National Tax Service Review Division 2011-0178 (20 December 2012)

The disposition of rejection of input tax deduction by the disposition agency is unlawful, unless the time of supply and the time of supply of the tax invoice are different.

On March 10, 2011, the non-party company requested confirmation of completion to the plaintiff, and the plaintiff paid the remainder of the construction cost to the non-party company on the same day, and received the tax invoice from the non-party company on March 17, 2011, and it is reasonable to deem that the plaintiff completed confirmation of completion with respect to the construction of this case when the provision of all remaining services under the construction of this case is completed.

2012Guhap2131, revocation, etc. of disposition imposing additional tax

AAA power plant Co., Ltd.

Daejeon director of the tax office

March 6, 2013

March 27, 2013

1. On August 2, 2011, the Defendant’s imposition of an additional tax of KRW 000 on over-value added tax for over-value added tax for over-value added tax for the year 201 against the Plaintiff on August 2, 201 and the refusal of refund of value-added tax of KRW 000 for the

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

The same shall apply to the order.

1. Details of the disposition;

A. On October 22, 2009, the Plaintiff concluded a contract with the non-party company to provide services for the construction of solar power plants from the BB Co., Ltd. (former BBB Co., Ltd., Ltd., and hereinafter referred to as "non-party company") to the construction period of the construction of the 919kW-based solar power plant from November 11, 2009 to October 30, 2010, and the construction cost of 00 won. On December 30, 2010, the Plaintiff changed the above construction period from November 11, 2009 to March 31, 201, and agreed to delay the completion period (hereinafter referred to as "the construction contract of this case") by five months.

B. On March 10, 2010, the non-party company filed a claim with the Plaintiff for the payment of KRW 000,000, equivalent to the highest ratio of 80% during the entire construction period, accompanied by the purchase tax invoice. Accordingly, on March 16, 2010, the Plaintiff paid KRW 00,000 to the non-party company as part of the construction price of this case, and in relation thereto, the Plaintiff filed a final return on the scheduled and final return of value-added tax for the first period of 2010, deducted KRW 00,000, including the input tax amount under the said tax invoice, from the output tax amount, and received a refund of KRW

C. On March 10, 201, the non-party company requested the Plaintiff to confirm the completion of the instant construction project (excluding 000 won already received) and filed a claim for the payment of KRW 000 for the remainder of the construction cost. The Plaintiff completed the confirmation of the completion of the instant construction project on March 15, 2011 (at the time of the confirmation of completion, the Plaintiff stated 00 won in the confirmation of completion and 000 won respectively), and on March 16, 2011, paid 00 won for the remainder to the non-party company, and on March 17, 2011, deducted the supply price of KRW 00 for the remainder payment from the non-party company on March 15, 2011 (the date of preparation of the tax invoice is March 15, 2011; hereinafter referred to as “the instant tax invoice”). The Plaintiff applied for the preliminary return on April 21, 2011.

D. On August 2, 2011, the Defendant rejected the Plaintiff’s application for refund on August 2, 201, and notified the Plaintiff of KRW 000 of the value-added tax for the first period of 1, 201, including the additional tax on non-declaration of report (hereinafter “instant disposition”), on the grounds that on-site verification of the construction site of this case was conducted, and that the instant settlement statement constitutes a tax invoice different from the fact that it was issued after the time of supply.

F. On October 7, 201, the Plaintiff dissatisfied with the instant disposition and caused a request for examination to the Commissioner of the National Tax Service on October 7, 201, and was dismissed on February 20, 2012.

