The amount received by constructing infrastructure facilities and contributing to the competent authority is not a real estate rental service.

It is substantially paid that the amount of money paid for the service on the contract is paid in installments by the competent authority for the construction of infrastructure and donation to the competent authority.

Article 22 of the former Value-Added Tax Act

2015Guhap50867 Disposition of Imposing value-added tax

The main contents of the concession agreement shall be as follows:

The private sector performs the design, construction, maintenance, management and operation of each facility and the financing for the implementation of the project;

The Office of Education shall grant management and operation rights thereto and pay rents.

- Funds invested by a project operator for the construction of the project facilities shall be as provided for in this Convention.

(d) recover rents calculated and paid and net profits from the operation of affiliated facilities, and the operating of the facilities;

Expenses incurred in the maintenance and management shall be covered by operating expenses in accordance with the provisions of this Convention.

Article 2 (Method of Implementing Projects)

-"facility rent" means the establishment of management and operation rights for the project operator's recovery of the investment cost.

during the period of time, the competent authority shall pay the project operator by equal repayment of principal and interest.

for the period of the establishment of management and operation rights, the project implementer shall have jurisdiction over the management and operation rights.

Personnel expenses, oil expenses management, as consideration for the management and operation services of facilities received from the public;

Non-, operating equipment replacement expenses, incidental expenses, and various expenses (Definition of the terms of Article 3).

- The ownership of the project facilities shall be reverted to the competent authority upon the completion of the project facilities (Article IX).

- Unless otherwise specified in this Convention, the period for the establishment of the right to manage and operate the business facilities shall be twenty years (Article X).

- The concessionaire shall have the authority to administer and operate the project facilities on the basis of the management and operation rights prescribed in this Convention.

appropriate maintenance, management, and operation of the business facility in accordance with this Convention at the same time as the business facility is leased to it;

of this section.

In accordance with this Convention, the concessionaire shall pay the operating expenses of the facilities from the competent authority.

under section 40 (Article 40).

- A lease contract for the project facilities shall be for the duration for the establishment of management and operation rights as prescribed in this Convention.

The concessionaire shall have the competent authority use the business facilities with the term of lending and borrowing;

The payment of rent shall be made to the Office (Article 41).

The lease shall be deemed to have been simultaneously concluded under Paragraph 1 upon the conclusion of this Convention.

It does not require a separate method contract, and the lease system during the period of the establishment of management and operation rights.

(1) The term of lease shall become effective. In such cases, the commencement of the term of management and operation rights shall be the beginning date.

shall be the first day of commencement.

- The competent authority each quarter for the first five years after the commencement of the lease of the project facilities;

Rent paid shall be calculated by reflecting the business profit rate in the total amount of private investment expenses. Rent shall be principal and interest.

It shall be calculated by applying the equal division formula, but shall be calculated by deducting the estimated net profits of affiliated facilities each year.

Determination (Article 59)

- Article 57 only once every five years after the commencement of the lease of the business facilities.

The calculation of the business return shall be conducted in accordance with the adjustment of the return on investment (Article 60).

② From February 13, 2009 to February 13, 2009, Plaintiff ○○○ School and three others pursuant to the instant concession agreement.

A new construction project has been implemented for the above four schools, and three of them have been managed and operated for the above four schools.

The Plaintiff’s ○○○○ received government payments from ○○○○○○○○○○○ in the name of rent and operating expenses from the first quarter of March, 2010.

○○○ Operation of the above shop and the profits from the ancillary business accrued therefrom shall be calculated in accordance with the concession agreement of this case.

It was deducted from the fixed rent.

③ The Plaintiff ○○○○○ does not alter two other schools by January 7, 2010.

In addition, ○○ School and 18 other schools have implemented a construction project for expansion of sports halls, and thereafter the above facilities have been installed.

From March 2010 to ○○○○○○○○○○○ in the course of performing the management and operation of the business, government subsidies were paid in the name of rent and operating expenses.

④ The Plaintiffs received rents and operating expenses from ○○○○○○○○○○○○○○○○○○○○○.

Submission of a detailed statement of real estate rental price when reporting the value-added tax with the revenue amount from the business;

Otherwise, Plaintiff ○○○○○ does not appear, from the second quarter of 2013, and Plaintiff ○○○○○○ in 2012.

From the expiration date, I submitted a detailed statement of the real estate rental price.

2) According to the above facts, the concession agreement of this case provides for the plaintiffs' own expenses.

A. Construction of ○○○○○○○ by owning ○○○○○, and the ownership belongs to the Plaintiffs’ instant facilities.

the funds invested for the construction of this case shall be rents and annexed facilities calculated in accordance with the concession agreement of this case.

Basic structure is to recover operating profit, and the plaintiffs and ○○○○○○○○○○○.

In addition to the instant concession agreement, no separate lease agreement was concluded, and the time of the instant case

Unlike the general lease agreement, the rent for the theory is the total private investment cost invested by the plaintiffs.

