Whether the imposition of value-added tax is illegal by providing only landscaping trees (tax exemption) not only for landscaping construction works;

The disposition imposing value-added tax is legitimate for the provision of construction services subject to value-added tax as long as the landscaping construction is performed under the supply of construction works from the customer while running the joint venture business.

Article 1 (Taxable Objects)

Article 9 (Transaction Time of Value-Added Tax Act)

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax of KRW 106,166,362 for the second period of 2001 against the Plaintiff on July 11, 2006 is revoked.

1. Details of the disposition;

(1) The plaintiff was engaged in landscaping project with the trade name "○○ Landscaping system" (a change in the trade name is referred to as "○○○○ Landscaping"; hereinafter referred to as "○○ Landscaping"), and jointly operated the project from October 4, 199 to Kim○.

(2) During the course of the investigation of the Marina Tax secretary's report on the ○○○○○ Scuras Co., Ltd. (hereinafter referred to as "○○○○○ Scuras"), the Plaintiff and the Kim○ line received the instant landscaping work from the said stock company from October 25, 2001 to December 25, 2001, and confirmed that the return of value-added tax was omitted even after performing the instant landscaping work, the head of Mapo Tax Office notified the Defendant of the taxation data on November 25, 2005.

(3) The Defendant added non-conforming data of the tax invoices to ○○ Station Co., Ltd., which are other taxation data of the Plaintiff Kim Jong- Line, to the second taxable period of 2001, and imposed value-added tax of 107,525,474 on July 11, 2006, after going through the pre-announcement of taxation on May 29, 2006 (the Plaintiff did not dispute over the non-conformity of the tax invoices against the ○○ Station Co., Ltd., and sought revocation only for KRW 106,16,362).

(4) The Plaintiff filed an objection against the above disposition on April 16, 2007 with the National Tax Tribunal as 2007No1348, but the National Tax Tribunal dismissed the Plaintiff’s request on November 30, 2007.

[Recognition] Facts without dispute, Gap 1-7, and Gap 1-8 (including paper numbers)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Landscaping at the time of the instant landscaping was the joint representative of the ○○ Gyeong, and the Plaintiff supplied only landscaping trees (tax-free trees) to be used for the instant landscaping project on or around May 2002 to June 2005, which was after the termination of the business relationship with the Kim○ Gyeong, but the instant disposition imposing value-added tax on the Plaintiff for the second period of 2001 is unlawful.

B. Relevant provisions

Article 1 (Taxable Objects)

Article 9 (Transaction Time of Value-Added Tax Act)

Article 12 (Exemption from Value-Added Tax)

Article 3 (Scope of Incidental Goods or Services)

Article 21 (Time of Supply for Goods)

Article 22 (Time of Supply for Services)

(c) Fact of recognition;

(1) On October 23, 2001, 2001, the representative of the ○○ Landscaping and the ○○ ○○ Round entered into a contract for the instant landscaping construction as follows.

An ordering person: ○○○ Headymar (the ○○ Headym)

Beneficiary: ○○ Landscaping system (Representative Kim ○, et al., Counsel for the plaintiff-appellant)

Construction amount: 600.000.000 won (excluding value-added tax)

Period: From October 25, 2001 to December 25, 2001 (for two months)

(2) Although the Plaintiff and Kim Jong-ray completed the above construction by December 25, 2001, they did not pay two times the construction amount within three months after the completion of construction (Article 8 of the contract of this case, the contract of this case shall be paid in cash from the sale price, and if the payment is not made within three months after the completion of construction, two times the construction amount shall be paid in kind). Accordingly, on October 18, 2002, the Plaintiff and Kim Jong-ray filed an application with the Incheon District Court for provisional attachment of the claim held by ○○ Land Trust Co.,, Ltd. with the ○○ Land Trust on October 21, 2002. The above court issued the provisional attachment order of claims on October 21, 2002.

(3) In addition, on February 21, 2003, Kim ○○○ filed an application with the Seoul District Court for the provisional seizure of the claim held by ○○○○ Land Trust Co., Ltd. (at this time, Kim ○○ claimed that the construction was completed by December 25, 2001). The above court issued the provisional seizure order on February 25, 2003.

(4) On April 25, 2007, the ○○○○○○○○○○○○○○○ Director prepared and executed a written confirmation (B-1) to a public official of Egyptian affairs, which stated that “at the time of construction work, Kim○○, a contractor, completed the landscaping work on December 25, 2001, which was due to good and sincere performance and sincere performance.”

(5) On April 8, 2003, the Plaintiff agreed with ○○ Land Trust Co., Ltd. to settle the construction cost of the instant landscaping work at KRW 356,362,00 in the Plaintiff’s case of the Plaintiff, and KRW 223,638,00 in the case of Kim○ Line. The Plaintiff was paid KRW 356,362,00 in accordance with the above agreement on April 15, 2003.

[Grounds for Recognition] Gap 1-7, Eul 1-9 (including paper numbers)

D. Determination

(1) Article 2(1) of the Value-Added Tax Act provides that a person who independently supplies goods or services for a business purpose is the person liable for value-added tax, regardless of whether it is for profit-making purpose. Here, a person who independently supplies goods or services for a business purpose is a person who has the type of business to create value-added and who continues to and repeatedly provides goods or services.

As long as the Plaintiff, while running the ○○ ○○ Landscaping along with ○○○○○ Group, received a supply of the instant landscaping work from the ○○○ Sclar, and performed the landscaping work at the construction site, this provision provides construction services that are subject to value-added tax, and thus, the Plaintiff’s assertion on a different premise is rejected.

(2) According to Article 9(2) and (4) of the Value-Added Tax Act and Article 22 of the Enforcement Decree of the same Act, in the case of ordinary supply of services for which the value of supply is determined upon completion of the provision of services, the general time of supply becomes the date of completion of the provision of services, and “the time of completion of the provision of services” refers to the time when the fact of the provision of services can be verified sufficiently by taking into account the scope of the provision of services under a contract between a trader and the terms and conditions of a contract, i.e., the time when the recipient of services can use the computation of the provision of services (see Supreme Court Decision 2008Du5117, Aug. 21,

According to the above facts, since the landscape gardening of this case was completed on December 25, 2001 (in light of each description in A7 and B 5-1, each testimony of witness ○○○, 00 days, and Kim Jong-1 is insufficient to reverse it, and there is no other evidence to acknowledge it otherwise). It is reasonable to view that the time of supply of the service for which the provision of the landscape gardening of this case is completed is December 25, 2001.

(3) Therefore, the instant disposition is lawful where the Defendant imposed value-added tax on the Plaintiff for the second period of 2001.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.