The instant disposition that rejected partial refund of value-added tax is legitimate.

In full view of the fact that the person who received the supply is specified as a person who actually received the supply, the instant tax invoice is a false tax invoice that is different from the fact that the person who received the supply, and thus, the instant disposition that rejected the partial refund of value-added tax is lawful.

Article 39 of the Value-Added Tax Act

2018Guhap1198 Disposition rejecting partial refund of value-added tax

AA

○ Head of tax office

May 16, 2018

June 20, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s refusal to refund value-added tax ○○○ and ○○○○○○○ on September 2, 2016, which was rendered to the Plaintiff on September 22, 2016, is revoked.

1. Details of the disposition;

A. On April 15, 2016, the Plaintiff entered into a contract with Nonparty BB (hereinafter referred to as “transferor”) to acquire a building located in ○○○○○-gu, ○○○○○○-ro (excluding land; hereinafter referred to as “instant building”). On March 31, 2016, the date of acquisition, the Plaintiff entered into an application for the refund of value-added tax by deducting from the output tax amount at the time of filing the return of value-added tax on July 25, 2016, the Plaintiff applied for the refund of value-added tax after deducting from the output tax amount at the time of filing the return of value-added tax on July 25, 2016.

B. The Defendant paid ○○○○○○○ (Supply Price) for a period from January 20, 2016 to April 5, 2016 of the instant building, and concluded a contract on the acquisition of the instant building on April 15, 2016. As such, the Defendant rendered a decision on the transfer of the instant building on March 31, 2016, on the ground that the Plaintiff received the tax invoice for the supply price of KRW ○○○○○○ (hereinafter collectively referred to as “instant tax invoice”) and the tax invoice for the supply price of KRW ○○○○○○○○○ (hereinafter collectively referred to as “the tax invoice”), among the tax invoice for supply price of KRW ○○○○○○○ on June 30, 2016, on the ground that “The Plaintiff received the instant tax invoice even though the transferor had to receive the tax invoice.” On September 22, 2016, only the Plaintiff rendered a refund of value-added tax amount (hereinafter referred to as “instant disposition”).

C. On December 13, 2016, the Plaintiff appealed and filed a request for a trial with the Tax Tribunal on April 5, 2017. However, on December 6, 2017, the judgment dismissing the Plaintiff’s request was issued.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1, 2, and 3 (including branch numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Of the tax invoices received by the Plaintiff on March 31, 2016, the tax invoice of KRW 000 won constitutes a case where the Plaintiff applied for registration of business within 20 days after the end of the taxable period pursuant to Article 39(1)8 of the Value-Added Tax Act (Amended by Act No. 15223, Dec. 19, 2017; hereinafter the same shall apply) and thus, input tax deduction is possible. In addition, in the case of the remaining tax invoices, the construction cost paid by the transferor to the non-party company was succeeded to the construction by the Plaintiff by paying the construction cost that was paid to the non-party company within 30 days after the completion of the acquisition contract of the instant building, and thus, the payment already paid by the transferor falls under the payable amount to the Plaintiff. Therefore, the Plaintiff’s input tax amount

B. Relevant statutes

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) On December 29, 2015, the initial transferor acquired ○○○○○○○○○○○○○○○○○○○○○○○○○○○○, ○○○○○○○○○○○○○, and entered into a short-term contract between January 20, 2016 and May 30, 2016, after obtaining permission from the head of the ○○○○○○○○○○○○, upon obtaining a construction permit for Class 1 and Class 2 neighborhood living facilities from January 13, 2016.

(2) On April 15, 2016, the transferor entered into a contract for the transfer and acquisition of new buildings (business rights) with the Plaintiff on April 15, 2016, and changed the owner to the Plaintiff on April 21, 2016. After which the Plaintiff entered into an additional construction project and completed the completion inspection of the instant building on September 2, 2016.

(3) In relation to the construction cost of the instant building, the transferor (BB) paid KRW ○○○○○○○○○ through eight times in total from January 20, 2016 to April 5, 2016, as follows. The Plaintiff (applicant) paid KRW 00 through eight times in total from May 2, 2016 to July 20, 2016.

However, according to the above transfer and acquisition contract, the transferor agreed to pay the construction cost to the non-party company within 30 days after the completion of the building.

(4) There is no purchase tax invoice received from the non-party company due to the lack of the transferor’s business registration. The Plaintiff received the instant tax invoice from the non-party company on March 31, 2016 and filed a value-added tax return on two copies of the instant tax invoice on June 30, 2016. The Plaintiff received the real estate development business registration certificate on April 26, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 6 through 10, 13, 14, Eul evidence 2, the purpose of the whole pleadings

D. Determination

(1) Article 39(1)2 of the Value-Added Tax Act provides that input tax amounts in cases where the entries of a tax invoice are different from the facts shall not be deducted from the output tax amount. In this case, the meaning that it is different from the facts is stipulated that if the ownership of income, profit, calculation, act or transaction, which is the object of taxation, is nominal and there is a separate person to whom such income, profit, act or transaction belongs, the person to whom such income, profit, or transaction belongs shall be liable to pay taxes in accordance with the purport of Article 14(1) of the Framework Act on National Taxes stipulating that the necessary entries of a tax invoice are inconsistent with those of the person to whom the goods or service is actually supplied or supplied, regardless of the formal entries of a transaction contract, etc. made between the parties to the goods or service (see, e.g., Supreme Court Decision

(2) In this case, it is acknowledged that the construction period of the building of this case was required for 6 months or more, and that the transferor paid ○○○○○○○○○○ through eight times. At the time of payment of the above construction cost, the transferor appears to have been in fact at that time under Article 20 of the Enforcement Rule of the Value-Added Tax Act, and accordingly, the transferor should be deemed as the transferor. The tax invoice equivalent to the construction cost paid by the transferor should be deemed as the transferor. It is consistent with the substance of such determination. ② Since the Corporation comprehensively succeeds to all rights and duties concerning its business and only takes over the building of this case except for the land, it does not apply equally to the comprehensive transfer and acquisition of the business, ③ since the Plaintiff’s payment of the construction cost paid by the transferor to the non-party company can be deemed as the amount of money paid by the Plaintiff, the Plaintiff merely agreed to pay the transferor within 30 days after the completion of the construction of the building and the Plaintiff’s payment of value-added tax to the non-party company.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.