Cho Jae-2013-Seoul Government-5230 (24. 2013)

Where the value of supply is determined according to a special contract after the provision of services is completed, the time of supply under the Value-Added Tax Act shall be the time the

If the supply price of the service is determined after the provision of the service is completed, the time of supply under the Value-Added Tax Act shall not be the time the provision of the service is completed, but the time the supply price is determined.

Seoul Administrative Court-2013-Gu 23539 Value-Added Tax Imposition Revocation

AA

aa

2014.04.03

2014.06.26

1. Aaa revokes a disposition rejecting refund of value-added tax of KRW 262,285,577 for the first term of August 16, 2012 and revocation of a disposition imposing value-added tax of KRW 46,296,890 for the first term of August 16, 2012.

2. AA’s remaining claims are dismissed.

3. 1/5 of the costs of lawsuit shall be borne by AA, and the remainder by Aa.

The disposition of refusal of refund of value-added tax of KRW 64,922,541 and the disposition of imposition of value-added tax of KRW 949,350 shall be revoked for the second half year of August 16, 2012 by an order of Paragraph 1 and Aa to AA on August 16, 2012.

1. Details of the disposition;

(a) AA case in which ○○○○○○○○○○ ○○○ - ○○ xxB building located inxx (hereinafter referred to as “instant building”);

As a management body under the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as “water”), the management of the building of this case and the operation of the parking lot located under the ground of the building of this case (hereinafter referred to as “the parking lot of this case”).

B. On July 27, 2011, when the building of this case was flooded near the building of this case, the 30 cooperative companies of cC, etc. (hereinafter "the construction of this case") began to implement restoration work of the building of this case (hereinafter "the construction of this case") due to the brokerage of bbbb, Co., Ltd., Ltd. (hereinafter "the construction of this case"), and during the process of the construction, AA and the construction of this case had consulted on the terms of contract, such as the construction cost.

C. AA and the instant construction company entered into a contract on the instant construction project on August 24, 201 (hereinafter referred to as “instant contract”), each of which includes the name of the construction, the scope of the construction, the period of construction, and the amount of the contract among them is as stated in the attached Table 1’s supply price, and “the payment of the price of the construction shall be made in the amount of compensation received by the insurance company in connection with the execution of the construction project” as “the special terms and conditions of the construction contract” was added.

D. The instant construction company completed all of the instant construction works within the year of 2011, as stated in the “the completion of construction” in attached Form 1.

E. AA, as shown in attached Form 2, shall not exceed October 28, 201, to the instant construction enterprise.

On January 19, 2012, a part of the construction price, paid the △△△△△△△△△△△△△△, and on January 20, 2012, the remainder of the construction price of the x, x, x, x, x, x, x, x, x, x, 2012, 201, x, x, x, x, and x (including each value-added tax) was paid, respectively (the amount including the value-added tax).

F. AA received a purchase tax invoice for the supply value of x,x,xx [the sum of x,x,x, and x00 won for the preliminary return for the second period of 2011 and the x,00,000 for the final return for the second period of 2011; hereinafter the tax invoice for the former is called 3 tax invoices at issue (the portion indicated as '2.2. scheduled' in attached Form 1), 'the tax invoice for the latter' (the portion indicated as 'final date of 11.2.2.2.' in attached Form 1), 'the tax invoice for the latter' (the portion indicated as 'final date'), 'the tax invoice for the purchase and sale of the building at issue', 'the tax invoice for the first period of 2012, 'the total of the supply value of x,x, x, x, and x00 won', 'the tax invoice at issue and 'the tax invoice at issue 12.2.12'A'.

G. AA filed an application for refund of KRW 64,922,541 (total amount of the preliminary return and the final return) with respect to the value-added tax for the second period portion in 2011 when aa filed a return on the second preliminary return in 2011, the amount of the value-added tax for the second period portion in 201, and filed an application for refund of KRW 262,285,57 (preliminary return) with respect to the value-added tax for the first period portion in 2012.

H. A. On August 16, 2012, AA: (a) the instant tax invoice related to the instant tax invoice was all completed on the second half of 2011; (b) even if the instant tax invoice related to the instant tax invoice was issued during the first half of 2012, the input tax amount was not deducted on the ground that the instant tax invoice was received during the second half of 2011; and (c) the instant tax invoice was not issued to the occupants of the instant building on the ground that the sales tax invoice was not issued during the second half of 2011; (d) the instant tax invoice was not paid on the ground that AA filed a return of input tax related to the instant parking lot, notwithstanding the fact that the instant tax invoice was not a input tax amount related to the instant parking lot business, on the ground that AA filed a return of input tax amount, and reflected the said application for refund of the value-added tax amount in the amount of KRW 949,350 (additional tax amount in KRW 5,90,90) in the value-added tax amount in 296,496.46.

