early 2013west 2801, 2802, 2803 ( November 21, 2013)

If a separate agreement is made in advance on the time of payment of rent, the time of supply shall be the time of the fulfillment of the payment requirements.

If a lessor agreed to receive a rent from the time of normalization with a tenant before the commencement of lease, it is reasonable to view that a tax transaction has been made from the time when the rent is paid due to the fulfillment of the requirements under the prior agreement.

Article 16 of the Value-Added Tax Act [Time of Supply for Services]

2014Guhap3495 Disposition to revoke the imposition of value-added tax

Park △△△ and 3

▲▲▲세무서장

2014.07.03

2014.09.04

1. November 10, 2012

A. Imposition of value-added tax of 00,000,000 for the second term portion of 2007 against Plaintiff Park 00 and Yu-00, value-added tax of 00,000,000 for the first term portion of 2008, and value-added tax of 00,000,000 for the second term portion of 208;

B. The imposition of value-added tax of 0,000,000 for the second period portion of 2007 against Plaintiff Park 00,000,000, the value-added tax of 1,2008 for the first period portion of 2,008, and the imposition of value-added tax of 0,000,000 for the second period portion of 2,208;

C. The imposition of the value-added tax of KRW 00,00,000 for the second term portion of 2007 against Plaintiff Kim 00,000,000 for the second term portion of 2007, value-added tax of KRW 00,00,00 for the first term portion of 208, and value-added tax of KRW 00,000 for the second term portion of 208.

Each cancellation shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

가. 00시 ☆☆구 ★★동 00-0, 같은 동 00-01, 같은 동 00-02, 같은 동 00-03 지상에 2층의 상가건물이 있는데(이하 '이 사건 상가'라 한다), 이 사건 상가 00-0은 원고 박00, 유00이, 00-01는 원고 김00, 김▽▽가, 00-02는 원고 박00, 유00, 김00이 공동소유하고 있으며, 건물별로 각각 사업자등록이 되어 있다.

B. The Defendant’s taxation of value-added tax on the instant commercial buildings from September 10, 2012 to September 29, 2012

As a result of the investigation on December 1, 2006, the plaintiffs reported the amount of rent of the commercial building of this case from February 2007 to February 9, 2009, although they leased the commercial building of this case to 00,000,000 won from January 10, 2007 to 00,000,000 won from January 9, 2009, they reported the amount of rent of this case from February 2007 to 2008, and on November 10, 2012, they reported the plaintiffs about the amount of rent of the commercial building of this case.

[Attachment]

Places of business

Joint Business Operators

Taxation Period

Date of Disposition

Amount of tax

★★동 00-0

(000-00-)

000)

Park 00

-00

207.2

November 10, 2012

00,000,000

1008.1

November 10, 2012

00,000,000

208.2

November 10, 2012

00,000,000

★★동 00-01

(000-00-)

000)

Kim 00

Justices Kim Shin-▽

207.2

November 10, 2012

00,000,000

1008.1

November 10, 2012

00,000,000

208.2

November 10, 2012

00,000,000

★★동 00-02

(000-00-)

000)

Park 00

-00

Kim 00

207.2

November 10, 2012

0,000,000

1008.1

November 10, 2012

0,000,000

208.2

November 10, 2012

0,000,000

Total

00,000,000

C. The Plaintiffs were dissatisfied with the instant disposition and filed an objection against the Defendant on February 4, 2013, but the Defendant dismissed it on March 18, 2013. The Plaintiffs filed an appeal with the Tax Tribunal on June 5, 2013, but the Tax Tribunal dismissed it on November 21, 2013. The Plaintiffs appealed appealed and filed the instant lawsuit on February 13, 2014.

