Daegu District Court 2013Guhap1033 ( August 01, 2014)

Determination on the calculation method of common purchase tax amount of value-added tax by concurrent operators of tax and non-taxable business

The disposition of this case, in which the Plaintiff’s subsidy income is divided into the value of supply because it does not correspond to the price for the non-taxable business.

Article 16 of the Value-Added Tax Act

2014Nu5935 Disposition to revoke the imposition of value-added tax

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April 24, 2015

May 29, 2015

1. The defendant's appeal is dismissed.

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

3. The phrase "132,613,580 won for the first term of 2007" in paragraph (1) of the order of the court of first instance shall be corrected to read "143,613,580 won for the first term of 2007".

1. Purport of claim

The Defendant’s first term portion 143,613,580 won, February 8, 2012, 2007 against the Plaintiff, the second term of 2007, and the second term of 2007.

Sector 186,829,510 won, first term portion of 2008 132,034,430 won, second term portion of 208 215,220,440 won,

The first term portion of 209 176,546,240, the second term portion of 2009 120,181,190, and the first term portion of 2010

130,300,300, for the second term of 2010, for the second term of 2010, for the first term of 201, for the first term of 201, for the first term of 101,483,030, respectively.

The imposition of value-added tax and the imposition of value-added tax of KRW 286,087,030 for the second period of February 1, 2012 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons why the court should explain the instant case are dismissed or examined as follows.

For the defendant's argument specifically emphasized in this section, the determination as described in paragraph 2 below is made.

Article 8(2) of the Administrative Litigation Act, civil action, because the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance.

It is cited by the main sentence of Article 420 of the Forwarding Act as it is.

○ The 6th judgment of the first instance court is "test products of the textile industry", which are considered as "test products of the textile industry".

○ The term "income from subsidies" in the title line among the seventh table of the judgment of the court of first instance shall be "income from non-taxable (income from subsidies)".

Of the list of real estate in attached Form 19 of the judgment of the first instance court, the "refratt tank" in the fourth sentence is added to the "refratt tank" as the "refratt concrete building".

2. Additional determination

A. The defendant's assertion

1) For projects related to research and development of the textile industry, which is the Plaintiff’s proper purpose business:

Since the construction cost is established, it shall be deducted as the purchase price related to the non-taxable project.

It is reasonable that it is not reasonable to do so.

2) In the case of the Plaintiff, a subsidy for the implementation of a specific task is paid, and a subsidy after receiving the subsidy.

the amount of purchase by carrying out each project project for the Corporation, and the appropriate disbursement of the subsidy

not only shall submit a periodic report on the settlement of each project with the subsidy granting agency for purposes of this section.

In addition, the measures to be taken to recover if the violation of the law occurs after the receipt of the subsidy.

In light of the circumstances, such as Article 11 and Article 12 of the New Business Agreement, subsidies shall be the consideration for the implementation of the project. Therefore, in calculating the purchase amount related to the non-taxable project of common input tax, it is reasonable to include subsidies in calculating the value of supply of non-taxable projects.

3) Also, the purchase amount paid for the plaintiff's proper purpose business must be deducted.

However, it is difficult to find an appropriate method of distribution to separate the portion to be deducted from the portion not to be deducted.

C. According to the Plaintiff’s report, the percentage of the total amount of income of taxation to the total amount of income.

20.15% merely amounts to 20.15%, while the input tax deduction rate amounts to 87.93%, a non-taxable project.

not included in the value of supply, the input tax amount that the Plaintiff is entitled to be deducted from the output tax amount shall be

As a result of a sudden increase, the value of supply in a non-taxable business is currently the value of the subsidy.

The most realistic and reasonable alternative method to calculate the common purchase tax by deeming the method to be a method of calculating the common purchase tax.

(c)

4) Meanwhile, the part on the input tax deduction is favorable to the taxpayer and is located within the control area of the taxpayer, and thus, the Plaintiff, the taxpayer, must prove it.

