Cho Jae-2015- Daejeon-4341 ( December 09, 2015)

Since the time of supply for solar power generation facilities services is completed at the time of the completion of the provision of services, the tax invoice received by the plaintiff constitutes a false tax invoice.

The time when the supply of a service is completed refers to the time when a person who is provided with a service by the actual provision of the service makes it possible to use the computation of the provision of service. Therefore, the tax invoice of this case is different from the fact of the time of supply because the inspection date prior to the provision of the service is the time of actual

Article 39 of the Value-Added Tax Act

Daejeon District Court-2016-Gu Partnership-409 ( October 19, 2016)

유@@ 주식회사

o Head of the tax office

.08.10

October 19, 2016

1. The plaintiff's primary and conjunctive claims are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

In the meantime, the Defendant’s refusal to refund value-added tax of KRW 540,373,680 for the first term of May 18, 2015 against the Plaintiff on May 18, 2015 is revoked.

Preliminaryly, on May 18, 2015, the part that the Defendant issued based on the date of pre-use inspection among the disposition of refusal to refund value-added tax of KRW 540,373,680 against the Plaintiff is revoked.

A. The Plaintiff is a company that operates the construction and operation of solar power generation facilities.

B. On August 1, 2014, the Plaintiff entered into a construction contract for the construction of solar power generation facilities (hereinafter referred to as “instant contract”) with the Plaintiff’s PH workplace, PT workplace, ICT workplace, IIC workplace, and DJ workplace, which consist of each solar power generation system (2,865.9kw of total power generation capacity) on the rooftop of the DJ workplace. The main contents of the instant contract are as follows.

- - Sound

1. Construction name: Construction of an OO solar power plant system (2,865.9kw);

2. Contract amount of 5,674,482,00 won (excluding value-added tax);

3. Period: From August 1, 2014 to February 28, 2015;

6. Terms and conditions for payment: Cash payment by the end of the following month after the last inspection date.

General conditions of the contract.

VI.(Inspection and Delivery)

(1) When a request is made for an inspection or a final inspection completed in writing from an O energy.

shall conduct an inspection, and the results of the inspection shall be conducted to E within 15 days unless there is a justifiable reason not to do so.

written notice of the result of the examination by the plaintiff within 15 days without good cause.

When there is no notification, the O Energy shall be deemed to have passed the relevant inspection.

(5) If a portion has passed an inspection, the portion completed shall be delivered fromO energy to the plaintiff.

The plaintiff shall be deemed to be a certificate of acceptance of the corresponding part, and the certificate shall be issued immediately to the O energy.

C. PH workplace, PT workplace, ICT workplace, and DJ workplace (hereinafter referred to as “PH power generation facility,” “PT power generation facility,” “ICJ power generation facility,” “DJ power generation facility,” and “each power generation facility of this case,” as listed below, were installed at the location of the Plaintiff’s workplace where each power generation facility was installed. As for each power generation facility of this case, the Plaintiff received pre-use inspection from the president of the Korea Electric Safety Corporation pursuant to Article 63 of the Electric Utility Act at the date indicated below, and received a pre-use inspection from the president of the Korea Electric Safety Corporation pursuant to Article 12-7 of the Act on the Promotion of the Development, Use and Diffusion of New and Renewable Energy (hereinafter referred to as the “New and Renewable Energy Act”), the former Guidelines on the Management and Operation of the Supply System of New and Renewable Energy (amended by Ordinance No. 2015-15, Jul. 23, 2015; Ordinance No. 13, “the new and renewable Energy Supply Policy”).

D. On February 17, 2015, the Plaintiff issued a purchase tax invoice of KRW 5,674,482,00 with respect to each of the instant power generation facilities from the O Energy. The Plaintiff filed a return on the output tax amount of KRW 6,543,406 at the time of filing the preliminary return of the value-added tax for the first year, 2015, and filed an application with the Defendant for refund of KRW 582,673,555, value-added tax (the input tax amount for each of the instant power generation facilities is KRW 567,448,200, among them).

E. On May 18, 2015, the Defendant considered the time when the Plaintiff was supplied with the service from the O energy of the instant case as the pre-use inspection date for each of the instant generation facilities, and determined that the tax invoice was different from the facts since the Plaintiff received the tax invoice after the lapse of the taxable period. The Defendant calculated the supply price for the PH power generation facilities, the PT power generation facilities, and the DJ power generation facilities, the total supply price of KRW 5,674,482,00, and the total supply price of KRW 450,31,40, and the input tax amount reported by the Plaintiff was deducted from KRW 589,216,961, and KRW 40, KRW 451, KRW 140, KRW 140, KRW 450, KRW 450, KRW 450, KRW 451, KRW 505, KRW 3051, KRW 47, KRW 57515, KRW 4057, KRW 405156, KRW

F. On August 18, 2015, the Plaintiff filed an appeal with the Director of the Tax Tribunal against the instant disposition, but the said appeal was dismissed on December 9, 2015.

[Reasons for Recognition] Gap evidence 1 to 6 (including each number), Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The primary claim

Article 29(2)1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 26983, Feb. 17, 2016) provides that the time when the provision of service is completed or when the payment is to be made is not considered to be the time of supply, the time when the provision of service is completed and the price is determined is determined” as the time of supply for the service. Accordingly, in the case of the contract of this case, the time when the provision of service is completed and the supply price is determined shall be deemed to be the time of supply for the service. Thus, even if the supply price for each of the development facilities of this case is not determined, the Defendant arbitrarily determines the supply price for each of the development facilities of this case and the total supply price is divided by the power generation capacity of this case, thereby making the disposition of this case unlawful.