[Reasons for Recognition: Facts without any gaps, Gap evidence 1, 2, 18, 19, Eul evidence 1 through 4, the purport of the whole pleadings]

2. The assertion and judgment

A. The plaintiffs' assertion

The plaintiffs entered into a lease contract with the tenant of the commercial building of this case on or around December 2006. However, on January 8, 2007, Park 00, the representative of the plaintiffs, agreed to receive the rent from the commercial building normalization until the commercial building normalization is normal, and thereafter, the commercial building has been operated normally from May 2008, and it began to receive rent from the tenant around that time. Accordingly, even though the plaintiffs received rent from the tenant of the commercial building of this case by May 2008, the defendant was unlawful since the disposition of this case was made.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) In addition to the details of the above disposition and the grounds for recognition as seen earlier, the following circumstances may be acknowledged in light of the following circumstances, i.e., Gap evidence Nos. 3 through 8, 11 through 14, and the overall purport of the testimony and arguments of 00 safes of witnesses.

(1) In order for the instant commercial building to be activated due to the aging of the building and the economic depression, the representative director of the △ Doe (hereinafter referred to as “Doe Agreement”) proposed that the Plaintiffs would remodel and sell the instant commercial building and promote the sale of it. The Doe Agreement proposed that the deposit, rent, and other commercial matters will be responsible for the management of the instant commercial building.

(2) On March 7, 2006, the Plaintiff accepted the said 00 proposal, and on behalf of other plaintiffs on March 7, 2006, the Plaintiff entered into a remodeling and lease agreement on the instant shopping district (hereinafter referred to as the “instant shopping district development agreement”).

○ The Plaintiff leased the instant commercial building to △△△.

The ○○ lease deposit shall be KRW 0 billion, and KRW 00 million shall be paid at the time of the contract, and the balance shall be paid on September 10, 2006.

○ The monthly rent of KRW 00 million shall be paid from September 10, 2006.

The term of ○ lease shall be from September 10, 2006 to September 10, 2009 (three years).

○ The instant building shall be remodeled, such as performing the construction of an escalator at the responsibility and expense of ○○○.

○○ Plaintiff consented to the lease and sale of the instant commercial building, but in the event of an unsold store, the entire amount of the rent is responsible for and paid.

(3) Dogsung commenced the remodeling of the commercial building of this case on March 20, 206, according to the above contract between the plaintiffs and the tenant, and started to recruit the tenant of the commercial building of this case. With regard to the specific operational plan of the commercial building of this case, the plaintiffs and Doggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg

(4) He recruited lessees in accordance with the instant commercial development agreement and the pertinent operational plan, and agreed to guarantee the lessee’s re-lease income for one year in preparation for the case where the lessee fails to sublease in the course of entering into a lease agreement with the lessee (the first floor, KRW 00,000 per month, and KRW 2,000 per month).

(5) During the remodeling of the instant commercial building and the recruitment of lessees, there was a dispute between the Plaintiff Park 00 and the Plaintiff Park 00, which caused the Plaintiff Park 100 to file a lawsuit for the partition of co-owned property against the Plaintiff Park 00. Accordingly, it is difficult for the lessee to recruit the lessee, and the Plaintiff Park 00 demanded the Plaintiffs to delay the rent payment period on September 10, 2006, which was the rent payment period agreed upon in the instant commercial building development agreement. The Plaintiffs and Magsung again agreed to pay the rent from the time when the instant commercial building was activated.

(6) The commercial building of this case completed remodeling and opened it on November 2006 (including 00 stores, 00 investment shares). On December 2, 2006, the Plaintiffs concluded a lease contract with the lessee of the commercial building of this case (the lessee of the commercial building of this case, who entered into a temporary lease contract between △△△ and the existing lessee; hereinafter referred to as “the lessee of this case”).

(7) Even at the time of opening, the instant commercial building was in a state of 50% of the lessees who actually engage in business in the commercial building. Accordingly, some of the tenants of this case may enter into a contract, and even if the store is in a state of public room after the lapse of one year, which is the period for guaranteeing the profit of sub-lease, agreed upon to the Plaintiffs, there may arise a situation where the monthly payment is to be made to the Plaintiffs. Therefore, the Plaintiffs demanded that the instant commercial building be paid a monthly payment from the time of normalizing the commercial building, and the Plaintiffs demanded that the instant lessee pay a monthly payment from the time of normalizing the commercial building on January 207.

