National High Court Decision 2007No4777 (Law No. 27, 2008)

The legitimacy of the assertion that the construction price has been paid directly to the subcontractor that is not the contractor.

Although the owner asserts that he/she paid the construction price directly to the subcontractor who is not the contractor, there is no evidence that there was such an agreement with the subcontractor, and there is no evidence of transaction such as contract and tax invoice between the subcontractor and the subcontractor, and the contents of the contract between the contractor and the subcontractor are omitted.

The contents of the decision shall be the same as attached.

Article 17 (Payable Tax Amount)

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 13,504,670 on the first term portion of year 2006 and value-added tax of KRW 36,394,340 on the second term portion of year 2006 shall be revoked.

1. Basic facts

A. The Plaintiff, who is engaged in real estate rental business, newly built a three-story complex building on the ground located at ○○○○○○○○○ and ○○○-1 located on the ground (hereinafter “instant building”).

B. The building of this case is 836.52m of the commercial building of the lst floor.

Housing of 1,738.96m

A total area of 2,575.48 square meters is composed of 2,000 square meters. On the other hand, a household exceeding 85 square meters of national housing (85 square meters) among the said housing is 7 households, and its total area is 622.08 square meters, and the area of stairs and corridor is 279.36 square meters." In relation to the construction of the instant building, the Plaintiff entered into a construction contract with ○○ General Construction Co., Ltd. (hereinafter referred to as “O○ General Construction Co., Ltd.”) to supply services, and filed a report on the refund of the input tax amount of value-added tax as follows.

D. As to this, the Defendant notified the Plaintiff of the pre-announcement of taxation by regarding KRW 220 million as the actual construction cost. However, in the pre-assessment review, the Defendant recognized additional KRW 350 million as the construction cost, and recognized the aggregate of KRW 570 million as the construction contract amount, and deducted the input tax amount for KRW 174,658,263 out of the purchase amount calculated by calculating the excess and tax-free service cost according to the ratio of the area of the commercial building and the house which is tax-exempt, and deducted the remainder of KRW 480,83,737 from the calculated calculation of the input tax amount, and deducted the input tax amount for KRW 480,83,737 on April 3, 2007 from the Plaintiff on April 1, 200, the value-added tax for KRW 13,504,670 (including the additional tax) and for KRW 36394,340 (hereinafter referred to as the “additional tax”) and the additional tax amount for KRW 9098 (hereinafter referred to as the instant disposition”).

[Reasons for Recognition] In the absence of dispute, entry of Gap evidence Nos. 1, 2, 3, 8, Eul evidence Nos. 1-5, 2, 3, 4-1 to 4, 6-1 to 6, 7-1, 7-2, and 9, and the purport of the whole pleadings

2. The legality of disposition.

A. The plaintiff's assertion

(1) The Defendant recognized only KRW 570 million, which was confirmed to have been paid directly by the Plaintiff to the non-party company as the consideration for the supply of the non-party company’s construction services. However, due to the shortage of funds by the non-party company, the Plaintiff directly paid KRW 460 million to the subcontractor on behalf of the non-party company. As a result, the portion was paid by the Plaintiff to the non-party company, which was issued a legitimate tax invoice of the amount equivalent thereto, and thus, should

“(2) Since the total area of the instant building exceeds 836.52 square meters and 744.16 square meters in a housing area exceeding national housing scale (including a subdivided co-ownership) among 2,575.48 square meters, it is subject to taxation and the remaining housing area is 994.8 square meters in a size of 994.8 square meters, the taxation rate is 61.37% (1,580.68 ¡À2,575.48 x100), and the tax exemption rate is 38.63% (94.8±2,575.48 x100) and the tax exemption rate is 32.5% (including a portion co-ownership ± 836.52±2,575x100) and the Defendant calculated the input tax exemption rate as the tax exemption rate, and the Defendant calculated the input tax exemption rate by calculating it as the tax exemption rate under relevant Acts and subordinate statutes and subordinate statutes.

Article 12 (Exemption of the former Value-Added Tax Act)

Article 17 (Payable Tax Amount)

C. Determination

(1) With respect to the assertion that the construction work was directly paid to the subcontractor on behalf of the non-party company, unless there is a direct contractual relationship between the contractor and the actual contractor, the contractor shall pay the construction cost to the contractor who has a direct contractual relationship, and the person who actually performs the construction work is generally paid the subcontract price from the contractor. The contractor shall pay the subcontractor the subcontract price to the subcontractor who has no contractual relationship on behalf of the contractor, except where there is an agreement between the contractor and the contractor or where the contractor satisfies the requirements of Article 35(1) of the Framework Act on the Construction Industry, such as the contractor's bankruptcy.

