Case Number of the previous trial
Early High Court Decision 2015J 1416 (Law No. 17, 2015)
Title
In the case of acquisition of an officetel, leasing it to a residential purpose with an input tax deduction shall be subject to a revised report.
Summary
Even if the instant officetel was acquired for residential purpose and leased for residential purpose, it is subject to a revised value-added tax return as long as the initial input tax amount is deducted.
Related statutes
Article 6 (Supply of Goods)
Cases
2016-Gu Partnership-1203 Revocation of Disposition Rejecting Value-Added Tax Refund
Plaintiff
AA
Defendant
O Head of tax office
Conclusion of Pleadings
8.08.18
Imposition of Judgment
2, 2016.22
Text
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The defendant on August 31, 2015, listed in the refund of value-added tax for the second term portion of 2011 against the plaintiff on August 31, 2015
The disposition rejecting the correction of the value-added tax shall be revoked for the sum of the KRW OO and additional OO.
Reasons
1. Details of the disposition;
A. BB (representative Plaintiff) completed the registration of transfer of ownership by selling No. 1102 of the CCCtel 1102 (hereinafter “the instant officetel”) located in the OOO-O on October 11, 2010 to the OO(OOO-O.).
B. On October 19, 2010, the Plaintiff registered the business of a general taxable person with its trade name as ‘DD', ‘business location of the instant officetel, business type as ‘business-based real estate business', and ‘lease of the issues'.
C. On November 22, 2010, the Plaintiff filed a return on early refund of the value-added tax for general taxable persons on the grounds of KRW 200,000 of the input tax amount for fixed assets for the second period on December 10, 2010. On September 19, 2011, the Plaintiff filed a return on early refund of the value-added tax for general taxable persons on the grounds of KRW 20,000 of the input tax amount for fixed assets for the second period on September 19, 201, and received a refund of KRW 0,000 on October 10, 201.
D. The Plaintiff reported and paid value-added tax on the rental income of the instant officetel from 2011 to 1st, 2015.
E. The Defendant: (a) deemed that the Plaintiff acquired the instant officetel for a taxable purpose; and (b) deemed that it was exclusively used for a housing rental business, which is a marina business; and (c) sent a revised declaration notice to the Plaintiff on April 8, 2015. Accordingly, on April 17, 2015, the Plaintiff filed a revised declaration with the OO on the amount of the value-added tax payable for the second year value-added tax as OO.
F. On April 17, 2015, the Plaintiff filed a report on the closure of business due to the above general taxable person’s business registration and filed a business registration for the same day with the trade name as “BB,” the instant officetel, the place of business as “business type real estate business,” and the “business leasing buildings for residential purposes,” respectively.
G. After July 7, 2015, the Plaintiff acquired the instant officetel, a quasi-housing for the purpose of leasing it to a house, and leased it to a house, and thus, there was no exclusive use of tax exemption, and filed a claim for correction of the details seeking the refund of the value-added tax 201 OOwon in 201.
H. On August 31, 2015, the Defendant notified the Plaintiff of his refusal to request correction (hereinafter “instant disposition”).
(i) The Plaintiff dissatisfied with the instant disposition and filed an objection against the Defendant on September 16, 2015, but was dismissed on October 15, 2015, and filed an appeal with the Tax Tribunal on December 29, 2015, but was dismissed on March 30, 2016.
[Ground of recognition] Facts without dispute, Gap evidence 2 through 5, Gap evidence 7 through 9, Eul evidence 1, Eul evidence 2-1 and 2, the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The instant officetel constitutes quasi-housing due to the enforcement of the amended Housing Act and the Enforcement Decree of the Housing Act. Since the Plaintiff sold the instant officetel for the purpose of using it for a tax-free business (residential lease), it does not constitute an exclusive use for tax-free business.
The plaintiff's business registration as a taxable person was erroneous by the defendant, and after the defendant recognized his mistake and discontinued his business ex officio, the defendant made a corrective measure by making business registration as a tax-free business operator. The plaintiff continued to pay the value-added tax in accordance with the defendant's notice and guidance for conversion of simplified taxable persons, and there is no need to submit or demand a return of early refund of
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
According to Article 45 of the Framework Act on National Taxes, a person who has filed a tax base return by the statutory due date of return may file a revised tax base return for "if the tax base and tax amount entered in the revised tax base return fall short of the deficit amount or tax amount to be reported under the tax-related Acts" or "if the deficit amount or tax amount to be returned under the tax-related Acts exceeds the tax base and tax amount to be reported under the tax-related Acts," and pursuant to Article 45-2 (1) of the Framework Act on National Taxes, "if the tax base and tax amount entered in the revised tax base return exceeds the tax base and tax amount to be reported under the tax-related Acts" or "if the deficit or tax amount entered in the revised tax base return exceeds the deficit amount or tax amount to be reported under the tax-related Acts, the person may file a request with the head of the competent tax office within five years after the statutory due date of return expires for the determination or correction of the tax base and tax amount to be reported under the tax-related Acts. According to Article 17 (1) of the former Value-Added Tax Act (including the whole tax amount prior to be paid for the goods or services supplied under Article 2).
As seen earlier, the following circumstances, i.e., the source, known by each evidence and the circumstances of the disposition;
c) On October 19, 2010 after the instant officetel was purchased, the instant officetel was registered as a general taxable person and leased the instant officetel. On October 19, 2010, the Plaintiff received early refund of value-added tax from general taxable persons due to the purchase of fixed assets for the second and second period of 2010, and subsequently deducted the input tax amount for the instant officetel. ② Even if the Plaintiff acquired the instant officetel for the purpose of using it for a residential lease, and actually leased it for the said residential purpose, the instant officetel’s input tax amount related to the housing leasing business constitutes an input tax amount related to the goods or services exempt from value-added tax under Article 17(2)6 of the former Value-Added Tax Act, and the Plaintiff received a refund of the said officetel’s input tax amount under the name of the Plaintiff’s tax agent or the Plaintiff’s tax agent’s tax return under Article 45 subparag. 2 of the Framework Act on National Taxes, and the Plaintiff’s tax agent or the Plaintiff’s tax agent’s tax agent’s return under the aforementioned tax return under the Plaintiff’s name or the Plaintiff’s tax agent’s return.
In light of the fact that the instant disposition was rendered on the premise that the instant officetel falls under a residential purpose, and that there is no error of law in misunderstanding the legal principles on the instant disposition, etc., the Plaintiff’s revised return filed on April 17, 2015 pursuant to Article 45 subparag. 2 of the Framework Act on National Taxes, and the Plaintiff’s tax base or refundable tax amount stated in the revised return itself cannot be deemed to have been erroneous. Thus, the Plaintiff’s disposition rejecting the Plaintiff’s request for correction as of July 7, 2015 should be lawful. Accordingly, the Plaintiff’s above assertion is rejected.
3. Conclusion
Thus, the plaintiff's claim of this case is dismissed as it is without merit.