Cho-2015-Gu-1050 (2015.08)

Whether the value of the building is unclear

If the value of a building is separately sold by the parties concerned, it shall not apply to cases where the value of the building is unclear, and thus dispositions calculated by the appraisal value shall be unlawful.

Article 13 of the Framework Act on National Taxes

2015Guhap23665 Disposition of revocation of Disposition of Imposition of Value-Added Tax

OOO

O Head of tax office

December 23, 2015

January 27, 2016

1. The Defendant’s disposition of imposition of KRW 126,126,120 out of the value-added tax of KRW 129,093,620, which was imposed on the Plaintiff on November 12, 2014, shall be revoked.

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

The same shall apply to the order of the Gu office.

1. Facts of recognition;

A. On January 21, 2014, the Plaintiff purchased KRW 8,300,00,000 from AAAAA (hereinafter referred to as “AAAA”) for the purchase of the OO factory site of 6,94.9m2 (hereinafter referred to as “instant land”) and KRW 6,883.69m2 (hereinafter referred to as “instant building”) for the purchase of KRW 8,30,00,00,000 for the following terms and conditions (hereinafter referred to as “the instant sales contract”), and paid the first and second down payment to AAAASS.

�원고는 AAAAA에 계약금 100,000,000원은 계약 당일, 제2차 계약금 900,000,000원은 2014. 2. 14., 잔금 7,300,000,000원은 2014. 4. 30.에 각 지급한다. ��AAAAA는 잔금 수령과 동시에 원고에게 이 사건 토지 및 건물에 관하여 소유권이전등기에 필요한 모든 서류를 교부하고, 등기절차에 협력하며, 이를 인도한다. ��특약사항 : 1. 건물분의 부가세는 별도임, 2. 잔금 지급일은 서로 협의하여 결정한다. 나. AAAAA는 원고로부터 잔금을 지급받기 전인 2014. 4. 17. 이 사건 토지 및 건물의 각 가액을 정하기 위하여 BB회계법인에 그 산정을 의뢰하였고, BB회계법인은 이 사건 토지 및 건물의 총 대금 8,300,000,000원을 기준시가에 따라 안분하여 이 사건 토지의 가액은 5,466,576,679원, 이 사건 건물의 가액은 2,833,423,321원이라고 회신하였다.

C. On May 16, 2014, the Plaintiff paid the remainder to AAA, and completed the registration of ownership transfer with respect to the instant land and buildings. On the same day, the Plaintiff issued and issued a tax invoice stating the supply value of the instant land as KRW 5,466,576,679, and the supply value of the instant building as KRW 2,833,423,321, respectively.

D. Upon filing a value-added tax return for the first term portion in 2014, the Plaintiff was entitled to the deduction of KRW 2,833,423,32 of value-added tax on the instant building as the input tax amount, with the value of KRW 2,833,42,332 as the value-added tax amount.

E. On November 12, 2014, the Defendant issued a revised and notified the Plaintiff on November 12, 2014, the input tax amount of KRW 129,09,529,69, and the total value of the instant building was calculated as KRW 1,023,893,629 (i.e., KRW 2,833,423,321 (i.e., KRW 1,809,529,529,691) by deducting the input tax amount of KRW 102,389,362 from the total value of the instant land and the instant building, and of KRW 129,03,620 from the total value of the instant building (i.e., value of value-added tax on January 1, 2014).

F. On February 4, 2015, the Plaintiff sought revocation of the instant disposition to the Tax Tribunal, but was dismissed on July 8, 2015. Each description of the evidence of subparagraphs 1 through 8, 1 through 4 (including each number; hereinafter the same shall apply), the fact-finding results with respect to BB accounting corporations of this Court, and the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, without distinguishing the respective values of the instant land and buildings from AA and the instant building, prepared a sales contract by setting the total price of KRW 8,300,00,000, and decided to determine the respective values of the instant land and the instant building through the seller’s accounts before the remainder payment date. On April 17, 2014, the value of the instant land was determined as KRW 5,466,576,679, and the value of the instant building was determined as KRW 2,83,423,321, and was issued and issued a tax invoice by paying the purchase price. Although the Plaintiff and AAAA clearly classified the respective values of the instant land and the instant building, the instant disposition was unlawful in which the Defendant calculated the value of the instant building in proportion to the appraised value by considering that the actual transaction value is unclear.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) The main text of Article 29(9) of the Value-Added Tax Act provides that "where an entrepreneur supplies land and a building built on such land together, the actual transaction value of the building shall be the value of supply." The proviso of the same Article provides that "Where the distinction between the value of the land and the value of the building is unclear among the actual transaction value, the amount calculated as prescribed by Presidential Decree shall be the value of supply." Therefore, if the value of the land and the building is divided into the actual transaction value, there is no room for room to regard the amount calculated proportionally

2) When the Plaintiff and AAA prepares the instant sales contract, the fact that the Plaintiff did not distinguish each value of the instant land and buildings from that of the instant building and set the total amount of KRW 8,300,000,000 is as seen earlier.

However, as a basis for calculating the amount of tax, the actual transaction value refers to the value of assets transferred by the transferor at the time of the transaction and received as the price for such transfer, which is objectively recognizable by the sales contract and other documentary evidence (see Supreme Court Decision 98Du19841, Nov. 26, 199). In full view of the following circumstances known by the above facts, the value of the land and buildings in this case cannot be deemed to constitute a case where the value of the land and buildings in this case is not differentiated.

① The Plaintiff and AAA agreed that “The value-added tax on the instant building should be imposed separately as the special terms of the instant sales contract.” As such, at the time of the conclusion of the sales contract, the value of the instant land and the building should be determined separately.

② Accordingly, before receiving any balance from the Plaintiff, AAAA requested BB accounting corporation to calculate the value of the instant land and buildings. BB accounting corporation divided the total price of the instant land and buildings into KRW 5,46,576,679, and the value of the instant building into KRW 2,83,423,321 according to the standard market price. ③ The Plaintiff and AAAAA confirmed that the value of the instant land is KRW 5,466,576,576,679, and the value of the instant building is KRW 2,83,423,321 according to the standard market price. ③ The Plaintiff and AAAA agreed to divide the value of the instant land into KRW 5,466,576,679, and the value of the instant building into KRW 2,83,423,321 according to the value calculated as above at the time of paying the remainder.

④ Accordingly, on June 17, 2014, the Plaintiff paid KRW 283,342,332 of the value-added tax on the instant building to AA.

3) The instant disposition, based on the premise that the value of the instant land and the building is not distinguished, is unlawful, and the Plaintiff’s assertion is with merit.

3. Conclusion

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