Whether a balcony expansion construction constitutes an auxiliary service exempt from taxation

Whether a balcony expansion construction constitutes an auxiliary service exempt from taxation

Article 26 (Exemption from Supply of Goods or Services)

Daejeon District Court-2013 Guhap-10196 Revocation of Disposition of Imposition of Value-Added Tax

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2014.04.03

oly 2014.17

1. The Defendant’s disposition of imposition of value-added tax of KRW 81,563,830 on January 4, 2013 against the Plaintiff was revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

The following facts may be acknowledged, if there is no dispute between the parties, or if the purport of the whole pleadings is added to each entry in Gap evidence of Nos. 1 through 3 and Eul evidence of No. 1 through 3 (including branch numbers):

가. 원고는 2007년 2기 부가가치세 과세기간 동안 대전 동구 에 있는 @@1지구에서 국민주택 규모(전용면적 85rrf 이하)인 아파트(이하 '이 사건 아파트'라 한다)를 공급하면서 일부 세대에 대하여 수분양자들의 선택에 따라 발코니 확장공사(이 하 '이 사건 용역'이라 한다)를 시행하였다.

B. The Plaintiff determined that the supply of the instant service is included in the supply of the instant apartment subject to value-added tax exemption and declared the value-added tax exemption on the instant service.

C. On January 4, 2013, the Defendant: (a) determined that the instant service was supplied separately from the supply of the instant apartment; and (b) issued a notice of correction to the Plaintiff of KRW 85,810,610 (including additional tax on negligent tax returns, KRW 838,254, KRW 23,942,831, and KRW 8,838,254, and KRW 8,838,254) on February 4, 2013; and (c) issued the disposition of imposition of KRW 85,810,610 on January 17, 2003, the Defendant corrected the disposition of imposition of KRW 81,563,830 (including additional tax KRW 37,514,039) (hereinafter referred to as the “Disposition of Disposition”).

2. The assertion and judgment

A. The parties' assertion

(1) The Plaintiff asserts that the instant service constitutes an ordinarily incidental supply to the supply of the instant apartment subject to value-added tax exemption in light of transaction practices, and thus constitutes an object of value-added tax exemption. Accordingly, the instant disposition that imposed an excessive exemption is unlawful.

(2) As to this, the Defendant asserts that the instant service is not subject to value-added tax exemption on the ground that the instant service is supplied at their own choice by the buyers, and that only 61 households among the 186 households of the instant apartment complex select and are supplied with the instant service. In light of the fact that only 61 households among the 186 households of the instant apartment complex select and are supplied with the instant service, it cannot be deemed that the instant

B. Relevant statutes

Attached Form 3 is the same as the entry of the relevant statutes.

C. The judgment of this Court

(1) Article 106(1)4 of the Restriction of Special Taxation Act, Article 106(4)1, and Article 51-2(3) of the Enforcement Decree of the same Act, Article 2 subparag. 3 of the Housing Act uses a national house with an exclusive area of 85 rf or less as one of the tax-exempt objects, and the fact that the apartment of this case corresponds to it is seen earlier.

Meanwhile, Article 1(4) of the former Value-Added Tax Act (amended by Act No. 9268, Dec. 26, 2008; hereinafter referred to as the “Value-Added Tax Act”) provides that the supply of goods or services essential to the supply of goods or services, which are the main transaction, shall be included in the supply of services, which is 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; hereinafter referred to as the “Enforcement Decree of the Value-Added Tax Act”) provides that one of the goods or services deemed included in the supply of goods or services, which is the main transaction, shall be deemed as a transaction practice, and whether any transaction constitutes an essential accompanying to the supply of goods or services, shall be determined by comprehensively considering the specific type of goods or services prescribed in Article 1(4) of the Act and Article 3(3) of the Enforcement Decree of the Value-Added Tax Act (see, 2085).

Therefore, I would like to examine whether the service of this case is included in the duty-free apartment that is normally supplied "the supply of the apartment of this case," which is subject to tax exemption in light of all circumstances, such as transaction details, etc.

(2) As to whether the incidental supply was made

Under the following circumstances, Gap evidence 3-1, 2, and Eul evidence 3-1 to 3, it can be acknowledged that the whole purport of the pleadings can be seen as follows: ① separate contract on selective items (service in this case) from the preparation of the apartment sale contract, and calculated the price for the service in this case separately from the above house sale contract, it is acknowledged that the above contract can be entered into with the separate contract clearly stating that the service in this case may be separated from the above contract, and it is also stipulated that the total price for the service in this case should be added to the above contract and the price for the service in this case should be added to the housing price for the apartment in this case and the construction price for the apartment in this case should be added to the apartment sale contract for the purpose of expanding the sale contract for the apartment in this case and the time for the sale contract for the apartment in this case shall be the same as the time for the sale contract for the apartment in this case to be used separately from the sale contract for the purpose of the supply of the apartment in this case.

(3) As to whether “the supply” was ordinarily incidental in light of “the practice of the transaction”

According to the statement in Eul evidence No. 2, among the 186 households that purchased the apartment of this case, the households that selected and supplied the service of this case can recognize the fact that they are 61 households.

However, in light of the following circumstances: ① one household engaged in the construction of balcony expansion works among the total apartment units 14,473 households in the size of national housing sold by the Plaintiff in 208, around the end of the taxable period of the second value-added tax, which can be recognized by comprehensively considering the overall purport of arguments as to Gap evidence 4-1 and 2; ② one household engaged in the construction of balcony expansion works among the total apartment units exceeding national housing scale of 17,220 households has a high ratio of the balcony expansion construction works to 14,56 households (84%) among the total apartment units exceeding national housing scale; ② one household engaged in the construction of balcony expansion works has a total of 103,189 (94%) in the number of national housing units sold by the Plaintiff from 208 to 2013; ② one household engaged in the construction of balcony expansion in the aggregate of 14,141 households, and one household's total of 201,314,615 households' residential accommodation supply.

(4) The theory of lawsuit

Therefore, the instant service is included in the supply of the instant apartment subject to tax exemption under the Restriction of Special Taxation Act, and thus constitutes the supply of the service subject to tax exemption, and the instant disposition imposing the principal tax and the additional tax on the premise that the supply of the instant apartment is not included in the supply of the instant apartment, is unlawful.

3. Conclusion

Therefore, the claim of this case is reasonable, and it is so decided as per Disposition.