Cho Jae-2013-Seoul Government-2131 (Law No. 138, 2013)

Service World Business is subject to value-added tax, and additional tax for unfaithful payment is a legitimate party.

Operating fees received from the other party to the transaction by the plaintiff who operates a serviced word wor business is subject to value-added tax, and disposition for imposing additional tax on non-paid tax is legitimate.

Article 34 of the Enforcement Decree of the Value-Added Tax Act, Scope of Lease Services of Housing and Land appurtenant thereto

2013Guhap21816 Revocation of Disposition of Imposition of Value-Added Tax

LAA

00. Head of tax office

December 6, 2013

February 11, 2014

1. The Defendant’s imposition of value-added tax on February 1, 2013 exceeds KRW 1,342,670 among the imposition of value-added tax on February 1, 2007; the first imposition of value-added tax in 2008; the exceeding KRW 2,611,590 among the imposition of value-added tax on the first imposition of value-added tax in 2008; the exceeding KRW 2,382,450 among the imposition of value-added tax on the second imposition of value-added tax in 2008; the exceeding KRW 2,369,700 among the imposition of value-added tax on the first imposition of value-added tax in 209; and the exceeding KRW 2,364,450 among

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

On February 1, 2013, the Defendant revoked each disposition of value-added tax of KRW 2,081,410 for the second period of value-added tax for the year 2007 against the Plaintiff, KRW 3,905,890 for the first period of value-added tax for the year 2008, KRW 3,430,930 for the second period of value-added tax for the year 2008, KRW 3,283,70 for the first period of value-added tax for the year 2009, KRW 3,170,810 for the second period of value-added tax for the second period of value-added tax for the year 209 (a clerical error appears as of July 15, 2013).

1. Details of the disposition;

A. The Plaintiff is a sectional owner who purchased a facility for the business of multi-family housing and BBBB (hereinafter “instant building”) of the main complex building located in 00-Gu, Seoul, and 00-dong, fromCC (hereinafter “CC”). The instant building was approved on April 25, 2005, and its main purpose was registered as a multi-family housing (multi-family housing). At the time of sale, the instant building was advertised to be a profit-backed apartment.

B. On July 28, 2005, the Plaintiff entered into an asset management delegation contract withCC on the instant building, and registered a rental business operator under the Rental Housing Act with the Gu Office on July 28, 2005, and registered a business operator under the Value-Added Tax Act on August 23, 2005. The main contents of the asset management delegation contract withCC are as follows.

-BBB Asset Management Delegation Clause-

Article 1 Purpose of Contract

The purpose of this Agreement is to entrust the management and operation of assets toCC for the instant building owned by the trustor and to comprehensively manage and operate the instant building.

Article 4 (Operation and Management)

(1) The duties ofCC shall be as follows:

1. Asset management services, such as parking expenses for cleaning, disease control and repair of the building of this case;

2. Operation and management of incidental facilities and welfare facilities for common use and safety control affairs;

3. Recruitment of tenants, collection of management rents, deposit of deposits, etc., and vicarious lease;

4. Vicarious registration of rental business operator:

Article 5 (Guarantee Benefits and Remuneration for Operation)

(1) The plaintiff's profits from the management entrustment shall be 7.5% per annum (including VAT) on the basis of the sale price of the building in this case, and monthly profits shall be deposited into the account of the financial institution designated by the plaintiff on the 20th

C. After entering into an asset management delegation agreement with the sectional owners of the instant building including the Plaintiff,CC has engaged in the business of lending the FFF to the short-term and long-term guests in the instant building, while paying the benefits of guarantee stipulated in the asset management delegation agreement to the owners of the instant building, including the Plaintiff, but the Plaintiff et al. considered the Plaintiff et al. as the housing lessor as the value-added tax-free business operator and did not receive the tax invoice, and the Plaintiff did not report the value-added tax on the said benefits. In addition, the Plaintiff did not receive the input tax deduction regarding the sales price of the instant building in relation to the sales price of the instant building.

D.CC provided various hotel-type services to short-term guests in the instant building, including door-to-door service, conference call service, parking service, washing service, room room service, cleaning service, etc., and entered into a lease agreement with respect to long-term guests for not less than 30 days. If a separate fee is imposed, such services as short-term guests shall be provided, and if a separate fee is imposed, a separate fee shall be provided to the guest room, such as PPTV, PETV, drum and washing machine, and other convenience facilities, such as bedclothes and kitchen goods, etc., which are facility-to-door accommodation, and the short-term accommodation shall be provided in advance with daily standard charges, and the guest room shall be used in combination with daily standard charges for short-term accommodation or monthly rent.