2) Preliminary Claim

In the case of solar power generation facilities, not only the pre-use inspection under the Electric Utility Act, but also the facility confirmation that falls under the object of the issuance of supply certificates pursuant to the New and Renewable Energy Act, the guidelines of this case, and the supply certificates, shall be deemed to have been completed. Therefore, the instant disposition based on the premise that the provision of services has been completed at the time of receiving the pre-use inspection, is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Judgment as to the main claim

According to the facts acknowledged earlier, the instant contract does not constitute a case where the O Energy provides the Plaintiff with the service of constructing each power generation facility in the instant case and pays for the service in lump sum after the provision of the service was completed. As such, there is no room to apply Article 29(2) of the former Value-Added Tax Act, which applies to the supply of the service in installments or on conditions. Furthermore, even though the Plaintiff and O Energy at the time of the instant contract did not specify the supply value for each power generation facility in the instant case, the total supply value for each power generation facility in the instant case was determined at KRW 5,674,482,00, and there was no agreement between the Plaintiff and O Energy that the supply value for each power generation facility in the future may be changed. Accordingly, the Plaintiff’s assertion is not considered to have been finalized.

2) Determination on the conjunctive claim

A) Determination as to the time of supply

Article 16(1) and (2) of the Value-Added Tax Act and Article 29(2) of the Enforcement Decree of the Value-Added Tax Act provide that, in cases of ordinary supply of services for which the value of supply is determined upon completion of the service provision, the general time of supply is the time of supply; and in cases where the supply of services is completed or payment is decided on condition or on condition, the time when the supply of services is determined is not deemed the time of supply, the time when the provision of services is completed and the price of supply is determined shall be deemed the time of supply. Here, “the time when the provision of services is completed” refers to the time when the fact of the provision of services can be confirmed clearly by taking into account the scope of the provision of services under a contract between the parties, i.e., the time when the person to whom the service is rendered by the actual provision of the service becomes able to use the output of the provision of services (see Supreme Court Decision 2008Du511

Examining the instant case in light of the aforementioned legal principles, the O Energy does not provide the Plaintiff with services on a installment basis or on a conditional basis, but the supply price for the services that OO Energy supplied to the Plaintiff constitutes a normal supply of services for which the supply price is fixed at the time of providing the services. The time when the provision of the services is completed refers to the time when a person provided with services at the time of providing the services at the time of the completion of the provision of the services at the time of the actual provision

However, in light of the following circumstances, the facts without dispute, Gap evidence Nos. 2 and 3, Eul evidence Nos. 3, 4, 6, and 7 (including each serial number), and the whole purport of the pleadings, it is reasonable to view that the time when a pre-use inspection was conducted with respect to each of the instant power generation facilities, i.e., the PH power generation facilities on December 12, 2014; the PTR power generation facilities on November 27, 2014; and the DJ power generation facilities on November 27, 2014, the plaintiff was able to use each of the instant power generation facilities, which are the products produced by the supply of the services. Accordingly, it is legitimate for the defendant to view that the time when the PH power generation facilities, the PT power generation facilities, and the DJ power generation facilities are as the date of the pre-use inspection with respect to each of the above power generation facilities.

(1) The purpose of the instant contract is to supply the Plaintiff with the service of constructing power generation facilities and enable the Plaintiff to produce electricity using the power generation facilities. Examining the content of the instant contract, it cannot be deemed that the O Energy is a contractual obligation to obtain confirmation on the facilities subject to the issuance of a supply certificate concerning each of the instant power generation facilities. Thus, even if the confirmation of facilities subject to the issuance of a supply certificate concerning each of the instant power generation facilities is completed, it cannot be deemed that the O Energy’s provision of services under the instant contract is completed.

(2) On December 4, 2014, the Plaintiff entered into a contract with the Korea Electric Power Corporation for the supply of electricity produced from the DJ power plant on December 10, 2014, electricity produced from the PT power plant on December 12, 2014, and electricity produced from the PH power plant on December 12, 2014, and issued sales tax invoices to the Korea Electric Power Corporation on December 2, 2014.

(3) On March 9, 2015, the Plaintiff entered into an operation consignment agreement with SP Co., Ltd. on each of the instant power generation facilities. As to the electric safety management agency fee imposed on SP Co., Ltd. and the Plaintiff from December 3, 2014 to December 5, 2014, the Plaintiff issued sales tax invoices with the recipient of SP Co., Ltd.

B) Determination on the value of supply

Furthermore, we examine whether the disposition of this case is legitimate, which calculated the supply value for each power generation facility of this case in proportion to the development capacity of each power generation facility of this case.

Gap 2, 3, 4, 3, and 4 are deemed to show the overall purport of arguments in each of the following circumstances, namely, ① Article 6(1) of the Value-Added Tax Act provides that each place of business becomes the place for payment of value-added tax, in principle, for each of the instant power generation facilities. ② The time when the plaintiff concludes an electricity supply contract with the Korea Electric Power Corporation for each of the instant power generation facilities at different levels. ③ The construction cost of the instant contract is deemed to be relatively less than the construction cost required for the instant power generation facilities themselves, and the construction cost of the instant construction works or other appurtenant works is deemed to be less than the 30th day of the Plaintiff’s business, and the supply price of the instant construction works is deemed to be less than 40,000 won x 70,000 won supply price of each of the instant supply price of the instant construction works calculated by multiplying the supply price of the instant construction works by 40,070,000 won for each of the instant power generation facilities under the contract with the Korea Electric Power Corporation.

3. Conclusion

Therefore, the plaintiff's primary and conjunctive claims are all dismissed as it is without merit. It is so decided as per Disposition.

October 19, 2016