(8) Since then, as the lessee of the instant commercial building was not recruited additionally, but the existing lessee was in a situation of ruptureing, △△△ has been able to implement the instant commercial building by re-afusing the instant commercial building and operating it as 00. While the instant commercial building was re-scheduled to 00 on Nov. 00, 2007, 00 points were all 0 points, 00 points were closed due to the last 0 points between the lessee and 00 points.

Since then, the commercial building of this case was maintained in the state of public room from May 2008 and did not pay rent to the plaintiffs. Around May 2008, the "00 chain store headquarters" was sold to the whole first floor of the commercial building of this case and sub-leaseed. The plaintiffs from this point of time, the commercial building of this case was on the first floor of the commercial building of this case.

In order to receive the rent normally, it is possible to receive it.

2) According to each of the above circumstances, the plaintiffs entered into the instant lease contract with the tenant of this case, and the defendant seems to have made the instant disposition based on this, but immediately thereafter, the plaintiffs agreed to pay rent from the time when the tenant of this case was recruited by the tenant of this case to the time when the commercial building becomes normal. In fact, the commercial building of this case was maintained in the public room after the conclusion of the instant lease contract to May 2008, and the payment of rent to the plaintiffs was not made until that time. Thus, it is reasonable to view that the taxable transaction subject to value-added tax was made from the time when the tenant moved into the first floor of this case and the tenant of this case started to pay rent to the plaintiffs.

3) Meanwhile, as long as the supply of service was made, the Defendant asserts that the actual receipt of the price for the supply of service does not affect the liability to pay value-added tax. As such, the time when the service was supplied in relation to the liability to pay value-added tax is the time when the service was provided or the goods, facilities or rights were used, and whether the service was actually paid as long as the service was supplied to others upon receiving the price does not affect the conclusion of the liability to pay value-added tax (see, e.g., Supreme Court Decision 94Nu1146, Nov. 28, 1995). However, in light of the above facts, the lease contract of this case does not use the commercial building of this case, and its purpose is not to use the commercial building of this case by the lessee, and thus, the lessee, who was recruited by Dogna, used the commercial building of this case from May 2008 to the time when the lease contract of this case was concluded, and thus, it cannot be accepted.

4) In addition, the Defendant asserts to the effect that, around January 2007, at the time when the Plaintiffs asserted that the payment of rent between the Plaintiff and the instant lessee would be deferred until the commercial building of this case is normalized, as long as the lessee has guaranteed the lessee the sub-lease profit, there is no reason to conclude an agreement to this effect, and that the fixed sub-lease profit that the lessee paid to the instant lessee is included in the fixed sub-lease profit that the lessee should pay to the Plaintiff, and that the lease profit was generated to the Plaintiffs during that period.

However, as seen earlier, the reasons why the plaintiffs and the lessees of this case agreed to pay the rent on or around January 2007 are to prepare for the situation after the expiration of the period of guaranteeing the sub-lease revenue under the Dol contract, and according to the statements in the evidence Nos. 21 and 22, the fixed amount of the sub-lease revenue that Dol Dol agreed to be paid to the lessees of this case is KRW 00,000,000 won for the first floor and the second floor. In fact, the re-lease revenue that the lessee of this case paid to the lessees of this case is to pay to the plaintiffs ( KRW 1 million for the first floor, KRW 2,00,000 for the second floor, KRW 1 for the second floor, and KRW 1 for the second floor, KRW 200,000 for the second floor) cannot be accepted, and the defendant's assertion that the above lease agreement was not paid to the plaintiffs before May 208.

5) Therefore, the instant disposition is subject to value-added tax even at the time prior to the normalization of the instant commercial building, that is, the time when the payment of rent was not made to the Plaintiffs, and should be revoked as it is illegal. However, the data submitted by the parties alone cannot specify the part to be revoked, and thus, the entire disposition of the instant case is revoked.

3. Conclusion

If so, the plaintiffs' claims are reasonable, and it is decided as per Disposition.