B. Determination

1) As seen in the facts of recognition of the judgment of the first instance court cited by the trial court, the instant center is unlawful in deeming the entire cost related to the establishment of the instant center as the purchase amount related to non-taxable projects and deducts all input tax amounts therefrom from all input tax amounts. The instant center is established for the purpose of obtaining domestic certification through the production of Sbibers, the provision of products and new technology, education, testing, analysis and testing, and testing certification, the support for technical assistance and production through the implementation of joint technical tasks with the State and industrial enterprises, and the provision of testing and analysis technology to the production and demand enterprises through domestic certification, etc.

2) The supply of services without consideration is not subject to value-added tax. The subsidy received by the Plaintiff is based on Articles 42 and 00 of the Industrial Technology Innovation Promotion Act, the Ordinance on the Promotion and Management of Entrustment of Affairs to the Private Sector, and the Ordinance on the Management of Subsidies of 00do not only the general operating subsidy but also the specific task subsidy is not recovered or the next subsidy is not paid in accordance with the failure of research and development. In addition, under Articles 11 and 12 of the Agreement on the Promotion of Knowledge Economy Technology Innovation and Technology Innovation, the project executor must comply with the relevant laws, etc., and the project executor shall take measures to recover the total, partial, and the balance of the subsidy depending on the reason attributable to the project executor in violation of the relevant laws, etc. However, it is merely a regulation on sanctions against violations, and it cannot be deemed that the subsidy falls under the consideration for the implementation of the project. Therefore, in calculating the purchase amount related to the non-taxable purchase tax amount, the Defendant’s calculation of the non-taxable project is unlawful.

3) As examined in the reasoning of the first instance judgment cited by the trial court and the above 2) above, it is unlawful for the Defendant to calculate the input tax amount corresponding to the non-taxable business, including the non-taxable supply price, and as long as the subsidies cannot be included in the non-taxable supply price, the Defendant’s calculation of the input tax amount corresponding to the non-taxable business. Thus, Article 61(1) of the former Enforcement Decree of the Value-Added Tax Act, which provides that the common input tax amount shall be calculated according to the ratio of the supply value of the non-taxable business and taxable business, cannot be applied mutatis mutandis to the calculation of the common input tax amount common to the non-taxable business

Added value is found to be suitable for the calculation method of the common input tax amount of this case among the calculation method in this case.

tax should have been imposed, and the amount of tax revenue out of the amount of income in the Plaintiff’s report accounts for

The percentage of input tax deduction is merely 20.15%, on the sole basis that the percentage of input tax deduction reaches 87.93%.

the method of calculating the common input tax by deeming the amount as the value of supply in a non-taxable business

It is difficult to regard it as a long-term and reasonable alternative.

4) In an appeal seeking the revocation of an administrative disposition, the burden of proving the legality of the disposition

An administrative agency is the defendant who is the defendant (see, e.g., Supreme Court Decision 83Nu492, Dec. 13, 1983); there is a reason to determine the estimated tax base and tax amount by the on-site investigation decision; and

, if any, in a reasonable and reasonable manner, and the basis for such estimation

With respect to the rationality and validity of the method of existence and estimation, taxation intending to obtain the legality of disposition.

The Office is responsible for asserting and proving this (Supreme Court Decision 90Nu3140 delivered on May 12, 1992).

(C) This also applies to the case where the purchase amount related to the non-taxable business is calculated in accordance with the calculation method for the common input tax amount that is commonly used for the taxable business and the non-taxable business and thus cannot be distinguished

5) Therefore, the defendant's above assertion is without merit.

3. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is justified.

Since the defendant's appeal is justified as it is without merit, the defendant's appeal is dismissed as it is, and the "132,613,580 won for the first term of 207" in paragraph (1) of the judgment of the court of first instance is obvious that it is a clerical error of "143,613,580 won for the first term of 207", and it is so decided as per Disposition.