Cho Jae-chul2012-Gu2262 (Law No. 113.05.30)

A subsidy shall not be included in the value of supply if a common input tax is divided in proportion to the value of supply in order to calculate the amount of non-deductible tax in proportion

In the case of an entrepreneur concurrently operating a tax and non-taxable business, if the common purchase tax amount that cannot be divided into the ownership is divided, the subsidy shall not be included in the value of the non-taxable supply, and shall be applied with a reasonable method of calculation.

Article 17 of the Value-Added Tax Act

Article 61 of the Enforcement Decree of the Value-Added Tax Act

2013Guhap1033 Revocation of Disposition of Imposition of Value-Added Tax

The Center was completed, but the Defendant is not entitled to deduct the input tax amount related to the cost of building the Center.

Inasmuch as the donation was deferred pursuant to this section, it is premised on the fact that the instant center has made the donation.

The plaintiff's above assertion is without merit.

B) Next, as to the Plaintiff’s claim on the foregoing 2-D, the health team, the facts of recognition, and relevant laws and regulations

under the following circumstances, i.e., expenses incurred in establishing the instant center, made by the Plaintiff:

From the output tax amount related to the business conducted by the plaintiff in the above center;

It shall be deemed that the Center's input tax amount can be deducted, and ② The Plaintiff shall be the Ministry of Knowledge Economy.

A project to establish the Center in this case as part of a project for alcoholic innovation projects, and

The Center shall be located in a part of the Ddong building that partially removed or expanded the previous building; 3 Won

c) The Center of this case shall manufacture Schlage textile products, provide products production / new technology, provide education, and conduct tests at the Center of this case

tin and the acquisition of testing certification, etc., shall be conducted with the proper purpose of the plaintiff,

(4) The plaintiff receives fees from textile companies and receives proper purpose businesses.

A profit-making business to be entrusted with the relevant affairs and to the defendant for profit-making business;

Added Tax Report has also been filed, and 5. Details of construction costs related to the Center in this case are the Construction Corporation of the Center.

The extension of all buildings as advance payments, obstacles removal and waste disposal expenses, electrical construction local or fire fighting works, design expenses, etc.

In light of the fact that the center is expenses for the business with proper purpose, which is non-taxable business

In addition, it is used for taxable, for profit-making business, and used for the proper purpose business.

It is reasonable to view that the portion used for division and profit-making business is not clearly distinguishable.

D. The non-deductible part of the input tax amount related to the establishment of the center of this case is prescribed by the former Enforcement Decree of the Value-Adde

It should be limited to the input tax amount related to the non-taxable business calculated according to the method of calculating a reasonable common input tax amount, such as the method under each subparagraph of Article 61(4). Nevertheless, in the process of calculating the first and second value-added tax in 2011, the Defendant considered the total cost related to the establishment of the center in this case as the purchase amount related to the non-taxable business and deducted all the input tax amount.

The imposition of value-added tax for the first and second period of 2011 shall be brought to the remainder of the plaintiff's assertion.

It is unlawful without the need to examine the issues.

3) Judgment on the third argument

A) Article 13(2)4 of the former Value-Added Tax Act provides that national subsidies and public subsidies shall not be included in the tax base. The former Enforcement Decree of the Value-Added Tax Act (Presidential Decree No. 2445, Feb. 15,

Article 61(1) of the former Enforcement Rule of the Value-Added Tax Act (amended by Act No. 24359) provides that when an entrepreneur concurrently operates a taxable business and a tax-free business, the input tax amount related to the tax-free business shall be calculated according to the actual attribution; however, the input tax amount (common purchase tax amount) shall be calculated according to the ratio of the supply price to the total supply price; in applying Article 61(4) of the former Enforcement Rule of the Value-Added Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 35, Jun. 28, 2013; hereinafter the same shall apply) where there is no supply price for a taxable business or a tax-free business during the pertinent taxable period or there is no supply price for a business, the calculated tax amount for the pertinent taxable period shall be calculated according to the ratio of the purchase price related to the total purchase price (excluding common purchase price) related to the tax-free business; and Article 61(1) of the former Enforcement Rule of the Value-Added Tax Act (amended by Ordinance No. 135, No. 20138).

