Suwon District Court-2015-Guhap-401 (2015.09.01)

Disposition Imposing Value-Added Tax

Through the concession agreement dated June 17, 2002, the plaintiff and the non-party company agreed on the criteria and methods to specify the important matters of the lease agreement for the water of this case in the future.

[The Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 1930 of Feb. 9, 2006) and Article 38 (Scope of Tax Exemption for Goods or Services Supplied by the State, Local Governments, or Local Government Associations)

2015Nu59268 Revocation of Disposition of Imposition of Value-Added Tax

For the first time after this Decree enters into force, Article 2 of the Addenda.

It shall apply to the portion of the import or return: Provided, That the real estate under the amended provisions of subparagraph 3 of Article 38 shall apply to the portion of the real estate.

The amended provisions on the commerce shall apply from the date of the conclusion of the contract after the enforcement of those provisions."

The regulations have been set up.

under the above relevant provisions, the State, local governments or local governments associations may supply them.

rental services are initially exempted from value-added tax, but are supplied after January 1, 2007.

From February 28, 2007, the proviso to Article 2 of the Addenda of this case was subject to value-added tax.

The lease service provided under a lease contract concluded after January 1, 2007 shall be added by being newly established.

Since it is apparent in its language that he/she was subject to taxation of value, the State, local governments or local governments.

A lease contract entered into on or before December 31, 2006, among the lease services provided by a customs organization association.

It is reasonable to interpret that the lease services provided are excluded from the taxable objects of value-added tax.

C) The defendant is excluded from taxable objects pursuant to the proviso of Article 2 of the Addenda of this case.

Value-added tax is not imposed on the previous lease contract because it is impossible to change its content in the legislative intent.

Value-added tax shall be imposed on the case where transaction cannot be collected, and in fact from the first quarter of 2010 by the plaintiff.

Payment is made by other local governments, etc. in accordance with the concession agreement concluded before January 1, 2007.

This article argues that the value-added tax is paid for the lease services provided.

As such, the language and text of the proviso of Article 2 of the Addenda of this case is apparent and its legislative purpose and purpose.

In addition, according to the statements in the evidence Nos. 5 and 6, the significant interpretation has a certain limit.

The purport of the law is, contrary to the defendant's assertion, the standard of January 1, 2007, the enforcement date of the former Enforcement Decree of the Value-Added

the rental services provided by the State, a local government, or a local government association before such lease;

A value-added tax shall be exempted for rental services provided thereafter, and a value-added tax shall be imposed on rental services

(2) If such a lease is not subject to value-added tax, it shall not be subject to such a lease.

In the lease relationship formed on the premise, the subject of value-added tax burden, the inspection following additional collection of rents, etc.

Since it is anticipated that it will cause difficulty in enforcement, the proviso of Article 2 of the Addenda of this case is newly established.

on the basis of the conclusion of the contract, it appears that the value-added tax will be determined on the basis of the contract

Where a rent has been prepaid before December 31, 2006, as shown in the evidence 6 (or any existing set thereof).

No value-added tax shall be imposed only on the case of trust formed in the Do.

In addition, the defendant does not seem to have been able to do so, and the proviso of Article 2 of the Addenda of this case shall provide evidence No. 5 and No. 6

Value-added tax shall be exempted only when the rent is paid in advance before December 31, 2006, as shown in the example.

It appears that the purport of the plan is not to be asserted. Moreover, it does not seem that the plaintiff or the infrastructure.

Although the competent authorities that concluded the concession agreement are public agencies, the judiciary's determination in the tax sector is the judicial branch.

Defendant (or the National Tax Service, the higher administrative agency, etc.) may interpret the statute, unless

Inasmuch as it is an authoritative interpretation institution, a compromise on the implementation of the plaintiff or infrastructure

(1) The competent authority which concluded a contract may assert the interpretation theory of only one person and continue to conduct the private investment project.

If the plaintiff or other local governments are the same as this case, it is difficult to add value.

The defendant's argument on the legislative intent of the proviso of Article 2 of the Addenda of this case merely because he pays tax.

It seems that the proviso of Article 2 of the Addenda of this case should be interpreted as the same or as the defendant's assertion.

The defendant's assertion in this part is without merit.

2) Determination as to the time when the lease contract was concluded between the Plaintiff and the Nonparty Company

A) For the formation of a contract, there is a need for a mutual agreement between the parties.

The agreement of such parties requires with respect to all matters which constitute the content of the contract.

not specifically agree with the intent regarding its essential or important matters; or

At least an agreement on standards and methods that can be specified in detail in the future must be made.

