The starting point of claiming correction of the scheduled return of surtax and whether the input tax amount related to golf course is deducted.

The period for filing a claim for correction of the tax base and tax amount of the value-added tax scheduled shall be calculated on the basis of the date of filing the final return, and even if capital expenditure to create land is intended to run a taxable business, the relevant input tax amount shall not be deducted from the output tax amount under the basic principles

1. The plaintiff's claim is dismissed.

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

The judgment of the first instance shall be revoked, and the rejection disposition against the plaintiff on February 20, 2006 against the plaintiff shall be revoked.

This Court's reasoning is as follows, with the exception of adding "no reason exists" to the 14th sentence of the judgment of the first instance (see Supreme Court Decision 2004Du13844, Jul. 28, 2006), since it is the same as the corresponding part of the judgment of the first instance, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

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

【Chuncheon District Court 2007Guhap120, 31 October 2008)】

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

With respect to an application for correction filed by Plaintiff ○○○○ Co., Ltd. (hereinafter Plaintiff ○○○○○○○”) as stated in the attached Table 1, the Defendant’s rejection disposition issued on February 20, 2006 and the Defendant’s rejection disposition issued on July 28, 2006 on the application for correction filed by Plaintiff ○○○ Co., Ltd. (hereinafter Plaintiff ○○○○○○”) as listed in the attached Table 2 shall be revoked, respectively.

1. Details of the disposition;

(a) Non-deduction provisions, etc. of land-related purchase tax amount; and

(1) According to Article 17(1) of the Value-Added Tax Act, an entrepreneur shall report and pay as value-added tax the amount calculated by deducting the amount of tax (purchase) on the supply of goods or services used or to be used for his/her own business from the amount of tax on the goods or services supplied by him/her.

(2) Meanwhile, Article 12(1)12 of the Value-Added Tax Act provides that the supply of land shall be exempted from value-added tax, and Article 17(2)4 of the Value-Added Tax Act provides that input tax amount related to the business of supplying goods or services exempt from value-added tax and land-related purchase tax amount as prescribed by the Presidential Decree shall not be deducted from the output tax amount.

(3) Furthermore, according to Article 60(6) of the Enforcement Decree of the Value-Added Tax Act, the above land-related purchase tax amount refers to the input tax amount related to capital expenditures for land creation, etc. (Article 17(2)4 of the Enforcement Decree of the Value-Added Tax Act; the input tax amount related to the cost for the acquisition and removal of the removed building (Article 2(2)2); and the input tax amount (Article 17(2)4 of the Value-Added Tax Act concerning the cost that constitutes the acquisition cost by increasing the real value of the land (Article 17(2)4 of the Value-Added Tax Act); the enforcement Decree of the above Enforcement Decree; and the two provisions of the Enforcement Decree of the above Act collectively).

(b) Reporting and payment of golf course development works and value-added tax;

(1) In ○○○○○○○○○○○○○○○, the Plaintiff operated each golf course at ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and the Plaintiff’s ○○○○○○○ from around 2004 to the end of 2005, and the Plaintiff’s ○○○○○○○ around early 2003 to the end of 2005, and the Plaintiff’s ○○○○○○○ intended to construct each golf course (hereinafter the instant construction work).

(2) The Plaintiff ○○○○○○ filed a preliminary return, final return, and payment of value-added tax (hereinafter “the instant input tax amount”) included in the instant construction cost, without deducting the input tax amount from the output tax amount, while filing a return and payment of each of the value-added tax from the first term portion to the second term portion in 2005, from the first term portion in 2003 to the second term in 2005.

C. Disposition of this case

On February 14, 2006, Plaintiff ○○○ filed a claim for rectification of value-added tax with the purport that the amount of the instant input tax should be deducted from the amount of the output tax on July 24, 2006, as indicated in the attached list, to the Defendant. On February 20, 2006, the Defendant rendered each of the instant dispositions rejecting Plaintiff ○○○○○○○○○○○’s request for correction on July 28, 2006, and rejecting Plaintiff ○○○○○○○○○○○○’s request for correction on July 28, 2006.

[Reasons for Recognition] Facts without dispute, Gap 1-15 evidence, Eul 1, 2 and 5 evidence (including each number), the whole purport of pleading

2. Whether the period for filing a request for correction is too excessive;

A. The defendant's assertion

As of July 25, 2003, the claim for correction against the first preliminary return of Plaintiff ○○○○○ in 2003 was filed after the lapse of April 25, 2005, which is the period of filing the claim for correction (two years) based on July 25, 2003.

