2012west 1989

Value-added tax shall be levied on unsold commercial buildings unsold in lieu of the obligation to pay the construction price, considering the estimated sale price as the market price.

Since the debt of the construction cost and the estimated price for parcelling-out are offset, the estimated price for parcelling-out can be seen as the objective exchange price formed by the normal transaction, and the plaintiff and the Si Corporation do not correspond to related parties, and settle the construction cost based on the estimated price for parcelling-out

Article 50 of the Enforcement Decree of the Value Added Tax Act

2013Guhap741 Disposition to revoke the imposition of value-added tax

AA General Construction Corporation

BB Director of the Tax Office

July 25, 2013

September 26, 2013

1. The plaintiff's claim is dismissed.

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

On January 2, 2012, the Defendant’s imposition of value-added tax for the second period portion of the value-added tax for the Plaintiff on January 2, 2012 that exceeds the OOO members shall be revoked.

1. Details of the disposition;

A. In 203, the Plaintiff entered into a contract with CC Construction Co., Ltd. (hereinafter “CC Construction”), and with O-Gu OO-9-5 underground floor and 20 floors above ground (299 households and 14 households) for construction of a main complex building (hereinafter “instant building”) (hereinafter “instant building”) to contract with OOOO(hereinafter “instant contract”).

B.CC Construction completed the construction of the instant building in around 2006, and the OOOO was not settled among the construction cost under the instant contract. On July 27, 2006, the Plaintiff entered into a real estate disposal trust agreement (hereinafter referred to as the “instant trust agreement”) with the DD Asset Trust Co., Ltd. (hereinafter referred to as “DDD Asset Trust”), and with respect to the unsold real estate among the instant buildings, 305 households (the housing 291 households, commercial buildings 14 households, and hereinafter referred to as “instant commercial buildings”) on the unsold real estate (the housing 291 households, commercial buildings 14 households, and hereinafter referred to as “instant commercial buildings”), and did not issue a tax invoice.

C. Accordingly, on January 9, 2012, the Defendant determined that the Plaintiff entered into the instant trust contract by designating the instant commercial building as a priority beneficiary, as “supply of goods” under Article 1(1) of the Value-Added Tax Act, and issued the notice of correction and notification of the KRW OOOO of the instant commercial building, which is the expected sale price of the instant commercial building, as the market price of the instant commercial building, and among which, on January 9, 2012, the Plaintiff issued the notice of correction and notification of the KRW 200 of the value-added tax (hereinafter “instant disposition”).

D. The Plaintiff sought a trial on May 10, 2012, but was dismissed on October 31, 2012.

[Reasons for Recognition] The entry into Gap, 3, 5, and 1, and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The expected sale price of the commercial building in this case is merely an internal estimate prepared byCC Construction, and thus cannot be said to be the market price of goods supplied under Article 13(1)2 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013); and there is no actual record of sale of the commercial building in this case, so the market price should be calculated based on the officially announced price pursuant to Articles 50(1)2 and 89(2) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 23589, Feb. 2, 2012); and Article 61(1)3 of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23589, Feb. 2, 2012). The reasonable determined tax amount based on officially announced price

B. Relevant statutes

Attached Form. The entry in the relevant statutes is as follows.

(c) Fact of recognition;

1) In the instant contract,CC Construction has been paid the construction cost preferentially from the sales proceeds of the instant building (Article 8 of the Special Agreement), and in the event of failure to recover the construction cost due to the unsold sale of the instant building, with respect to a specific household designated byCC Construction among unsold households, registered management and disposal trust with the Plaintiff’s name as beneficiary at the time of completing the registration of preservation in the name of the Plaintiff, and agreed to dispose of unsold households and recover the construction cost (Article 9(1)2 of the Special Agreement).

2) Since 2004, in June 2006, the construction cost collected from the sale price of the instant building, which was completed, was the level of OOO. The Plaintiff entered into the instant trust agreement with D Asset Trust on July 27, 2006, whereby 305 households unsold in lots (291 households and 14 households) were first beneficiaries of the construction ofCC. The disposal price and disposal conditions of the unsold in lots under the instant trust agreement set forth in CC Construction, and the Plaintiff did not raise any objection (Article 8 of the special agreement).

3) On May 31, 2006,CC Construction: (a) the construction of the instant building was completed, after settling accounts of apartment sale price, etc.; (b) the construction cost was changed; and (c) the sales expected to be sold in commercial buildings were calculated as OOO.

4) The Plaintiff andCC Construction: (a) reported the estimated sale price for the unsold 305 households (including the instant commercial buildings) to the extent of the estimated sale price of the unsold 305 households (including the instant commercial buildings), and settled the unpaid construction price through the instant trust contract. Since then, there was no additional settlement of construction price in accordance with the sale of unsold buildings, including the instant commercial buildings, and the Plaintiff was notified on December 31, 2007 that the instant trust contract was completed, and that the ownership of unsold real estate was transferred within the time limit since the ownership was transferred toCC Construction.

5) After the instant trust contract, the details of sales ofCC Construction are as follows.

(unit: ,000 won)

Number of houses

Estimated sale price

Sale Price

Land:

Buildings

Date of sale;

Land:

Buildings

101

OOO

OOO

OOO

OOO

OOO

106

OOO

OOO

OOO

OOO

OOO

[Reasons for Recognition] 1 to 4, 6, 7 evidence, Eul evidence Nos. 2 to 4 (including Serials), and the purport of the whole pleadings

D. Determination

1) The instant trust agreement pays the construction cost to unsold housing and commercial buildings in accordance with the terms and conditions set forth in the instant contract between the Plaintiff andCC Construction. The Plaintiff’s provision of the instant commercial building in lieu of the construction cost is a payment in lieu of performing the original obligation, in lieu of payment in lieu of payment in lieu of payment in cash, under Article 466 of the Civil Act, which provides other benefits, and thus, the claim against the Plaintiff ofCC Construction is extinguished in return, and thus, it cannot be said that the instant commercial building was supplied and received in cash, and the instant trust agreement constitutes a case where payment in return is paid in return. Accordingly, the instant trust agreement constitutes the supply of goods under Article

2) Article 13(1) of the Value-Added Tax Act provides that "if the tax base of value-added tax is paid for consideration other than money, the market price of goods or services supplied by a person himself/herself, and Article 50 of the Enforcement Decree of the Value-Added Tax Act provides that "the prices of goods or services supplied by a person other than a person with a special relationship continuously traded or the prices generally traded by a third party under similar circumstances with the person concerned,

The contract price of this case was agreed to be appropriated from the sale price of the building of this case when the contract of this case was concluded, and the construction price was settled based on the estimated sale price. ② The plaintiff andCC Construction is not a specially related corporation but a Si event and a Si construction contractor's interest as a contractor, and there is no reason to deem that the estimated sale price is objectively unfair. ③ The plaintiff notified the trust contract of this case that the construction price of this case was settled, and no longer paid, and the additional construction price was actually not paid in connection with the contract of this case. It seems thatCC Construction did not have been receiving the commercial building of this case from the plaintiff and renounced the construction price, and even if the sale price was actually made, the sale price was settled based on the estimated sale price, and the sale price cannot be lowered without any market price, and the sale price of this case can not be determined at the sale price of this case between the plaintiff andCC Construction.

Therefore, the instant disposition that calculated the tax base based on the expected sale price of the commercial building of this case is legitimate.

3. Conclusion

Then, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.