[Ground of Recognition] The facts without dispute, Gap evidence 1 through 6, evidence 8 through 11, and Eul evidence 1 through 3 (including paper numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

The Plaintiff asserts that the time of supply for the service under the instant construction contract is deemed to be around March 15, 201 after the completion of the construction project, and that the instant tax invoice on March 15, 201, which was received on March 17, 2011, does not constitute a false tax invoice. On the other hand, the Defendant, as the solar power generation facilities of this case are through the solar power generation facilities of this case, and that the first taxable period of 2010, namely, the time of supply for the service under the instant construction contract, is the time of supply for the service under the instant construction contract, and that the instant tax invoice constitutes a false tax invoice.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Key issue of the instant case

Article 9(2) of the Value-Added Tax Act stipulates that the time when the service is supplied shall be determined by the Presidential Decree on the required matters concerning the time of supply under Article 2(4) of the Enforcement Decree of the Value-Added Tax Act. Article 22 of the Enforcement Decree of the Value-Added Tax Act provides that "in the case of an ordinary supply, when the provision of the service is completed" under subparagraph 1, "in the case of an ordinary supply, when the provision of the service is completed", and "in the case of continuous supply of the service, when the service is supplied through completion standard payment, interim payment, long-term installment or other shipbuilding, or the unit of the supply is not possible, the number of persons who receive each portion of the payment, and in the case where the provisions of subparagraphs 1 and 2 are not applicable, the time when the provision of the service is completed and the supply price is fixed". Article 16(1) of the Value-Added Tax Act provides that the entrepreneur shall prepare the tax invoice at the time of supply of the service under the above provision and enter the date of the service.

(d) Facts of recognition;

1) Before entering into the instant construction contract with the Nonparty Company, the Plaintiff entered into a construction contract for the installation of solar power generation facilities of this case with the period from May 1, 2009 to October 31 of the same year, and concluded the said construction contract with the Nonparty Company, and concluded the instant construction contract with the Nonparty Company.

2) Of the instant construction contract, the parts related to the instant case are as follows (in the case of the construction contract executed on October 22, 2009 and the construction contract executed on December 30, 2010, only the construction period differs, and the main contents, such as the purpose of the construction, and the construction cost, are uniform. The following internal uses are common parts under the said two construction contract).

3) On October 5, 2009, the Director of the New and Renewable Energy Center notified the Plaintiff that the establishment period will be determined from October 5, 2009 to January 4, 2010, confirming the selection of the annual standard price application facilities for solar power generation facilities of this case, and that the annual standard price application facilities will be revoked if the Plaintiff did not file an application for confirmation of the installation of power generation difference within the said installation period in accordance with the criteria under Article 2009-96 of the Ministry of Knowledge Economy, which is the relevant guidelines.

4) According to the testimony of ParkD, the director of the non-party company, the outline and progress of the instant construction are as follows. ① Of the instant construction works, the part performed by the non-party company was about 70% of the installation of solar power generation facilities, the installation of solar power facilities, and the installation of electric rooms, and 30% of the remainder of the construction works. ② During the construction work, it is necessary for the non-party company to apply for confirmation of the installation of the power generation difference, the Plaintiff requested the Korea Electric Safety Corporation to complete the construction only up to the extent that it can undergo the pre-use inspection from January 4, 2010, and the non-party company subsequently conducted incidental facilities construction, such as CCTV installation. ③ The non-party company attempted to promptly complete the remaining construction after undergoing the pre-use inspection, but it was difficult to complete the construction, and the construction work was made on October 31, 2010 to change the construction period from around 30, 2010.

The identification basis Gap, Eul evidence 5, 8, 13 through 15, and Eul evidence 3 (including household numbers), the witness Park Dod's testimony, and the whole purport of the pleading