Supreme Court Decision 2000Da51650 Decided March 23, 2001, Supreme Court Decision 2008Da1842 Decided March 16, 2009

[Reference]

Lease, one of the parties agrees to allow the other party to use an object and take profits therefrom.

Since the bank agrees to pay a rent for it, it becomes effective.

(Article 618 of the Civil Act). Lease contracts are leased by a lessor to a lessee regardless of its name or form.

use and take profits from the subject matter of the vehicle, and the lessee pays the vehicle in consideration thereof.

shall be established by mutual agreement between the parties, and in such cases, the term of lease and the

Detailed matters such as rent, etc. are not necessarily required to be specified in detail at the time of concluding the contract.

(2) If the method and criteria to determine it ex post facto are provided, the extent

It should be deemed that it is reasonable to consider.

B) Comprehensively considering the following circumstances revealed by the purport of the entire pleading for each of the aforementioned evidence

In this case, the lease contract between the plaintiff and the non-party company as to the facilities of this case was June 17, 2002.

It is reasonable to view that the concession agreement was concluded at the time.

① The Defendant: (a) received donation from the non-party company to the instant facilities; and (b) was non-party.

The Plaintiff, according to its substance, has had the instant facilities be used and used free of charge and profit therefrom.

Services to lease the instant facilities to the non-party company with the payment of rent.

value-added tax has been imposed by deeming that the said lease was provided. Therefore, the said lease relationship is subject to value-added tax

Whether a lending contract is concluded or not is in fact prior to the name of agreement or the form of such act

As to the essential or important matters of this Agreement, the plaintiff and the non-party company

Accordingly, a lease contract is concluded according to whether there is a specific agreement with a doctor in writing.

shall determine the time of division or conclusion.

② On the basis of the conclusion of the concession agreement between the Plaintiff and the Nonparty Company

Public-Private Partnership Act (Law No. 7386 of January 27, 2005) shall be amended into the Public-Private Partnership Act for infrastructure facilities.

(B) For subparagraph 6 of Article 2, the provisions of subparagraph 6 of the concession agreement shall read “competent authorities and the private sector under the provisions of Article 13”.

"Contract between a person who intends to implement an investment project and a person who intends to implement the project";

section 13(3) of the same Act is defined as such, and "the subjects of negotiations, the total cost and the period of use, etc."

Designation of a concessionaire by concluding a concession agreement including the conditions, etc. for the implementation thereof;

section 24 of the Act shall be between the land and society created or established by the private investment project.

The provisions of the concession agreement providing that “the capital facilities shall be managed and operated in accordance with the provisions of the concession agreement.”

C. According to the above relevant provisions, it is concluded with respect to the implementation of private investment projects.

The concession agreement shall not be legally binding between the competent authority and the concessionaire of the private investment project; or

A pre-contract for the operation of facilities to be installed in the future or a project that shall be designated by the project operator.

The important conditions necessary for the implementation of the project, not merely the designation of the executor.

Any agreement between the competent authority and the concessionaire, which is established by the private investment project operator, shall have the effect of binding parties.

It is reasonable to see that it is a true contract.

③ The concession agreement between the Plaintiff and the Nonparty on June 17, 2002 between the Plaintiff and the non-party company is the lease of the instant facilities.

In relation to this, the non-party company, a lessee, constructed the above facility and bring it to the plaintiff as the lessor.

A right to use and benefit from the facility for a certain period of time from the plaintiff in return for the payment of debt and the compensation therefor.

L. In other words, all the terms of the concession agreement include the right to lease.

in section 14(Right to Occupy and Use the Site) to section 33(Completion of Construction) the subject matter of the lease.

Specific matters concerning construction works for building facilities (construction cost, construction method, construction period, etc.)

section 4(Free Use Period)(1) provides for the approval of the instant facilities of the non-party company

The term of use, i.e., the term of lease shall be 30 years from the commencement date of operation, and Article 34 (Operation)

From the starting date of operation, that is, the starting date of use and profit-making of the instant facilities, which are leased objects.

을 '@@도지사로부터 관리운영권을 설정받아 실제로 통행료를 징수하는 날'로 규정하

Therefore, the lease object, lease term, use and water, which is a major part of the lease contract.

It shall be deemed that the method and criteria to clearly determine the following starting date, etc. after the fact have been set.

In addition, in principle, the part corresponding to the monthly rent in the lease of the instant facility is deemed as a matter of principle.

