Seocho 2015 Schedules4695 (25 April 2016)

A sublease may not be deemed as a business operator under the Value-Added Tax Act.

It is difficult to regard the amount of the sublease as a taxpayer of the value-added tax on the amount of the sublease because the sublease who has concluded a sublease contract with the lessee constitutes a person who independently supplies services for business purposes, and there is no other evidence

Article 2 of the Value-Added Tax Act

2016Guhap5839, revocation of revocation of refusal to correct additional value-added tax

○ ○

○ Head of tax office

March 21, 2017

April 14, 2017

1. On June 10, 2015, the Defendant’s imposition of each value-added tax on the Plaintiff (attached Form 1) shall be revoked on the following grounds: (a) the details of each imposition of each of the instant case; (b) the revised tax amount

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

Cheong-gu Office

The same shall apply to the order.

- 2-

1. Details of the disposition;

A. AA, BB, and CCC are co-owners, constructing five-story buildings on the ground of 401.3 square meters above ○○-dong, Seoul, ○○-dong, ○○-dong, ○○-dong, ○○-dong, ○○-dong, ○○-dong, ○○-dong, ○01.3 square meters, which are owned by AA, BB-, and CCC with 2/7 shares, and completed registration of initial ownership on August 21, 1984 by sharing 1/3 shares, respectively.

B. The Plaintiff is the husband of BB. With the implied consent of AA and CCC, the Plaintiff and BB exercised authority over the use and profit-making and management of the instant building, such as maintenance and repair of the building, conclusion of a lease agreement, receipt of lease deposit and rent, refund of lease deposit, and recovery of possession of the building from the time of the construction of the instant building, and have distributed profits after deducting expenses incurred in the management of the building, such as taxes and public charges, to AA, BB, and CCC.

C. AA, BB, and CCC have leased the instant building at a deposit of KRW 161 million to the Seoul 4 District bBB union (hereinafter referred to as the “Seoul 2B union”), but the said lease was terminated on March 31, 1986, and the said lease was returned from bB union. AA and CCC did not separately provide funds for the repayment of the obligation to refund the lease deposit. From April 1986 to June 1, 1988, the Plaintiff and BB resolved the obligation to refund the lease deposit by paying the sum of KRW 186,342,129 to BB union.

D. The Plaintiff distributed profits from the low-rises of the instant building to AA, BB, and CCC as before. However, the Plaintiff calculated the rent from the high-rises of the instant building to the Plaintiff and BB, regardless of the difference of rent, and paid to AA, BB, and CCC a certain monthly amount (1.5 million won for the first time of July 1991 after the commencement of payment from around 1990; 1.8 million won for the first time of September 1996; 2 million won for the first time of January 2002; and 2.5 million won for the first time of January 2003).

E. AA and CCC 20 on January 20, 209: (a) the Plaintiff and BB made an order to exclusively use the instant high-rise building and (b) the Plaintiff and BB on the 20th floor without legitimate authority; and (c) the Plaintiff filed a lawsuit against the Plaintiff and BB on March 4, 2010 (Seoul ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ②.

F. Accordingly, the Defendant: (a) deemed that the Plaintiff sub-leases the high-rises of the instant building without having registered its business; and (b) rendered ex officio business registration with respect to the Plaintiff; and (c) rendered a disposition imposing each value-added tax on the sub-loan revenues from June 10, 2015 (attached Form 1) as indicated in the “the details of each disposition of imposition of the instant case” from the first half to the second half of 2012.

G. On September 9, 2015, the Plaintiff filed an appeal with the Tax Tribunal on each of the above dispositions. On April 25, 2016, the Tax Tribunal ordered that the Defendant’s each of the above dispositions should be corrected by excluding the non-issuance of tax invoices, the additional tax on non-issuance of tax invoices, the additional tax on non-Submission of the specifications of real estate rent supply amount, and the additional tax on non-payment and return, and thus dismissing the Plaintiff’s remaining appeal. Accordingly, on May 13, 2016, the Defendant issued a decision of correction to reduce each of the above dispositions (attached Form 1] as stated in the revised tax amount column after the reduction (hereinafter “each of the above dispositions”).

2. Related statutes;

[Attachment 2] The entry is as specified in the relevant statutes.

3. Whether the instant disposition is lawful

The lower court determined that: (a) the Plaintiff concluded a sub-lease contract with the 1st, 2, 3, 7-1, 12, 13-2, 13-2, and 3 of the evidence No. 8, and the following facts or circumstances, which were recognized or known to the effect of the entire pleadings, for the purpose of reasonably coordinating the legal relations between the Plaintiff and the 1B, 2, and 3-1 and 4-6-2 of the instant building rent No. 3, which were not sub-leaseed by the 1st, 2, 30-2, 6-2, 2, 3, 3, 4, 6, 6, 6-2, 6, and 6-2, 200, 6-2, 206, 6-1, 3, 3000, 6-2, 6, 3000, 6-2, 208, 201.

Therefore, each of the dispositions of this case must be revoked in an unlawful manner.

4. Conclusion

If so, the plaintiff's claim of this case is reasonable and acceptable.