District Court-2015-Gu Partnership-900 (23 August 2016)

In accordance with Article 106-4(1) of the Restriction of Special Taxation Act, non-deductible disposition is legitimate because a request for correction is not made through a gold transaction account.

In accordance with Article 106-4(1) of the Restriction of Special Taxation Act, non-deductible disposition is legitimate because a request for correction is not made through a gold transaction account.

Article 36 (Deduction of Value-Added Tax)

Seoul High Court 2016Nu64328

civil 00

000 director of the tax office

March 15, 2017

April 12, 2017

1. The court shall dismiss a lawsuit claiming the additional refund of value-added tax;

2. The defendant's appeal is dismissed.

3. The costs of appeal are assessed against the defendant.

1. Purport of claim

A. The defendant paid to the plaintiff KRW 00,000,000 (the plaintiff shall be the first installment in this court in 2014).

The claim for the refund of value-added tax was added.

B. The Defendant imposed an additional tax of KRW 0,000,590 on the Plaintiff on January 1, 2015

To revoke the portion exceeding KRW 000,690 of that portion (the plaintiff shall claim this part of this Court)

As a result, the appeal has been reduced to the extent that the appeal has been reduced as follows:

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant's additional tax on the excess return filed against the plaintiff on January 1, 2015

The imposition disposition of KRW 0,00,590 in excess of KRW 00,690 shall be revoked.

1. Details of the disposition;

The reasons why the court shall explain this part are either dismissed or added as follows:

The corresponding part of the judgment of the court of first instance other than the corresponding part of the judgment (from 2 to 3 pages 2) is the same;

Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act shall be quoted as it is.

○ 5th page 5 is added to the "purchase" (hereinafter referred to as the "purchase of this case") after the "Purchase".

○ The second part of the 8th page “after .......... the Plaintiff is the trade name “aa on June 5, 2014”.

corporate registration (business attitude: Manufacturing business, wholesale and retail, category of gold bullion: Gold bullion, gold bullion) shall be applied for;

16. The phrase, “after having obtained the business registration certificate,” and the phrase, “purchase amount of this case” as of the 15th and 16th.

In all, "the input tax amount for the purchase amount of this case" is raised as "the input tax amount."

○ The second page “8,148,590” shall be added to “the additional tax on excess return” (it shall be additional tax on excess return).

○ From the last 2nd to the third 1st page “2015. An administrative appeal was filed, but the portion”

(b) by striking the section.

2. Whether a lawsuit claiming the payment of value-added tax is legitimate.

We examine ex officio the legitimacy of this part of the lawsuit.

The plaintiff asserted that the input tax amount exceeds the output tax amount during the first period of 2014, and the other party to the defendant

Value-added tax is claimed to pay KRW 00,000,000.

However, a taxpayer's claim for the refund of value-added tax against the State

Article 39 of the Administrative Litigation Act provides for the payment of value-added tax refund corresponding to a party lawsuit against the defendant who is not the State, but the disposition agency, so this part of the lawsuit is unlawful (see, e.g., Supreme Court en banc Decision 2011Da9564, Mar. 21, 2013). This part of the lawsuit is unlawful (see, e.g., Supreme Court en banc Decision 201Da9564, Mar. 21, 2013).

3. Whether the part exceeding KRW 000,690 among the disposition of this case is lawful

A. Summary of the plaintiff's assertion

Subject to the premise that the Plaintiff reported the excess amount of value-added tax to be refunded during the first period of 2014

The part exceeding KRW 00,690 of the instant disposition is unlawful for the following reasons.

1) The instant purchase is a consumer’s position to receive the monetary reward related to cash receipts.

(1) If the input tax amount is deducted under the proviso of Paragraph (1)(8) of Article 39 of the Value-Added Tax Act,

purchase before acquiring a business entity's status as a business owner is possible, so the purchase of this case

The input tax amount due shall be deducted under the above provisions.

2) At the time of the purchase of the instant case, the Plaintiff was not a business operator and Article 106-4 of the Restriction of Special Taxation

No gold business operator is also a gold business operator, and added value at the time of such purchase through a gold transaction account.

Even if the tax amount is not paid, the input tax deduction due to the purchase of this case is possible.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Status of the Plaintiff at the time of purchase of the instant case

(A) According to Articles 2 subparag. 3 and 3 of the Value-Added Tax Act, an entrepreneur liable to pay value-added tax refers to a person who supplies goods or services independently for business regardless of whether its business purpose is profit-making or non-profit. Here, an independent supplier of goods or services means a person who has a type of business to create added value and has continued and repeated intent (see, e.g., Supreme Court Decision 98Du16705, Sept. 17, 199). However, according to the fact that the Plaintiff had a type of business to create added value at the time of the purchase of this case, or that there was no evidence of the fact that the Plaintiff had commenced the business, such as supplying gold-related products purchased by the purchase of this case. According to each of the statements in the evidence No. 2 and No. 4, it is recognized that the Plaintiff filed an application for pre-assessment review on its own for the purpose of purchasing and selling pre-sale 300,500,000 won.

