Review-2015-0011 (Law No. 27, 2015.04)

Whether the time of supply for services related to the construction of an officetel building is the date of approval for use or the date of final completion of the construction

The time when the provision of a service is completed means the time when the fact of the provision of service can be confirmed clearly considering the scope of the provision of service under a contract between a transaction business operator and the terms and conditions of the contract, that is, the time when the person to whom the service was rendered is able to use the calculation of the provision of service by the actual provision of the service.

Article 11 of the Value-Added Tax Act

2015Guhap8911 Revocation of Disposition of Imposition of Value-Added Tax

AAA, Inc.

AA Head of the Tax Office

8 March 8, 2016

March 29, 2016

1. The Defendant’s disposition of imposing value-added tax of KRW 93,610,630 on the Plaintiff on January 6, 2015 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On February 2, 2013, the Plaintiff entered into a contract with AA and BB to complete the construction of an officetel located in the XX-gu 145-gil 145 (hereinafter referred to as the “instant construction”).

B. AA and BB completed registration of initial ownership on December 30, 2013, after obtaining approval for use on December 27, 2013 with respect to a building for business connected by the instant construction (hereinafter referred to as “instant building”).

다. 원고는 2013. 12. 26. 이 사건 공사와 관련하여 XXXXXX원의 매출세금계산서(이하 '이 사건 세금계산서'라고 한다)를 발행하고, 위 세금계산서를 매출 과세표준에 가산하여 2013년 2기 부가가치세 확정신고를 하였다.

D. Based on the premise that the time of supply for the instant construction service was 1 December 2014 after the date of approval for the use of the instant building, the Defendant determined that the instant tax invoice was issued under the condition that the provision of the service was not completed, and thus constitutes a pre-sale tax invoice without giving or receiving any consideration. Accordingly, the Defendant granted refund of KRW 167,447,00, which was calculated by subtracting the supply value of the instant tax invoice from the Plaintiff’s output tax amount for February 2013, 2013, and then included the supply value of the instant tax invoice in the Plaintiff’s output tax amount for December 1, 2014, to the Plaintiff on December 1, 2014, the Defendant corrected and notified the amount of value-added tax of KRW 186,523,960 (including additional tax) for value-added tax for value-added tax for value-added tax for value-added tax for value-added tax for value-added tax for value-added 14, 2013, 16306.

E. On February 6, 2015, the Plaintiff, who was dissatisfied with the instant disposition, requested a National Tax Examination Committee to review on the National Tax Service on February 6, 2015, but was dismissed on April 27, 2015, and filed the instant lawsuit on July 27, 2015.

2. Determination

A. The plaintiff's assertion

Since the time of supply for the service related to the building of this case is the date of approval for use, the disposition of this case imposed as of the date of the last completion of the construction of this case shall be revoked illegally

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

According to Article 16 (1) of the Value-Added Tax Act, when a provision of service is completed or when goods such as facilities, rights, etc. are used, "the time when a provision of service is completed" refers to the time when a person to whom a service is rendered can clearly confirm the fact of provision of service by taking into account the scope of provision of service under a contract between a trader and the terms and conditions of a contract, i.e., the time when a person to whom a service is rendered by the actual provision of service enables him/her to use the computation of provision of service (see, e.g., Supreme Court Decisions 2008Du5117, Aug. 21, 2008; 2013Du2291, Jun. 11, 2015).

As to the instant case, the following circumstances revealed by the purport of the Health Team Nos. 1, 2, 7, 8, Eul evidence Nos. 9 through 16 (including each number), and the entire pleadings, namely, under the instant construction contract, the Plaintiff paid the price within 30 days after completion of the completion inspection of the instant building. The instant tax on December 26, 2013, which was around the date of approval for use, by the Plaintiff.

In full view of the fact that the construction work of the building in this case was issued and delivered to the contractor, ② approval for use was granted on December 27, 2013. According to Article 22 of the Building Act, if the owner wishes to use the building after obtaining a construction permit or filing a report, the owner is unable to use or use the building (Paragraph 1), ③ the owner’s personal use of the building in this case, ③ the owner’s personal use of the building in this case completed the registration of initial ownership on December 30, 2013, when the approval date for use was similar to that of the building in this case, ④ the 502 and 503 of the building in this case were sold on the site of January 27, 2014, it is reasonable to view that the Defendant’s disposal of the building in this case was unlawful on the premise that the use of value-added tax could have been used on December 7, 2013.

3. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.

public official law, order of law,

Article 11 of the Value-Added Tax Act (Provision of Services)

(1) The supply of services shall be any of the following subparagraphs based on all contractual and legal grounds:

1. Offering labor;

2. Allowing anyone to use facilities, rights, or other goods.

(2) Matters necessary for the scope of supply of services under paragraph (1) shall be prescribed by Presidential Decree.

Article 16 (Time of Supply for Services)

(1) The time of supply for services shall be the time provided in any of the following subparagraphs:

1. When the offer of labor is completed;

2. The time when facilities, rights, or other goods are used.

(2) Notwithstanding paragraph (1), the time of supply for services supplied in installments or on conditions shall be prescribed by Presidential Decree.

Article 32 (Tax Invoice, etc.)

