, 2015, and thus, the said reduced portion shall no longer become effective.

Therefore, among the lawsuits in this case, value-added tax of KRW 43,004,280, KRW 24,440,020, KRW 240,65,980, KRW 62,742,880, out of KRW 63,258,810, KRW 12,70, KRW 10,612,760 of KRW 12,704, KRW 870, KRW 235,248, KRW 170 of KRW 2,248, KRW 170, KRW 232,628, KRW 238,90 of KRW 2015, KRW 238,238, KRW 240 of KRW 12,70, KRW 85,205, KRW 2085, KRW 2085, KRW 205, KRW 2975, KRW 2085, KRW 2015.

3. Determination on the remaining part of the revocation claim

A. The plaintiff's assertion

1) The instant service is exempt from value-added tax pursuant to Article 106(1)4 of the Restriction of Special Taxation Act.

The new construction of the national housing in this case is in fact integrated with the new construction of the national housing in this case, or is normally accompanied by the new construction of the national housing in this case.

2) In calculating value-added tax, the Defendant determined the supply price of the instant service by multiplying the total construction price by the ratio of the portion of the balcony expansion project executed between the Si and the buyer to the total sale price of the instant national housing to the increase in the construction price when the instant national housing was constructed in the basic form and when the construction was constructed in the balcony expansion type.

B. Relevant statutes

It is as shown in the attached Form.

C. Whether the instant disposition is lawful

1) Whether the supply of the instant service constitutes value-added tax exemption

A) The former Restriction of Special Taxation Act (amended by Act No. 7003, Dec. 30, 2003) and Article 106(1)4 of the Restriction of Special Taxation Act, Articles 106(4)1 and 51-2(3) of the Enforcement Decree of the Restriction of Special Taxation Act, and Article 2 subparag. 3 of the former Housing Act (amended by Act No. 12989, Jan. 6, 2015; Act No. 13782, Jan. 19, 2016) cited national housing with an exclusive residential area of not more than 85 square meters per household, as one of the objects of value-added tax exemption.

On the other hand, Article 1 (4) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) is necessarily annexed to the supply of goods or services, which is the main transaction.

Article 12(3) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013) provides that the supply of goods or services shall be deemed to be included in the supply of goods or services, which are the main transaction. Article 3(2) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013) provides that the supply of goods or services shall be deemed to be included in the supply of goods or services, which is the main transaction. Article 14(1)2 of the Value-Added Tax Act provides that “The supply of goods or services, which is the main transaction, shall be deemed to be incidental to the supply of goods or services, shall be deemed to be included in the supply of goods or services,” and Article 20(2)2 of the former Enforcement Decree of the Value-Added Tax Act provides that “The supply of goods or services, which is ordinarily subject to the supply of goods or services, shall be included in the supply of goods or services.”

In addition, the principle of no taxation without law is a requirement for taxation, or the requirements for tax exemption or exemption, and the interpretation of tax laws should be interpreted in accordance with the text of the law, unless there are special circumstances. It is not allowed to expand or delay without reasonable grounds, and in particular, it accords with the principle of fair taxation to strictly interpret that the provision is clearly considered as a preferential provision among the requirements for tax exemption (see, e.g., Supreme Court Decision 2008Du11594, Oct. 9, 2008).

B) In light of the contents and legal principles of the above statutes, comprehensively taking account of the following circumstances acknowledged by comprehensively considering the aforementioned evidence and the purport of the entire pleadings in the statement in the statement in the statement in the No. 3, it is difficult to view that the instant service is a transactional practice and thus constitutes an ordinary incidental supply of the national housing of this case or an essential annexed thereto, and it is subject to value-added tax, separate from the supply of the instant national housing. Moreover, it is not different even if the Plaintiff was awarded a contract for new apartment construction and the balcony expansion construction from the instant implementer, which had undertaken the entire apartment household in the form of balcony expansion, and received a payment for the construction cost in the form of a single contract.