2) Whether the input tax amount due to the purchase of the instant case can be deducted

A) Article 38(1) of the Value-Added Tax Act is an entrepreneur as an input tax amount deducted from the output tax amount.

(a) goods or services supplied for use or for its own business;

Article 39 (1) of the Value-Added Tax Act provides for the value-added tax amount on the import of goods which an entrepreneur has used or is to use for his/her own business (subparagraph 1) and Article 38 of the same Act, and Article 39 (1) of the same Act provides for the input tax amount not deducted from the output tax amount, notwithstanding Article 38 of the same Act, and subparagraph 8

Provided, That where an application for registration is filed within 20 days after the end of the taxable period to which the time of supply belongs;

"A period calculated retrospectively from the date of request to the date of reckoning the taxable period in which the time of supply falls" shall be excluded.

The proviso of Article 39 (1) 8 of the Value-Added Tax Act provides that "not later than the date on which the business commences."

for the preparation of the opening, for example, the input tax amount related to the business that occurred during the preparation of the opening;

Where construction materials are purchased or office fixtures are purchased to newly construct a factory;

The input tax amount to be born shall be reported to the taxpayer, and even if there is no output tax amount, it shall be reported.

by refunding the tax burden of a person who intends to start the business to be newly established by

The Court (see Constitutional Court Order 2011HunBa168 decided November 28, 2013).

B) The regulatory structure, language, and legislative intent of Articles 38 and 39 of the Value-Added Tax Act as above

In full view of the above, the input tax amount deduction from the output tax amount under the Value-Added Tax Act is basically a party.

section 39(1)(8) proviso of the Value-Added Tax Act

in the case of an application for business registration, except in the case of meeting certain requirements.

The input tax amount to be proposed should also be recognized as business relevance. However, the above should be seen.

As at the time of the purchase of the instant product, the Plaintiff is a consumer to receive a monetary reward.

B. Since the purchase of the purchase of this case, the purchase tax amount due to the purchase of this case shall be

It is difficult to see that it is related to the business of the IMD for which the application for business registration was filed. Accordingly, it is therefore difficult to deem

The input tax amount shall not be deducted pursuant to the proviso of Article 39 (1) 8 of the Value-Added Tax Act.

C) Even if the Plaintiff purchased gold-related products as a business entity at the time of the purchase of this case

The former Restriction of Special Taxation Act (amended by Act No. 12853, Dec. 23, 2014)

According to Article 106-4(6) of the Act, the gold business operator supplied with gold-related products shall deposit the value-added tax into the supplier by using the gold transaction account opened pursuant to paragraph (1) of the same Article.

Where an input tax amount is not levied, notwithstanding Articles 37 and 38 of the Value-Added Tax Act, the sales tax shall be levied.

The plaintiff at the time of the purchase of this case shall not be deemed as the input tax amount deducted from the amount.

The fact that the gold trading account under the regulations has not been used is not disputed between the parties, and also there is no dispute between the parties.

The purchase tax amount due to the purchase of this case cannot be deducted (the plaintiff's business at the time of the purchase of this case)

Even if it is impossible to open a gold trading account because it was before filing an application for self-registration, it is not possible to do so;

Payment of value-added tax for gold-related products prescribed by Article 106-4 of the former Restriction of Special Taxation Act

Special Cases are prepared as a scheme for the prevention of Fiscal Evasion with respect to the precious metal industry with severe circulation of non-data.

Article 39(1) of the Value-Added Tax Act, which requires strict interpretation and application as prescribed by that provision.

The deduction of input tax amount under the proviso of subparagraph 8 of the same paragraph shall be based on Articles 37 and 38 of the Value-Added Tax Act.

It is difficult to view otherwise in light of the fact that it is intended.

D) Therefore, premised on the fact that the input tax amount due to the purchase of this case cannot be deducted.

The part exceeding KRW 00,690 among the disposition of this case is legitimate, and the plaintiff's assertion is without merit.

4. Conclusion

Thus, the lawsuit against the claim for the refund of value-added tax in the lawsuit of this case is unlawful.

D. The claim for the cancellation of the part exceeding KRW 000,690 among the disposition of this case is without merit.

Therefore, the judgment of the court of first instance which dismissed the plaintiff's above cancellation claim shall be delivered with this conclusion.

(2) The plaintiff's appeal is dismissed on the grounds that it is reasonable to do so, and the court added it.

The lawsuit on the claim for the payment of the above refunded tax amount shall be dismissed, and it shall be decided as per Disposition.