Where a purchaser who entered into a real estate sales contract and a rental business receives a tax invoice from a seller after the lapse of the taxable period to which the time of supply belongs without any cause attributable to him/her, the case holding that the relevant input tax amount should be deducted from the output tax amount, notwithstanding the provisions of Article 60 (2) 3 of the Enforcement Decree of the Tax Act

The case holding that the input tax amount should be deducted from the output tax amount, notwithstanding the provisions of Article 60 (2) 3 of the Enforcement Decree of the Value-Added Tax Act, in case where the purchaser who entered into a real estate sales contract to engage in the real estate sale and lease business made all possible efforts to receive the tax invoice from the seller, but did not receive the tax invoice within the taxable period to which the relevant time of supply belongs, and the relevant tax invoice has been issued after the lapse of the taxable period to which

Articles 9(1)2 and (3), 16(1), 17(1) and (2)1-2 of the Value-Added Tax Act; Article 54 subparag. 3, 59, and 60(2)3 of the Enforcement Decree of the Value-Added Tax Act; Articles 14(2) and 45-2(1) of the Framework Act on National Taxes

[Defendant-Appellee] The Head of Si/Gun/Gu Office

Gangwon-gu Director of the District Office

June 27, 2003

1. The Defendant’s imposition of value-added tax of KRW 49,485,340 against the Plaintiff on July 5, 2002 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;

A. On April 25, 2000, the Plaintiff filed a value-added tax return for the first year of 2000 as follows, and paid KRW 18,049,09 below value-added tax.

-tax base: 182,763,727 won

-Tax amount: 18,049,099 (=28,276,372 won of output tax amount -227,273 won of input tax amount)

B. On September 4, 200, the Plaintiff submitted a purchase tax invoice of KRW 494,853,455 of the value of supply for the 332, 332-1 above ground and the 332, 1st, 344,455 of the 3rd floor above ground (hereinafter referred to as the “real estate of this case”) that the Plaintiff received as supporting documents upon receiving a claim for correction of value-added tax for the first period of value added tax in 2000 to the Defendant. The date on which the purchase tax invoice was prepared and the time of supply for each of the above purchase tax invoices were stated as “ January 21, 200.”

C. The Defendant accepted the Plaintiff’s request for correction and corrected the tax base and tax amount as follows. Accordingly, the Plaintiff received either KRW 18,049,099, and KRW 31,436,246, respectively.

-tax base: 182,763,727 won

-Tax amount: 31,436,246 won (=the output tax amount of 18,276,372 - the input tax amount of 49,712,618 won)

D. According to Article 9(3) of the Value-Added Tax Act, where a tax invoice is delivered in a comprehensive audit before the time of supply arrives, the time of such delivery should be deemed the time of supply. As such, “the time of supply for the real estate of this case” becomes the time of supply for the real estate of this case, and no tax invoice is issued to revise the time of supply on the original tax invoice. Therefore, in a case where a request for correction is filed based on a new purchase tax invoice issued after changing the date of supply, it is pointed out that it is erroneous for the Defendant to make a refund decision, even though it cannot be deducted from the input tax amount, and accordingly, the value-added tax base and tax amount for the first time of July 5, 2002 were re- corrected as follows, and the Plaintiff imposed and collected value-added tax amount

-tax base: 182,763,727 won

-Tax amount: 18,049,099 (=28,276,372 won of output tax amount -227,273 won of input tax amount)

- Amount of notified tax: 49,485,340 won (=18,049,099 won to be paid + 31,436,246 won to be refunded)

(e) Procedures of the previous trial;

- Request for a trial on August 31, 2002, January 8, 2003 (Dismissal of Request for Trial)

[Ground for recognition] Unsatisfy

2. Whether the instant disposition is lawful

(a) Relevant statutes;

It is as shown in the attached Form.

B. Facts of recognition

(1) On December 28, 199, the Plaintiff entered into a sales contract with the instant reconstruction association by setting the price of the instant real estate constructed by the ELD Construction Corporation (hereinafter “ELD Construction”) under a contract with the instant reconstruction association as KRW 2.1 billion, and paid a down payment of KRW 400 million to the instant reconstruction association, and agreed as follows.

(A) Of the purchase price of KRW 2.1 billion, KRW 1,55,661,200 for the purchase price of land and KRW 494,853,455 for the purchase price of a building.