E. Since May 2005, comprehensive real estate tax and real estate property tax were imposed on the sectional owners of the instant building.

F. On April 23, 2007, the Board of Audit and Inspection made a notification to the National Tax Service on June 28, 2007, on the grounds that there is no clear criteria as to whether the business constitutes a housing rental business, which causes confusion in taxation. Accordingly, the National Tax Service’s statutory interpretation deliberation committee on June 28, 2007: (a) deeming the service store business as a lodging business; (b) it is difficult to determine the criteria for classification of the above business as well as the tax office; and (c) in cases where the service store business imposes a retroactive taxation due to the occurrence of a large amount of input tax in the initial business, it is difficult to determine the criteria for classification of the above business; and (d) deeming that there is a problem in taxation equity due to the lapse of the exclusion period of imposition, it was decided not to apply a large amount of input tax to the reported business operator, and accordingly, on August 7, 2007.

G. Meanwhile, on the other hand, on October 18, 2005, from around January 3, 2007 to around January 3, 2007,CC was sentenced to the judgment of the Seoul 00 District Court 2007Kadan0000, which was sentenced on July 31, 2007 to the crime of violating the Public Health Control Act that it operated a lodging business for many people without reporting to the competent authorities and used it as a lodging facility without obtaining permission from the competent authorities, and the crime of violating the Building Act was committed on June 26, 2008. However, on June 25, 2009 (Seoul 00 District Court 208No000). However, the appeal was dismissed on April 15, 2010 (Supreme Court 2009Do0000).

H. On April 26, 2010, the said 00 Gu Office notified the instant building of an order to correct illegal buildings, and the Minister of Public Administration and Security issued a local tax taxation standard to apply the Local Tax Act to multi-family housing contracted within 30 days from the short-term accommodation facilities on May 7, 2010.

I. After that, the director of regional tax office conducted a tax investigation with respect toCC from September 29, 2010 to December 24, 2010, and notified the Defendant, who is the disposition authority, of the assessment data to impose value-added tax on the proceeds of guarantee received from October 1, 2007 to December 31, 2009.

(j) On February 1, 2013, the Defendant imposed value-added tax of KRW 4,484,220 for the second term of 207, KRW 4,950,530 for the first term of 208, KRW 4,389, KRW 910 for the second term of 2008, KRW 4,231,820 for the first term of 209, KRW 4,231,820 for the second term of 209, and KRW 4,123,79 for the second term of 209 (including non-declaration, erroneous payment, and additional tax for non-issuance of tax invoices) (hereinafter referred to as “final disposition”).

(k) On April 18, 2013, the Plaintiff appealed with the Tax Tribunal. On June 11, 2013, the Tax Tribunal rendered a decision to the effect that, in light of the following: (a) although the imposition of the principal tax on the initial disposition is lawful, the provisions on the classification of the serviced type of business, and the provisions on the classification of the serviced type of business in the instant building were unclear; and (b) the Plaintiff paid the relevant tax by deeming the instant building as a house; and (c) there was a recent legal dispute over the classification of the serviced type of business in the instant building; and (d) there was a justifiable reason that the Plaintiff did not file a value-added tax return; (b) the additional tax on non-return and the non-issuance of the tax invoice

Other. According to the decision of the Tax Tribunal, the Defendant issued a disposition to reduce the portion of the non-declaration penalty tax and the non-issuance penalty tax (in conclusion, the remaining part of the original disposition, namely, the total amount of the principal tax and non-payment penalty tax, which are the same as that stated in the purport of the claim, hereinafter referred to as the "disposition in this case").

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, Eul evidence Nos. 1 and 2 (including evidence with serial numbers) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

After completing business registration as a housing lessor under the Rental Housing Act, the Plaintiff paid the business income tax in good faith after obtaining the business registration certificate from the Defendant, and the tax authorities did not have any problem about this.

