The plaintiff's assertion that the time of supply for the goods under the Value-Added Tax Act requires the transfer of the goods is a physical contract in spring of "the time when the goods are delivered."

The time of supply for goods under the Value-Added Tax Act refers to the time when the goods are delivered, and the amount of revenue under the Corporate Tax Act shall also be deemed to be the time when the profits are determined. Therefore, the plaintiff's assertion that the time of supply should be deemed the time of the transfer of real estate and the plaintiff's assertion to the effect that the disposition of this case is null and void as there are significant and apparent defects

Article 9 of the Value-Added Tax Act

Seoul Central District Court Decision 2014Gadan519484 ( October 13, 2015)

00000 Stock Company

Korea

on October 2014 03

on 13, 2015

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff KRW 79,945,960 and KRW 50,167,740 from December 4, 2013 to KRW 3,801,040, KRW 150 from August 20, 2014; KRW 19,989,610 from September 24, 2014 to KRW 150,020 from September 19, 2014; KRW 5,837,50 from October 31, 2014 to the date of delivery of a copy of the application for alteration of the purport of the claim and the cause of the claim; KRW 5% from the following day to the date of complete payment; and KRW 20% from the date of each of the above cases to the date of complete payment.

1. Grounds for claim;

o) From April 6, 2009, the Plaintiff entered into a contract to take over the buildings or business rights of the instant officetels from 00:00 pq companies (hereinafter referred to as "non-party companies") to 1.4.6 pq companies (hereinafter referred to as "non-party companies") to 00:00 o.00 o. ***-11 on the non-party land of this case for KRW 1.484 billion.

o The Plaintiff shall, despite the completion of the instant officetel, pay 7 households (203,309,609,609,701, 902, 1102, 1204, etc.; hereinafter referred to as "the instant building") among the instant officetels in sequence from December 17, 2010 to December 17, 2010 when the Plaintiff was unable to pay the said acquisition price due to the non-party company, and the Plaintiff shall pay 70 households (203,309,609, 701, 902, 1102, 1204, etc.; hereinafter referred to as "the instant building") among the instant officetels in sequence (hereinafter referred to as "the instant building").

The term "water repayment agreement" means

o Around October 2013, the head of a regional tax office under the Defendant issued a disposition of imposition (hereinafter referred to as “instant disposition of imposition”) to the effect that the corporate tax and value-added tax for the year 2010 for the omission of sale in units under the instant arrangement for payment in kind (the principal tax shall be KRW 8,298,80,00, the principal tax shall be KRW 135,816,133), and accordingly, the Plaintiff issued a disposition of imposition (hereinafter referred to as “instant disposition of imposition”) to the effect that the corporate tax and value-added tax for the year 2010 for the Plaintiff was imposed (the total amount of value-added tax shall be KRW 79,945,960 (the total amount of value-added tax shall be KRW 69,423,950 (= 41,520,400 + KRW 2,076,390 + KRW 19,610,537,500 + KRW 2015,27405)

o. However, the instant disposition is null and void as it has a significant and apparent defect in the situation where the registration of ownership transfer under the instant accord and satisfaction agreement was not completed due to the non-party company's failure to complete the payment in kind. Accordingly, there is no legal ground for the said tax paid by the Plaintiff, and there is a duty to return it to the Plaintiff with unjust

2. Grounds for rejecting Plaintiff’s assertion

o. First, 1 ' de facto acquisition', which is subject to acquisition tax under the Local Tax Act, does not meet the formal requirements for acquisition of ownership such as registration but does not meet the substantive requirements for acquisition of ownership such as payment of price. The payment in kind is a real contract which is established when another payment is actually made in lieu of the original obligation, and the payment in kind is established when another payment is a transfer of real property, and the payment in kind is established only when the payment in kind is completed and the existing obligation is extinguished, so the creditor cannot be deemed to have satisfied the substantive requirements for acquisition before the registration in kind is completed, and therefore the relevant real property is acquired when the registration in kind is completed (see, e.g., Supreme Court Decision 98Du17067, Nov. 12, 1

② In a case of capital gains tax, where a real estate contract is established when another payment is actually made instead of the original obligation, and where the other payment is the ownership transfer of the real estate, the existing obligation is extinguished upon the establishment of the ownership transfer registration. Thus, the real estate is transferred at a cost and its payment is made at a cost when the ownership transfer registration has been made. It shall be deemed that there was an agreement between the parties on payment in kind (see, e.g., Supreme Court Decisions 92Nu11602, May 11, 1993; 91Nu8432, Nov. 12, 1991; 90Nu5801, Oct. 26, 1990).

