Whether the classification of the land and building price in the contract for sale in lots can be seen as unclear.

Since the sales contract of apartment-type factory clearly divided the building price, land price and value-added tax imposed on the building price, a disposition imposed on the apartment-type factory by deeming that the classification of the land and building price on the sales contract is unclear is illegal.

Calculation of tax base under Article 48-2 of the Enforcement Decree

Calculation of tax base under Article 48-2 of the Enforcement Decree

1. The Defendant’s imposition of value-added tax against the Plaintiff on October 1, 2004 shall be revoked in entirety.

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

The same shall apply to the order.

1. Facts of recognition;

가. 원고는 ◯◯시 ◯◯구 ◯◯동과 ◯◯구 ◯◯동 일원에서 다음과 같이 집합건물인 아파트형공장(이하 '이 사건 아파트형공장'이라 한다)을 신축하여 분양하였다.

name of complex

Location No.

The approval date of public notice

◯◯차

◯◯시◯◯구◯◯동 ◯◯

April 12, 2000

◯◯동

◯◯시◯◯구◯◯동 ◯◯

april 3, 2001

◯◯차

◯◯시◯◯구◯◯동◯◯

September 21, 2001

◯◯동

◯◯시◯◯구◯◯동◯◯

December 21, 2001

B. In selling the apartment-type factory in this case, the Plaintiff, with reference to Article 48-2 (4) of the Enforcement Decree of the former Enforcement Decree of the Tax Act (amended by Presidential Decree No. 17041, Dec. 29, 2000; hereinafter referred to as the "former Act") by distinguishing the supply value of the apartment-type factory in proportion to the value calculated according to the statutory standard price under the Local Tax Act, was approved for the public announcement

C. The apartment-type factory of this case was sold in lots over the period from 2000 to 2002. Article 48-2 of the former Act was amended to calculate the amount calculated in proportion to the amount calculated according to the standard market price under Article 99 of the Income Tax Act in the case where the distinction between the value of land and the value of buildings, etc. is unclear in the actual transaction price where the apartment-type factory of this case was sold together with land and buildings built on such land.

D. Article 1 (Sales Price and Payment Method) of the terms of the contract for the sales contract of the apartment-type factory of this case stipulates that the supplied amount is divided into building price and land price and the amount equivalent to 10% of the above building price is entered in the item of value added tax.

E. Despite the enforcement of new Acts and subordinate statutes, the Plaintiff supplied a factory by entering into a sales contract in proportion to the value calculated according to the standard market price under the Local Tax Act at the time of applying for the public announcement of the recruitment of the apartment-type factory, and received value-added tax on the value of the building from the buyer. However, the Defendant, on the ground that the value of the building stated in the sales contract is calculated by dividing the value of the building and site according to the provisions before the enforcement of the new Acts and subordinate statutes, which is less than the cost of construction of the building, or is less than the cost of construction of the building, and it cannot be viewed as the actual transaction value, the value-added tax was corrected based on the value of the building calculated in proportion to the value calculated according to the standard market price under Article 99 of the Income Tax Act, and the difference between the value-added tax originally reported

[Reasons for Recognition] Facts without dispute, Gap evidence 1's evidence 1's 1's 6, 3's 1's 1's 4, 6, 7's 1's 1's 6, 3's 1's 3's 3's 1's 3, 4-1 and 4-2's 1's 1's 1's 3

2. Whether the instant disposition is lawful

A. The party's assertion

The plaintiff asserts that the value-added tax should be paid according to the actual transaction price because the value of the building site and building is classified into the actual transaction price. The defendant asserts that value-added tax should be paid according to the building price calculated by dividing it according to the standard market price under Article 99 of the Income Tax Act in supplement because it cannot be viewed as the actual transaction price.

(b) Related statutes;

Gu Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17041 of Dec. 29, 2000)

Article 48-2 (Method of Calculating Tax Base)

(4) In the event that a business operator supplies land, a building attached to such land and other structures together, the value of the relevant building and other structures shall be based on the actual transaction value: Provided, That if the distinction between the value of land and the value of buildings and other structures is unclear, it shall be calculated in proportion to the value calculated according to the current market price

(5) In applying the provisions of the text of paragraph (4), the value thereof shall be considered as the actual transaction value of buildings and other structures in the following cases. In this case, the application order shall be as follows:

1. In case of a house supplied with approval for a business plan from the State or a local government under the Housing Construction Promotion Act, the sale price indicated in the approved business plan

2. Where there exists any book value of land, buildings and other structures, the value calculated in proportion to the said value. In this case, if there is no book value, the acquisition value shall be the basis.

3. Where there exists the value appraised by an appraisal corporation under the Act on the Publication of Land Prices and Evaluation of Land, etc., the value calculated in proportion to such value.

Gu Enforcement Decree (amended by Presidential Decree No. 1930 of Feb. 9, 2006)

Article 48-2 (Method of Calculating Tax Base)

(4) Where a business operator supplies land, buildings built on such land, and other structures (hereafter referred to as "buildings, etc." in this Article), the supply value of the buildings, etc. shall be based on the actual transaction value: Provided, That where distinction between the value of land and the value of buildings, etc. is unclear in the actual transaction value,

1. Where there are all the standard market prices of land, buildings, etc. under Article 99 of the Income Tax Act (hereafter in this Article, referred to as the “standard market prices”), it shall be calculated in proportion to the values calculated according to the standard market prices as of the date of supply contract: Provided, That where there exists an appraised value (referring to the value assessed by an appraisal corporation under the Public Notice of Values and Appraisal of Lands,

2. Where there is no standard market price among land, buildings, etc., and there is no appraisal value, it shall be calculated in proportion to the said value: Provided, That where there is no appraisal value, it shall be calculated in proportion to the book value (where there is no book value, the acquisition value), and where there is any assets bearing the standard market price,

3. Where the provisions of subparagraphs 1 and 2 are not applicable or it is difficult to apply, they shall be calculated in accordance with the Commissioner of the National Tax Service.

