Busan High Court 2007Nu4100 ( March 21, 2008)

National High Court Decision 2006No2412 ( October 12, 2006)

Tax credit for the input tax invoice issued retroactively after the lapse of the taxable period to which the time of supply belongs

Even if a tax invoice is prepared and delivered (within July 10) retroactively, after the expiration of the taxable period to which the time of supply for goods belongs, within the taxable period to which the time of supply belongs, and is made pursuant to the special case of delivery under Article 54 of the Enforcement Decree, it is possible to deduct the input tax amount.

The contents of the decision shall be the same as attached.

쇠지지지 3000 개은은은은은 3000 아은은은은은이 3000 아은은은은은은 3000 아은아은은은 3000 이 아은은 3000 이 300208 5537 Value Added

쇠지지300 쇠지지지 3000 지지지 3000 Maritime AffairsA

쇠지지300 쇠지지지 3000 B2

Article 300 gross u300 u3000 u u3000 u u3000 u u3000 Busan High Court Decision 2007Nu4100 decided March 21, 2008

쇠은은 개은은 개은은은 3000 개은은은 3000 아은은이 3000 개이 이 3000 개은이 19,0020

44 44 44 44 44 45 44 444 64 44

The judgment below is reversed, and the case is remanded to Busan High Court.

쇠鹬 쇠鹬 3000 쇠鹬 3000

We examine the grounds of appeal.

Article 16 (1) of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006; hereinafter referred to as the "Act") provides that where an entrepreneur registered as a taxpayer supplies goods, a tax invoice stating the necessary matters to be entered, such as the registration number, supply value, and value-added tax amount of the supplier at the time of supply, shall be delivered to the person who is supplied the goods: Provided, That in cases prescribed by the Presidential Decree, the time of delivery may vary, and accordingly, Article 54 subparagraph 3 of the former Enforcement Decree of the Value-Added Tax Act (hereinafter referred to as the "Enforcement Decree of the Value-Added Tax Act") (hereinafter referred to as the "Special Provision for Delivery") provides that the entrepreneur may issue a tax invoice as the date of issuance by the tenth day of the month following the month in which the goods are supplied, if it is verified by relevant documentary evidence, etc.

Meanwhile, Article 17(1) of the Act provides that the amount of value-added tax payable by an entrepreneur shall be the amount calculated by deducting the input tax amount from the output tax amount. Article 17(2) of the Act provides that the following input tax amounts shall not be deducted from the output tax amount, and Article 17(2) of the Act provides that the input tax amount shall not be deducted from the output tax amount: Provided, That the case where the tax invoice delivered under Article 16(1) and (3) states that the whole or part of the requisite entry items are differently entered from the fact (hereinafter referred to as the "tax invoice different from the fact") shall be excluded from the case prescribed by the Presidential Decree, and Article 60(2)3 of the Enforcement Decree provides that the input tax amount shall be one of the cases prescribed in the proviso of Article 17(2)1-2 of

The provision of the special case of delivery of this case aims to alleviate the problem that an entrepreneur who receives goods fails to comply with the taxation period under the Value-Added Tax system that imposes tax on a unit of the taxable period, and that the scope of its application is not limited in accordance with the special case of delivery, even if a tax invoice is prepared and issued retroactively to the taxable period to which the date of supply belongs after the expiration of the taxable period to which the relevant goods are supplied, if it is prepared and delivered pursuant to the special case of delivery of this case, it does not constitute a "tax invoice different from the fact" provided in the main sentence of Article 17 (2) 1-2 of the Act, if the tax invoice is prepared and delivered in accordance with the special case of delivery of this case, even though it is a tax invoice prepared and delivered by the entrepreneur pursuant to the special case of delivery of this case, to which the date of supply belongs.

According to the reasoning of the judgment below, the court below found that the plaintiff completed the registration of ownership transfer on June 8, 2005 concerning the real estate of this case, which is part of the building located in Changwon-dong, Changwon-dong, 99-1, Changwon-si, 2005, and the plaintiff completed the registration of real estate rental business on July 9, 2005 with its place of business as the real estate of this case, and issued the tax invoice of this case retroactively prepared on June 21, 2005 and June 22, 2005 with the date of issuance as to the supply of this case from YY General Construction Co., Ltd. on the same day, and determined that the time of supply of this case was June 21, 2005 upon the registration of ownership transfer, and the plaintiff received the tax invoice of this case retroactively prepared on July 9, 2005, which was after the expiration of the tax period to which the time of supply belongs, and thus, the plaintiff did not receive the tax invoice of this case.

However, in light of the above provisions, legal principles, and records, the tax invoice of this case was prepared and delivered on July 9, 2005, which was within the 10th day of the month following the month belonging to June 21, 2005, when the real estate was supplied pursuant to the special provision for delivery of this case, and thus, it does not constitute a "tax invoice different from the facts" under the main sentence of Article 17 (2) 1-2 of the Act.

Nevertheless, the lower court determined otherwise by misapprehending the legal doctrine on the interpretation of Article 17(2)1-2 of the Act and the special provision on the issuance of this case, thereby adversely affecting the conclusion of the judgment, solely on the ground that the tax invoice of this case was prepared and delivered retroactively by the publishing date after the lapse of the taxable period to which the relevant time of supply belongs.

The ground of appeal pointing this out is with merit.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.