The cost shall be calculated in a lump sum by reflecting the rate of return on the project under the instant concession agreement.

The principle of total private investment cost invested by the plaintiffs for 20 years, which is the period for the establishment of management and operation rights for the plaintiffs;

Since it was agreed to pay by the equal repayment method, the concession agreement of this case and the Private Investment Act of this case

The terms of lease, rent, etc. are used by the plaintiffs, but they are from ○○○○○○○○○.

The money actually received as rent shall be the contract price for the service to the facility in this case.

It is reasonable to view it as a long-term installment.

Furthermore, the public-private partnership law holds the ownership of infrastructure by the state or local government.

The concessionaire shall have the right to manage and operate facilities for a certain period of time for the public-private partnership project.

The method of recognition is only defined, but the implementation of the project has been amended by Act No. 7386 on January 27, 2005.

The State or a local government recognizes the right to manage and operate infrastructure, while the State or the local government recognizes such right.

Article 4 subparagraph 2 of the Act on Public-Private Partnerships in the form of lease and profit-making has been newly established, and the above provision is the company.

It is difficult for the operator to operate the facility directly or to collect the investment cost only by operating income.

The State or a local government shall reimburse the project implementer's investment expenses for the facilities, etc.

investment of the private sector may be activated, but the State or local governments shall have long-term investment costs.

by paying rent in the form of a rent over a period of time, the State or local governments shall have a financial burden

Since there seems to be the purpose of legislation in order to make it possible for the plaintiffs to pay it.

The amount of rent received shall be the contract service invested by the concessionaire of the private investment project in substance.

It is reasonable to view that the price was paid in installments.

Therefore, the amount received by the plaintiffs under the concession agreement of this case shall be in accordance with its substance.

Considering that it is a long-term installment payment is in accordance with the substance over form principle, so the plaintiffs are real estate rental business operators.

on the premise that the disposition of this case was not made on the ground that the statement of the real estate rental value was not submitted.

Since it is illegal, it must be cancelled.

3. Conclusion

Therefore, the plaintiffs' claims are justified, and this decision is delivered with the assent of all participating Justices.

section 3.

○○○ Co., Ltd. and ○○○○ Co., Ltd.

○ Head of tax office

July 23, 2015

August 27, 2015

1. The imposition of each value-added tax on February 3, 2014 by the Defendant against the Plaintiffs on February 3, 2014 is revoked.

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

The imposition of each value-added tax on February 3, 2014 by the defendant of the Gu office against the plaintiffs on February 3, 2014 shall be revoked.

1. Details of the disposition;

A. Around April 4, 2007, Plaintiff ○○○○○ Co., Ltd. (hereinafter “Plaintiff ○○○○○”) concluded a concession agreement for build-transfer-lease projects (hereinafter “each of the instant concession agreements”) under the Act on Private Participation in Infrastructure (hereinafter “Private Investment Act”) with the content that the Plaintiffs constructed school facilities, etc. at their own expense between ○○○○○ and ○○○○○○ Co., Ltd. (hereinafter “Plaintiff ○○○”) around December 28, 2007, and that the Plaintiffs would receive rent and operating expenses from the competent authority while managing and operating the above facilities.

B. Until February 2009, Plaintiff ○○○○○○○ School and three new schools were built, and Plaintiff ○○○○○○ was engaged in rebuilding construction for two schools outside of ○○○○ School and construction of expansion of 19 sports halls for 19 schools (hereinafter “facilities installed by the Plaintiffs”).

C. On February 3, 2014, the Defendant: (a) filed a report on value-added tax on government payments (rent and operating expenses) received from the competent authority from the second period to the first period of 2012, which was the Plaintiffs’ real estate rental business entity; and (b) failed to submit the specifications of real estate rental price.

As shown in the list, the value-added tax was corrected and notified (hereinafter referred to as the "disposition of this case").

D. The Plaintiffs were dissatisfied with the instant disposition and filed an objection on May 1, 2014, but on May 29, 2014.

Each decision was received and filed with the Commissioner of the National Tax Service on August 29, 2014, but the request was rejected on December 5, 2014.

was received.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 7 (including each number), Eul evidence 1 to 30

each entry of the Commission;

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Under the instant concession agreement, the Plaintiffs constructed the instant facilities at the expense of the Plaintiffs and the competent authorities.

It was provided to the Office, and it was only paid the price for the above contract under the name of rent.

Therefore, even if the term "lease" is used in the concession agreement of this case and the Private Investment Act, such term is used.

quality is only paid in installments the cost of the service provided under the contract.

In addition, the instant disposition that the Plaintiff is a real estate rental business entity is unlawful.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Each entry of Gap evidence Nos. 2 through 7 (including each number) shall include the whole purport of the pleadings.

the same facts as the case may be found.

(1) The Plaintiffs concluded each of the instant concession agreements pursuant to Article 4 (2) of the Act on Private Participation, and this shall apply.