(a) Whether a cemetery management business is an incidental service to a cemetery lease business, which is a tax-exempt business (negative);

(b) requirements for establishing non-taxable practices;

(c)an omission in taxation and non-taxable practice due to business registration and non-compliance;

A. If a person operating a cemetery lease business, who is a tax-exempt business, has received the price in the course of running the cemetery management business, it cannot be deemed that the cemetery management business is an incidental service to the cemetery lease business, which is a tax-exempt business, and thus, it cannot be said that it is exempt from taxes.

B. The non-taxable practice pursuant to Article 18(2) of the Framework Act on National Taxes is not simple omission of taxation for a certain period of time, but where the tax authority made a speech or behavior subject to trust to taxpayers, etc., its establishment should be acknowledged.

C. If taxation was omitted on graveyard management expenses during the taxation period due to a cause that a person who has not registered a business operator with respect to graveyard management projects fails to fulfill the prescribed tax obligation even with respect to the graveyard management expenses revenue, it cannot be deemed that the taxation by the tax authority for the omitted period is an unlawful disposition in violation of non-taxation practices.

(a) Articles 1(4) and 12(3) of the Value-Added Tax Act, Article 3(b) of the Enforcement Decree of the Value-Added Tax Act; Article 18(2) of the Framework Act on National Taxes;

B. Supreme Court Decision 80Nu6 delivered on June 10, 1980, 81Nu21 delivered on November 23, 1982

Attorney Lee Jong-woo, et al., Counsel for the defendant-appellant

Head of Yeongdeungpo-do Tax Office

Daegu High Court Decision 82Gu120 delivered on April 19, 1983

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

With respect to No. 1:

The latter part of Article 1(4) of the Value-Added Tax Act provides that the supply of goods or services essential for the supply of services, which are the main transaction, shall be deemed to be included in the supply of services, which is the main transaction. Article 12(3) of the same Act provides that the supply of goods or services, which are naturally annexed to the supply of goods or services, shall be deemed to be included in the supply of services exempted (goods or services). Article 3 of the Enforcement Decree of the same Act provides that the supply of services is specified as incidental (goods or services). If the Plaintiff operating a cemetery lease business, which is a tax-free cemetery lease business, has received the price separately from the former, the cemetery management business shall not be deemed as incidental services to the cemetery lease business, which is a tax-free business, and therefore, it shall not be deemed as exempt.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the incidental supply of services such as the theory of lawsuit.

With respect to the second ground:

The practice of non-taxation in accordance with Article 18(2) of the Framework Act on National Taxes is not simple omission of taxation for a fixed period of time, but where the tax authority made a speech or behavior subject to trust to taxpayers, etc., its establishment may be recognized.

However, according to the facts duly established by the court below in this case, the plaintiff did not register the business of cemetery management services and did not pay the scheduled return and final return under Articles 18 and 19 of the Value-Added Tax Act with respect to the revenues from the management expenses received for the supply of cemetery management services. Meanwhile, the non-party cemetery, the same type of business as the plaintiff, paid the value-added tax on the revenues from the management expenses, which are the compensation for cemetery management services, from August 14, 1979 to the present, and the non-party Busan Cemetery also paid the value-added tax by voluntary return on the cemetery management expenses from October 1, 1979 to the present. Thus, the plaintiff did not register the business of cemetery management services and did not fulfill the duty to report the prescribed amount on the revenues from the cemetery management expenses. Thus, the defendant did not have any tax exemption on the cemetery management expenses during this taxation period, so it cannot be viewed that the defendant violated the non-taxation practices of this case, and there is no error in the misapprehension of the legal principle as to the prohibition of the plaintiff.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices O Sung-sung(Presiding Justice)