Early High Court Decision 2015J 1124 (Law No. 18, 2015)

Lease of a unsold apartment in excess of national housing as a whole shall not be deemed temporary lease temporarily.

It is reasonable to view that the plaintiff temporarily and temporarily leased the apartment of this case, and it is reasonable to view that the plaintiff directly used the apartment of this case that was produced in connection with his own taxable business for the housing rental business, which is its own tax-free business

Article 10 of the Value-Added Tax Act: Special case of supply of goods

2015Guhap1629 Disposition to revoke the imposition of value-added tax

OEOOOOS Co.

O Head of tax office

April 21, 2016

May 19, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of value-added tax against the Plaintiff on August 1, 2014 of KRW 4,492,822,560 for the second term of 2013 and KRW 2,261,521,450 for the first term of 2014 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is an executor of an OO apartment (a total of 1,425 units, a total of 456 units of national housing exceeding 456 units, hereinafter referred to as “OO apartment”) located in the OO-gu O-dong in the O-gu O-dong. Upon completion of a complex on February 15, 2013, the Plaintiff deducted the relevant input tax amount for the over-national housing exceeding the national housing and reported the relevant value-added tax after deducting the relevant input tax amount for the over-national housing exceeding the national housing. The Plaintiff was unsold in lots, including the over-national housing exceeding the first taxable period during the second period from the second period in 2013 to the first period in 2014.

Tear leased a set of money.

B. On April 1, 2014, the director of the regional tax office reported that the Plaintiff’s audit results with respect to the Plaintiff, and that the Plaintiff leased the excess of national housing among the above apartment units to 244 households (hereinafter “the apartment units of this case”) was exclusively used for the lease of the housing exempt from value-added tax, and constitutes the supply of goods pursuant to Article 10(1)1 of the Value-Added Tax Act, and notified the Defendant of audit data. On August 1, 2014, the Defendant issued a revised notice of KRW 4,492,82,560, value-added tax amounting to 2,492,82,560, value-added tax amounting to 1,261,521,450 (hereinafter “the instant disposition”).

C. The Plaintiff filed an appeal with the Tax Tribunal on November 10, 2014, but the Tax Tribunal dismissed the claim on August 18, 2015.

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The Plaintiff intended to temporarily and temporarily lease unsold housing units because it is impossible to sell the apartment units of this case early due to long-term real estate economic depression, and induce the sale of the apartment units. It does not definitely divert the apartment units of this case in the housing rental business, which is a tax-free business.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

㈎ 관련 법리

"부가가치세법 제10조 제1항 제1호에는 사업자가 자기의 과세사업과 관련하여 생산하거나 취득한 재화를 자기의 면세사업을 위하여 직접 사용하거나 소비하는 것은 재화의 공급으로 본다고 규정되어 있는바, 이는 사업자가 그 과세사업과 관련하여 생산하거나 취득한 재화를 자기의 면세사업을 위하여 직접 사용하거나 소비하게 되면 매출세액이 발생하지 않게 되어 부가가치세의 전가는 중단되므로, 이와 같이 직접 사용하거나 소비한 경우에 최종 소비자적 지위와 같게 하기 위하여 재화의 공급으로 보아 부가가치세의 기본구조를 유지하려는 데 그 뜻이 있다 할 것이다. 따라서 사업자가 분양목적으로 건축한 건물의 일부를 분양될 때까지 일시적・잠정적으로 임대한 경우는 부가가치세법 제10조 제1항 제1호의 이른바 자가공급에 해당하는자기사업을 위하여 직접사용하거나 소비하는 경우'에 해당한다고 할 수 없다(대법원 1990. 10. 12. 선고 90누2383 판결 등 참조).",㈏ 자가공급에 해당하는지 여부

In full view of the following circumstances that can be recognized based on the above facts of recognition, Gap 7, 8, and Eul 2 through 5, it cannot be deemed that the plaintiff temporarily and temporarily leased the apartment of this case, and it is reasonable to view that the apartment of this case that the plaintiff produced in connection with his own taxable business is directly used for the housing rental business, which is its own tax-free business.

① On October 31, 2007, the Plaintiff registered the primary business as “construction/construction/construction business”, and registered the secondary business as “real estate/sale.” On July 22, 2013, the Plaintiff began to lease the apartment of this case, and added the “real estate/lease” to the business registration around July 24, 2013. Accordingly, the Plaintiff expressed the purpose of the housing rental business to the outside around the time of the lease of the apartment of this case.

Therefore, the Plaintiff asserts that the apartment of this case is temporarily and temporarily leased because it did not register as a rental business operator under the Special Act on Private Rental Housing, which has tax benefits, but there is no ground to uniformly determine that the apartment of this case is directly used for rental business only when it is engaged in rental business under the Special Act on Private Rental Housing. Therefore, the Plaintiff’s above assertion is difficult to accept

② The Plaintiff advertised the apartment of this case through the posting of the Internet homepage and the front page. According to the advertisement, the Plaintiff should transfer ownership, pay acquisition tax and property tax to other construction companies in comparison with the pre-sale agreement of other construction companies, and the Plaintiff’s pre-sale agreement does not require transfer of ownership, there is no need to pay acquisition tax and property tax, and the deposit is protected pursuant to the “Lease Protection Act.” In addition, unlike the complex contract of other companies, the above advertisement states that “O pre-sale agreement is set up at the price of pre-sale agreement, which is not borne by the pure pre-sale agreement, and is immediately set up in the new apartment.”

③ The lease agreement on the apartment of this case sets the lease period of two years from the date of the remainder payment. The contents of the above advertisement do not stipulate at all the special terms, such as the right to sell preferentially to the lessee at the end of the lease period, or the right to sell to a third party during the lease period. In light of such circumstances, the Plaintiff appears to have a typical intention to enter into a lease agreement subject to the Lease Protection Act with the lessee.

④ After the lease of the instant apartment, the Plaintiff appears to have commenced the sale activity again from July 2015, the time when the period of lease expires after suspending the sale of the instant apartment from around July 31, 2015. The Plaintiff asserted that the possibility of sale in lots was examined against the tenants of the instant apartment since May 31, 2014. However, there is no clear evidence to prove that all of the review reports on sale in lots asserted by the Plaintiff was insufficient to the Plaintiff’s internal data and there is no external sale activity against the tenants, and the review reports submitted by the Plaintiff are suspected to be drafted after the director of the regional tax office notified the Defendant of the taxation data on the instant apartment.

⑤ According to the Plaintiff’s statement of financial position, statement of profit and loss, etc. corresponding to the taxable period, the Plaintiff appears to have replaced the instant apartment from the inventory assets with a tangible asset premised on rental business.

3. Conclusion

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