Suwon District Court 2008Guhap7428 (209.03)

National High Court Decision 2007Du1236 (Law No. 8630, 2008)

Where real estate acquired for rental business is used for housing rental;

Since it is recognized that the buildings acquired for the rental business have been used exclusively for the rental business, it constitutes a self-supply.

The contents of the decision shall be the same as attached.

1. The part against the defendant in the judgment of the first instance shall be revoked, and the lawsuit of this case corresponding to the revoked part shall be dismissed;

2. The plaintiff's appeal is dismissed.

3. The total cost of a lawsuit shall be five minutes, which shall be borne by the plaintiff, and the remainder by the defendant.

1. Purport of claim

The Defendant’s value-added tax of KRW 83,934,060 on February 5, 2007 for the Plaintiff on February 5, 2005

The imposition disposition shall be revoked.

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the plaintiff shall be revoked, and the defendant shall revoke the part of 16,713,180 won in the disposition of imposition of value-added tax for the second period of February 5, 2005 against the plaintiff on February 5, 2007 by 16,713,180 won.

B. Defendant

The part of the judgment of the court of first instance against the defendant (hereinafter referred to as "the part of the disposition of imposition against the defendant") shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. A part citing a judgment of the first instance;

The court's explanation on this case should be 'registration of transfer of ownership' of No. 7 of the court of first instance as ‘registration of transfer of ownership', and 'registration of transfer of ownership' of No. 7 of the court of first instance as ‘registration of preservation of ownership', and 'registration of transfer of ownership' of No. 7 of the court of first instance as ‘registration of preservation of ownership', and such interpretation cannot be viewed as being in violation of the principle of no taxation without law and prohibition of comprehensive delegation under the Constitution, and it is identical to the reasoning of the judgment of the court of first instance except for adding the contents of Paragraph 2.

2. The addition;

A. Whether "the part of the disposition of imposition against the defendant" in the lawsuit of this case is legitimate

As the plaintiff filed a lawsuit seeking the revocation of the disposition of this case and the first instance court rendered a judgment in favor of the plaintiff, the fact that the defendant filed the appeal of this case is apparent in the record, and the defendant revoked ex officio the "the part of the disposition of this case against the defendant when the defendant was in the first instance court" as it is no dispute between the parties, "the part of the disposition of this case against the defendant" is null and void by revocation, and no longer exists. Therefore, "the part of the disposition of this case against the defendant among the lawsuit of this case where the non-existent administrative disposition is subject to the disposition of this case," which the "

B. Judgment on the Plaintiff’s assertion

(1) The plaintiff's assertion

(A) Each subparagraph of the instant building is merely a simple lodging facility without a cooking facility, and thus, the Defendant’s disposition of this case, based on the premise that 12 units of the instant building were leased to a house during the instant taxable period, is unlawful.

(B) During the instant taxable period, the Plaintiff reported and paid the value-added tax on the premise that the Plaintiff leased 12 houses among the instant buildings to the Defendant, and the Defendant collected the value-added tax paid by the Plaintiff. Accordingly, the instant disposition against this is unlawful in violation of the principle of good faith.

(C) The Defendant imposed value-added tax during the pertinent taxable period on the Plaintiff on February 5, 2007, and thus, the instant disposition was unlawful since it violated the principle of retroactive taxation prohibition.

(2) Determination

(A) Even if it is recognized that there is no cooking facility in each heading of the instant building, it is difficult to view each heading of the instant building alone as a simple lodging facility, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion on this part is without merit.

(B) In general, in order to apply the principle of trust and good faith to the tax authority’s acts in tax law relations, the tax authority must issue the public opinion list that is the object of taxpayer trust, and the taxpayer has no reason to be attributable to the taxpayer when the taxpayer trusted that the tax authority’s opinion list is justifiable, and the taxpayer must act in trust and what is, and the tax authority should make a disposition contrary to the opinion list, thereby infringing the taxpayer’s interest (see, e.g., Supreme Court Decision 2001Du9103, Nov. 26, 2002). The Plaintiff’s assertion alone alone cannot be deemed to have expressed the public opinion that the Defendant would not impose the instant disposition against the Plaintiff, and there is no other evidence to acknowledge it, and therefore, the Plaintiff’s assertion on this part is without merit.

(C) In full view of the purport of evidence No. 2-1 in the statement of evidence No. 2-1, the defendant conducted a tax investigation on the plaintiff's real estate leasing business from June 12, 2006 to October 27 of the same year, and it is recognized that the disposition of this case was taken against the plaintiff, and the defendant's disposition of this case against the plaintiff cannot be deemed to violate the principle of retroactive taxation prohibition. Thus, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the part of the disposition of imposition against the defendant among the lawsuit in this case shall be dismissed as it is unlawful, and the judgment of the court of first instance which has different conclusions shall not be maintained as it is. Thus, the part against the defendant among the judgment of the court of first instance shall be revoked, and the lawsuit in this case shall be dismissed as it is, and the plaintiff's appeal against the plaintiff among the judgment of the court of first instance against the plaintiff shall be dismissed as it is without merit.