The early appellate court 2014west 937

It can not be deemed that a housing site preparation project is an essential accompanying service for national housing construction services.

Key services cannot be deemed as services essential for housing construction services, as well as the supply by the national housing itself or the construction by the national housing itself.

Article 106 of the Restriction of Special Taxation Act, Article 106 of its Enforcement Decree

2014Guhap65240 Action for cancellation such as a disposition imposing value-added tax

AAA Construction, Inc.

The director of the tax office.

July 23, 2015

September 10, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant imposed value-added tax of KRW 58,981,945 on July 8, 2013 against the Plaintiff on the first term of 2008; imposition of value-added tax of KRW 43,94,405 on the second term of 208 as of January 21, 2014; imposition of value-added tax of KRW 24,289,00 on the first term of 2009; imposition of value-added tax of KRW 42,10,327 on the second term of 209; imposition of value-added tax of KRW 25,858,821 on the second term of 209; imposition of value-added tax of KRW 11,943,203; imposition of value-added tax of KRW 13,246,750; and disposition of imposition of value-added tax for each business year of 209; imposition of value-added tax for each business year of 2014;

1. Details of the disposition;

A. On April 29, 2004, the Plaintiff entered into a contract with Nonparty BBBB and ○○○ Housing Site Development Project (hereinafter “the instant construction”). The content of the instant construction is to create housing sites for the construction of 13 housing complexes by performing soil, excellent water, sewage, water supply systems, packaging, structure construction, incidental construction, etc. with respect to the total supplied area of 648,194 square meters in ○○ Housing Site Development Project, composed of the following:

Total supplied area of 648,194 square meters

334,980 square meters of paid supply area;

313,214 square meters of free supply area

National Housing Construction Site 238,492 square meters

Other 96,488 square meters

Roads, special schools, welfare facilities,

Sewerage, park, green area, etc.

313,214 square meters

B. The Plaintiff initially reported and paid value-added tax and corporate tax by deeming the entire construction service of this case as subject to value-added tax; however, as a result of a review by the Seoul Special Metropolitan City on the payment status of value-added tax on national housing construction project implemented by the BBB, including the instant construction project, the Plaintiff concluded that Article 106 (1) 4 of the Restriction of Special Taxation Act, which provides that the instant construction service shall be exempted from value-added tax on national housing construction services, can be applied to the instant construction project; on July 24, 2007, the Plaintiff ordered BBBB Corporation to file a claim for the correction of value-added tax already paid and to reduce design on the already appropriated value-added tax under the premise that the portion corresponding to the ratio of the “national housing construction site / oil supply area” among the instant construction service is subject to value-added tax exemption; from August 30, 2007 to urge the Plaintiff to modify the contract from August 30, 2007.

C. However, the director of the Seoul Regional Tax Office, upon conducting a tax investigation on BB Corporation, determined that the value-added tax should be revised on the ground that only the portion corresponding to the ratio of the "national housing construction site/total supply area" among the instant construction services that is not directly related to the creation of national housing complex among the instant construction services, should be exempted from all of the construction works outside of the complex. The Defendant notified the Plaintiff of the foregoing taxation data from July 8, 2013 to January 21, 2014, notified the Plaintiff of the rectification and notification of the value-added tax and the corporate tax as stated in the following table.

(unit: won)

Date of Disposition

Items of Taxation

Year/Period portion

Original Imposition

Reduction of penalty

Target Amount

July 8, 2013

Value-added Tax

208.1

106,205,274

47,223,329

58,981,945

January 21, 2014

208.2

83,431,157

39,486,752

43,944,405

209.1

44,631,272

20,342,272

24,289,000

209.2

74,319,465

32,219,138

42,100,327

2010.1

44,638,851

18,780,030

25,858,821

January 16, 2014

Value-added Tax

2011.1

18,749,402

6,806,199

11,943,203

Corporate Tax

208

20,324,899

7,078,149

13,246,750

209

4,765,494

1,467,500

3,297,994

2010

2,102,781

549,653

1,553,128

D. The Plaintiff dissatisfied with the disposition issued on July 8, 2013 and filed an appeal with the Tax Tribunal on January 29, 2014 after filing an objection on October 7, 2013. On May 19, 2014, the Plaintiff was subject to the revocation decision on the penalty tax, but the remaining appeal was dismissed.

E. In addition, the Plaintiff was dissatisfied with the disposition issued on January 21, 2014 and January 16, 2014, and filed an appeal with the Tax Tribunal on February 10, 2014. On July 9, 2014, the portion of penalty tax in each of the above dispositions was revoked ex officio by the Defendant, but on September 18, 2014, the remaining portion of the appeal was dismissed by the Tax Tribunal (as a result, the part of the Defendant’s previous disposition was left only in the column of “subject amount” in the said Section (hereinafter referred to as “instant disposition”).

