Seocho 2010west 3196 (Law No. 19, 2012)

The income from the management expenses collected by the plaintiff on behalf of the dry Association shall not be deemed to belong to the plaintiff.

In light of the fact that the management expenses are collected and executed on behalf of the dry Association in accordance with a special agreement on the entrusted management services between the plaintiff and the dry Association, and that the revenue amount of the management expenses cannot be deemed to belong to the plaintiff, the plaintiff is separate from that of value-added tax and corporate tax liability on the service expenses incurred in the provision of the entrusted management services, but the initial disposition on the management expenses incurred in the provision of the management

Article 13 of the Value-Added Tax Act

Article 14 (Real Taxation)

2012 disposition of revocation of imposition of value-added tax, etc.

AAA, Inc.

Head of Seoul Central Tax Office

January 11, 2013

February 8, 2013

1. The defendant was employed on July 1, 2010 for the plaintiff.

(a) the number of OOOO(including additional taxes), OOO(including additional taxes), 2007, 207, OOOO(including additional taxes), 2008, 2008, OOO(including additional taxes), 2008, 2008, OOO(including additional taxes) of value-added tax for 2 years 2009, OOO(including additional taxes) of value-added tax for 1 year 2009, 2009, and OOO(including additional taxes) of value-added tax for 2 years 2009;

(b) revoke each disposition of the corporate tax for the business year 2006, the corporate tax for the business year 2007, the OOOO(including additional taxes), the corporate tax for the business year 2008, the OOO(including additional taxes) and the OOO(including additional taxes) of the corporate tax for the business year 2009.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a corporation established on August 25, 2006 (hereinafter “BB”) and engaged in real estate management service business (hereinafter “BB”).

B. From August 25, 2006, the Plaintiff provided management services on consignment to the CCC Building Management Council (hereinafter referred to as the “Building Association”) comprised of residents of the CCC located in 120-3 (hereinafter referred to as “CCC”) and imposed management fees, and only limited to the management expenses collected, the Plaintiff reported and paid value-added tax and corporate tax, including the value-added tax and the corporate tax.

C. From May 24, 2010 to June 10, 2010, the Defendant conducted an integrated investigation into value-added tax and corporate tax from 2006 to 2009, provided management services to CCC from 2006 to 2009, and omitted management fees (hereinafter referred to as "management fees in this case") not collected from the value-added tax and corporate tax revenue amount from the management fees imposed on the occupants of CCC, and on July 1, 2010, the Defendant notified the Plaintiff of the value-added tax (including additional tax) in 2006, OO207, 2007, O207, O207, O207, O200, O200, O209 (including additional tax, and O200, O209, O200, and 200,000,000,000 including additional tax and additional tax for each business year.

D. The Plaintiff filed a request for adjudication on September 30, 2010, and on March 19, 2012, on the grounds that “it is unreasonable for the Tax Tribunal to impose the Plaintiff tax liability up to the management expenses incurred by any occupant who did not consent to the articles of association and management regulations of the related association” was determined to re-examine the occupant who did not consent to the articles of association and management regulations from the time when the related association was established to December 31, 2009 and did not consent to the former, and the Plaintiff is liable to pay tax only for the management expenses imposed on the former, and to rectify the tax base and tax amount.”

E. From April 9, 2012 to April 18, 2012, the Defendant conducted a reinvestigation, and on April 23, 2012, the Plaintiff rendered a decision to maintain the instant disposition on the ground that the Plaintiff “it is not possible to divide any occupant who has agreed to the articles of association and management regulations of the Association, and there is no data by which the Plaintiff could not agree with the occupant, and the Plaintiff provided the CCC management services regardless of the consent, and the Plaintiff is liable to pay the entire management expenses imposed in accordance with the substance over form principle.”