Therefore, in order for a contractor to be evaluated as a contractor who is not a person who actually performed the construction work because the contract price paid to a person who actually performed the construction work is paid on behalf of the contractor in the relationship between the contractor and the subcontractor, and as a result, the construction work provided by the person who actually performed the construction work has not yet been paid in the position of the contractor, it shall be positively proved that the contractor of the construction work satisfies the requirements of Article 35 (1) of this Act, such as agreement with the contractor or bankruptcy of the contractor, and the payment of the contract price has not been made in the absence of a contractual relationship with the actual contractor

그런데 이 사건에 관하여 보건대, 원고는 소외 회사와의 합의를 거쳐 그동안 미지급된 공사대금과 향후 진행되는 공사에 대하여 원고가 하도급업체들에게 직접 공사대금을 지급하기로 하였다고 주장하면서도, 원고와 소외 회사 사이에 그러한 합의가 있었다는 점에 대한 아무런 자료를 제시하지 못하고 있는 반면, 오히려 갑 제8, 11호증, 을 제8호증의 1,2의 각 기재에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정, 즉 ① 원고와 소와 회사 사이에 작성된 공사도급계약서에는 소외 회사에 맡기는 공사의 범위가 어디까지인지 구체적으로 나타나 있지 않고, 하자보수보증금율이나 지체상금율에 대한 내용도 없는 점, ② 그런데 원고가 직접 지급하였다고 하는 내역이 현장노임, 자재, 장비사용료, 철근대금, 잡경비, 운임, 미장노임, 정화조자재대, 전기설비대, 설계비, 보일러 시공비, 판넬공사대금, 전기, 통신, 소방공사대금, 샷시자재대, 소방감리대, 페인트대금, 건재대금 등 설계에서부터 감리에 이르기까지 건물신축의 전 분야와 공정에 걸치고 있어 과연 소외 회사가 이러한 모든 분야에 대한 도급을 받은 것인지 의심스러운 점, ③ 소외 회사와 하도급업체 사이의 계약서, 세금계산서 등 하도급관계를 증명할 수 있는 아무런 자료가 없는 점, ④ 기성고에 따라 공사대금을 지급하였을 텐데도 소외 회사가 언제 어떤 내용으로 기성금을 청구하였는지 전혀 드러나지 않는 점,⑤ 이 사건 건물의 사용승인은 2007. 2. 2. 이루어졌는데 소외 회사는 그보다 3개월 여 전인 2006. 10. 31. 이며 폐한 사실 등에 비추어보면, 원고가 이 사건 건물의 신축공사에 판한 공사용역용 소외 회사로부터 공급받고 하도급대금을 직접 지급하였을 뿐이라는 원고의 주장은 믿기 어렵다.

Therefore, among the tax invoices issued by the non-party company, the Defendant’s taxation disposition in this case is legitimate on the premise that it is a tax invoice different from the private theory within the scope of business.

(2) As to the assertion that the taxation and tax exemption rate were mistakenly calculated

The amount of value-added tax payable by an entrepreneur is the amount calculated by deducting the tax amount for the supply of assets or services used or to be used for his/her own business from the tax amount for the goods or services supplied by him/her, and the tax amount for the import of goods used or to be used for his/her own business (purchase tax amount). However, in cases where the input tax amount exceeds the output tax amount, the excess amount becomes the refundable tax amount. However, in cases where the business of supplying housing and its appurtenant land exceeds the output tax amount, the input tax amount related to the business of supplying the goods or services exempt from value-added

Therefore, it is reasonable to newly construct a house among the instant buildings as a person who carries on a real estate rental business. The input tax amount, which was based on a construction work for the new construction of a house for rent, is not deducted from the output tax amount in Bable with an input tax amount related to the business for supplying a house for rent, and it is not related to whether the area of the house exceeds the national housing size.

Meanwhile, the Plaintiff argues that since seven households exceeding the national housing size among the housing units of the instant building do not sell or rent housing, they are currently used as the rest space for the office and employees, and thus, taxation is unreasonable. Thus, the determination of whether a lessee constitutes a housing lease subject to an exemption from value-added tax should be based on whether the lessee actually uses it for permanent residence based on the objective usage of the relevant building. However, in cases where the purpose of use of the object indicated in the usage classification or lease agreement in the public register and the purpose of use actually used by the lessee are in dispute, it should be based on the latter. However, the purport of exempting the value-added tax on the housing and its appurtenant land is not to reduce the burden of the lessee, but to reduce the burden of the business operator. Accordingly, even if it is not used as a house because the purpose of use is clear that it is a house for lease, the input tax amount for newly constructing the relevant housing should not be deducted from the output tax amount.

Therefore, the instant taxation disposition that calculated the value-added tax is lawful on the grounds that the Defendant imposed tax on the area of the commercial building among the total area of the instant building and deducted the input tax amount corresponding to the said tax exemption ratio on the entire housing.

3. Conclusion

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