Cho Jae-chul201 Jeon 4917 ( October 27, 2012)

An input tax amount before the registration of business is made shall not be deducted.

The input tax prior to the registration of business shall not be deducted. This does not go against the basic principles of value-added tax even if a business operator pays more value-added tax as a result, not only gives any disadvantage in taxation as a sanction against a non-performance of business registration, and it does not block the transfer of taxes to the other party to the transaction.

2012 disposition of revocation of the imposition of value-added tax

IsaA

The Director of Budget Office

January 16, 2013

January 23, 2013

1. Of the instant lawsuit, the part of the claim seeking the cancellation of the disposition stated in Attached 1 Rejection is dismissed.

2. On August 3, 2011, the Defendant’s imposition of value-added tax of KRW 000 (excluding additional tax) for the first period of value-added tax (excluding additional tax) for the Plaintiff on August 3, 2006 and the imposition of value-added tax of KRW 000 (excluding additional tax) for the second period of value-added tax (excluding additional tax) for the Plaintiff on August 5, 201, each of which exceeds KRW 00,000, shall be revoked.

3. The plaintiff's remaining claims are dismissed.

4 Of the costs of lawsuit, 3/5 shall be borne by the plaintiff, and the remainder by the defendant.

The Defendant imposed on the Plaintiff on August 3, 201 the first value-added tax (including the additional tax), 000 won in 2006, the second value-added tax (including the additional tax), 000 won in 2006, and the first value-added tax (including the additional tax) in 2007, the second value-added tax (including the additional tax) in 2007, the first value-added tax (including the additional tax) in 2008, the second value-added tax (including the additional tax) in 2008, and the second value-added tax in 2008 (including the additional tax) in 200, and the second value-added tax in 2009 (including the additional tax) in 200, and the second value-added tax in 2009 (including the second value-added tax) in 200. Each of the Plaintiff’s imposition disposition is revoked.

1. Hearing of the disposition;

A. The Plaintiff and his spouse’s net KimE operated a mar restaurant, referring to the name of selling food, clothing, etc. to the construction workers at the construction site of Daejeon-Saman Highway 000 construction site, where the Plaintiff and his spouse did not complete business registration during the second taxable period from the 1st taxable period in 2006 to the second taxable period in 2009, and the FF development (hereinafter “FF development”).

(B) After conducting a tax investigation on FF development, the Defendant imposed a disposition, such as value-added tax, on August 3, 201 and August 5, 2011 on the Plaintiff (hereinafter collectively referred to as the “instant disposition”), on the grounds that the Plaintiff did not report the value-added tax on the provision of food services, etc. as above, and on the grounds that the Plaintiff did not report the business registration of the Plaintiff, ex officio, after completing the business registration of the Plaintiff:

C. On January 27, 2012, the Plaintiff rendered a decision to the Tax Tribunal to the effect that “The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal, and that “the Plaintiff returned the instant disposition to FF development,” re-examineed whether the Plaintiff returned the survey of KRW 00 in 2006, KRW 00 in 200 in 207, and KRW 000 in 200 in 200, and KRW 00 in 200 in 209, to rectify the tax base and tax amount and dismiss the remainder of the claim.”

D. On October 17, 2012 during the instant lawsuit, the Defendant confirmed that the Plaintiff returned some of the proceeds from supply subject to the instant disposition to FF Development (other than the value added tax of No. 2, 2009), and that each of the value added tax of No. 1, 2006 through No. 1, 2009 (excluding the value added tax of No. 2, 2009) was corrected as indicated below [Attachment 2], and that each of the additional taxes was reduced or adjusted somewhat.

(Omission of List)

E. Meanwhile, on December 13, 2012, the Defendant, on the other hand, did not specify the type of, and the basis for calculation of, the penalty tax at the time of the previous disposition, and on December 13, 2012, the instant lawsuit was pending, revoked all the imposition of the penalty tax on the Plaintiff (any of them related to the Plaintiff still exists after the imposition of the penalty tax at the first time of 2006 along with each of the value-added tax at the second time of 209, or

[Grounds for Recognition] The entry into the non-speed private theory, Gap evidence 1, 5, and Eul evidence 1, 2, and 3, and 5 (including each number in the case of natural disaster), and the direction of the Gangnam's floor, and the whole purport of the pleading

2. Ex officio determination as to whether the part of the lawsuit seeking revocation of the disposition stated in the annexed Form 1, among the lawsuit in this case, is legitimate

Among the lawsuits in this case, the part of the claim seeking revocation with respect to the imposition of value-added tax and additional tax stated in attached Form 1, and as seen earlier, the defendant's ex officio reduction, correction, or revocation with respect to the portion of the lawsuit in this case, and there is no interest to seek revocation with the lawsuit in this case, and the above part of the lawsuit in this case cannot be exempted from dismissal due to its illegality.

3. The propriety of the claim seeking the cancellation of the disposition of this case remaining after the remainder other than the above dismissed part

A. The plaintiff's assertion

(1) The instant disposition imposing value-added tax after the lapse of two years from the date on which the Plaintiff discontinued its business even though the non-taxable practice was established for the operator of the restaurant at the construction site, is unlawful against the non-taxable practice or the principle of equity.

