Changwon District Court 2018Gudan1198 (No. 20, 2018)

The instant disposition that rejected partial refund of value-added tax is legitimate.

In full view of the fact that a person who is supplied with value-added tax (as stated in the judgment of the court of first instance) is specified as a person who is actually supplied, the instant tax invoice shall be deemed to be a false tax invoice that is different from the fact that the person who is supplied with the tax, and thus, the instant disposition that

Article 39 of the Value-Added Tax Act

2018Nu10906 Disposition of revocation of partial refund of value-added tax

AA

○ Head of tax office

Changwon District Court Decision 2018Gudan11198 Decided June 20, 2018

October 10, 2018

December 19, 2018

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

The judgment of the first instance is revoked. On September 22, 2016, the defendant's refusal to refund value-added tax ○○○○○○○○○○○○○○○, which was issued against the plaintiffs on September 2, 2016

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows, '2.' 'A Study on the legitimacy of the disposition of the court of first instance' [2. 'A Study on the Grounds of the Judgment of the Court of First Instance 4 (Exclusion from Table 13 to 6. 8'] , so it is identical to the part on the grounds of the judgment of the court of first instance. Thus, this Court cites it as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article

[Supplementary Use] From 4, 13 to 6, 8, 100

D. Determination

1) Article 39(1)2 of the Value-Added Tax Act provides that input tax amounts in cases where the entries of a tax invoice are different from the facts shall not be deducted from the output tax amount. In this case, the meaning that it is different from the facts is stipulated that if the ownership of income, profit, calculation, act or transaction, which is the object of taxation, is nominal and there is a separate person to whom such income, profit, act or transaction belongs, the person to whom such income, profit, or transaction belongs shall be liable for tax payment in accordance with the purport of Article 14(1) of the Framework Act on National Taxes stipulating that the necessary entries of a tax invoice are inconsistent with those of the person to whom the goods or service is actually supplied or the person to whom

See Supreme Court Decision 96Nu617 delivered on December 10, 1996, etc.

2) In full view of the following circumstances acknowledged as above, evidence, and the purport of the entire pleadings, the instant tax invoice is deemed to be a different tax invoice from the fact that the person receiving the instant tax invoice entered differently from the fact, and thus, the Plaintiff was partially refunded value-added tax.

The disposition of this case is legitimate.

① The purpose of the system and the principle of substantial taxation is to specify a tax invoice as an evidentiary document to determine value-added tax, which is to ensure the truth of the documentary evidence. However, in the current VAT system adopting the pre-stage tax credit Act, the tax invoice system has the function of mutual verification between taxpayers that facilitate the dissemination of income tax and corporate tax as well as value-added tax by exposing transaction between the parties. Thus, barring any special circumstance, it accords with the purport of the system and the principle of substantial taxation. However, the payment of construction price to the non-party company was made by the construction of the building of this case to the non-party company, and the Plaintiff separately paid the construction price to the non-party company as the transferee of the building of this case, and the Plaintiff paid the construction price to the non-party company ○○○○○○○○.

② The instant building sales contract between the Plaintiff and the transferor does not comprehensively succeed to all rights and obligations regarding the construction of the instant building, but is only a newly constructed building site except for the instant building site. Since the transferor is not an entrepreneur under the Value-Added Tax Act, it does not constitute a comprehensive transfer and acquisition of business under Article 10(8)2 of the Value-Added Tax Act and Article 23 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 28641, Feb. 13, 2018). Moreover, even if the change of the owner’s position was made pursuant to the above sales contract, it is only an agreement between the Plaintiff and the transferor, and the non-party company did not participate in the said agreement, and thus, it cannot be deemed as the change of the status of the party to the instant building contract. Accordingly, even if the time of supply for services under the instant contract arrives on the date of completion of the instant building, it is reasonable to issue the tax invoice to the non-party company by issuing it to the person who actually paid it.

③ The transferor was not a business operator under the Value-Added Tax Act and could not obtain input tax deduction for the construction cost of the non-party company. In addition, the Plaintiff was entitled to receive the tax deduction for the Plaintiff only for the construction cost of the non-party company. Moreover, the instant building sales contract, which is a business operator in the form of business and continuously and repeatedly sold goods and services, is not a transaction subject to value-added tax, and thus does not include value-added tax on the sales price of the said building. Therefore, the Plaintiff is not entitled to receive the tax deduction for the sales price of the said building. However, if the instant tax invoice is allowed, the Plaintiff’s construction cost deduction is the Plaintiff’s sales price deduction for the sales price of the said building. This would result in the Plaintiff’s failure to obtain the tax deduction for the construction cost paid by the transferor or for the sales price paid by the Plaintiff.

④ The Plaintiff asserts that the Plaintiff paid the construction price paid by the transferor to the non-party company within 30 days after the completion of the Plaintiff, and thus, it may be deemed that the Plaintiff paid the construction price paid by the transferor to the non-party company. However, the Plaintiff merely provided that the transferor shall pay the said price to the non-party company according to a separate sales contract from the transferor after the payment of the construction price to the non-party company. Since the transferor actually paid the construction price to the non-party company for a considerable period of time, it is difficult to deem that the transferor paid the construction price to the non-party company as the Plaintiff paid to the non-party company.

2. Conclusion

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