[Ground of recognition] The non-satched facts, Gap evidence 3, 5 (including natural disaster), Eul evidence 4, 5, 11, and 12 (including household numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Since the judgment that there was no management authority over the CCC, the Association has no value-added tax and corporate tax liability for the plaintiff to whom the management authority was delegated by the Association.

(2) Even if the Plaintiff is liable to pay value-added tax and corporate tax, the instant disposition is unlawful for the same reason as that of the instant case.

(A) Since the instant management expenses are gratuitously provided, they are not subject to taxation under the Value-Added Tax Act, and they cannot be included in gross income under the Corporate Tax Act.

(B) The instant management expenses fall under management expenses that cannot be actually collected, such as management expenses related to public rooms, and should be excluded from the value of value-added tax and the amount of corporate tax, as they cannot be viewed as having accrued to the Plaintiff.

(C) The Plaintiff does not have the right to collect management expenses from the occupants who did not consent to the formation of the founding Association, and the management expenses for them must be excluded from the value of value-added tax and the amount of corporate tax revenue.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) On October 9, 2007, the Plaintiff drafted the following agreements with the Building Association and CCC building management.

In order to establish a transparent and reasonable management system between the CoCC merchants and the management service company, to establish the order of commercial transactions in order to maximize the business of merchants, and to contribute to the management and development of commercial buildings, both parties shall enter into an agreement on the following:

1. B (the plaintiff and the same shall apply hereinafter) shall be selected and managed in order to perform the management affairs of the buildings and basic facilities, incidental facilities, and shared areas of the sectional owners and lessees in the CCC, and Party A (the building association, and the same shall apply hereinafter) shall calculate the management notification guidelines and take charge of the notification of management expenses and the disbursement of service expenses, and Party B shall issue a notice of management expenses to each store to distribute them and take charge of receipt.

2. Where public charges and service charges are settled by the end of each month, the delinquent management expenses shall be inspected with Gap and Eul, and in all cases, they shall be deposited and treated by the passbook at the end of the month from the beginning to the end of the month, and they shall not be disbursed without the approval of Gap;

3. If the amount receivable in arrears is collected, the ratio of expenditure shall be set and distributed and settled by convening and discussing the board of directors with Gap and Eul.

4. The management passbook deposited shall be kept by the chief secretary and the person in charge of management who is an executive officer of A, and the chief secretary shall be kept by the chairperson of A.

6. If a dispute arises with the CCC management body with respect to the existing management details, the plaintiff and the related association shall cooperate with it. In this case, the plaintiff shall submit various materials and cooperate with the related association and shall bear the burden of the related association where necessary expenses occur.

7.Any content other than this Convention shall comply with the existing rules for the management of the Association.

(2) On January 1, 2008, the Plaintiff drafted the following consignment management service agreement with the Dried Association and CCC building management.

Article 1 (Purpose)

A (hereinafter the same shall apply) shall entrust the CCC building management to B (the plaintiff and the same shall apply hereinafter), and B shall be entrusted with the building management.

Article 2 (Management Methods)

B shall be engaged in the management in good faith in accordance with the articles of incorporation and management regulations of the separate association.

Article 4 (Determination of Management Expenses)

The determination of management expenses shall be made in consultation with A and B.

Article 5 (Collection of Management Expenses)

(1) Management expenses shall be notified and collected.

(2) Management expenses shall be deposited directly by the shop occupants into the passbook of the Housing Association.

(3) The business establishments in arrears with management expenses shall be responsible for and collected in accordance with the management regulations of the related association.

(4) The legal treatment of unpaid persons due to management expenses in arrears shall be stipulated.

Article 8 (Management and Service Fees)

A and B enter into a service contract, and A shall pay OOOO personnel to each month. The service cost may be adjusted in consultation with A and B later.

Article 10 (Extension of Contract)

The contract shall be automatically extended for three years when it is determined that there is no special reason to terminate the contract, and that there is no longer management.

(3) The provisions pertaining to management expenses in the articles of incorporation and management regulations of the Association are as follows.