(b) Provisions concerning the filing period of claims for rectification;

(1) According to Article 45-2(1)1 of the Framework Act on National Taxes prior to the amendment by Act No. 7582, Jul. 13, 2007, a person who reported a national tax within the statutory due date of return is entitled to file a request for correction within two years after the statutory due date of return, if the tax base and amount of tax exceed the tax base and amount to be originally reported. As seen above, the period for filing a request for correction was extended to three years upon the amendment of the Framework Act on National Taxes, and pursuant to Article 2 of the Addenda of the Framework Act on National Taxes at the time of the amendment, the amended provisions shall be applied in cases where the period for filing a request for correction pursuant to the previous provisions at

(2) According to Article 3(1) of the Value-Added Tax Act, an entrepreneur shall file a return on the tax base and the amount of tax payable for each taxable period (from January 1 to June 30, 2: July 1 to December 31) within 25 days after the end of the taxable period. According to Article 18(1) of the Value-Added Tax Act, an entrepreneur is required to file a return on the tax base and the amount of tax payable for the scheduled return period (from January 1 to March 31, 200: 7.1 to September 30) within 25 days after the end of each scheduled return period (the scheduled return period for the first period portion: 1 to September 30).

C. Determination

(1) If the statutory provisions on the above final return, preliminary return, and request for correction are combined, if there are omissions in the details of the preliminary return, it may be filed together at the time of filing the final return, and since the tax base and tax amount reported in the preliminary return are finally settled by final return, the period for filing a claim for correction of the tax base and tax amount of the value-added tax to be

(2) Therefore, the starting point of calculating the period of filing a request for correction concerning the period of filing a preliminary return for the first period portion of the year 2003 shall be July 25, 2003, which is the date of filing the final return for the first period. Therefore, as of July 13, 2005, the period of filing a request for correction under the Framework Act on National Taxes prior to the amendment is not less than two years, and as of July 13, 2005, the period of filing a request for correction concerning the first period preliminary return for the first period portion of the year 203 pursuant

(3) The Plaintiff ○○○○○ filed a claim for correction on July 24, 2006, within the pertinent period, and thus, the said claim for correction constitutes a legitimate claim for correction filed within the said period. Therefore, the Defendant’s above assertion is without merit.

3. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) The land-related input tax amount stipulated in the instant legal provision as the object of the non-deduction of input tax amount refers to the land-related input tax amount related to the business subject to the exemption of value-added tax, and the instant input tax amount should be deducted from the output tax amount, since the golf course business is not exempted from value-added tax. Therefore, the instant disposition

(2) Since the instant investigation is unconstitutional for the following reasons, the instant disposition is also unlawful. ① The instant provision, which does not deduct the land-related input tax from the output tax amount for the following reasons, runs counter to the basic principles of the Value-Added Tax Act (Article 17(1) of the Value-Added Tax Act), namely, the deduction of the pre-stage input tax amount from the output tax amount. ② Since it is impossible to determine what is the land-related input tax amount with only the legal provision of the instant case cannot be determined, the instant provision goes against the principle of clarity of taxation requirements. ③ Since value-added tax is imposed on the land area under the Value-Added Tax Act, the instant provision goes against the principle of equality under the Constitution and the principle of guaranteeing property rights.

(b) History of the relevant statutes;

(1) According to Article 17(2)4 of the Value-Added Tax Act at the time of enactment, the input tax amount related to the business that supplies goods or services exempt from value-added tax (including the input tax amount related to investment) was not deducted from the output tax amount. As Article 60(6) of the Enforcement Decree of the Value-Added Tax Act was newly established on December 31, 191 by Presidential Decree No. 13452, Dec. 31, 1991, the input tax amount related to capital expenditures for land creation, etc. is included in the input tax amount subject to non-deductible under

(2) After that, the tax authority imposed a tax disposition by not deducting the input tax amount related to landscaping construction, etc., which was paid by the golf course proprietor in the course of developing the golf course from the output tax amount.

(3) According to the Supreme Court en banc decision on December 21, 1995, the purpose of the above Enforcement Decree of the Act was to determine that the input tax amount should not be deducted from the output tax amount only in a case where the transactional act following the creation, etc. of land was conducted for the purpose of carrying on the value-added tax exemption business, and that the input tax amount related to the capital expenditures for the creation, etc. of land is not uniformly deducted from the output tax amount, and thus, it is illegal to taxation (94Nu1449).