(1) The instant national housing is classified into balcony and structurally, and the national housing subject to value-added tax exemption is limited to the instant national housing.

(A) As a buffer space connecting the inside and outside of a building, balcony refers to a space installed additionally to the outer wall of the building for the purpose of prospect, rest, etc. (Article 2 subparag. 14 of the Enforcement Decree of the Building Act). Article 2(1)15 of the Enforcement Decree of the Building Act was amended by Presidential Decree No. 19163 on Dec. 2, 2005, and the alteration of the balcony structure became legalized (amended by Presidential Decree No. 21098 on Oct. 29, 2008, the location was moved to Article 2 subparag. 14). This is for the purpose of enabling the use of the balcony, which is a buffer space connecting the inside and outside of the building, for the purpose of improving the convenience and quality of residence of the occupants, as well as for the expansion of the balcony at the time of national housing supply, since the expansion of the balcony can be a separate supply of the national housing, it is not an essential supply of the balcony.

(B) A balcony is not included in the exclusive residential area calculated on the basis of the interior line of the outer wall of a multi-family housing (Article 3(2) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 18733, Mar. 8, 2005); Article 2 of the former Enforcement Rule of the Housing Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 427, Mar. 9, 2005; Ordinance No. 353, Aug. 12, 2016). Considering the expanded balcony area, it is likely to exceed the area recognized as a national housing under the Housing Act, and rather, it goes against the purport that the Restriction of Special Taxation Act provides national housing or its construction services for residential stability of ordinary people as a tax-exempt.

(C) According to Articles 2 and 46(4) of the former Enforcement Decree of the Building Act, the procedure and standards for the alteration of the structure of the balcony, etc. (amended by the Ministry of Construction and Transportation No. 2005-400, Dec. 8, 2005) are stipulated that the exclusive residential area due to the alteration of the balcony structure shall be the area calculated on the basis of the inside line of the initial outer wall pursuant to the Housing Act and subordinate statutes. This seems to be aimed at enabling the tax benefits, etc. on the original part of the national housing scale to be applied without changing the scope of the balcony structure.

(D) Since Article 106(1)4 of the former Restriction of Special Taxation Act and Article 106(1) of the Restriction of Special Taxation Act, which provides for the provision of national housing to be exempted from value-added tax, have existed prior to the amendment of the Enforcement Decree of the Building Act to legalize the structure of balcony, it is difficult to say that the said provision is to be exempted from the supply of balcony more than the supply of national

(2) The sales price of the housing in this case is divided into the sales price of the housing in this case and the cost of expanding balcony. According to the revision of the Enforcement Decree of the Building Act, the relevant regulations were also enacted or amended. ① The procedures for structural alteration of balcony, etc. and Article 7 of the standards for installation of balcony, etc. are required to submit the cost required for structural alteration, such as balcony, in addition to the sales price when the project undertaker applies for approval of housing supply in case of structural alteration, and the said cost is required to be disclosed in the public offering announcement for housing supply. ② Article 38(1)3 of the former Housing Act (amended by Act No. 12959, Dec. 31, 2014); Articles 3, 4 and 7 of the former Rules on calculating the sales price of the apartment housing (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 268, Dec. 29, 2015) separately from the public announcement of the housing in question.

(3) Since the supply of balcony to the buyer of the instant event cannot be deemed ordinarily or inevitably incidental to the supply of the instant national housing, the supply of balcony to the buyer of the instant event ought to be deemed subject to value-added tax, separate from the supply of the instant national housing, which is exempt goods (see, e.g., Supreme Court Decisions 2015Du48617, Jan. 28, 2016; 2014Du40036, Dec. 11, 2014).

(A) In determining and supplying the entire household of the instant national housing to the buyer, the instant executor prepared a balcony expansion contract separately from preparing a contract form for the sale of the instant national housing, and calculated and received the service cost separate from the sale price.