However,

o Value-added tax is a tax imposed on the transaction, such as the supply of goods or services by an entrepreneur. The supply of goods here refers to the transfer or transfer of goods by contract or legal causes ("transfer of ownership" means "transfer of possession by a de facto manager." On the other hand, with respect to the time of supply, the term "when the goods are delivered" means "when the goods are delivered if the transfer of goods is not necessary." In light of the nature of the value-added tax known in light of the nature of the value-added tax, the delivery or transfer can be deemed to be the premise or purpose of any act of causing the transfer of ownership so that the goods can be used and consumed ( regardless of the existence of substantial profits from the consideration) (see, e.g., Supreme Court Decisions 2005Du2926, Oct. 13, 2006; 2002Du3089, Nov. 28, 2003; 308Du19637, Jun. 19, 2006).

o) Accordingly, value-added tax means ① original acquisition, acquisition by succession, or acquisition with or without compensation, or all other acquisitions similar thereto such as sale, exchange, inheritance, gift, contribution, contribution, investment in kind to a corporation, construction, repair, reclamation of public waters, creation of land through reclamation, etc. (in the case of real estate), and even if the registration is not made in accordance with the relevant Acts and subordinate statutes, the actual acquisition is also a acquisition. The fact that the transfer of goods is a transfer of tax, and the distribution tax includes all cases of acquisition by transfer of ownership ( regardless of whether or not the acquisitor acquires ownership with substantial complete contents), while the "acquisition date" includes all cases of acquisition by transfer of ownership, and it includes (in the case of acquisition by succession, demand that the actual requirements such as the payment of the price are satisfied), or in the case of acquisition by succession, it refers to the date of acquisition by succession, acquisition tax, or ② the date of sale, exchange, and transfer of assets to a corporation, which is the object of taxation in principle, the term "acquisition and transfer of assets" is the object of taxation.

o) Accordingly, even if a sales contract was concluded to sell a building by an entrepreneur under the Value-Added Tax Act, and the purchase price is liquidated or the transfer registration is made in the name of the other party to the transaction, if the other party to the transaction transfers possession to allow the exclusive use and disposition of the building as the de facto owner, such transfer constitutes the supply of goods under the Value-Added Tax Act (see Supreme Court Decision 2005Du2926, Oct. 13, 2006);

o. However, in the case of this case, the plaintiff and the non-party company at the time of the agreement on the payment in kind: (i) the sum of the actual payment in kind calculated by deducting the amounts to be borne by each of the relevant loans from the respective appraised values of the buildings in this case; (ii) the non-party company agreed to pay the shortage in cash; (iii) the non-party company held the right to dispose of the buildings in this case at the time of the sale in lots to the non-party company; (iv) the non-party company is merely dealing with the non-party company's transfer registration fee to the third party in order to make the registration of ownership directly in the future; and (iii) even if the non-party company did not have the registration of transfer in the future at the time of the disposition in this case and the payment in kind was not established as a real contract under the Civil Act, it is sufficient to conclude that the (delivery) the supply of goods under the Value-Added Tax Act was for the purpose of transferring the ownership of the buildings in this case to use and consume them, and therefore, it is sufficient to establish the ownership transfer registration of this case to the non-party company.

o. However, in the case of the portion of the taxation disposition in this case concerning corporate tax, from the viewpoint of the principle of confirmation of right to the point of existence of income subject to the taxation in this case, it is argued by the plaintiff that income subject to the taxation in this case is generated from the plaintiff and it is possible to impose corporate tax on the building in this case only when the transfer registration of ownership was completed in the future of the defendant company due to the agreement for repayment of property in this case. On the other hand, it is insufficient to say that there is an unlawful reason for the taxation disposition in order to make it null and void as a matter of course. It is objectively obvious that the defect is for the purpose of the law, objective, obvious, and objective, and it is necessary to reasonably consider the special nature of the specific case at the same time. Accordingly, the plaintiff's argument that the taxation disposition in this case concerning the building in this case including the detailed settlement/agreement between the plaintiff and the non-party company was made in the future. Accordingly, it cannot be viewed that there is a specific legal basis for the taxation disposition in this case as to the taxation disposition in this case as to the non-party's income subject to the taxation in this case.

Facts without dispute over grounds, Gap 1-7, Eul 1-6, the purport of the whole pleadings

3. Conclusion: Dismissal of the Plaintiff’s claim