The value of the facility contributed by the plaintiff from the non-party company is the number of months of the total lease period.

Since it is divided, the standard and room to determine the rent in the future through the above concession agreement.

It is reasonable to view that the law has also been determined.

Therefore, the instant facilities between the Plaintiff and the Nonparty Company through the concession agreement dated June 17, 2002

Criteria and methods to specify in the future the important matters of a lease agreement on water;

It should be seen that the agreement has been reached.

④ The concession agreement dated July 22, 2003 was concluded between the plaintiff and the non-party company, and the part of the road in this case.

In order to change from the four lanes to the six lanes, and to reflect this in the existing contract, 202.

6. 17. The content of the road construction in the concession agreement will be partly modified, and the plaintiff and the plaintiff

Each amendment concession agreement concluded on December 31, 2007 and November 26, 2009 between the other company and the other company shall be the existing contract.

The increase or decrease of the total project cost incurred inevitably in the course of implementing the project, the consumer price index change, and amendments to statutes;

June 2002 to reflect changes in circumstances, such as changes in the organization of the state, investors, and capital structure, into existing contracts.

17.The amendment to any part of the concession agreement or the provisions of the said concession agreement already made;

Pursuant to the standards and methods, the starting date of operation, etc. is only specified. Accordingly, the office of June 17, 2002

After the conclusion of the Si Agreement, the agreement partially amending the existing terms and conditions is additionally concluded.

The mere fact that the concession agreement was effective on June 17, 2002 cannot be deemed to have expired.

(c)

(5) The Defendant set the outline of legal relations between the Plaintiff and the Nonparty Company in each concession agreement.

It is planned to change the period of free use, total cost, date of commencement of operation, tolls, etc., and taxes.

In the event of changes to the system, statutes, etc., the grounds for change to the concession agreement shall be determined;

In fact, the above concession agreement has been amended as well as each of the above concession agreements is a contract under public law.

The contents may be changed at any time according to changes in the relevant Acts and subordinate statutes, and the plaintiff shall be a local government.

The amended provisions of the former Enforcement Decree of the Value-Added Tax Act should be complied with as the legitimate administration principles are observed.

The above concession agreement was not reflected on December 31, 2006, because it did not reflect it.

The revised provisions of the former Enforcement Decree of the Value-Added Tax Act shall apply even if the contract was concluded.

C. However, as seen earlier, the modified content is inevitable in the process of implementing the existing concession agreement.

(1) The increase or decrease of the total project cost incurred, consumer price index change, amendment to the statute, investor and capital structure;

The effect of the existing concession agreement is merely to reflect changes in circumstances such as changes in existing contracts.

Not only can it be seen as a provision to exclude, but also each of the above concession agreements shall be free of charge, total period of use,

In detail, reasons or procedures for change or commencement of project costs, operation, etc. shall be specified in the contract.

Since the criteria and methods for determining use are specifically provided, a lease agreement shall be concluded.

The agreement between the plaintiff and the non-party company is still existing.

The enforcement of the former Value-Added Tax Act pursuant to the proviso of Article 2 of the Addenda of this case to the plaintiff or the non-party company

Colonel The duty to reflect the amended provisions in the concession agreement even if the amended provisions do not apply to this case.

Therefore, this part of the defendant's assertion is without merit.

6. The Defendant: (a) the Plaintiff’s lease contract for the instant facilities is subject to Article 26(1) of the Private

If the management and operation right of the above facilities is established for the non-party company as the project implementer

The plaintiff is established on May 15, 2008, and the time of this case by notifying the non-party company of the confirmation of contribution acceptance.

Since management and operation rights for snow material have been established, the lease contract for the facility of this case is the Gu.

On or after January 1, 2007, the enforcement date under the proviso of Article 1 of the Addenda to the Enforcement Decree of the Value-Added Tax Act.

claim to the effect that such action shall be deemed to be an action. However, Article 26(1) of the Private Investment Act

The rights to manage and operate infrastructure facilities shall be exercised by the concessionaire who has implemented the infrastructure facilities project.

After completion of the project, the maintenance and management of the project during the period of use and profit under the existing concession agreement and the installer of the project;

It is a right to collect user fees from an employee, and the non-party company for the facility of this case

The management and operation rights shall be in accordance with the terms and conditions of the existing lease contract for the facility which is the object of lease.

A right to actually use and profit-making, which has already occurred at the time of the concession agreement dated June 17, 2002.