(B) The buyer selected the instant national housing to be sold in the form of balcony expansion and concluded the sales contract, and if he did not want to have the balcony expansion type, he did not conclude the sales contract.

(C) If the instant executor supplies only the entire apartment units in a specific project district as a balcony expansion type, the supply of balcony expansion is subject to value-added tax exemption, while the supply of balcony expansion is divided into balcony expansion type and balcony non-extension type, if the supply of balcony expansion is not subject to value-added tax exemption, it would result in unfair consequences that it is subject to value-added tax exemption on the intent or choice of the instant event.

(4) Whether the Plaintiff’s provision of balcony expansion services to the instant executor constitutes subject to taxation separate from the construction services of the instant national housing, is reasonable as to whether the Plaintiff’s provision of balcony expansion to the buyer of the instant event constitutes subject to taxation separate from the supply of national housing in the instant case.

(A) Article 106(1)4 of the former Restriction of Special Taxation Act and Article 106(1)1 and 2 of the Enforcement Decree of the same Act provide that one of the objects of value-added tax exemption shall be treated equally by listing the "national housing and the construction services of the housing concerned". National housing and its construction.

In order to improve the housing welfare of the low-income people, the station aims to draw up the housing price by exempting not only the national housing itself but also the services that build such housing.

The instant contract between the Plaintiff and the instant executor was concluded by the instant executor for the implementation of the instant national housing supply contract and the balcony expansion contract concluded by the instant executor with the buyer, and all of the transaction stages are the same as the subject of balcony expanded with the instant national housing. The said provision only deals with the instant national housing generated in each transaction stage and the construction services of the instant national housing as tax-free.

(B) Construction services for the instant national housing and construction services for the extension of balcony are classified into separate services. The Plaintiff paid the construction cost of the instant national housing and the construction cost of the extension of balcony respectively, and determined construction cost by distinguishing the construction cost of the instant national housing from the construction cost of the instant balcony in the event of the instant city and the conclusion of the instant contract from the construction cost of the instant balcony.

It is sufficiently possible to compute the respective supply values by calculating and calculating the construction cost of balcony expansion in the entire construction cost even if the construction project and the construction cost of the national housing are concluded, even if the construction project are to conclude a separate contract for the instant construction project and the construction cost of the national housing. The instant construction project is essential for the construction project of the national housing in this case, and it is difficult to view that the instant construction project is a supply of the instant balcony expansion construction project and the supply of the instant national housing construction project is a single construction project that is physically indivisible. The Plaintiff and the instant construction project executor concluded a single contract for the instant construction project and the instant national housing construction project without distinguishing each construction cost, and the Plaintiff received the respective construction cost in a lump sum from the instant executor without distinguishing each construction cost. It cannot be viewed as different solely on the ground that the Plaintiff and the instant construction executor concluded a single contract for the instant construction project without distinguishing each construction cost

(C) On the premise that the buyer of a balcony-type apartment is selected as the buyer of a balcony-type apartment, the Plaintiff performed the construction work of the instant national housing and the balcony-type construction work by being awarded a contract in the lump sum from the instant executor, and thus, the construction work of the balcony-type apartment can also be seen as a result of the buyer’s choice. Even if the entire household of the instant national housing is supplied in balcony-type, it is difficult to view that the nature of the balcony-type

(D) If the Plaintiff received a contract for the construction of the instant national housing and the construction of the balcony expansion from the instant construction company to determine the overall construction cost without distinguishing the respective construction cost, the construction services for the expansion of the balcony fall under the object of value-added tax exemption. If the construction services for the expansion of the balcony do not fall under the object of value-added tax exemption, if the construction services for the expansion of the balcony fall under the object of value-added tax exemption, it would result in unfair results that the Plaintiff’s intent or choice would depend on whether the construction services

