Supreme Court-2016-Du-51788 (No. 25, 2017)

Seoul Administrative Court-2014-Gu Partnership-74824 (No. 29, 2016)

Common input tax incurred in facility modernization projects by phaseal circulation development shall be calculated proportionally according to the ratio of supply value.

The input tax amount of this case is reasonable to be calculated pro rata according to the ratio of each supply value of taxable businesses and tax-free businesses to the total supply value.

Article 17 (7) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013)

Article 61 (1) of the Enforcement Decree of the Value-Added Tax Act]

2017Nu34799 Disposition of revocation of refusal to correct value-added tax

Seoul Metropolitan Government OOOO Corporation

○ Head of tax office

April 20, 2017

May 11, 2017

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The period of each time indicated in the attached Table No. 300 on December 20, 2013 by the Defendant against the Plaintiff.

The term "tax amount claimed for refund" among the value-added taxes revocation of rejection of an application for reduction or correction for each amount described therein.

(c)

2. Purport of appeal

The same shall apply to the order.

1. Partial citement of judgment of the first instance;

The grounds of the judgment of this court are as follows: 1. From 1. to 2. Whether the disposition of this case is legitimate, 1.

The plaintiff's assertion, (1) the plaintiff's assertion, (2) the defendant's argument, and (2) the Act and subordinate statutes, and (5) the decision of the court of first instance

From 1 to 2, 11, 2, 2, 3, 2, 2, 2, 2, 2, 3, 2, 3, 4, 2, 2, 20, 14, 13, 14, 13, 2, 4, 2, 10, 4, 2, 10, 2, 10, 2, 2, 3, 4, 2, 5, 2, 5, 5, 10, 4, 10, 4, 10, 4, 2, 2, 5, 2, 5, 10, 2, 5, 10, 2, 2, 3, 4, 2, 5, 2, 5, 1, 2, 5, 1, 2, 1, 3, 1, 2, 3, 3, 3, 2, 2011.

2. Parts that vary from the judgment of the first instance court;

C. Determination

1) Article 17 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013)

According to Paragraph (7) and the main sentence of Article 61(1) of the Enforcement Decree thereof (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter “Enforcement Decree”), where an entrepreneur concurrently operates a taxable business and a tax-free business, the input tax amount related to the tax-free business shall be calculated according to the actual attribution; however, the input tax amount related to the tax-free business shall not be divided into the parts related to the taxable business and the tax-free business (hereinafter “common input tax amount”) and the portion related to the tax-free business; and as a matter of principle, the common input tax amount shall be calculated according to the ratio of the total supply amount to the portion related to the business in which the common input tax amount was generated. However, if each of the above business is separated or independent, the common input tax amount shall not be divided based on the supply value. In such cases, whether each of the above business is related to each other, taking into account the reason why the common purchase tax amount was generated, the purpose of the business operation tax amount, the business type and the common supply value related situation.

On the other hand, the portion of the business where the common input tax has occurred and the portion of the business where the value has accrued

Value of supply of taxable business and tax-free business during the relevant taxable period due to reasons such as interest and independence;

When there is no interest or no value of supply for any of the businesses, the common input tax amount shall be the value of supply.

Since it cannot be divided according to the ratio, the ratio of purchase price, the ratio of the estimated supply price, etc. shall be applied.

such proportion shall be divided, but if the building is newly constructed or acquired and provided for taxable business and tax-free business, the example thereof;

If the area can be divided, the estimated use related to the tax exemption project for the total expected use area;

The ratio of area shall be divided in proportion to the ratio of area (Article 61 (4) of the Enforcement Decree).

2) In addition to the facts acknowledged earlier, the following are revealed by the aforementioned evidence.

Examining the circumstances in light of the legal principles as seen earlier, the first stage project during the instant taxable period

aside from the existing business operated by the Plaintiff in the AA market place during the same period;

Since it is difficult to see that the input tax amount of this case is part of the business established, Article 61 (1) of the Enforcement Decree

the total supply value of each taxable business and tax-free business arising from the business establishment AA market;

It is reasonable to calculate the ratio of the class in proportion to the class.

A) The AA market modernization project promoted by the Plaintiff is carried out in excess of agricultural and fishery products and at the time of wholesale and retailing

In order to resolve the congestion and increase in distribution costs due to the mixture of snow, major facilities over three stages;

The reconstruction content was carried out.

B) The Plaintiff shall continue to maintain the business of the existing merchants without temporarily suspending the business in its process.

for each stage of circulation development, and for each stage of such modernization project to be carried out;

Three minutes of the site at a AA market place which is a single workplace, one step while the first step is in progress.

AA market business shall be transferred to another site by a merchant who has operated his/her business on the site.

each in the same manner, even if the two and three stages are in progress consecutively thereafter.

before the Corporation has been completed or implemented by the merchant who had been engaged in the business in the site;

It was planned to move to the site to continue the business.

C) As such, the Plaintiff continues to operate the existing business even while the phase 1 business is in progress.

The project of this case, such as modernization of facilities in the AA market place of business, etc.

It is only promoted to improve business conditions.

3) According to the above, the Plaintiff’s lawful tax amount payable is the Plaintiff’s voluntary payment.

It shall exceed an amount calculated by subtracting each amount in the column of the refund determined tax amount in the annexed sheet from the amount of tax in excess.

3. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be this.

As the conclusion is inappropriate differently, the defendant's appeal is accepted, and the judgment of the first instance is revoked, and the plaintiff is revoked.

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