Gwangju District Court-2015-Gu Partnership-13581 (2016.08)

Review-department -2015-0066 (Law No. 17, 2015.09)

When a joint project is commenced and a preservation registration is made after construction of the building, it shall be the return of the investment in kind.

In the event that an entrepreneur supplies goods either rapidly or temporarily in connection with the main business, it will be subject to taxation regardless of whether the purpose is to maintain and expand the business or to liquidate and organize the business.

Article 4 (Taxable Objects) of the Value-Added Tax Act

Article 9 (Supply of Goods)

The revocation of revocation of the revocation of the revocation of the Value-Added Tax Correction

AA and one other

BB Director of the Tax Office

September 08, 2016

October 19, 2017

November 1, 2017

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance is revoked. The defendant's rejection of correction of value-added tax against the plaintiffs on March 23, 2015 is revoked.

1. Details of the disposition;

A. On October 21, 2010, the Plaintiffs purchased 1,404.9 square meters (hereinafter “instant land”) from Maa and Dobbbbbbbbbbbbbbbb (hereinafter “instant land”) at ○○○○○, and completed the registration of ownership transfer on each one-half portion of the instant land on November 17, 2010.

B. On March 201, the Plaintiffs obtained a building permit under the joint name, and newly built Class 1 neighborhood living facilities on the ground of the instant land (hereinafter “instant building”).

C. On June 1, 2011, the Plaintiffs registered the business under a joint name (hereinafter referred to as “○○○○○○○○○○”) with the trade name on June 1, 201, with the location of the place of business, 201, aaa-Gun BBB-Eup c3D 201, a type of business as a real estate business (lease, building construction and sale).

D. The first floor of the instant building is composed of 101 to 111, 201 to 204 for the second floor, 301 to 304 for the third floor, 401, and 402 for the fourth floor, and 21 for the fourth floor. The Plaintiff doora completed registration of preservation of ownership for the first floor with respect to the first floor of 103, 104, 107, 109, 110, 110, 111, 3 (301 to 304), 402 for the second floor of 101, 102, 102, 105, 106, 108, 201 for the second floor (201 to 204, 201 to 404, 101.

E. The Plaintiffs, upon filing a final return on the value-added tax for the second period of February 201 with respect to ○○ Card, did not include the supply value of the instant building, the registration of ownership preservation of which was completed in a single name, in the tax base as above. As a result, the Plaintiffs were refunded 253,823,843 won (i.e., refundable tax amount + KRW 253,806,968 + the tax amount payable at the time of the preliminary return).

F. On November 2014, the Defendant notified the Plaintiffs that the registration of initial ownership was completed on the sole name as above, because it constitutes the supply of goods subject to value-added tax due to the spot return of equity shares in joint business operators, thereby notifying the Plaintiffs that a revised registration of value-added tax on the ○○p is to be filed.

G. On November 12, 2014, the Plaintiffs: (a) included the supply value of the instant building in the tax base to the Defendant; (b) filed a revised return on value-added tax on the ○○○D; (c) accordingly, paid KRW 411,403,826 (i.e., the amount of tax payable including additional tax + KRW 157,579,983 + KRW 253,823,843 at the time of the final return of value-added tax.

H. On January 23, 2015, the Plaintiffs filed a claim for rectification of the value-added tax for the second term portion of February 201, 2015, claiming that the supply value of the instant building should not be included in the value-added tax base for ○○○○○○○○D, but the Defendant notified the Plaintiffs on March 23, 2015, that the claim for rectification would be rejected on the ground that “the Plaintiffs did not have detailed grounds for the sales reduction on the report on the request for rectification (other than regular receipts)” (hereinafter “instant disposition”).

I. The Plaintiffs were dissatisfied with the instant disposition and filed a request for examination on June 22, 2015, but the Commissioner of the National Tax Service rendered a decision to dismiss the Plaintiffs’ request for examination on September 17, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 6, 24, Eul evidence 1 and 2 (including branch numbers, hereinafter the same), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

In the Value-Added Tax Act or the Income Tax Act, joint business operators are registered under joint names.