E. Determination

"1) 살피건대 ① 이 사건 공사계약서상 공사대금의 분할지급에 관한 약정은，ⓐ표준공사계약서 제5조에 의하면， 선급금 30%를 PF약정일로부터 3일 이내에， 준공기성금 70%를 발전차액설비신청 후 7일 이내에 지급하기로 되어 있는데 반하여，ⓑ 계약특수 조건 제9조 제13항은 '선급금 : PF약정시 30%， 준공시 20%(2010. 1.)， 중간납부 40%(2010. 4.)， 최종 10%(2010. 9.)'라고 규정하고 있고，ⓒ 그런 한편으로 계약일반조건 제19조 제1항은 '본 계약은 기성부분금이 없다.'라고 규정하고 있는바， 이들 약정은 일견 서로 모순되고 통일적인 해석이 지난하여 특히 공사대금의 분할지급에 관하여 당사자의 정확한 의사가 무엇인지 쉽사리 알 수 없는 점，② 실제로 이 사건 공사대금은 2010. 3. 16.과 2011. 3. 16.의 2회에 걸쳐 소외 회사 임의의 청구에 따라 각 000원과 000원으로 나누어 지급되었을 뿐인바， 위 ⓐ, ⓑ, ⓒ 등의 계약조항 중 어느 하나를 근거로 이 사건 공사대금이 지급된 것으로도 보이지 않으며， 그렇다고 선급금이나 계약금이 지급된 사실도 없는 점 등에 비추어 보면， 이 사건 공사계약은 이를 부가가치세법 시행령 제22조 제2호 소정의완성도기준지급 또는 중간 지급 기타 조건부로 용역을 공급하는 경우'에 해당한다고 볼 수 없고， 같은 조 제1호 소정의 '통상적인 공급의 경우'에 해당한다고 봄이 상당하다고 할 것인바， 이하에서는 본호가 그 용역의 공급시기로 정하고 있는 이 사건 공사계약에 따른 '역무의 제공이 완료되는 때'가 언제인지에 관하여 본다.", 2) 통상적인 용역공급의 경우에 있어 역무제공의 완료시는 거래사업자 사이의 계약에 따른 역무제공의 범위와 계약조건 등을 고려하여 역무의 제공사실을 가장 확실하게 확인할 수 있는 시점， 즉 역무가 현실적으로 제공됨으로써 역무를 제공받는자가 역무 제공의 산출물을 사용할 수 있는 상태에 놓이게 된 시점을 말한다(대법원 2008. 8. 21. 선고 2008두5117 판결 참조). 위 법리에 비추어 살피건대，① 원고는 발전차액설치확인신청을 하기 위하여 이 사건 공사 중 태양광발전설비 설치부분을 토목공사 등 다른 부분에 우선하여 완료하여야 할 필요가 있었던 것으로 보이는 점，② 이 사건 공사계약은 태양광발전설비 설치를 주된 내용으로 하기는 하지만， 태양광발전설비를 설치하기 위한 토목공사 및 부대시설에 대한 건축공사 부분 또한 그 내용으로 포함하고 있는바， 원고가 이 사건 공사의 준공을 확인한 때에 나머지 모든 역무의 현실적인 제공이 이루어졌다고 할 것인 점，③ 소외 회사는 2011. 3. 10. 원고에게 준공확인을 요청하였고， 원고는 2011. 3 15. 준공확인을 한 다음， 2011. 3. 16. 소외 회사에 나머지 공사대금 000원을 지급하고， 2011. 3. 17. 소외 회사로부터 이 사건 세금계산서를 수취하였는바， 이러한 일련의 과정에 비추어 원고가 부당하게 매입세액을 공제받기 위하여 이 사건 공사계약상 공사기간을 변경한 것으로는 보이지 않는 점 등을 종합하여 보면， 이 사건 공사에 따른 나머지 모든 역무의 제공이 완료되는 때는 원고가 이 사건 공사에 대하여 준공확인을 한 2011. 3. 15.경이라고 봄이 상당하다고 할 것이다.

3) According to the statements in Eul evidence 3-4 and evidence 4, and ① Korea Electrical Safety Corporation has conducted a pre-use inspection of solar power generation facilities of this case from December 29, 2009 to December 31, 2009, and on January 4, 2010, issued a pre-use inspection certificate and a electrical equipment inspection certificate to the plaintiff, and ② 2010.

From around the point of view, even though there was sales arising from the operation of the solar power plant in this case to the Plaintiff, it is insufficient to view that the above determination was followed and the provision of all services under the instant construction contract was completed around January 2010, belonging to the first taxable period in 2010.

4) Therefore, on the premise that the provision of all services under the instant construction contract was completed on or around January 2010, the instant disposition that deemed the purchase to be reverted to the first taxable period in 2010, based on the premise that the supply price under the instant construction contract was also completed on or around January 2010, cannot avoid its revocation due to its illegality.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.