(B) The Plaintiff deposited the remainder into the deposit account of ELD Construction until January 20, 200. However, in order to secure the payment of the remainder of KRW 1.7 billion, the Plaintiff simultaneously with the registration of ownership transfer for the instant real estate, and simultaneously with the registration of the establishment of the first priority place with the mortgagee’s right to collateral security, and the maximum debt amount being KRW 2.2 billion.

(C) Even if the Plaintiff acquired the ownership of the instant real estate from the redevelopment association prior to the remainder payment, he did not have the right to the instant commercial buildings until the remainder payment is made. Therefore, the Plaintiff cannot register the rights other than ownership, such as sale in lots or establishment of security.

(D) The current ELD Construction’s provisional disposition against sale of the instant commercial buildings is valid until the Plaintiff pays the remainder. However, the Plaintiff may sell the instant real estate at the same time without any separate cancellation procedure.

(2) On December 29, 199, the Plaintiff registered the establishment of a mortgage on the instant real estate as a mortgagee with the ownership transfer registration, and registered the establishment of a mortgage on the instant real estate as a real estate and a lease business on January 20, 200.

(3) When the Plaintiff could not pay the balance to ELD from January 20, 200, which is the remainder date stipulated in the above sales contract, the Plaintiff agreed to pay the balance to ELD Construction from time to time on January 21, 200 when the Plaintiff sells part of the instant real estate. Accordingly, ELD Construction decided to exclude the effect of the prohibition of sale of the instant real estate from the effect of the prohibition of sale of the instant real estate and consented to the Plaintiff’s sale of the instant real estate or any other disposal of the instant real estate, the Plaintiff commenced the commercial sales business from time to time.

(4) On January 21, 200, the Plaintiff presented the Plaintiff’s business registration certificate to the instant reconstruction association, and demanded the Plaintiff to issue a tax invoice stating the time of supply and the date of preparation as “1. 21. 200” respectively. However, the instant reconstruction association issued to the Plaintiff a copy of the tax invoice concerning the portion of the instant real estate and a copy of the tax invoice concerning the portion of the land (the certificate No. 4 and 5, which is all the supplier’s custody) among the real estate that the Plaintiff prepared and kept. The said copy of the tax invoice and the copy of the invoice were written in the column of supply supply and the date of preparation, and the Plaintiff’s resident registration number was written in the margin instead of the Plaintiff’s name, address, and business registration number.

(5) On May 2, 200, the Plaintiff demanded the instant reconstruction association to issue a tax invoice stating the time of supply “1. 21. 21. 200,” which became possible for sale by filing an application for cancellation of the provisional injunction against sale of the instant real estate by the ELD Construction on the ground that “the time of supply for the instant real estate” was the time of supply. However, the instant reconstruction association concluded a sales contract for the instant real estate and received the down payment, and rejected the Plaintiff’s said request by asserting that “the time of supply is the time of supply” was the time of supply.

(6) On May 3, 200, the Plaintiff submitted a question requesting authoritative interpretation as to when the time of supply should be deemed to be the time of supply to the Ministry of Finance and Economy. On June 2, 2000, the Plaintiff received a reply from the Commissioner of the National Tax Service, who received the said questionnaire, that the time of supply for the building in question is when the relevant building can be used pursuant to Article 9(1)2 of the Value-Added Tax Act if the registration of ownership transfer is completed before the outstanding liquidation date in the transfer of the building for taxation business. In this case, the time of supply for the building in question is when the building in question is made available. In principle, the date of registration of ownership transfer shall be the date of registration of ownership transfer, but if the date of registration of ownership transfer differs from the date of actual name, it may be deemed that the actual name date can be seen as the time when the

(7) On June 200, the Plaintiff demanded the reconstruction association of this case to issue a tax invoice on January 21, 200 on the basis of the above review on the basis of the time of supply for the reconstruction association of this case. However, the reconstruction association of this case rejected the Plaintiff’s request on the ground of the same reasons as the previous one.

(8) On the other hand, the reconstruction association of this case filed a value-added tax return along with a tax invoice on May 12, 200, stating "the time of supply and the date of preparation", which was prepared and kept by itself on May 12, 200, respectively.

(9) On August 14, 200, the Plaintiff submitted again an inquiry to the same effect as before the consumption tax system of the Ministry of Finance and Economy, and on August 19, 200, the time of supply for the real estate which is not required to move goods under Article 9 (1) 2 of the Value-Added Tax Act is the time when the relevant building is available, and in this case, the time when it is available shall be the date of ownership transfer registration in principle, but if the parties restrict the use of the pertinent real estate by a special agreement between themselves for reasons such as the unpaid balance of the purchase and sale, it is reasonable to regard the date of actual use and profit-making as the time of supply.

