Appellate Court 2014 Schedule 1471

Construction works, sewerage works, etc. performed outside the national housing site shall not be deemed national housing construction services.

Construction works, sewerage construction works, etc. performed outside the site of national housing cannot be deemed to be solely for the construction of national housing, and it is difficult to regard it as the supply of services essential for the construction of national housing.

Article 106 of the Restriction of Special Taxation Act: Exemption, etc. of Value-Added Tax; Article 2 of the Housing Act

2015Guhap913 Disposition of revocation of Disposition of Imposition of Value-Added Tax

AAAA Corporation

J Head of J Tax Office

October 30, 2015

December 4, 2015

1. The plaintiff's claim is dismissed.

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

On February 17, 2014, the Defendant revoked all the imposition of each value-added tax and each corporate tax listed in the separate sheet No. 1 attached hereto against the Plaintiff.

1. Details of the disposition;

A. The Plaintiff, who runs a construction business, concluded four subcontracting contracts with BBB stock companies as listed below, and completed all of the construction works.

B. The Plaintiff reported the value-added tax and corporate tax by deeming the portion corresponding to the ratio of national housing site area to the entire housing site area of each of the above construction projects as a national housing construction service exempt from value-added tax pursuant to Article 106(1)4 of the Restriction of

C. However, with respect to the part of the soil construction project that took place over the entire project district, the Defendant considered the part corresponding to the ratio of the site area of national housing to the total construction cost in the construction site area of each of the above project districts as a national housing construction service. However, with respect to the part of the construction project that was carried out outside the national housing site, such as road works and sewerage works, etc. (hereinafter “the instant construction project”), deeming that the entire portion is not a national housing construction service and thus is subject to value-added tax, and thus, on February 17, 2014, the Defendant imposed value-added tax and corporate tax (including additional tax; hereinafter “the instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 4 (including each number, hereinafter the same shall apply), Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Where the operator of a national housing construction project constructs and sells national housing by directly creating land, all national housing construction works, access road construction works, and bridge construction works related to the construction site for national housing should be included in the national housing construction services. Therefore, value-added tax should be exempted pursuant to Article 106(1)4 of the Restriction of Special Taxation Act. Therefore, the disposition of this case imposing value-added tax and corporate tax on the Plaintiff is unreasonable solely on the ground that the instant construction project implemented by the Plaintiff

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

Article 106 (1) 4 of the Restriction of Special Taxation Act provides that the supply of goods or services falling under the "national housing prescribed by Presidential Decree" and "construction services for such housing" shall be exempted from value-added tax, and Article 106 (4) of the Enforcement Decree of the Restriction of Special Taxation Act provides that housing below the scale of national housing under the Housing Act (Article 106 (1) 1), and construction services for housing below the scale of national housing under the Housing Act supplied by a person registered under the Framework Act on the Construction Industry, Electrical Construction Business, Fire-Fighting Business Act, Fire-Fighting Business Act, Information and Communication Business Act, Housing Act, Sewerage Act, and Livestock Excreta Act (Article 106 (1) 4 of the Enforcement Decree of the Restriction of Special Taxation Act). The exemption from value-added tax under the above provision refers to the supply of national housing itself and the construction of national housing (see Supreme Court Decision 91Nu7040, Feb. 1

Meanwhile, Article 14(1) of the Value-Added Tax Act provides that the supply of goods or services incidental to the supply of the main goods or services is deemed to be included in the supply of the main goods or services (Article 14(1) of the Value-Added Tax Act); and that the supply of goods or services, which is ordinarily deemed to be incidental to the supply of the main goods or services, in light of transaction practices, shall be deemed to be included in the supply of the main goods or services. Article 26(2) of the Value-Added Tax Act provides that the supply of goods or services ordinarily incidental to the supply of the goods or services exempt from value-added tax, shall be deemed to be included in

However, in the case of this case, considering the following circumstances that can be acknowledged by comprehensively considering the purport of the entire arguments and facts as seen earlier, namely, construction of national housing, sewerage construction performed outside the site of national housing, etc., and the construction of national housing cannot be deemed only for the sole purpose of construction of national housing. ② The construction of this case constitutes infrastructure to create the entire site of national housing as a housing site; and the infrastructure installed thereby cannot be deemed as an incidental facilities or welfare facilities of national housing; ③ The construction of tax laws and regulations is construed as a taxation requirement or a non-taxation requirement under the principle of no taxation without the law, barring special circumstances, and it is not allowed to expand or analogically interpret or analogically interpret it as a provision of preferential treatment in particular without reasonable grounds (see Supreme Court Decision 97Nu20090, Mar. 27, 1998).

Therefore, the instant disposition based on the premise that the instant construction is not subject to value-added tax exemption under Article 106 (1) 4 of the Restriction of Special Taxation Act is lawful, and the Plaintiff’s assertion on this is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as there is no ground.