1) Article 61(1) of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24359, Feb. 15, 2013) explicitly stipulates that a tax-exempt business shall include a non-taxable business.

Article 61 of the former Enforcement Decree of the Value-Added Tax Act provides that “The supply price for taxable businesses and the total amount of revenue for the taxable business” means the revenue amount for the relevant taxable period related to the common input tax amount. Meanwhile, in light of the content and purport of each of the above provisions and the fact that the input tax amount related to the non-taxable business cannot be deducted from the output tax amount for the taxable business, as well as the input tax amount related to the non-taxable business, it is reasonable to view that Article 61 of the former Enforcement Decree of the Value-Added Tax Act is applicable by analogy even where the same entrepreneur concurrently operates the taxable business and the non-taxable business (see, e.g., Supreme Court Decisions 2009Du1628, Sept. 8, 201; 2004Du1328

B) The following circumstances revealed in accordance with the above facts of recognition and the relevant laws, i.e., the Plaintiff

Profit-making businesses and non-taxable proper businesses are concurrently operated, and the plaintiff received.

Subsidies cannot be viewed as subsidies for proper purpose business, and Article 18 of the Enforcement Rule of the former Value-Added Tax Act

Article 61 (1) of the Enforcement Decree of the Value-Added Tax Act provides that "the amount of tax-free goods supplied" under Article 61 (1) of the same Act shall be "the amount of tax-free goods for the pertinent taxable period related to the common input tax," and in light of the fact that it is difficult to regard "the amount of tax-free goods not the sales accrued ex post due to the implementation of the non-taxable business, but the subsidies that are paid in advance prior to the implementation of the non-taxable business" as "the value of tax-free goods" in this case, it shall be deemed that there is no value of supply for the non-taxable business. Therefore, in calculating the common input tax amount common to the non-taxable business and the taxable business, it shall not be deemed that Article 61 (1) of the former Enforcement Decree of the Value-Added Tax Act, which provides for the calculation of the common input tax in accordance

Therefore, other reasonable methods such as the method under each subparagraph of Article 61(4) of the former Enforcement Decree of the Value-Added Tax Act.

The method of calculating the common purchase tax of this case is appropriate for the calculation method of the common purchase tax of this case.

Although the value tax should have been imposed, tax exemption under Article 61 (1) of the former Enforcement Decree of the Value-Added Tax Act

A) calculated the relevant input tax amount, and the party that is calculated in accordance with the above calculation among each disposition of this case.

The portion which exceeds the input tax amount related to the tax exemption is illegal.

However, whether the legality of the disposition in the revocation lawsuit for taxation disposition exceeds the legitimate tax amount

As a result, the parties are determined to have objective tax base until the closure of the trial proceedings.

and may lawfully submit arguments and material supporting the amount of tax, and by such material

If the reasonable amount of tax to be imposed is calculated, only the portion exceeding the reasonable amount of tax shall be revoked.

One, if not, it is inevitable to cancel the entire taxation (Supreme Court).

In the instant case, the pertinent tax amount cannot be calculated on the sole basis of the materials submitted not later than the closing date of argument. As such, the pertinent tax amount cannot be calculated on the sole basis of the materials presented by the time of closing of argument, the entire dispositions of this case shall be revoked.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