It should be deemed that the Plaintiff was scheduled to do so, and on May 15, 2008, the instant facilities in the non-party company.

From around that time, the management and operation rights for the above facilities are established and the non-party company actually dies.

Even if they were made available for profit, they are merely performing the obligations under the existing lease agreement.

The time when the management and operation rights are established cannot be considered as the date when the lease contract is concluded. The defendant's assertion on this part

shall not be justified.

7. The plaintiff and the non-party company shall pay rent after the conclusion of the concession agreement dated June 17, 2002.

On January 1, 2007, the construction of the facility has started and a significant portion of the construction has been progress.

This is f. (53 months for the construction of the facility of this case, and the non-party company approximately 1 from January 1, 2007

On April 18, 2008, more than four months after the date of donation to the Plaintiff, Nonparty 1

The company shall, unless there are special circumstances, set up a rental fee for thirty (30) years before the date of commencement of the operation of the

The plaintiff shall be donated to the plaintiff and the other party shall be subject to other obligations with respect to the payment of the rent.

The non-party company does not contain a large amount of construction costs for the construction of the facility of this case.

Since expenditure was made on January 1, 2007, the plaintiff is substantially obligated to pay rent.

It can be assessed that the plaintiff and the non-party company should levy value-added tax.

He/she has a trust in the sense of Nos. 5 and 6 (where the rent is actually paid in advance) and separate cases

Inasmuch as there may be no difference between the Plaintiff and the Plaintiff, no value-added tax shall be imposed.

It is difficult to see that it is unfair.

C. Sub-committee

Therefore, the lease contract between the plaintiff and the non-party company for the facilities of this case on January 1, 2007

Added value is added to the plaintiff, a local government, on the premise that the plaintiff was not finally concluded before;

Since the defendant's disposition of this case imposing tax is unlawful, the disposition of this case must be revoked.

3. Conclusion

Thus, the plaintiff's claim of this case is justified, and the judgment of the court of first instance shall be accepted.

As the conclusion is justified, the defendant's appeal is dismissed as there is no reason.

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***The Director of the Tax Office

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s value-added tax for the first period of July 2, 2014 ***,767,840 won against the Plaintiff on July 2, 2014;

The imposition of value-added tax for the second period portion in 2009***,059,930 won shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Reasons for the disposition and the plaintiff's assertion

The reasoning for this Court’s explanation is as follows: Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act shall be cited on the ground that the reasoning for this Court’s explanation is the same as that for the corresponding part of the judgment of the court of first instance, except where the “Defendant” of the 7th judgment is cited as the “Plaintiff”

2. Whether the instant disposition is lawful

(a) Related Acts and subordinate statutes;

It is as shown in the attached Form.

B. Determination

1) Interpretation of proviso of Article 2 of the Addenda to the former Enforcement Decree of the Value-Added Tax Act

A) As a matter of principle, law is a norm which has the same binding force against many and unspecified persons, it shall be interpreted to ensure objective validity by clarifying the standard meaning of the law, as much as possible, and shall maintain consistency with all the people as possible so as not to undermine legal stability. Moreover, since positive law is established in consideration of a universal and typical matter, it is necessary to interpret it to ensure that the law can be most reasonable and reasonable in applying the law in a variety of cases that occur in society reality. In short, the purpose of statutory interpretation is to faithfully interpret the meaning of the language used in the law to the extent that it does not undermine legal stability. Furthermore, the legislative intent and purpose of the law, its amendment history, harmony with the entire legal order, and relationship with other Acts and subordinate statutes, and thus, it is necessary to ensure that the aforementioned request for statutory interpretation is not complied with, as a matter of principle, even if there is no need to interpret it differently from the meaning and purpose of the law in question, and there is no need to interpret it differently from the meaning and purpose of the law in question.

B) Article 12(1)17 of the former Value-Added Tax Act (amended by Act No. 9915 of Jan. 1, 2010) provides that the value-added tax shall be exempted for the goods or services supplied by the State, local governments, or local government associations, as prescribed by the Presidential Decree. Article 38 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 1930 of Feb. 9, 2006) provides that "the goods or services provided by the State, local governments, or local government associations shall be excluded from the value-added tax, and Article 38 subparagraph 3 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 1930 of Feb. 9, 2006) provides that "the goods or services provided by the government, local governments, or local government associations, other than the above services, shall be exempted from the value-added tax." Article 38 subparagraph 28 of the former Enforcement Decree of the Value-Added Tax Act provides that "the real estate rental services shall be excluded from the above value-added tax."