것 외에 다른 요건을 필요로 하지 않으므로, 원고들이 공동사업을 하기 위하여 이 사건 건물을 공유하거나 합유하여야만 하는 것은 아니고, 각자 단독명의로 소유할 수 있다. 원고들은 ○○프라자에 관한 공동사업의 매출과 매입을 신고하여 부가가치세를 납부하고 있고, 공동사업의 수입과 경비를 손익분배비율에 따라 나누어 원고별로 신고하여 종합소득세를 납부하고 있다. 원고들이 공동사업을 계속하고 있는 이상 각자 단독명의로 소유하고 있더라도 이 사건 건물은 공동사업을 위한 고정자산 또는 재고자산에 해당하고, 추후 원고들이 공동명의의 사업자등록을 말소하여 공동사업 관계가 해소될 때에 부가가치세를 과세하면 되며, 원고들이 공동사업자로서 공동명의로 사업자등록을 하였다고 하여 탈세의 결과가 발생하는 것도 아니다. 위와 같은 사정들을 종합하여 보면, 원고들이 이 사건 건물에 관하여 각자 단독명의로 소유권보존등기를 마친 것은 부가가치세 과세대상 거래인 재화의 공급에 해당하지 아니한다고 할 것임에도 이와 다른 전제에서 한 이 사건 처분은 위법하다.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

Short-term loan lease deposit capital in tangible assets;

doora 132,251,938 1,939,353,81 290,000,000,000,000 943,626,275

Parkbb 257,208,876 4,39,543,509 70,000,000 260,000,000 2,971,600,000

net income of gross sales profit and commercial profit of sales cost;

doora 1,329,436,454 593,613,598 735,822,856 70,591,355 694,327,094

Parkbb 18,872,9080 018,872,908-2,357,929 711,49,9353)

1) Around March 2011, the Plaintiffs drafted a partnership agreement with a content that distributes profits and losses arising from the joint management of ○○○ Card at a rate of 50%, respectively. In the partnership agreement, Plaintiff Parkbb as “A,” and Plaintiff Gaa as “B (non-representative 1).”

2) Each of the plaintiffs has completed registration of preservation of ownership in his/her own name.

The lease contract was entered into under the name of a single person, and the rent was paid individually, and the expenses incurred in each sectional building shall be borne by each person, but the management expenses, etc. which are difficult to specify each sectional building was jointly borne by each person).

3) Upon reporting global income tax for the year 201, the Plaintiffs: (a) import and competition with respect to ○○○○○;

In the process of reporting the cost, the balance sheet and the profit and loss statement concerning the ○○ Card was submitted, and the content of the balance sheet and the profit and loss statement concerning the ○○ Card submitted by the Plaintiffs are different.

4) On the tax settlement statement in 2012 concerning ○○○○○○○, the income statement and the total balance sheet

There are parts prepared by each plaintiff, and the tax settlement statement in 2014 includes an amount of KRW 726,386,385, which is included in the profits from disposing of fixed assets remaining after being divided by each plaintiff. The tax settlement statement in 2014 includes an amount of KRW 726,386,385, which is included in the profits from disposing of fixed assets remaining after being divided by each plaintiff. There are parts in which the tax settlement statement in 17 of the evidence No. 17 [1, 2012] is divided by

5) Plaintiff Laa’s shipment at the time of filing a global income tax return for the year 201 to 2014

The main contents of the distribution statement for each joint business proprietor are as follows:

[2011] [Evidence No. 12 of A] [unit: Won]

Income from the ratio of distribution of names;

doora 50% 1,329,436,454 694,327,094

Parkbb 50% 9,436,454 -7,443,225

Total 1,338,872,908 686,883,869 +

[2012] [No. 10-1] [unit: Won]

Income from the ratio of distribution of names;

doora 50% 739,800,00 219,140,786

Parkbb 50% 168,546,446 57,948,082

Total 908,346,446 277,088,868

[2013] [Evidence No. 10-2] [unit: Won]

Income from the ratio of distribution of names;

doora 63.62% 375,400,00 73,287,793

Parkb.36.38% 214,656,957 105,493,010

Total 590,056,957 178,780,803

[2014] [Evidence No. 10-3] [unit: Won]

Income from the ratio of distribution of names;

doora 29.38% 94,806,000 44,136,390

Parkb.70.62% 227,896,906 129,471,311

Total 322,702,906 173,607,701

6) The main contents of the distribution statement by joint business proprietor of ○○○p, which was submitted by Plaintiff Parkb while filing a global income tax return for the year 201, are as follows.