KoreaAAAAAA

MM Head of the tax office

July 2, 2014

August 1, 2014

1. The Defendant’s imposition of KRW 00,00,00 for the first term of February 8, 2007 against the Plaintiff, KRW 00,000 for the second term of 2007, KRW 000,000 for the second term of 2008, KRW 0000 for the first term of 2008,0000 for the second term of 2008, KRW 0000 for the first term of 2009, KRW 000,000 for the second term of 209, KRW 000 for the second term of 209,000 for the second term of 200,000 for the first term of 200,000 for the first term of 200,000 for the first term of 200,000 for the second term of 200,01 for the second term of 2000,200 for each disposition of imposition.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff is established under Article 42 of the Industrial Technology Innovation Promotion Act. ② The plaintiff is engaged in the business related to the national policy research and development through the development of production technology, support for textile informatization, guidance and training for 10 billion won (hereinafter referred to as "high-purpose business") and profit-making business (hereinafter referred to as "profit-making business") such as quality analysis and certification that are requested by textile manufacturers. 2. After its establishment on September 1, 1983, the plaintiff filed a tax waiver report with the defendant on December 8, 199, and converted the input tax amount to 0. 1 billion won for 20 billion won for 1. 7 billion won for 20 billion won for 10 billion won for 20 billion won for 1. 7 billion won for 20 billion won for 10 billion won for 20 billion won for 10 billion won for 10 billion won for 20 billion won for 10 billion won for 200 million won for 20 billion won for 10 billion won for purchase.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) Unlike the general research institutes since conversion into a taxable business, the Plaintiff creates profits through research and branch offices and development business, etc., and does not have a large portion of revenues from profit-making business out of the total sales amount, and the Plaintiff is granted national subsidies, etc., and the taxable business is not converted into a non-taxable business. Therefore, it is unlawful that the Plaintiff’s input tax amount reported by the Plaintiff is deemed as an input tax amount related to non-taxable business and thus,

2) In calculating the notified amount of value-added tax for the first and second years of 2011, the Defendant was fully exempted from the input tax amount related to the establishment of the instant center on the ground that the input tax amount for the establishment of the proper purpose business is the

for the following reasons, it is illegal.

A) The Plaintiff’s transaction of donation to 00 Metropolitan Cities and of gratuitous use or benefit benefit by establishing the instant center constitutes the subject of taxation and the relevant input tax amount should be fully deducted.

B) The input tax amount related to the establishment of the instant center is directly related to the supply of goods subject to value-added tax, and is irrelevant to whether the said center is used for a taxable business, and whether it is used for a non-taxable business after the supply. As such, the input tax amount should be fully deducted. (c) Where an entrepreneur newly constructs and transfers a building and transfers it, the relationship between the use of the building.

Since the transfer of a building itself is subject to value-added tax, the input tax amount related to the establishment of the center of this case must be fully deducted regardless of the purpose of the center of this case.

D) Even if the donation of a building used for non-taxable businesses is not subject to the input tax deduction, the instant center is used not only for the proper purpose business but also for the profit-making business which is a taxable business. Since the part used for the proper purpose business is not clearly distinguishable from the part used for the profit-making business, the object of non-deductible should be limited to the input tax amount related to the non-taxable business computed in accordance with the method of calculating the common input tax amount. 3) The method of calculating the common input tax, which is the premise for the imposition of value-added tax in 2007 or 201

A) In calculating the amount of common input tax pursuant to Article 61(1) of the former Enforcement Decree of the Value-Added Tax Act, the Defendant calculated the input tax amount related to the non-taxable business by including the subsidy in the supply value of the non-taxable business, but the subsidy is not the price for the supply of goods or services, and thus cannot be deemed

B) Even if subsidies are included in the supply value of non-taxable businesses, the common input tax amount is limited to the input tax amount related to the profit-making business and non-taxable business conducted in the existing building and is unrelated to the center in the new construction. However, the defendant committed an error including subsidies related to the establishment of the center in calculating the non-taxation ratio on the common input tax amount for the first period from 1st to 2011, 2010. 4) The plaintiff had an improper intent and does not receive input tax deduction by arbitrarily interpreting the tax-related Acts. The defendant did not raise any objection to the plaintiff's input tax return and refunded value-added tax for more than 10 years, and the regular audit of the regional tax office around 2003 did not have any particular problem in light of the fact that the tax office did not have a clear view on the interpretation of the tax law related to this case and lost several times in the relevant administrative litigation, each of the disposition of this case is unlawful.

4. Articles of incorporation (Evidence A 2, B 6) of the Plaintiff

Article 2(Purpose)Research Institute is to contribute to the structural advancement of the textile industry and the enhancement of international competitiveness through the development of manufacturing technology, the support for textile informatization, the guidance, dissemination and training of textile technology as specialized manufacturing technology institutes under Article 42 of the Industrial Technology Innovation Promotion Act.

