Daejeon District Court 2012Guhap1879 ( October 23, 2013)

Cho Jae-chul201 Jeon 4917 ( October 27, 2012)

An input tax amount before the registration of business is made shall not be deducted.

The input tax prior to the registration of business shall not be deducted. This only gives a disadvantage in taxation as a sanction against a person who has failed to perform the registration of business, and it does not block the transfer of taxes to the other party to the transaction, and even if a business operator pays a lot of value-added tax, it cannot be viewed as contrary to the basic principles of value-added tax.

2013Du398 Disposition Revocation of Imposition of Value-Added Tax

Appellant and Appellant

IsaA

- Appellants

The Director of Budget Office

Daejeon District Court Decision 2012Guhap1879 Decided January 23, 2013

May 23, 2013

June 13, 2013

1. Of the judgment of the court of first instance, the part concerning the claim for revocation with respect to the following excess, and the part concerning the claim for revocation with respect to the above excess shall be dismissed. On August 3, 2011, the part in excess of 000 won among the imposition disposition of the first value-added tax (excluding additional tax) on the Plaintiff on August 3, 2006 and the part in excess of 000 won among the imposition disposition of the second value-added tax (excluding additional tax) on the Plaintiff on August 5, 201 with respect to the Plaintiff on August 5, 2011.

2. All of the Plaintiff’s appeal is dismissed.

3. 80% of the total costs of litigation shall be borne by the Plaintiff, and 20% by the Defendant respectively.

1. Purport of claim

The Defendant imposed on the Plaintiff on August 3, 201 the first value-added tax (including the additional tax) in 2006, the second value-added tax (including the additional tax) in 2006, the second value-added tax (including the additional tax) in 2006, and the first value-added tax in 2007 (including the additional tax) in 2007, the second value-added tax (including the additional tax) in 2007, the first value-added tax (including the additional tax) in 2000, and the second value-added tax (including the additional tax) in 2008, and the second value-added tax in 2008 (including the additional tax) in 200, and the second value-added tax in 2009 (including the additional tax) in 2009, respectively, and the second value-added tax (including the first tax in 2000) in 209.

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The defendant's first value-added tax (including additional tax) of 2006 against the plaintiff on August 3, 201 (i.e., 000 won - 000 won), second value-added tax (including additional tax) of 2006, first value-added tax of 2007, first value-added tax (including additional tax) of 1007 against the plaintiff on August 5, 201, and second value-added tax (including additional tax) of 200, second value-added tax (including additional tax) of 2000, and second value-added tax (including additional tax) of 2000, second tax (including additional tax) of 2008, second tax (including additional tax) of 2000, second tax (including additional tax) of 2000, second tax of 2009, second tax (including additional tax) of 2009, second tax of 2009.

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

1. Details of the disposition;

A. The Plaintiff and his spouse KimD operated the 'OOO' that sells food, clothing, etc. to the construction workers at the construction site of Daejeon through Daejeon Island 98-3 Section 98 Section, which was performed by the EE Development (hereinafter referred to as the "EE Development") under the conditions that they had not completed their business registration from the Llst taxable period in 2006 to the second taxable period in 2009.

B. The Defendant: (a) conducted a tax investigation on EE development; (b) on the grounds that the Plaintiff did not report the value-added tax on the provision of food services, etc. as above; and (b) on August 3, 201 and August 5, 2011, after completing business registration with the Plaintiff, the Plaintiff entered the following [Attachment 1]:

The disposition of value-added tax, such as value-added tax, was taken (hereinafter referred to as "the disposition of this case").

[Attachment 1] omitted

C. On January 27, 2012, the Plaintiff rendered a decision to the Tax Tribunal to the effect that “The Plaintiff returned the instant disposition to EE Development,” re-examineed the actual return of KRW 000 in 2006, KRW 000 in 2007, and KRW 000 in 2008, and KRW 000 in 2009, and dismissed the remaining claims according to the results.”

D. On October 17, 2012, the Defendant confirmed that on October 17, 2012, the Plaintiff returned some of the public salary charges subject to the instant disposition to EE Development (other than the value-added tax of No. 2009), and that each of the value-added tax of No. 1 to No. 2006 (excluding the value-added tax of No. 2009) was corrected as indicated in the corresponding column of value-added tax [Attachment 2] as stated in the corresponding column of the principal tax, and each of the additional taxes is somewhat

The amount or increase was corrected.

[Attachment 2] omitted

E. On the other hand, the Defendant, on December 13, 2012, on the ground that it did not specify the type of and basis for calculation of the additional tax at the time of the previous disposition, and on December 13, 2012, when the first instance trial is pending, revoked all of the imposition of the additional tax against the Plaintiff (which is related to the Plaintiff, remaining after the imposition of the value-added tax at the time of the first and second instances of 2006 or remaining after the subsequent correction disposition) and revoked 000 won of the value-added tax at the first instance court in 2006 and 000 of the value-added tax at the second and second instances of 208, respectively, in accordance with the purport of the first instance judgment on May 15, 2013 where the first instance trial is pending, and then the said [Attachment 2] revised each reduction as indicated in the corresponding column of the principal tax after the reduction at the first instance trial.

F. The part that the defendant revoked ex officio during the proceeding of the first island and the trial court after the disposition of this case is recorded in the corresponding column of the "attached 1".

[Reasons for Recognition] The non-satched Facts, Gap evidence 1, 5, and Eul evidence 1 to 3, 5, and 6 (if any, including each number), the testimony and the whole purport of the pleading of the witness Professor Professor at the first instance trial, and the testimony of the witness Professor at the first instance trial.

