Where the time of actual transaction and the time of receipt of tax invoice are not the same taxable period, whether to deduct input tax;

The taxable period to which the transaction date of real estate belongs is the first period of 2004, and the tax invoice is a different tax invoice from the fact that the taxable period to which the actual date of preparation belongs is the second period of 2004, and it is not the same taxable period.

Article 9 of the Value-Added Tax Act

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's refusal to refund value-added tax for the second term of 2004 against the plaintiff on March 2, 2005 and the imposition of value-added tax for the second term of 2004 KRW 315,600 shall be revoked, respectively.

2. Purport of appeal

The same shall apply to the order.

1. Quotation of the reasons for the judgment of the first instance;

The reasoning of the court's explanation concerning this case is that it is the same as that of the first instance court's decision in addition to the use of the last 3rd to the last 6th th th th th th th th th th th th th th th th th th th th th th th th th

- - Parts to be used for the project

(c) Fact of recognition;

The following facts may be acknowledged by comprehensively taking account of each of the aforementioned evidence, Gap evidence 1-1, 2, 4, 5, Eul evidence 4, Eul evidence 1-1, Eul evidence 12-1, Eul evidence 12-1, Eul evidence 15-1, Eul evidence 14, 16, 17, Eul evidence 18-1, Eul evidence 18-2, and Eul evidence 19-2, and the whole purport of the pleadings at ○○○○○○○○ of the witness of the first instance trial. Contrary to this, the entry of evidence No. 6 and the remaining testimony of the above witness are not believed, and there is no counter-proof otherwise.

(1) The instant sales contract states that with respect to the payment of the purchase price of KRW 935 million, the payment of KRW 160 million on the date of the contract shall be made, and the intermediate payment of KRW 300 million on February 17, 2004 shall be paid on the date of the contract, and the intermediate payment of KRW 250 million shall be succeeded to the status of KRW 250 million, and the remainder shall be KRW 225 million shall be paid on the special agreement, and the intermediate payment shall be terminated after the payment of the intermediate payment. ② The preservation registration of a building shall be completed in the name of the seller before the remainder payment date. ② Upon the completion of the remainder payment, the seller shall comply with any of the terms and conditions required by the buyer, namely, the claim for ownership transfer, provisional registration, establishment registration of a neighboring ownership, and ownership transfer registration.

(4) The balance paid may be changed according to the amount of loan and deposit for lease. (5) The seller shall transfer ownership to a person requested by the buyer. On the other hand, attached Form states that "the seller shall actively cooperate at the request of the buyer at the time of conclusion of a sales contract and lease of a commercial building. The seller shall not be liable for any financial problem, opinion, and other accidents after the conclusion of the contract with the buyer and the lessee of each floor. The bank shall pay the balance to the buyer as due."

(2) On February 27, 2004, the Plaintiff paid KRW 300 million to ○○○○ on the part of the intermediate payment (the foregoing special agreement was cancelled on April 16, 2004), and on April 30 of the same year, the remainder KRW 125 million out of the remainder of KRW 225 million out of the remainder of 225 million with financial standing on April 30 of the same year, upon which ○○○○ offered the instant real estate as collateral and agreed to appropriate the amount with loans from financial institutions. Accordingly, on the same day, Dong offered the instant real estate to ○○○○ Bank as additional collateral for the debt of KRW 10 million (30 million with the maximum amount of credit) and received KRW 100 million from ○○○○ Bank on the same day (this case’s real estate was newly established but later cancelled), and received KRW 500,000,000 won and KRW 500,000 from ○○○ on May 4 of the same year.

(3) Meanwhile, on April 6, 2004, ○○○ completed the registration of initial ownership preservation of the instant building on the Plaintiff’s request, and on May 6, 2004, upon the Plaintiff’s request, a provisional registration of the Plaintiff’s right to claim ownership transfer under the Plaintiff’s name on the ground of trade reservation on the instant real estate on May 4, 2004, and thereafter, upon the Plaintiff’s request, ○○○○○ made a lease contract with KRW 30 million on the first floor of the instant building and KRW 4 million on a monthly rent, between ○○○○ and ○○○ on June 10, 2004. The ○○○○ opened ○○○○ on July 6, 2004, and paid rent to the Plaintiff from July 6, 2004.