(1) The Institute shall conduct the following activities to achieve the purposes specified in Article 2:

1. Projects for the development and research of new technology and new products to add high value to the textile industry;

2. Improvement of the productivity of textile products and the development and dissemination of cost reduction technology;

3. Analysis and certification of the quality of textile products;

4. Projects related to the technical guidance, technical training, and technical education required for the textile industry circles; 6. Projects for the support of textile informatization; 7. Projects for the cooperation and joint projects with domestic and foreign research institutes, academic circles, industrial circles, and specialized institutions; 8. Projects for the leasing of research and development facilities and the production of textile products; 9. Other projects necessary for the achievement of the objectives of the Institute;

(2) The Institute may, when it is entrusted by an enterprise falling under any subparagraph of the preceding paragraph, collect expenses incurred in accordance with the operating rules, as fees.

Article 25 (Financial Resources for Expenses)

(1) The expenses needed for the operation of the Institute shall be covered by the fruits of basic property, contributions, subsidies, contributions, borrowings, research service fees, educational service fees, earnings from the conduct of projects, and other incomes.

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) The status of the Plaintiff’s operational business and revenue and local expenses

A) After obtaining a business registration certificate (Evidence A No. 4) following the correction of the waiver of tax exemption on December 8, 1999, the Plaintiff reported value-added tax to the Defendant in the course of carrying out a profit-making business, such as research and development business, and quality, performance analysis, certification, etc. requested by a textile manufacturer. The main contents of the Plaintiff’s articles of incorporation concerning the performance business and financial resources are as follows.

B) On September 24, 2003 through October 10, 2002, the regional tax office investigated the Plaintiff’s “reasonable input tax deduction for a business converted into a taxable business among the businesses in the business year from 2000 to 2002, and determined that there was no particular problem with the Plaintiff’s input tax amount reported during the pertinent period. (C) The Plaintiff’s operating resources consist of national subsidies, City/Do subsidies and other subsidies, and revenue generated from a profit-making business. The national subsidies are based on Article 42 of the Industrial Technology Innovation Promotion Act, Article 42 of the Daegu Metropolitan City Ordinance on the Promotion and Management of Entrustment of Administrative Affairs to the Private Sector of the Daegu Metropolitan City, the Gyeongbuk-do subsidies and other subsidies are classified into general operating subsidies and specific subsidies (R&D subsidies). The general operating subsidies are subsidies used as the Plaintiff’s operating expenses, and when the Plaintiff submitted a research and development support institution to the support institution, the subsidies are not recovered for the next 20 years to 10 years to 20 years or less (20 years).

(단위: 백만 원) 2007년2008년2009년2010년2011년 매출세액 (A) 151,946,583 156,060,218 165,814,727 265,567,338 300,522,007 매입세액 (B) 417,825,003 451,604,399 425,683,256 443,853,299 538,500,614 환급액(B-A) 265,888,420295,544,181 259,868,529 178,285,961 237,978,607 ■ 지식경제 기술혁신사업 계획(신청)서 (갑 제8호증) 〇 과제개요

- 본 사업은 기 구축된 섬유산업 인프라 기반을 바탕으로 (...) 기존섬유산업의 고부가가치화견인, 산업용 섬유산업의 활성화 및 타산업 기술과의 융합을 통한 새로운 산업용 고기능섬유소재 및 관련제품의 개발을 도모 (...) 슈퍼섬유 융합소재센터 건립 및 제품개발에 적합한 제조설비 구축과 테스트베드 평가장비 도입을 추진하고자 함〇 총수행기간

- 2010. 6. 1.~2014. 5. 31. (60개월) 〇 사업비 (단위: 천 원) 1차년도2차년도3차년도4차년도5차년도합계 정부출연금 1,500,000 7,200,000 6,400,000 4,600,000 3,100,000 22,800,000 지자체현금 2,500,000 3,100,000400,000400,000300,0006,700,000 민간현물200,000500,000200,000200,000100,0001,200,000 합계4,200,000 10,800,000 7,000,000 5,200,000 3,500,000 30,700,000

E) The Plaintiff reported the sales and purchase tax amount to the Defendant in 2007 to 2011, and the details of value-added tax refunded by the Defendant are as follows.