[Ground of Recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1 through 10, Gap evidence 3-6, Gap evidence 7-1 through 9, Gap evidence 8-1 through 3, Eul evidence 13-4 and 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

First, the instant construction project not only takes place within a national housing complex, but also takes place in addition to the supply of national housing, and all of its expenses are also reflected in the sale price of national housing. Therefore, it conforms to the legislative intent of the Restriction of Special Taxation Act to regard the corresponding part of the instant construction project as the object of value-added tax exemption corresponding to the ratio of the site for construction of national housing and the area for supply of oil among the instant construction project as the object of the instant construction project as the object of exemption from value-added tax and to include the out-of-the-door construction project in the object of exemption from value-added tax. Therefore, the Defendant’s disposition of this case applying the criteria of “the

Second, in the process of examining whether to reduce value-added tax on national housing construction services, the Seoul Special Metropolitan City received a reply from the National Tax General Counseling Center on January 30, 2007 to the effect that "national housing housing site development services fall under the objects of the exemption from value-added tax", and that it was required to make a modified contract, etc. against the Plaintiff. Such reply by the National Tax General Counseling Center constitutes a public opinion statement by the tax authority that is trusted, and thus, the Defendant’s disposition contrary thereto is unlawful.

B. Relevant statutes

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

C. Determination

1. Scope of national housing construction services exempt from value-added tax

Article 106 (1) 4 of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 201) provides that the value-added tax shall be exempted for national housing and construction services of housing prescribed by Presidential Decree. Under Article 106 (4) 2 of the Enforcement Decree of the same Act, the term “construction services of national housing” means “supply by a person registered under the Framework Act on the Construction Industry, the Electrical Construction Business Act, the Fire Services Act, the Fire Services Act, the Housing Act, the Housing Act, the Sewerage Act, the Sewerage Act, and the Act on the Management and Use of Livestock Excreta.” Thus, the exemption of value-added tax under each of the above provisions refers to the supply of national housing itself, the supply of construction services necessary for the construction of national housing, electrical construction services, and fire fighting services, etc. (see, e.g., Supreme Court Decision 91Nu7040, Feb. 11, 1992).

In light of the above legal principles, there is a dispute as to whether the portion of the instant construction project on the size of 313,214 square meters is exempt from value-added tax, among the instant construction projects, between the Plaintiff and the Defendant. In light of the aforementioned legal principles, the key service is to be conducted in a public area outside a housing complex located outside the national housing complex. According to the following facts: (a) the main service is to be installed in a public area outside the national housing complex; (b) the Plaintiff and the Defendant’s construction of the housing project under Article 2 subparag. 10 of the former Housing Act (amended by Act No. 11061, Sept. 16, 201; hereinafter the same shall apply) or the main facilities and welfare facilities to be installed by the implementer of the housing construction project under Article 2 subparag. 12 of the former Housing Act; and (c) the housing construction project operator’s construction of the housing project cannot be deemed to be arbitrarily incidental to the housing construction project or the housing construction of the State’s housing construction project; and (d) the housing construction of the housing construction itself.

Therefore, it is reasonable that the key service is excluded from the scope of value-added tax exemption. Thus, the disposition of this case that the Defendant is entitled to exemption from value-added tax only for the portion corresponding to the ratio of the "national housing construction site/total supply area" among the instant construction services.

2) Whether the principle of good faith is violated

In general, in order to apply the principle of trust and good faith to the acts of the tax authorities in tax and legal relations, the tax authorities must name the public opinion that is the subject of trust of the taxpayers, the tax authorities should not cause the taxpayer to believe that the statement of opinion is justifiable, and the taxpayer must act in trust in the name of the opinion, and the tax authorities should make a disposition contrary to the above opinion statement, thereby infringing the taxpayer's interest (see, e.g., Supreme Court Decision 2007Du7741, Oct. 29, 2009). If the expression of opinion by the tax authorities is merely a general opinion statement, the application of the above principle is denied (see, e.g., Supreme Court Decision 2000Du5203, Apr. 24, 2001).

In full view of the contents of evidence Nos. 3 and 4 as a result of questioning by the audit officer of Seoul Metropolitan Government to the National Tax Comprehensive Counseling Center, the fact that the response was received on January 31, 2007 is recognized as follows.

○ Cases of similar interpellation 1 ( July 21, 1995)

The National Housing Site Creation Services (including housing sites, such as roads, waterworks, landscaping, children's playgrounds, sports facilities, etc., within a complex attached to national housing) supplied by a business proprietor licensed under the Construction Business Act, etc. is exempt from value-added tax pursuant to Article 106 (1) 4 of the Restriction of Special Taxation Act and Article 106 (4) of the Enforcement Decree of the same Act, but the housing site Creation Services for the construction of a new business building are imposed value-added

○ Cases of similar interpellation 2 ( December 30, 1983)

National housing construction services supplied by an entrepreneur under Article 106 (1) 4 of the Restriction of Special Taxation Act shall include construction services for building site of national housing and construction services for appurtenant facilities to national housing; however, whether sewage terminal treatment plants, facility greenbelts, parks, roads, etc. fall under incidental facilities shall be determined according to the fact-finding.

However, the response of the National Tax General Counseling Center is not an official statement of the tax authority, but a mere consultation for the counseling staff (see, e.g., Supreme Court Decision 2007Du3107, Apr. 23, 2009). The above response content also does not seem to contain a specific judgment as to whether to exempt the value-added tax on the issues arising outside a national housing complex. Therefore, it cannot be deemed that there was a public statement of opinion by the tax authority to apply the principle of trust and good faith. Accordingly, the Plaintiff’s assertion on this part

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.