(10) On August 19, 200, the Plaintiff presented a review to the instant reconstruction association by the Minister of Finance and Economy, and demanded the issuance of a tax invoice stating the time of supply “1 January 21, 200.” The instant reconstruction association, which entered the date of preparation and the time of supply for each of the instant real estate, as “ January 21, 200,” prepared a tax invoice for the portion of the instant real estate (Evidence 9-1) and an invoice for the portion of the land (Evidence 9-2) and delivered to the Plaintiff.

[Basis] Grounds for Recognition: Facts without dispute, Gap 1 through 6 evidence, Gap 7, 8, 9 evidence, each of 1, 2, and the purport of the whole pleadings

C. Determination

(1) Determination as to the time of supply

According to the above facts, the plaintiff agreed to modify the way of settling the balance with ELD Construction, and the ELD Construction decided to exclude the validity of the provisional disposal of the real estate in this case from the effect of the provisional disposal of the real estate in accordance with the above agreement, and it was possible for the plaintiff to use the real estate in this case only on January 21, 2000 after the plaintiff consented to sell the real estate in this case. Therefore, it is reasonable to view the time of supply of the real estate in this case as "the time of supply

(2) Determination as to whether to purchase input tax

(A) Whether the interpretation of Article 60 (2) 3 of the Enforcement Decree of the Value-Added Tax Act and unconstitutional is unconstitutional

According to the provision of Article 60 (2) 3 of the Enforcement Decree of the Value-Added Tax Act (hereinafter referred to as the "instant provision"), where a tax invoice is delivered after the time of supply for goods or services, the input tax amount may be deducted only when a tax invoice is delivered within the taxable period to which the time of supply belongs. Where a tax invoice is delivered after the expiration of the taxable period to which the time of supply belongs, the input tax amount may not be deducted. However, the Plaintiff asserts to the effect that it violates the provision of Article 23 of the Constitution on the Guarantee of Property Rights as it infringes on property rights contrary to the nature of the value-added system

Therefore, based on the premise of the provisions of Article 17(1), Article 17(2)1-2 of the Value-Added Tax Act and the proviso, the key provision of this case is interpreted in accordance with its language and text, the input tax amount can be deducted only when a tax invoice is delivered after the time of supply for goods or services, and where a tax invoice is delivered after the expiration of the taxable period to which the time of supply belongs, the input tax amount cannot be deducted.

However, even though an entrepreneur who has been supplied with goods or services (hereinafter referred to as a "Buyer for convenience") made all possible efforts to receive a tax invoice from the supplier of the goods or services (hereinafter referred to as a "seller for convenience"), he did not receive a tax invoice within the taxable period to which the time of supply belongs due to the cause of the supplier (i.e., where a tax invoice is not issued from a seller within the taxable period to which the time of supply belongs without any cause for the purchaser), and only after the lapse of the taxable period to which the time of supply belongs, the tax invoice was issued, and where the transaction is confirmed as a tax invoice, the case where the whole or part of the requisite entry items of the tax invoice under Article 17 (2) 1-2 of the Value-Added Tax Act constitutes a case where the input tax invoice can be deducted from the output tax amount under the proviso to Article 17 (2) 1-2 of the Value-Added Tax Act. However, if such interpretation is based on the following grounds, it is not possible to interpret the provisions of Article 17 (2) 1-2 of the Value-Added Tax Act as stipulated under the proviso to the same effect.

First, in calculating the amount of tax pursuant to the pre-stage Tax Credit Act, it is essential to issue and receive a tax invoice stating the contents of the tax invoice in accordance with the facts because it is essential to issue and receive the tax invoice in accordance with the facts. Since the tax invoice received between the supplier and the person who receives the tax, play a role of clearly revealing the automatic verification of the transaction details and the burden of value-added tax and the payer of the value-added tax, it is necessary to impose a certain disadvantage or sanction in order to properly operate the value-added tax system, and where it violates it, it is necessary to impose a certain amount of tax invoice and impose a certain disadvantage or sanction. One of the various systems provided for in the above reason is "in case of a failure to deduct the input tax amount for a different tax invoice from the facts.

