early 208 Heavy1022 ( December 12, 2008)

Where a dispute over defect repair expenses and liquidated damages arises after the provision of services and the lawsuit is settled after the deadline for supply;

In the event that a contract is concluded by specifying the contract amount and the construction period, the date of approval for use shall be deemed the time of supply, and the time of supply shall not vary because the construction cost has been settled after a lawsuit was filed due to a dispute over compensation for delay of defect repair costs.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax of KRW 12,328,300 on February 1, 2008 against the Plaintiff on February 1, 2008 is revoked.

1. Circumstances of the disposition;

A. On August 16, 2005, the Plaintiff entered into a contract for construction work with the ○○ General Construction Co., Ltd. (hereinafter referred to as “○○ General Construction”) with a neighborhood living facility (hereinafter referred to as “instant commercial building”) in order to newly build a neighborhood living facility (hereinafter referred to as “instant commercial building”). On February 13, 2007, the Plaintiff entered into a contract for construction work with the 4,500,000,000 won and continued construction work. On January 17, 2007, the Plaintiff entered into a modified contract with the 4,92,214,155 won to increase the construction cost, and completed the construction work and obtained approval for use on February 13, 2007.

B. On September 28, 2007, the Plaintiff received a tax invoice equivalent to the supply value of KRW 1,028,923,58 from the ○ Integrated Construction (hereinafter “instant tax invoice”), and subsequently deducted the input tax amount under the instant tax invoice from the output tax amount when filing the scheduled return of value-added tax for the second period of value-added tax in 2007.

C. On February 1, 2008, the Defendant: (a) deemed that the instant tax invoice was issued after the time of supply for the service as a result of the on-site investigation on the said preliminary return; and (b) issued the instant disposition imposing KRW 12,328,300 on the Plaintiff in addition to the penalty tax on the said tax invoice.

D. The plaintiff appealed and filed an appeal on March 7, 2008, but was dismissed on December 12, 2008.

[Ground of recognition] Gap evidence Nos. 1, 2, 3, 4, Eul evidence No. 1-6, Eul evidence No. 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The plaintiff brought a dispute over the construction work of this case, such as defect repair, delay compensation, etc., between Lee ○ Construction and Lee ○ Construction, and the plaintiff brought a lawsuit on the construction work price. On September 28, 2007, the plaintiff agreed with the plaintiff on September 28, 2007, and withdrawn this lawsuit by Lee ○○ Construction, and the tax invoice of this case was delivered according to the agreement.

(2) However, according to Article 22 subparagraph 3 of the Enforcement Decree of the Value-Added Tax Act, if the supply of an ordinary service is not applicable, the provision of the service is completed and the supply price is determined at the time of supply of the service. Thus, in this case, the time of the supply of the service in this case is " September 28, 2007, the supply price of which is determined" and thus, the tax invoice in this case does not constitute a tax invoice

(b) Related statutes;

It shall be as shown in the attached Form.

(c) Fact of recognition;

(1) When concluding the instant construction contract, the Plaintiff and ○ General Construction set the construction period from September 1, 2005 to September 1, 2006, and the construction amount to KRW 4,500,000,000. Thereafter, on January 17, 2007, the Plaintiff agreed to increase the construction amount to KRW 4,992,214,155, due to the addition of earth and sand and the change of design size, etc., and on January 18, 2007, the Plaintiff paid ○ General Construction the remainder of the construction amount to KRW 1,181,815,947, within 30 days after the completion of the instant construction project. In violation of this, the Plaintiff agreed to transfer the ownership of the instant 2nd floor to this ○ General Construction.

(2) On February 13, 2007, the Plaintiff obtained approval for the use of the instant commercial building from the Yongsan-si, and entered it in the building management ledger after completion inspection at that time. From March 2007, the lessee who leased the restaurant, pharmacy, etc. started his/her business.

(3) Afterward construction, the Plaintiff filed a lawsuit for ownership transfer registration pursuant to an agreement under the above (1) with the Seoul Central District Court 2007Gahap32271 on April 18, 2007, as it did not receive the remainder of construction due to the defect repair, liquidated damages, etc. among the Plaintiff.

(4) On September 28, 2007, when the lawsuit is pending, the Plaintiff agreed to grant the Plaintiff a tax invoice (the supply price of KRW 1,028,923,58, the tax amount of KRW 102,892,358, and the tax amount of KRW 102,892,358) at KRW 1,181,815,947 after deducting the delayed compensation of KRW 50,000 from KRW 1,181,815,947. The Plaintiff agreed to withdraw the case related to the construction payment.

[Ground of recognition] The evidence Nos. 5 through 14, Eul's evidence No. 5, and the purport of the whole pleading is determined.

Article 9(2) of the Value-Added Tax Act provides that, if the time of supply is the time of supply for the service, matters necessary for the time of supply under paragraph (4) shall be prescribed by the Presidential Decree. Article 22 of the Enforcement Decree so delegated shall provide for the time of supply for the ordinary supply (Article 1). Article 22 of the Enforcement Decree of the Value-Added Tax Act provides that, in the case of ordinary supply, when the provision of the service is completed (Article 1), when the provision of the service is completed, when the service is supplied in an interim payment, interim payment, or on other terms, or when the service cannot be divided into a unit (Article 2) is continuously supplied, when each part of the payment is paid (Article 2). If the provisions of subparagraphs 1 and 2 are not applicable, when the provision of the service is completed and the price of supply is determined upon completion of the service (Article 3), the general time of supply is determined at the time of the completion of the service supply. Here, at the time of the completion of the provision of service, the service is determined at the time of the service.

As seen in the instant case, the Plaintiff and Lee ○ integrated Construction entered into a construction contract with a specific construction contract amount and construction period and constructed a new building accordingly shall be deemed to be the time when the provision of services is completed, i.e., the date of approval for the use of the instant commercial building, which is the time when the provision of services is completed. Therefore, as long as the Plaintiff used the instant commercial building, including after completion of the instant commercial building after obtaining approval for use and leasing it to others, the dispute occurred between the Plaintiff and Lee○ integrated Construction and the Plaintiff brought a lawsuit on this issue, and even if the construction price was settled until September 28, 2007, the time of supply for the relevant construction service does not vary.

Therefore, since the tax invoice of this case is written differently from the fact at the time when the time when the service is supplied is approved after the time when the construction cost is settled thereafter, it cannot be said that there was an error in the disposition of this case, which did not deduct the said tax amount as the input tax amount.

3. Conclusion

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