(E) Although the supply of balcony expansion services to the buyer of the instant event is subject to tax exemption, if the Plaintiff’s provision of balcony expansion services to the buyer of the instant event is deemed subject to tax exemption, the cumulative effect may lead to an increase in the burden of value-added tax by the buyer (final consumer). In the event that the intermediate stage of the entire transaction is exempted and the final stage of the tax exemption is imposed, the duty-free business operator is not entitled to the tax exemption of the value-added tax paid at the previous stage. As such, the duty-free business operator is not entitled to the tax exemption of the value-added tax, and the subsequent taxable business operator supplies the above supply amount including the value-added tax at the purchase cost without the deduction of the input tax as it is included in the value of the goods, thereby raising the burden of the final consumer value-added tax by again collecting and paying the value-added tax on the whole. This contradicts the purpose of legislation of the Restriction of Special Taxation Act, which is to exempt the supply of national housing in order to reduce the burden of the buyer’s value-added tax.

2) Whether the assessment of value-added tax amount of the instant case is lawful

(A) In an administrative litigation seeking revocation on the grounds of illegality of taxation disposition, the tax authority bears the burden of proving the legality of taxation disposition and the existence of the taxation requirement. Therefore, the burden of proving the value of supply of goods, which is the basis of the determination of taxable income, should be borne by the

However, as long as a tax authority imposes tax on the basis of the value of supply of goods reported by a taxpayer, it is necessary for a taxpayer who is easy to present data, such as books and evidence, to assert and prove it (see, e.g., Supreme Court Decision 2005Du16404, Apr. 14, 2006).

(B) The Defendant calculated the supply value of balcony extended construction services that the Plaintiff supplied to the instant executor on the ground that the ratio of supply value of balcony extended to the total supply value of apartment buildings supplied by the instant executor to the buyer (hereinafter “the instant supply value ratio”) was based on the total supply value of national housing and balcony extended construction in the instant building.

In full view of the following circumstances, namely, the instant construction contract was concluded without distinguishing the instant construction work from balcony construction work and balcony expansion work, and thus, it is not possible to calculate each supply price based on the amount stated in the contract. ② The instant disposition based on the premise that the Plaintiff’s supply price ratio and the Plaintiff’s supply price are the same as the “cost ratio” of balcony expansion work that the Plaintiff received from the instant construction company, unless the Plaintiff submitted a value-added tax return by dividing the respective supply price into the instant construction work and balcony expansion work, can be reasonably acknowledged. ③ If the construction price is determined without distinguishing the apartment construction work and balcony expansion construction work as in the instant national housing construction contract, and if the taxpayer fails to file a value-added tax return or submit data, it is reasonable to view that the imposition of value-added tax can not be calculated on the supply price of balcony expansion construction if it is considered that the taxpayer cannot actually be assessed on the basis of the method of the contract or the taxpayer’s intent, and that the cost ratio of balcony expansion construction work that the Plaintiff supplied to the instant construction company should be different from the Plaintiff’s submission of data.

However, in light of the following circumstances, which are acknowledged as comprehensively considering the purport of the entire pleadings in the items in Gap evidence Nos. 5 through 8, namely, the statement of the calculation of the cost of expanding the balcony submitted by the plaintiff was prepared at the closing of the tax investigation, and there was no data, such as the tax invoice received as a supporting part, and the amount of the calculation sheet of the cost of expanding the balcony is not consistent, and a part of the calculation sheet of the cost of expanding the balcony is larger than the amount of the balcony extension in comparison with the amount of the balcony extension entered in the balcony extension cost calculation statement submitted by the plaintiff, the only increased portion cannot be calculated as the supply price of the balcony extension construction, and there is no evidence to prove that there is no difference between the part supplied by the plaintiff to the execution company of this case and the cost ratio of the part supplied by the execution company to the buyer of this case against the principle of reasonable taxation. Therefore, it cannot be viewed

4. Conclusion

Therefore, the part of the claim for revocation as to the reduced part of the lawsuit in this case is unlawful. Thus, the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.