(4) With the amendment of the Value-Added Tax Act (Act No. 4663, Dec. 31, 1993) on December 31, 1993, Article 17(2)4 of the Value-Added Tax Act was changed as of the present date (Article 60(6) of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 14081, Dec. 31, 1993) stipulates that the input tax amount related to capital expenditures for land creation, etc. is the land-related input tax amount. However, as of December 31, 2001, Article 60(6) of the Enforcement Decree of the Value-Added Tax Act was amended by Presidential Decree No. 17460, Dec. 31, 2001, the detailed judgment criteria

C. Whether the land-related purchase tax amount constitutes land-related purchase tax amount

(1) Since land is an element of creating added value with capital and labor, it cannot be subject to value-added tax, as well as its supply is limited except for special cases such as reclamation, etc., and it is inappropriate to impose value-added tax, which is a consumption tax, since the use of land is not consumed or extinguished as a result of such use as goods, buildings, etc. Accordingly, our Value-Added Tax Act is exempt from value-added tax and is subject to value-added tax only for the lease of land as above. (2) In addition, in general, in the case of supplying tax-free goods for a taxable business, it is subject to value-added tax as an incidental supply pursuant to Article 1 subparag. 4 of the Value-Added Tax Act and Article 3 of the Enforcement Decree of the Value-Added Tax Act. In the case of land, due to its nature, it is subject to value-added tax exemption without applying Article 1 subparag. 4 of the Value-Added Tax Act even when the said land is disposed of for a taxable business as well as when it is disposed of for a taxable business.

(2) As long as value-added tax is exempted on the capital expenditure for the formation, etc. of land, even if capital expenditure for the formation, etc. of land is intended to run a taxable business (in this case, the golf course operation business), the related input tax amount shall not be deducted from the output tax amount in accordance with the basic principles of the aforementioned tax exemption system as to the land. This should be collected in a way that is included in the acquisition price in the process of calculating the transfer difference in the transfer price of the relevant land, and therefore, the Plaintiffs’ assertion that the non-deduction of the land purchase tax should be limited

D. Whether it violates the Constitution

(1) Basic principles of value-added tax

The above part of the plaintiffs' assertion that the input tax amount of value-added tax should not be deducted for capital expenditures to create land, etc. under the basic principles of our value-added tax, is without merit.

(2) Principle of clarification of taxation requirements

According to Article 60(6) of the Enforcement Decree of the Value-Added Tax Act, the land-related purchase tax amount under Article 17(2)4 of the Value-Added Tax Act refers to the input tax amount related to capital expenditures for land creation, etc., and according to Article 31(2) of the Enforcement Decree of the Corporate Tax Act and Article 67(2) of the Enforcement Decree of the Income Tax Act, capital expenditures mean repair expenses disbursed to extend the lifespan of depreciable assets owned by a corporation, etc. or to increase the real value of the relevant assets (the same applies to corporate accounting standards that are respected by the Framework Act on National Taxes). Furthermore, since Article 60(6) of the Enforcement Decree of the Value-Added Tax Act provides the specific criteria, the provisions on land-related purchase tax amount

(3) Principle of tax equality

The constitutional principle of equality, in essence, prevents a person from arbitrarily treating or arbitrarily treating others that are either arbitrarily different or essentially different. In this case, since capital expenditures for the creation, etc. of land are exempted from the output tax amount of value-added tax by constituting the acquisition cost of land, the corresponding input tax amount is not deducted, and thus, it cannot be deemed as arbitrary discrimination on the grounds that there are reasonable grounds for deducting input tax amounts. The Plaintiffs’ assertion on the above part is without merit.

(iv) double taxation and guarantee of property rights;

Since the land area is different from its nature, even if the land area is subject to value-added tax, and the input tax is subject to transaction as to capital expenditures on land, it cannot be deemed that the value-added tax is levied twice. Furthermore, with respect to land (capital expenditure on land), the value-added tax should not be additionally paid for the transfer of land. Therefore, even if the land (capital expenditure on land) is exempted from value-added tax, the land-related tax amount is subject to transaction collection, and even if the input tax amount is not deducted, it cannot be deemed as a double taxation because it is merely the fact that the input tax is collected once transaction, and it is merely the fact that the input tax amount is not deducted, and it does not require double payment from the output tax amount. As such, the land-related purchase tax amount is not subject to double taxation, and as long as the non-deduction system of land-related tax has reasonable grounds as above,

4. Conclusion

Therefore, all of the plaintiffs' claims are dismissed. It is so decided as per Disposition.