(5) and (5) Deleted.

C. Determination

Where an entrepreneur supplies land and a building fixed on such land together, the new laws and subordinate statutes provide that the supply price of the building shall be based on the actual transaction price. However, if the distinction between the value of the land and the value of the building is unclear, the criteria for calculating the supply price of the building are different. The above supplementary calculation criteria are special provisions to calculate the supply price of the building subject to value-added tax in the event that both are unclear because the supply price of the building subject to value-added tax is not separated from the supply price of the building subject to value-added tax when the entrepreneur supplies the land and the building fixed on such land, and the supply price of the building subject to value-added tax is unclear. In the event that the supply price of the building subject to value of the building subject to value-added tax is entered differently from the land price of the building subject to value of the building subject to value-added tax in account books and other documentary evidence, it is reasonable to interpret that the said provision is not applied in light of the principle of

However, the fact that the sales contract of the apartment-type factory of this case clearly divided the building price, the land price, and the value-added tax imposed on the building price is as seen earlier, so that the building price is not the actual transaction price, and the defendant bears the burden of proof as to the fact that the statement is false, and according to the evidence Nos. 5 and 6-1 to 4, the defendant claims that the value of the building in the sales contract of this case cannot be viewed as the actual transaction price, i.e., the ratio of the building price to the value of the apartment-type factory of this case is lower than the ratio of the purchase price of the site and the total construction cost to the total construction cost as shown below, and in the case of the door-type complex, the actual transaction price is not the general market price reflecting the objective exchange value, but the actual transaction price itself or at the time of the transaction, and the sales contract of this case also refers to the actual price agreed for the payment.

Article 4 (Units: million won)

Corporation

Sector by Field

Total sale price;

(VAT Map)

Assets:

Classification

Corporation

Cost

Calculation of Plaintiff’s Bill

(Standard Market Price of Taxation)

Calculation of Defendant Boan (Standard Market Price of Income Tax)

Cost Precautions

Land:

Value of the building

Benefits

Distributed amount

Land:

Value of the building

Benefits

Distributed amount

Land:

Value of the building

Benefits

Distributed amount

◯◯동

Field

29,495

Land:

5,291

18,042

12,751

12,521

7,230

7,949

2,657

Buildings

14,342

11,453

-2,889

16,974

2,632

21,546

7,204

Total

19,633

29,495

9,862

29,495

9,862

29,495

9,861

◯◯

36,591

Land:

4,166

14,417

10,251

9,960

5,794

6,344

2,178

Buildings

19,863

2,174

2,311

26,631

6,768

30,247

10,384

Total

24,029

36,591

12,562

36,591

12,562

36,591

12,562

◯◯

45,734

Land:

7,209

18,600

11,391

11,946

4,737

11,070

3,860

Buildings

2,575

27,134

4,559

3,788

11,213

34,664

12,089

Total

29,784

45,734

15,950

45,734

15,950

45,734

15,949

◯◯

44,853

Land:

7,109

19,197

12,088

11,289

4,180

11,428

4,319

Buildings

20,793

25,656

4,863

3,564

12,771

3,425

12,632

Total

27,902

44,853

16,951

44,853

16,951

44,853

16,951

As stated in the above, it is established by the agreement between the buyer and the buyer of the apartment-type factory. It does not require for the seller to know the cost of the apartment-type factory. It does not affect the validity of the contract because the seller sells it at a price higher than the buyer of the apartment-type factory. As long as the authenticity of disposal documents such as the contract for sale is recognized, the court must recognize the existence and content of the declaration of intent according to the contents of the document unless there is no counter-proof. In order to reject it, there is no express or implied agreement different from the contents of the statement. However, there is no proof of objection in this case. It is prepared with the purpose or motive of obtaining profits from the sale price of the apartment-type factory. Since the sale price of the apartment-type factory in this case is determined differently from the actual transaction price of the apartment-type factory in this case, the plaintiff's revenue can vary, but since the sale price of the apartment-type factory in this case can be determined separately by the administrative agency's construction approval of the apartment-type factory under the Housing Construction Promotion Act, there is no possibility for the seller to claim for sale price.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Imposition of Value-Added Tax

Taxation Period

1, 2001

2, 2001

1, 2002

2, 2002

1, 2003

2 2003

Amount of tax (source)

78,599,030

627,886,970

1,029,651,790

258,553,750

1,494,891,270

74,204,300

[Seoul High Court Decision 2007Nu21039, April 17, 2008]

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The imposition of each value-added tax on October 1, 2004 by the Defendant against the Plaintiff shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The court's explanation of this case is the same as the part of the reasoning of the judgment of the court of first instance. Thus, it can be accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Imposition of Value-Added Tax

Taxation Period

201.1

201.2

1, 2002

2002

1, 2003

2003

Amount of tax (source)

78,599,030

627,886,970

1,029,651,790

258,553,750

1,494,891,270

74,204,300