2) Establishment, etc. of the instant center

가) 원고는 2010. 4.경 지식경제부장관에게 슈퍼섬유소재의 국산화·양산화를 앞당기고 중소기업 중심의 슈퍼소재융합제품 생산기반을 확충하는 등의 목적을 달성하기 위하여 ① 이 사건 센터 구축, ② 슈퍼소재 융합소재 설비 구축, ③ 슈퍼소재 테스트베드 평가 설비 구축을 핵심으로 하는 다음과 같은 내용의 '지식경제 기술혁신사업 계획(신청)서'를 제출하였다. 〇 슈퍼섬유 융합소재센터(이 사건 센터) 건립

- The content of the project: The main project consisting of the establishment of the Convergence Materials Center and the remodeling of construction as the main project objectives for the first and second years. The project cost is KRW 2.5 billion out of the total project cost. - The outline of the site is KRW 2.50 million estimated project cost: 00,000,000,000, the reconstruction of the first floor 585 square meters in Korea, 585 square meters, the extension of the first floor 1,650 square meters in Ddong, the second floor 1,650 square meters in height, the extension of the second floor 1,650 square meters in height (10 square meters), the establishment of the Center is the introduction of facilities by using the existing building to enhance the connection with the existing facilities. The construction area is proper, and the construction plan is formulated in consideration of the future expansion of the construction area - The production of Schlage-products, the supply of new products production-related products, the acquisition of domestic certification of product production-related products, the acquisition of domestic technology and technical innovation-related projects through the technical innovation 20.

C) In accordance with the above Convention, the Plaintiff received a subsidy of KRW 0 billion on June 25, 2010, KRW 0 billion on July 12, 2010, KRW 00 billion on June 30, 201, and KRW 0 billion on June 30, 201. On May 23, 2011, the Plaintiff entered into a contract for the construction, extension, and remodeling of the instant center at KRW 0 billion ( separate value-added tax) with 00,000,000, KRW 50,000,000,000,000 from the Daegu Metropolitan City and the Korea Evaluation Institute of Industrial Technology (hereinafter referred to as the “former building”) and entered in the agreement with the owner of the building at KRW 50,00,00,000 and KRW 50,000,000,000,000,000 in the separate list of real estate owned by the Plaintiff (hereinafter referred to as the “owner”).

■ 부가가치세 환급자 현장확인 조사서 ▢2007년 제1기~ 2011년 제1기 (을 제2 내지 4호증) 〇 운영형태

-In order to carry out textile materials and production technology development and/or research for the proper purpose business, the Plaintiff shall withhold the donation, as a whole, in accordance with national policy projects, etc.

E) Meanwhile, on July 22, 2011, the Plaintiff reported to the Defendant a total of KRW 000,000,000 as follows when filing the final return of value-added tax on July 22, 2011 and the preliminary return of value-added tax on October 25, 2011 on October 25, 2011, as the following input tax amounts related to the cost of building the instant center. 3) The Defendant’s investigation into the refund site

On November 21, 2011 from November 21, 201 to November 25, 2011, the Defendant confirmed the place of the refund of value-added tax for the second period (Scheduled) No. 2 (Scheduled) in 2011; from December 8, 201 to December 16, 2011, the Plaintiff confirmed the place of the refund of value-added tax for the first period from December 16, 2007 to 2011; and the main contents of the findings are as follows:

- 업체에 기술·정보지원사업의 일환으로 섬유제조업체에서 의뢰하는 품질성능분석 및 인증업무 등 일부 수익사업을 영위하고 있음 〇 수입구조 및 매출신고 내용

- 연구원의 고유목적사업인 섬유개발·연구사업을 위하여 사업계획서를 지경부 등 사업시행 부처에 제출하여 과제수행기관으로 선정되면 사업비를 지급받는 방식으로 운영하므로 주재원은 국고보조금과 시·도, 기타 보조금이며 이는 부가세 과세대상에 해당하지 아니하므로 제외하여 신고하고 있음 - 업체에서 의뢰한 시험분석 및 방사·제직, 신제품 개발 등 자체 수익사업에 대하여는 세금계산서를 발행하고 있음 - 수익사업에서 발생한 수입금액에 대하여 결산서 확인한 바 고유목적사업과 별도 구분하여 작성하고 있으며, 시험분석 부문은 연구원 운영회계로, 제품생산·개발부문은 신제품 개발센터 운영회계로 구분함 〇 매입금액 적정여부 확인