(4) Since the Plaintiff received an order on May 4, 2004, the Plaintiff continuously used and profit-making the instant real estate, and had colored the purchaser for the purpose of resale by means of omission of intermediate registration, but completed the registration of ownership transfer in its name on November 17, 2004, and completed the registration of ownership transfer on November 29, 2004. On the 29th of the same month, the Plaintiff transferred the instant collateral against ○○ Bank Co., Ltd., Ltd. on the ground of contract acceptance, and rescinded the additional collateral on the instant building.

(5) Meanwhile, on December 3, 2003, around the time of completion of the instant building, ○○○ was registered as the main issue for the new construction and sales business of the building, and on February 24, 2005, sold the instant building at the second time on February 24, 2004, and upon reporting the tax base of KRW 520 million and output tax amount of KRW 520 million at the second time in 2004, the value-added tax was not paid, and was finally disposed of as deficit.

D. Determination

(1) According to Article 9(1)2 of the Value-Added Tax Act, where the transfer of goods is not required for the time when the goods are supplied, the time when the goods are available means the time when the goods are actually used, and in case where the supplied goods are real estate, the time when the goods are made available, in principle, when the goods are made available for the actual purpose (see Supreme Court Decision 88Nu1745, Mar. 28, 1989).

In addition, comprehensively taking account of the purport of Articles 6(1) and 9 of the Value-Added Tax Act and Article 14 of the Enforcement Decree of the Value-Added Tax Act, the supply of goods refers to the delivery or transfer of goods on all contractual or legal grounds, and in light of the nature of value-added tax, such delivery or transfer is premised on the act of transferring ownership so that the goods can be used or consumed (see, e.g., Supreme Court Decision 93Nu18396, Feb. 10, 1995). Thus, even if a business operator concludes a sales contract to sell a building, and even if the sale price is liquidated or the transfer is registered under the name of the other party to the transaction, if the other party to the transaction transfers possession for exclusive use or disposal of the building, it constitutes the supply of goods under the Value-Added Tax Act (see Supreme Court Decision 2005Du2926, Oct. 13, 2006).

Meanwhile, Article 17 (2) 1-2 of the Value-Added Tax Act provides that "the date of preparation, which is a part of the requisite entry items in the tax invoice, is different from the fact," where the actual preparation date of the tax invoice is different from the fact. In such a case, if the transaction is verified as to the remainder of the tax invoice under Article 60 (2) 2 of the Enforcement Decree of the Value-Added Tax Act, the input tax amount on the said transaction should be deducted, but this is limited to the case where the tax office to which the actual preparation date belongs and the taxable period to which the actual transaction date belongs are the same (in this case, the "date of preparation," which is entered as the date of the actual preparation, shall be included, but shall not be entered retroactively in the actual transaction date or any specific period, and it is necessary to issue and issue the tax invoice at the time of transaction to ensure the truth of the two preceding taxable periods because it is an essential document to determine the value-added tax amount, and it is not necessary to issue the tax invoice to the taxpayer within 20.

(2) In accordance with the above legal principles, the plaintiff taken over the secured debt of the right to collateral security in the name of ○ bank with respect to the real estate of this case, and the amount of the debt was paid on May 4, 2004 according to the agreement to deduct the amount of the debt from the purchase price, and at the same time, it was possible to exclusively use and dispose of the real estate of this case from that time. Thus, the taxable period to which the time of the transaction (supply) of the real estate of this case belongs belongs shall be 1, 2004. The tax invoice of this case is the tax invoice of this case as of December 17, 2004, because the taxable period to which the date of actual preparation (as of November 17, 2004) belongs falls under the tax invoice of this case as of February 2, 2004, and thus, the input tax amount of this case should not be deducted from the output tax amount. Therefore, on the premise that the disposition of this case is legitimate.

2. Conclusion

Therefore, the plaintiff's claim shall be dismissed due to the lack of reason. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the plaintiff's claim is revoked, and it is so decided as per Disposition.