However, even if the purchaser received a tax invoice stating retroactively the date of supply after the lapse of the taxable period after the lapse of the taxable period, where the actual transaction is clearly verified, it does not compromise with verifying the transaction details and clarifying the person liable for the payment of the value-added tax before and after the lapse of the taxable period. On the other hand, even if the purchaser did not have any reason for not receiving the tax invoice within the above period, the failure to deduct the input tax amount on the relevant tax invoice is excessively harsh for the purchaser. Therefore, even if the input tax amount is deducted, it is difficult to view that it goes against the legislative intent of Article 17(2)1-2 of the Value-Added Tax Act.

Second, the previous Supreme Court precedents divided into two types: ① Even if the date of preparation after the expiration of the time of supply or the tax period is completed and delivered retroactively after the time of supply, the input tax amount of the relevant value-added tax shall be deducted if the transaction is confirmed by the entries of the tax invoice (Supreme Court Decision 2000Du8097 delivered on August 24, 2001). ② If the date of preparation of the tax invoice is entered differently from the actual transaction date, and if the transaction is confirmed as the entry of the tax invoice, the input tax amount of the relevant value-added tax shall be deducted only when the taxable period to which the date of preparation of the tax invoice belongs belongs is the same as the actual transaction date (Supreme Court Decision 96Da4250 delivered on March 14, 1997, etc.).

However, with the amendment of the Enforcement Decree of the Value-Added Tax Act by Presidential Decree No. 16661 on December 31, 1999, the issues of this case were newly established, and the tax invoice that was received after the lapse of the taxable period to which the time of supply belongs ( regardless of which type is any of the above two types) was not eligible for the input tax deduction.

However, Article 59 of the Enforcement Decree of the National Tax Act provides, "Where any error or correction occurs in the matters to be entered in the tax invoice after issuance of the tax invoice under Article 16 (1) of the Act, the tax invoice may be issued by modifying the tax invoice under the conditions as prescribed by the Commissioner of the National Tax Service before notification after correcting the tax base of value-added tax or the refundable amount of the refundable tax, pursuant to Article 21 of the Act." Article 45-2 (1) of the Framework Act on National Taxes provides, even if a person has filed the tax base return within the statutory due date of return in certain cases, he/she may request the determination or correction of the tax base and the amount of the national tax initially filed within two years after the statutory due date of return expires, and Article 54 subparagraph 3 of the Enforcement Decree of the same Act provides, "where a tax invoice is issued by the relevant documentary evidence and the date of the relevant transaction is confirmed as the date of issuance, the tax invoice may be issued by the tenth day of the month following the month in which the date of supply falls.

Third, if a seller refuses to issue a tax invoice due to disputes over the time of supply or other circumstances, the buyer does not have any means to enforce the issuance of the tax invoice for the seller before the taxable period to which the time of supply belongs expires.

Fourth, the difference between the time when a tax invoice is issued even though the transaction of real estate is clearly recognized as the case in this case, and the time when the transaction of real estate is made is within the taxable period to which the time of supply of goods belongs, may be in violation of the principle of substantial taxation, which clearly states that the State should enact a law so that the burden of taxes can be distributed fairly to the people in the course of tax legislation, as well as the principle of tax equality that all citizens should be treated equally in the interpretation and application of the tax law, and Article 14(2) of the Framework Act on National Taxes provides that "the provisions on the calculation of tax base in tax-related Acts shall apply to the income, profit, property, act or transaction, regardless of the name or form

(B) Determination as to whether to purchase input tax

According to the above facts, although the plaintiff made every effort to receive a tax invoice from the reconstruction association of this case within the taxable period to which the time of supply belongs, due to differences in opinions as to the time of supply, the taxable period to which the time of supply belongs without being delivered a tax invoice from the reconstruction association of this case. After the taxable period to which the time of supply belongs under the interpretation of the Commissioner of the National Tax Service and the Minister of Finance and Economy, the plaintiff received a tax invoice from the reconstruction association of this case and received a request for correction from the defendant. In this case, the plaintiff did not receive a tax invoice from the reconstruction association of this case within the taxable period to which the time of supply belongs without any reason. In this case, the "tax invoice" under Article 17 (2) 1-2 of the Value-Added Tax Act does not fall under the case where all or part of the requisite entries of the tax invoice issued are entered differently from the fact, but it should be deducted from the output tax amount. Thus, the plaintiff's input tax amount should be deducted from the input tax amount.

Therefore, the instant disposition that did not deduct the input tax amount regarding the instant tax invoice is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the disposition of this case is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.

Judge Han-sung (Presiding Judge)