Part V Management Regulations

Article 19 (Management Supervision)

The management shall be controlled at the center, and a separate manager shall be selected to act on his/her behalf, and the manager shall always report the management to the Council.

Article 20 (Management Expenses)

A manager selected by the Housing Association shall calculate and notify management expenses according to a certain standard each month in accordance with the provisions.

1. General management expenses ( personnel expenses and calculation per minute);

2. Electricity rates and electrical safety inspection fees;

3. Elevator inspection expenses;

4. Water supply and sewerage charges;

5. Expenses for cleaning and garbage collection and consumption goods, insurance premiums, fire prevention management allowances, environmental purification expenses, and clothes;

6. Other various expenses necessary for the management.

7.The criteria for the calculation of management expenses shall be calculated in accordance with social practices and laws and regulations, and may be adjusted in consultation with the related association.

Article 21 (Payment of Management Expenses)

1. Each owner shall pay the management expenses notified to him/her to a bank account designated by the Foundation by the due date: Provided, That the disposal of taxes shall, in principle, be treated as a payment receipt by a financial institution;

2.In case of arrears two or more times, a demand note may be issued to the occupants and a short-term and short-term measure may be taken without notice if the failure will continue after that notice, in accordance with the resolution of the related association.

6. Where legal measures are taken due to the arrears of management expenses on at least two occasions, the property of the occupant may be provisionally seized according to a resolution of the Association of Domincts Association.

Article 24 (Penal Provisions)

If the following is not implemented, it is necessary to take measures for cutting electricity and water without notification to the owner of the business. In the case of cutting electricity and water, the occupant of the business can not raise any objection for other reasons.

1. Where it has violated the provisions of Article 23 (Prohibitions) continuously after the first warning;

2. He/she shall not engage in any business after taking measures for cutting off or cutting off water;

(4) Meanwhile, in the Seoul Central District Court (2010Gahap38118), the Plaintiff filed a lawsuit for the claim for the payment of management expenses against DD, who is a sectional owner of CCC, and the building association cannot be deemed a management body established under Article 23 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the "Act on the Ownership and Management of Aggregate Buildings"), and the Plaintiff, who was delegated by the building association, has no authority to collect management expenses against the sectional owners, was sentenced to dismissal on July 20, 2010, and the above decision became final and conclusive on August 12, 2010.

[Based on Recognition] The non-speed facts, Gap 1, 2, 5, 6 (including household numbers), and Eul 1, 4, 5, 6, and 7, and the purport of the whole pleadings

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 a person liable for value-added tax, regardless of whether it is for profit-making purpose, and "a person who independently supplies goods or services for business purpose" refers to a person who supplies goods or services for the purpose of continuous and repeated intent after meeting the business form to create added value (see, e.g., Supreme Court Decisions 88Nu5754, Feb. 14, 1989; 98Du16705, Sept. 17, 199; 98Du16705, Sept. 17, 199). Therefore, the management body established pursuant to Article 23 of the Multi-Added Tax Act is a person who independently supplies goods or services for business purpose, and is liable for the payment of value-added tax, and management expenses are revenues and global income tax (see, e.g., Supreme Court Decision 201Du8430, Sept. 9, 2010).

(2) According to the above contract, the management body under the Aggregate Buildings Act has the authority and responsibility for the management of the building (Article 23, Article 25 of the Aggregate Buildings Act), and the management service contract for the entrusted management of the plaintiff is concluded in the position of the management body, and (2) the building association has concluded the entrusted management service contract with the plaintiff to collect and execute the management expenses directly, and the plaintiff has provided the management services on behalf of the building association, and the "management services" provided by the building association and the "management services" are personal (i.e., the building association provides management services to the plaintiff, and the plaintiff is not provided with value-added tax management expenses under the contract for the entrusted management and management of the building, and the plaintiff is not provided with the property management expenses for the building management under the contract for the entrusted management and management of the building.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.