- 매입액 중 수익사업(신제품 개발 등)을 위하여 지출한 것으로 확인되는 원재료비, 운송비등 0,000,000,000원은 과세분 매입으로 매입세액 공제함이 타당함 - 고유목적사업에서 발생한 비과세분 매입액과 수익사업에서 발생한 과세사업분 매입액으로 명확하게 구분되지 아니하는 매입액 00,000,000,000원은 부가가치세법 시행령 제61조 제1항에 의거 안분계산 대상임 〇 공통매입세액 안분계산

- 총매입세액 00,000,000,000원 중 과세분매입액 0,000,000,000원, 불공제 매입금액으로 기신고한 00,000,000원을 제외한 00,000,000,000원을 공통매입금액으로 계산한 다음, 다음과 같은 산식에 따라 불공제 매입세액을 000,000,000원으로 산정함 ▢2011년 제2기(예정) (을 제7호증) 〇 매입금액 적정여부 확인

- The details of the purchase amount set forth in the Second Year 201 by the Institute (unit: Won);

- ① (0,000,000,000원) : 이 사건 건물 신축 관련 공사금액으로 고유목적사업을 위한 시설투자분이므로 전액 매입세액 불공제대상이나 매입세액 공제하여 신고함 - ② (0,000,000,000원) : 고유목적사업에서 발생한 비과세분 매입액과 수익사업에서 발생한 과세사업분 매입액으로 명확하게 구분되지 아니하여 부가가치세법 시행령 제61조 제1항에 의거 안분계산 대상임 〇 공통매입세액 안분계산

- there is no dispute that 0,000,000,000 won subject to full deduction of total purchase tax amount of 0,000,000,000 won subject to full deduction of total purchase tax amount of 0,000,000 won excluding 0,000,000,000 won subject to non-deductible purchase amount of 0,000,000 won subject to common purchase tax amount of 1,00,000 won, and the purport of the whole pleadings, and the purport of each entry in Gap's 1 to 13 evidence of 14 (including each number),

D. Determination

1) Determination on the first argument

Article 1(1)1 of the former Value-Added Tax Act provides that value-added tax shall be imposed on the supply of goods or services; Article 1(3) provides that "services refer to all services and other activities worth property other than goods; Article 7(1) provides that "the supply of services" shall be either the provision of services or the use of goods, facilities or rights due to all contractual or legal grounds; and Article 7(3) provides that the supply of services to other persons without compensation shall not be deemed the supply of services. The above facts and relevant regulations are as follows: ① Article 4(1) of the articles of incorporation provides that the Plaintiff’s provision of services can only be seen as the development of new technology and new products, quality analysis and certification and technical guidance related to the textile industry as the Plaintiff’s performance business, and Article 4(2) provides that the Plaintiff’s provision of non-taxable services under the premise that the costs of the services can be collected as fees when the Plaintiff is entrusted by the above business; ② the supply of non-taxable services is not subject to the imposition of value-added tax for profit-making business; ③ the Plaintiff’s provision of non-taxable subsidies and non-taxable subsidies under the Ordinance on the project.

2) Judgment on the second argument

A) The Plaintiff’s above 2(a), (b), and (c) claims purport that the input tax amount related to the construction of the above center should be fully deducted regardless of the purpose of the center’s use since the purchase tax amount related to the construction of the above center is related to the supply of the building itself. Thus, in a case where the Plaintiff acquired the right of free use and profit-making (see, e.g., Supreme Court Decision 89Nu596, Apr. 27, 1990). Article 48(5) of the former Enforcement Decree of the Value-Added Tax Act also provides that in a case of the donation, the value of the donation is the tax base on the premise that the donation itself is subject to taxation (see, e.g., Supreme Court Decision 6-14-8, supra), and the donation itself constitutes the supply of goods or services, which is subject to taxation, by making the value of the goods or services supplied as the output tax amount of the previous building subject to the reduction and exemption of the input tax amount as part of the building, etc.