early 2012west 4066 ( December 27, 2012)

The disposition that deducts the relevant input tax amount by deeming that the issuance and delivery of electronic tax invoices were delayed is legitimate.

An input tax amount shall not be deducted from the output tax amount, since an input tax amount is a tax invoice prepared and issued after the taxable period to which the time of supply belongs, where a tax invoice was issued on the basis of the payment date of each contract price, on the basis of the payment date of each contract price.

Article 16 of the Value-Added Tax Act

2013Guhap7902 Disposition to revoke the imposition of value-added tax

LAA

The director of the tax office.

October 4, 2013

October 18, 2013

1. The plaintiff (appointed)'s claim is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

Cheong-gu Office

On July 1, 2012, the Defendant revoked each imposition of OOO (including additional tax) of the value-added tax No. 1 in 2011 against the Plaintiff (Appointed Party) and the appointed parties.

1. Details of the disposition;

A. Status of the parties

The plaintiffs (appointed parties, hereinafter referred to as the "Plaintiffs") and the designated parties are personal entrepreneurs who engage in the real estate business called the "BB Development" (hereinafter referred to as the "B").

(b) Conclusion of contracts and payment of construction cost;

(1) On April 27, 2011, the SelectionCC entered into a contract for construction works (hereinafter referred to as “D”) with D Integrated Construction Co., Ltd. (hereinafter referred to as “D”) at least five times due to the change in the date of completion as follows.

1. Construction name: 5 new construction works for accommodation facilities for a tourist destination at O (7, 8, 9, 16, 17 units);

2. Construction site: OO-dong 198, and three parcels;

3. Date of commencement: May 1, 201

4. Date of completion: July 30, 201 (a change to a five-dimensional change contract) (a change to 8, 9, and 10 Dong) on November 30, 2012;

5. Contract amount: OOO members (including value-added tax);

Supplier : OOOO, Additional OOOO

6. Payment of progress payment: Payment within seven days according to the progress rate as at the end of each month.

* Special Terms and Conditions

- As of December 15, 2010, buildings constructed as of December 15, 201 were excluded from this contract amount.

- A duty invoice payable for construction costs shall be issued on a monthly basis (a final report).

(2) The Plaintiff and the designated parties calculated the progress payment on the basis of the fair ratio of D, and confirmed it by the new bank, and paid the aggregate of the construction cost as follows:

No.

Date and

drawee.

Amount (won)

1

December 17, 2010

SelectionCC

OOO

2

December 20, 2010

SelectionCC

OOO

3

December 28, 2010

SelectionCC

OOO

4

December 30, 2010

SelectionCC

OOO

5

April 29, 2011

SelectionCC

OOO

6

May 23, 2011

SelectionCC

OOO

7

May 25, 2011

SelectionCC

OOO

8

May 31, 2011

Optional EE

OOO

9

May 31, 2011

SelectionCC

OOO

10

May 31, 2011

OOO

11

June 27, 2011

Appointor F

OOO

Total

OOO

(c) Disposition, etc.;

(1) On July 15, 2011, D issued and transmitted an electronic tax invoice (hereinafter “instant tax invoice”) of “the date of preparation” to the Commissioner of the National Tax Service: June 30, 2011; “OOOwon” of “the total amount of supply” (OOOOwon + value-added OOOOOwon). Since then, the Plaintiff and the designated parties reported and paid the instant tax invoice to the Defendant for the first year of 201 including the input tax amount.

(2) On July 1, 2012, the Defendant issued a revised notice of the input tax amount of the instant tax invoice to the Plaintiff and the designated parties on the ground that “The instant tax invoice constitutes a tax invoice received after the lapse of the taxable period, which contains part of the requisite entry items different from the fact (hereinafter “tax invoice different from the fact”) under the main sentence of Article 17(2)2 of the Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter the same).”

(3) The SelectionCC filed an appeal on September 13, 2012, and was dismissed by the Tax Tribunal on December 27, 2012.

Facts that there is no dispute with recognition, Gap evidence 1 through 6 (including paper numbers), Eul evidence 1 and 2, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Even if a tax invoice is prepared and delivered retrospectively after the expiration of the taxable period to which the time of supply for the relevant goods belongs, if the tax invoice is prepared and delivered pursuant to the provisions of the special case of delivery, it does not constitute "unlawful tax invoice." Thus, the instant disposition made solely on the basis that the tax invoice was prepared and delivered retroactively as of June 30, 201 is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the time of supply

Article 16(1) of the Value-Added Tax Act provides that "where an entrepreneur registered as a taxpayer supplies goods or services, an invoice stating the registration number, name or title, the registration number, value-added tax number, value-added tax, and the preparation date (hereinafter "necessary entry") of the entrepreneur who supplies the goods or services at the time prescribed in Article 9 of the Act shall be delivered to the person who receives the supply." Meanwhile, where an entrepreneur has agreed to pay an amount of money out of the amount of construction progress once a month after inspecting the construction progress, it may be deemed that the time of supply for the service has arrived at each time when determining the amount of money was completed (see Supreme Court Decision 83Nu34, Sept. 27, 1983).

Since the Plaintiff and the designated parties settled the construction price in accordance with the progress rate from December 17, 2010 to June 27, 201, the payment date of each construction price falls under the time of supply, since the Plaintiff and the designated parties settled the construction price to D, respectively. Therefore, the Plaintiff and the designated parties are subject to the preparation and issuance of a tax invoice from D on the payment date of each construction price, and thus, they cannot be issued a tax invoice on June 30, 201 on the ground that they were paid at once.

(2) As to the application of the special case of delivery

Article 17 (2) 2 of the Value-Added Tax Act provides that "where a tax invoice under Article 16 (1) is not issued, or all or any of the items to be entered under Article 16 (1) 1 through 4 are not entered or mistakenly entered in the tax invoice issued, the input tax amount may not be deducted, but where such items are entered or delivered differently from the fact, specific cases prescribed by Presidential Decree shall be excluded." Article 60 (2) 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24638, Jun. 28, 2013) provides that "where a tax invoice is issued after the time of supply for goods or services falls within the taxable period in which the relevant time of supply falls, the input tax amount may be deducted from the output tax amount (including where a tax invoice is issued pursuant to Article 54 (1))." Thus, even if a tax invoice is prepared and issued retroactively within the taxable period in which the date of supply falls after the time of supply for the relevant goods, it does not constitute a "tax invoice prepared and delivered under Article 2005."

However, the instant tax invoice was issued on July 15, 201 after the fifth day from July 10, 201, which was the 10th day of the month following the month in which the service is supplied, and thus, does not constitute a special case for issuance.

(3) Sub-decisions

Therefore, the instant tax invoice constitutes a tax invoice different from the fact, and thus, the instant disposition is lawful.

3. Conclusion

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