Therefore, even if the type of the business run in the building of this case was determined as the lodging business subject to value-added tax, the Defendant’s administrative negligence cannot impose retroactively the value-added tax retroactively on the Plaintiff, who believed the Defendant’s business registration certificate for the exemption of value-added tax issued and complied with all statutes. This is because it is attributable to the Plaintiff, who did not have the possibility of expectation to

Furthermore, since the defendant issued the above business registration certificate and received the business income tax from the plaintiff, the so-called "administrative act" has occurred, it cannot be immediately imposed value-added tax, disregarding it, and even if imposing value-added tax, it is inevitable to cancel the above administrative act in which the fairness occurred and impose value-added tax in the future according to the revocation theory of administrative act.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Principal value-added tax portion

As seen in the background of the above disposition, as long as the service site business conducted on the instant building including three rooms owned by the Plaintiff is deemed a lodging business subject to value-added tax, the Defendant, in principle, may impose the principal value-added tax on the Plaintiff for the past taxable period before the exclusion period for imposition of value-added tax expires. This also applies to the Plaintiff’s failure to pay value-added tax for the previous taxable period, or there was no intention or possibility of expectation for the Plaintiff to do so. Such circumstance is related only to the legality of the disposition imposing value-added tax, which is the following separate assessment.

In addition, even if the defendant's fairness in the administrative act occurred, such as the imposition of income tax, it is not the meaning that the administrative act is effective until such administrative act is revoked, and it is not an obstacle to the defendant's imposition of value-added tax separately.

Furthermore, even if the plaintiff's assertion that the violation of the principle of protection of trust is included in the plaintiff's assertion, it is merely a taxpayer's request for business registration, and the head of a tax office issues business registration upon application for business management and does not determine the specific contents and the type of tax law. Therefore, it is difficult to regard the issuance of the business registration certificate as a public opinion list of the administrative agency, and it is difficult to view that the defendant issued the business registration certificate to the plaintiff, just because the defendant did not impose the value-added tax among them,

Therefore, there is no illegality in the principal part of the disposition of this case.

(2) Additional payment for arrears

In order to facilitate the exercise of the right to taxation and the realization of a tax claim, additional tax under the tax law is an administrative sanction imposed under the conditions as prescribed by the Act in cases where a taxpayer violates the duty to report and pay taxes under the Act without justifiable grounds and the taxpayer’s intentional negligence is not considered, and it is unreasonable for a taxpayer to be unaware of his/her duty due to a conflict of opinion due to intent beyond the simple scope of land or misunderstanding under the tax law, and there is a circumstance where it is unreasonable for the taxpayer to be unaware of his/her duty, or there is a circumstance where it is unreasonable for the taxpayer to expect the performance of his/her duty to pay taxes, etc. (see, e.g., Supreme Court Decisions 96Nu18076, Jul. 24, 1998; 2002Du6666, Aug. 23, 201; 2002Du3749, May 13, 2010).

6. In light of the above legal principles, the Plaintiff’s assertion that there was no possibility for the Plaintiff to pay value-added tax on the housing of this case, and that there was no legitimate ground for failure to pay taxes on the housing of this case, it is reasonable to view that the Plaintiff’s assertion that there was no reasonable ground for failure to pay taxes on the housing of this case. In light of the above legal principles, the distinction between accommodation business and real estate leasing business under the Value-Added Tax Act should be based on the Korean Standard Industrial Classification publicly notified by the Commissioner of the Statistics Korea pursuant to Article 2(1) and (3) of the Enforcement Decree of the Value-Added Tax Act. According to the above classification, it is reasonable to view that the Plaintiff’s assertion that there was no reason for failure to pay taxes on the housing of this case from the 0th anniversary of the establishment of the housing of this case, and that the housing of this case constitutes the housing of this case and the housing of this case’s sales business of this case’s 10th anniversary of the fixed rental period and the housing of this case’s 1st.

Meanwhile, even if there are justifiable grounds, the Defendant asserts that, unlike other additional charges, additional charges for arrears have the nature of interest in arrears that should have been paid in time, and thus, they may still be imposed unlike other additional taxes. However, as long as there is a kind of administrative sanctions as to nonperformance of tax obligation under the tax law, it is reasonable to view that the Defendant’s above assertion cannot be imposed pursuant to Article 48(1) of the Framework Act on National Taxes if there are justifiable grounds for non-performance of tax

Therefore, the part of the disposition of this case for additional payment is unlawful.

D. Sub-determination

As a result, the part of the principal tax of value-added tax in the disposition of this case is lawful and illegal, so the part exceeding the principal tax of value-added tax stated in the attached disposition of this case* should be revoked respectively.

* After calculating the tax amount based on each subparagraph of the instant building, the Defendant discarded less than 10 won under Article 47(1) of the National Funds Management Act, and imposed tax thereon. As such, the said principal tax amount was also discarded less than 10 won in the principal tax calculated based on each subparagraph, and the said tax amount was calculated by adding it to one taxable period unit.

3. Conclusion

Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and this is accepted.

The remaining claims are dismissed as it is without merit. It is so decided as per Disposition.