(1) Where an entrepreneur supplies goods or services (excluding the supply of goods or services exempt from value-added tax), he/she shall issue an invoice stating the following matters (hereinafter referred to as “tax invoice”) to the person who receives the supply:

1. Registration number, name or denomination of the businessman who provides;

2. Registration number of the person who receives: Provided, That where the person is not an entrepreneur or is not an entrepreneur, the identification number or resident registration number prescribed by Presidential Decree;

3. Supply value and value-added tax;

4. Date of preparation;

5. Other matters prescribed by Presidential Decree.

(2) Where any corporate entrepreneur or any individual entrepreneur prescribed by Presidential Decree intends to issue a tax invoice under paragraph (1), he/she shall do so by electronic means (hereinafter referred to as “electronic tax invoice”) prescribed by Presidential Decree.

(3) Where an electronic tax invoice is issued as prescribed in paragraph (2), a list of the issuance of the electronic tax invoice prescribed by Presidential Decree shall be transmitted to the Commissioner of the National Tax Service.

(4) Notwithstanding paragraph (2), in cases prescribed by Presidential Decree, such as where an operator of the electric utility business defined in subparagraph 2 of Article 2 of the Electric Utility Act supplies electricity for industrial use, the relevant operator may issue an invoice stating that he/she is an electronic tax invoice and transmit a file of an electronic tax invoice to the Commissioner of the National Tax Service, as prescribed by Presidential Decree. In such cases, he/she shall be deemed to issue an electronic

(5) Any business operator, other than those required to issue electronic tax invoices, may issue electronic tax invoices and transmit a list of the issuance of electronic tax invoices, as prescribed in paragraphs (2) and (3).

(6) Notwithstanding paragraph (1), a tax invoice or electronic tax invoice may be issued or issued, as prescribed by Presidential Decree, even if the person who supplies or is not a person who supplies the relevant goods or services, or is not a person supplied with such goods or services.

(7) Where any error in the descriptions of a tax invoice or electronic tax invoice is found, or any ground prescribed by Presidential Decree arises in connection with the descriptions thereof arises after a tax invoice or electronic tax invoice is issued, a revised tax invoice (hereinafter referred to as “ amended tax invoice”) or an electronic tax invoice (hereinafter referred to as “ corrected electronic tax invoice”) may be issued, as prescribed by Presidential Decree.

(8) Matters necessary for the preparation and issuance of tax invoices, electronic tax invoices, amended electronic tax invoices, and amended electronic tax invoices shall be prescribed by Presidential Decree.

Article 34 (Time of Issuance of Tax Invoice)

(1) A tax invoice shall be issued by an entrepreneur to a person supplied with goods or services at the time of supply for goods or services under Articles 15 and 16.

(2) Notwithstanding paragraph (1), an entrepreneur may issue a tax invoice under Article 17 before the time of supply for goods or services under Article 15 or 16.

(3) Notwithstanding paragraph (1), a tax invoice may be issued by the tenth day (if the day is a holiday or Saturday, referring to the immediately following business day) of the month following the month in which the date of supply of goods or services falls under any of the following cases:

1. Where a tax invoice is issued as of the last day of the relevant month, including the total value of supply for the calendar month by transaction party;

2. Where a tax invoice is issued as of the date on which the total sum of supply values for a period fixed voluntarily by an entrepreneur within one calendar month for each customer ends;

3. Where a tax invoice is issued as of the date of the relevant transaction, if the fact of actual transaction is verified by related documentary evidence, etc.

Article 25 of the Enforcement Decree of the Value-Added Tax Act (Scope of Service Supply)

Any of the following subparagraphs shall be deemed the supply of services under Article 11 of the Act:

1. Where a constructor bears the whole or part of construction materials;

2. Processing goods delivered by the other party without bearing any major material at all;

3. Provision of information on industrial, commercial, or scientific knowledge, experience, or skill.

/Building Act (Amended by Act No. 14016, Feb. 3, 2016)

Article 22 (Approval for Use of Building)

(1) A project owner shall complete construction works for a building permitted or reported pursuant to Article 11, 14, or 20 (1) (or complete construction works for each building if at least two buildings are constructed on one site).

When it is intended to use a building after completion of construction works, the building shall be approved to the competent permitting authority, along with a report on completion of construction supervision prepared by the project supervisor pursuant to Article 25 (5) (limited to cases where a project supervisor has been designated pursuant to paragraph (1) of the same Article) and a document of

(2) Upon receipt of an application for approval for use under paragraph (1), a permitting authority shall conduct an inspection on the following matters within a period prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, and issue a written approval for use to a building which has passed the inspection: Provided, That the authority may issue a written approval for use without conducting an inspection

1. Whether the building for which an application for approval for use has been filed is constructed in accordance with the design documents approved or reported under this Act;

2. Whether the documents and books, such as a report on completion of supervision, a work completion book, etc., are properly prepared;

(3) No project owner may use or allow anyone to use a building unless he/she has obtained approval for use pursuant to paragraph (2): Provided, That this shall not apply to any of the following cases:

1. Where the competent permitting authority has not issued a written approval for use within the period under paragraph (2);

2. Where the part completed prior to the issuance of approval for use meets the standards prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, such as building-to-land ratio, floor area ratio, facilities, evacuation and fire prevention, and approval for temporary use has been granted within