2. Part of the claim for revocation of each disposition listed in the corresponding column of the "Attachment 1" column among the lawsuit of this case

his lawsuit is lawful

Of the instant lawsuit, the part concerning the claim for the revocation of each value-added tax and additional tax imposed on the corresponding column of the corresponding column of the "Attachment 1" in the corresponding column of the pertinent lawsuit is acknowledged in Paragraph 1 as to the part concerning which the Defendant’s ex officio reduction, correction, or revocation of the imposition of taxes on the corresponding part by its own authority during the proceeding of the first island and the party trial, and thus the Plaintiff has no interest to seek the revocation by the instant lawsuit, and the said claim portion in the instant lawsuit is unlawful (see Supreme Court Decision 2004Du12698, May 12, 2006).

3. Determination on the remaining parts except each disposition listed in the corresponding column of the "Attachment 1" list among the dispositions of this case

A. Summary of the plaintiff's assertion

1) The instant disposition imposing value-added tax two years after the Plaintiff’s closure of business even though the non-taxable practice that did not impose tax on the Ocafeteria operator at the construction site was established is unlawful against the non-taxable practice or the principle of equity.

2) The Defendant imposed tax on the Plaintiff on the basis of the remittance amount of EE development, while EE development, in addition to the Plaintiff’s food stand, additionally remitted 000 won to the Plaintiff for on-site expenses, the Plaintiff withdrawn the said money in cash and returned it to EE development, and such returned money cannot be deemed as compensation for provision of services, etc. by the Plaintiff, which is the tax base of value-added tax.

3) The Defendant’s investigation and determination of the Plaintiff’s input tax amount through the on-site investigation, deducted it from the Plaintiff’s value-added tax amount, and applied the Plaintiff’s simplified value-added tax rate on restaurant business by analogy, but did not take such measures.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) As to the assertion of violation of non-taxable practice and the principle of equity

In order to establish the good faith principle or non-taxation practice prescribed in Article 15 and Article 18(3) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010) with respect to the tax and law acts of the tax authorities, the objective fact that there was no taxation on certain matters over a long-term period of time, and that there was an intention that the tax authorities would not impose taxes on certain matters with the knowledge that the tax authorities would be able to impose taxes on them, and that such intention would be externally and explicitly expressed, and that the tax laws interpretation or practice of the national tax administration generally accepted by the taxpayers under Article 18(3) of the same Act refers to a wrongful interpretation or practice, which was accepted by an unspecified general taxpayer who is not a specific taxpayer without any objection, and thus, it is unreasonable to deem that the taxpayer trust such interpretation or practice, and that there was no other evidence that the Plaintiff’s tax authorities did not impose taxes on the type of non-taxation, such as the Plaintiff’s non-taxation practice, even if it is against the Plaintiff’s operator.

2) As to the assertion that refund for EE development should be deducted from the tax base

A) Among the tax bases recognized by the Defendant, the Plaintiff asserted that the Plaintiff returned KRW 000 as indicated below [Attachment 3] as indicated above, and that the Plaintiff returned KRW 14,64,700 as indicated below [Attachment 3] to E E-Development, taking into account the overall purport of the testimony and arguments of the witness OO of the first instance trial, and the Plaintiff’s return of KRW 14,664,70 as indicated below [Attachment 3] to E-Development, and it is reasonable to deduct the amount indicated below [Attachment 3]’s “tax base deduction amount” from the above returned amount. However, according to the respective entries and arguments mentioned in subparagraph 3 and 6 (including various numbers), the Defendant accepted the above Plaintiff’s assertion on October 27, 2012 and May 15, 2013, and thus, the Plaintiff’s assertion that the above tax base was revoked ex officio as indicated below’s revocation of the tax base.

B) Therefore, the imposition of value-added tax for the first period to 2006, which remains in the instant disposition, should be lawfully maintained.

3) Whether the input tax amount is deducted

Article 17 of the Value-Added Tax Act provides that the amount of value-added tax payable by an entrepreneur shall be the amount calculated by deducting the input tax amount for the supply of goods or services used or to be used for his own business from the output tax amount for the goods or services supplied by him, and that the input tax amount prior to the registration of business under Article 5(1) shall not be deducted. This is merely a tax disadvantage as a sanction against a person failing to perform business registration, and as a result, it does not block the transfer of taxes to the other party to the transaction, and as a result, it does not go against the basic principles of the value-added tax (see, e.g., Constitutional Court Decision 2009HunBa319, Mar. 31, 201). In this case, the Plaintiff’s input tax amount may not be deducted from the output tax amount unless the Plaintiff has received the purchase tax invoice without its business registration, and the Plaintiff’s input tax amount may not be claimed from the Plaintiff’s input tax amount, and the Plaintiff’s tax amount may not be applied from the simplified taxable period for 207 years after its submission.

4. Conclusion

Therefore, the part requesting the cancellation of each disposition listed in the corresponding column of the "Attachment 1" in the lawsuit in this case is unlawful and all of them are dismissed, and the remaining claims of the plaintiff are all dismissed as it is without merit. Among the judgment of the court of first instance, the part exceeding KRW 000 of the imposition disposition of the value-added tax of 1, 2006 against the plaintiff on August 3, 201 and the part concerning the claim for cancellation of the part exceeding KRW 000 of the imposition disposition of the value-added tax of 2, 2008 (excluding additional tax) against the plaintiff on August 5, 201 and the part concerning the claim for cancellation of the second 2, 2000 won of the value-added tax of 2,000 (excluding additional tax) against the plaintiff on August 5, 201. Therefore, this part is revoked and all of this part of the lawsuit is dismissed, and it is so decided as per Disposition by the assent of all of the plaintiff's appeal.