early 2010 Heavy0252 (2010.06.01)

Where business registration is registered only, the input tax amount before registration shall be applicable.

It is insufficient to recognize that a public official in charge has provided wrong guidance for business registration, and as long as an input tax has occurred by operating a taxable business prior to general business registration even if he/she has continued to engage in business after only tax exemption, it falls under the input tax prior to registration of non-deduction of input tax amount.

2010Guhap3270 Revocation of Disposition of Imposition of Value-Added Tax

XX Association

O Head of tax office

March 29, 2011

July 5, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s value-added tax for the second year of 2007 against the Plaintiff on January 26, 2009 KRW 235,291,795, and

The imposition of value-added tax of KRW 235,042,270 in 208 shall be revoked.

1. Details of the disposition;

가. 원고는 2004. 6. 11. 아파트 재건축사업을 위하여 설립된 재건축주택조합으로서 2004. 6. 19. 피고로부터 '면세사업자용' 사업자등록증(등록번호 : 132-91-XXXXX)을 교부받았다가, 2008. 10. 7. 일반과세자용 사업자등록증(등록번호 : 132-22-OOOOO)을 정정, 교부받았다.

B. The Plaintiff did not file a value-added tax return on the tax invoice of KRW 2,09,657,000 for supply value received in 2007 (hereinafter “the tax invoice of this case”). With respect to the tax invoice of KRW 2,481,835,00 for supply value received during the first period of 2008 (hereinafter “the tax invoice of this case”) and the tax invoice of KRW 3,390,05,00 for supply value received during the second period of 2008 (hereinafter “the three tax invoice of this case”), the Plaintiff filed a value-added tax return after deducting each input tax amount from the output tax amount of October 25, 2008 and January 25, 2009.

C. However, the Defendant revised the Value-Added Tax Act (amended by Act No. 8142, Dec. 30, 2006; hereinafter the same shall apply) (amended by Act No. 9268, Dec. 26, 2018; hereinafter the same shall apply) on the ground that the input tax amount of KRW 165,49,00 among the input tax amount under the instant tax invoice 1; KRW 248,184,00 among the input tax amount under the instant tax invoice 2; KRW 198,280,00 among the input tax amount under the instant tax invoice 3; and KRW 198,280,000 among the input tax amount under the instant tax invoice 2, the Defendant issued a notice to the Plaintiff on Nov. 26, 2009, on the ground that it constitutes the input tax amount prior to the registration under Article 17(2)5 of the Value-Added Tax Act (hereinafter “the instant input tax amount”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 1-1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserted that the disposition of this case is unlawful for the following reasons and thus should be revoked.

(c)

(1) Notwithstanding the fact that the Plaintiff was a taxable entity on the business plan but the Defendant’s public official responsible for the Defendant’s wrong guidance, the Defendant treated the instant tax invoice received prior to the Plaintiff’s filing of an application for correction of the general entrepreneur’s registration as the input tax prior to registration, and determined that the instant tax invoice was the input tax prior to registration.

(2) Since the registration under Article 17 (2) 5 of the Value-Added Tax Act constitutes a business registration under Article 5 (1) of the Act, the instant input tax amount that occurred after the Plaintiff commenced the business and registered the business as a tax-free business, does not constitute the pre-registration input tax amount even before the Plaintiff files an application for correction of general tax assessment.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

(1) As to the Plaintiff’s first argument

In this case, the evidence submitted by the Plaintiff alone is insufficient to recognize that the Defendant had guidance for business registration of erroneous matters as alleged by the Plaintiff, and there is no other evidence to acknowledge this otherwise (the witness who is a public official in charge of business registration at the time of misunderstanding shall normally be placed in the column of the duty-free business operator, and the witness shall be limited to computerized input as stated in the application form. The witness bears no separate explanation from the head of the Plaintiff association and the BB on this part). Accordingly, the above argument by the Plaintiff is without merit.

(2) As to the second argument of the Plaintiff

Article 5 (1) of the Value-Added Tax Act provides that a person who newly starts a business shall register with the head of a tax office having jurisdiction over the place of business within 20 days from the date of commencing the business under the conditions as prescribed by the Presidential Decree. Article 2 (1) of the same Act provides that a person who independently supplies goods or services for business purposes regardless of the existence of profit-making profit shall be liable to pay the value-added tax under this Act. According to Article 20 (3) of the same Act, Article 8 of the Enforcement Decree of the same Act, and Article 67 (1) of the Enforcement Decree of the same Act, the head of a tax office shall allow a tax-free businessman to give a unique number corresponding to the registration number to the tax-free businessman in order to efficiently handle the taxation data. Article 168 (1) of the Income Tax Act provides that a person who newly starts a business shall register with the head of the tax office having jurisdiction over the place of business. In full view of the purport of each provision regarding the above business registration, since the person liable for registration of value-added tax has no obligation to register.

Therefore, as seen earlier, even if the Plaintiff continued to operate a business after being exempt from the registration of business, so long as the instant input tax amount occurred by running the VAT taxable business prior to the registration of business, this constitutes the input tax amount prior to the registration under Article 17 (2) 5 of the Value-Added Tax Act excluded from the subject of the deduction of the value-added tax when calculating the value-added tax

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.