[2011] [No. 6-2] [unit: Won]

Income from the ratio of distribution of names;

doora 50% 9,436,454 -7,443,225

Parkbb 50% 9,436,454 -7,443,225

Total 18,872,908 -14,886,450

7) On the other hand, the plaintiff Daa has completed registration of preservation of ownership in its sole name 1 of each partitioned building

October 25, 2011; ② October 11, 201; ③ December 15, 2011; ④ December 109; ④ December 22, 2012; ⑤ August 303, 2012; and ⑤ January 304, 2013, sold to a third party and completed the registration of ownership transfer.

[Reasons for Recognition] Unsatisfy, Gap evidence 6, 9, 12, 17, and Eul evidence 4 to 6

Second, the purport of the whole pleading

D. Determination

The following facts may be revealed by adding to the entire purport of the oral argument as seen earlier:

In full view of the circumstances, although the plaintiffs operated a joint business until the new construction of the building of this case, the plaintiffs are running a joint business only after the registration of initial ownership was completed in their own name with respect to the building of this case, and the lease business is operated individually. Therefore, since the plaintiffs' completion of registration of initial ownership in their own name with respect to the building of this case constitutes a transaction subject to value-added tax as a return of the contribution shares in the joint business, it is legitimate to make the disposition of this case premised on this.

① The Plaintiffs, who completed registration of preservation of ownership in their sole name, shall make a lease on each partitioned building.

Since it was concluded and received as the difference, and the expenses incurred in each partitioned building are also borne by each person in principle, it is deemed that each person operated a leasing business, etc. on his/her own account and responsibility, unless there are special circumstances.

② If the plaintiffs operate a joint project, the financial statements for the joint project shall be prepared and added.

가치세 신고를 하고, 공동사업에 관한 재무제표를 기준으로 손익분배비율에 따라 종합소득세 신고를 하였을 것임에도, 원고들은 ○○프라자에 관하여 원고별로 나누어 대차대조표, 손익계산서, 합계잔액시산표 등을 작성하고, 원고별로 나누어 작성된 재무제표를 취합하여 세무신고를 한 것으로 보인다.

③ 원고 문aa의 2011년 내지 2014년 귀속 종합소득세 신고서에 따른 원고 문aa과 원고 박bb의 손익분배비율은 50% : 50%(2011년, 2012년), 63.62% : 36.38% (2013년), 29.38% : 70.62%(2014년)로 변경되는데, 이는 원고들이 각자 임대사업 등을 운영하면서 매년 발생한 각자의 수입금액에 맞추어 손익분배비율을 역산하는 과정에서 발생한 것으로 보인다(원고들은 손익분배비율의 변경 경위에 대하여 구체적으로 밝히지 못하고 있다).

한편, 원고 문aa의 2011년과 2012년 귀속 종합소득세 신고서에 따른 손익분배비율은 50% : 50%로 되어 있으나, 신고된 수입금액이나 소득금액의 비율은 이와 다

In addition, the plaintiffs filed a report on global income tax for 201, and each of them submitted are different contents from each other (However, Article 150 (6) of the Enforcement Decree of the Income Tax Act requires the representative of a joint business operator to submit a distribution statement by joint business operator) (4) The plaintiffs sold part of each of the sections of which the registration of preservation of ownership was completed under the plaintiffs' joint name and paid value-added tax to the third party under the name of ○○○○○○n who registered the business under the plaintiffs' joint name, while the plaintiffs imposed value-added tax on each of the sections of which the registration of preservation was completed under the plaintiffs' joint name, and the above value-added tax is levied on each of the above part sold to the third parties. However, even if the plaintiffs operated the leasing business, etc. individually but maintained the registration of the business, it is not subject to value-added tax on the building of this case.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in its entirety due to the lack of grounds, and the judgment of the court of first instance is so dismissed.

As the conclusion is justified, all appeals by the plaintiffs are dismissed. It is so decided as per Disposition.