(2) The Defendant imposed tax on the Plaintiff on the basis of the remittance amount of FF development; while FF development was additionally remitted to the Plaintiff, other than the Plaintiff’s food, etc., to the Plaintiff, the FF development was to use the said money for the field expenses; the Plaintiff withdrawn the said money in cash and returned it to FF development; and such returned money cannot be deemed as the Plaintiff’s service, etc., which serves as the tax base of value-added tax.

(3) It is improper that the Plaintiff is not entitled to the input tax deduction, and the Defendant’s investigation, determination, and deduction of the input tax amount through the on-site investigation from the value-added tax amount on the Plaintiff, or application of the simplified value-added tax rate on the restaurant business to the Plaintiff, but is unlawful.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

(1) As to the assertion of violation of non-taxable practice and the principle of equity

In order to establish the good faith principle or non-taxation practice under the provisions of Article 15 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010) and Article 18(3) with respect to the tax and law acts of the tax authorities, an objective fact exists that the tax authorities had not imposed any tax on certain matters over a long time, and it is interpreted that the tax authorities have known that they would be able to impose tax on certain matters and that such intent would require external and express or implied expression of the opinion, and "the practices of tax administration" under the provisions of Article 18(3) of the same Act means that, even if erroneous interpretation or practice, it was accepted by a general taxpayer who is not a specific taxpayer without any objection, and it is unreasonable for the taxpayer to trust such interpretation or practice, and that it is not unreasonable for the tax authorities to have determined that the Plaintiff's non-taxation practice against the Plaintiff's domestic business operator, such as value-added tax, and that the Plaintiff's non-taxation practice against the Plaintiff's domestic business operator cannot be established.

(2) As to the assertion that a refund for FF development should be deducted from the tax base

(A) Of the tax bases recognized by the Defendant, the Plaintiff asserted that the Plaintiff returned KRW 000 as indicated below [Attachment 3] as indicated in the “Plaintiff’s Claim” column. In full view of the Plaintiff’s evidence Nos. 2 and 2, and the witness’s testimony and arguments, the Plaintiff’s return of the money indicated in the “1 refund amount of Table 3 [Attachment 3] below] under the F Development, and it is reasonable for the Plaintiff to deduct the money from the Plaintiff’s tax base, while considering the whole purport of each entry and pleading in the “tax base deduction amount” column of the same Table corresponding to the amount of the above return amount, the amount must be deducted from the Plaintiff’s tax base, and the Defendant partially accepted the Plaintiff’s above assertion on October 27, 2012, and revoked the same tax base as indicated in the “ex officio revocation tax base” column under [Attachment 3] below, and the Plaintiff’s above assertion should be justified only within the scope of the deduction amount under the following table 3 and 1.

(Omission of List)

(B) The portion of the instant disposition remaining in accordance with subparagraph 1 of 2006 and subparagraph 2 of 2008, except for the imposition of value added tax for the first period of 2006 and the second period of 2008, must be lawfully maintained, and the portion of the value added tax corresponding to the tax base stated in the above [Attachment 3] among the imposition of value added tax for the first period of 2006 and the second period of 2008 in 208, must be revoked illegally. In accordance with the facts found in subparagraph 3-2 and 7 of the evidence of 3-2 and the relevant Acts and subordinate statutes, and with respect to the second taxable period of 206 and 2008 in the instant disposition, the amount stated in the [Attachment 3] of the above [Attachment 3] shall be excluded from the tax base for the corresponding period, and the amount of reasonable value added tax shall be calculated under [Attachment 4], and whether the input tax amount shall be deducted under

Article 17 of the Value-Added Tax Act provides that the amount of value-added tax payable by an entrepreneur shall be the amount after deducting the input tax amount for the supply of goods or services used or to be used for his own business from the output tax amount for the goods or services supplied by him, and that the input tax amount prior to the registration of a business under Article 5 (1) shall not be deducted. This is not only a sanction against a person failing to implement a business, but also a sanction against a person failing to implement a business, but it does not constitute a violation of the basic principle of the Value-Added Tax Act, even if a business operator pays a lot of value-added tax as a result, even though it is no more than a total amount of value-added tax (see, e.g., Constitutional Court Decision 2009Hun-Ba319, Mar. 31, 2011).

4. Conclusion

"If so, the part that seeks cancellation of the disposition stated in [Attachment 1] among the instant lawsuit is unlawful and dismissed, and the Defendant's imposition of value-added tax (excluding additional tax) for the Plaintiff on August 3, 201 and August 5, 201 and value-added tax (excluding additional tax) for the first period of value-added tax (excluding additional tax) for the first period of value-added tax (1) for the year 2006 and 2000 won for the second period of value-added tax (excluding additional tax) for the second period of value-added tax (200) for the Plaintiff on August 5, 2011, the above [Attachment 4] part that exceeds the legitimate amount of tax shall be cited as the claim for cancellation of the part that exceeds the legitimate amount of tax, and the remainder of the Plaintiff's claim is dismissed as it is so decided as per Disposition;