G. AA appealed to the instant disposition and filed an appeal with the Tax Tribunal on November 12, 2012, but the Tax Tribunal dismissed the appeal on June 24, 2013, and filed the instant lawsuit on September 16, 2013.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 5, entry of Eul evidence 1 through 3, purport of whole pleadings]

2. The assertion and judgment

(a) AA’s assertion

1) Claim as to the tax invoice 1 of this case

Aa decided that the time of supply for the service related to the tax invoice 1 of this case was 2011 and the instant disposition was made, but the time of supply is 2012. Thus, the part relating to the tax invoice 1 of this case in the instant disposition is unlawful. In other words, during the second half of 2011, the contract price was not fixed, which is an essential element of the instant contract, and this was clearly determined in accordance with the judgment of a certified damage adjuster during the first half of 2012. This constitutes a case in which the provisions of subparagraphs 1 and 2 of Article 22 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 23595, Feb. 2, 2012; hereinafter referred to as the "Enforcement Decree of the Value-Added Tax Act") and thus, the pertinent disposition was unlawful despite the fact that the provision of the service is completed and the supply price becomes final and conclusive.

2) Claim on the issues 2 and 3 tax invoices of this case

The key issue 2, 3 tax invoices are tax invoices issued for construction for the restoration of the mechanical room, electrical room, power generator, etc. of the building of this case. AA’s business is operation of the parking lot of this case, but for the operation of the parking lot, restoration of the mechanical room, electricity room, and power generator (hereinafter “other facilities than the parking lot of this case, etc.”) is essential. Article 17 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter “Value-Added Tax Act”) provides that the amount of tax on the supply of goods or services used or to be used for its own business shall be deducted as the input tax amount. Here, it is not only the goods or services to be used exclusively for its own business, but also the construction of the mechanical room of this case shall be interpreted as including the case for the other entrepreneur’s business. However, it is also necessary to operate the parking lot of this case, and thus, a tax invoice of this case is unlawful for the purpose of AA’s business.

In addition, even though the tax invoice 2 of this case does not relate to the supply of services to be used for the AA’s business, since AA issued sales tax invoices for this part to the occupants, the input tax deduction should be made. However, AA issued sales tax invoices for this part on the sole basis that AA issued the sales tax invoices for the first time, 201, not for February 201, but for the first time, 2012, which was unlawful.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Claim as to the tax invoice 1 of this case

A) Zak u300 Trading takes effect when one of the parties agrees to transfer the property right to the other party and the other party agrees to pay the price. As such, the sales contract is established by an agreement between the two parties on the transfer of the property right by the seller and the payment of the price in consideration by the buyer. In such a case, the subject matter and the price of the sale are not necessarily required to be specified at the time of the conclusion of the contract, and there is no specific method and criteria to specify it later (see Supreme Court Decision 92Da4947, Jun. 8, 1993). The same applies to the contract for the provision of services, such as the instant construction contract, and even if the contract was not clearly determined at the time of the conclusion of the contract, it shall be deemed that the contract was already concluded, and even if the contract was not clearly determined at the time of the conclusion of the contract,

B) However, Article 16 of the Value-Added Tax Act provides that if an entrepreneur registered as a taxpayer supplies goods or services, one of the items to be entered in a tax invoice shall be issued to the supplier at the time of supply. Article 17(2) of the Value-Added Tax Act provides that the value of supply and value-added tax shall be the necessary entry of the tax invoice, and if the whole or part of the value-added tax is not entered or differently entered from the fact, the input tax amount shall not be deducted. In light of the above provisions of the Value-Added Tax Act, considering the following circumstances, even if the contract itself was already established on August 24, 201, the special terms of this case added thereto shall be deemed to be a special agreement subsequent to the provision of the cost of construction (value of supply and value-added tax) and therefore, the issue of this case shall be deemed not to fall under Article 25(2)25 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 23925, Feb. 29, 2012). 201).

According to the special terms of this case, the payment of the cost of construction shall be made by the insurer in relation to the execution of construction work.

It is interpreted as an agreement to determine the amount to be paid to AA later from the insurer to the cost of construction. In accordance with the above language, it may be interpreted that AA would not pay the cost of construction if it is not paid by the insurer. In some of the contract of this case, it can be viewed that "the payment of the cost of construction shall be made within the amount to be paid by the insurer in connection with the execution of construction works" was added with the special condition that "the payment of the cost of construction works shall be made within the amount to be paid by the insurer," but the expression "within the amount" was changed to "the amount". This is because it seems to be more clearly defined in the intent of the contracting party who intends to pay the amount to be paid by the insurer as the cost of construction of the contract of this case.

According to the facts and evidence examined earlier, AA’s directors on August 22, 201, on the management body.

In order to implement prompt facility restoration works in relation to the instant project at the meeting of the Council, it is necessary to conclude a provisional contract with related materials and construction companies. However, since the contract amount may exceed the amount of insurance proceeds, it is not possible to conclude a provisional contract prior to the computation of the insurance amount in principle as to the agenda item "for the purpose of continuing confirmation work to the insurance company" with respect to the scope and amount of insurance processing. However, it is impossible to conclude a provisional contract prior to the computation of the insurance amount. However, it is possible to recognize the fact that the execution of the instant contract was made in accordance with such a resolution that "six members present at the meeting as the approval of the provisional contract is essential for the resident's living normalization." According to such recognition, from the perspective of AA, the "contract amount" stated in the instant contract amount is merely the amount written in response to the form of the contract, and the actual contract amount is deemed to have been decided in accordance with the result of a later adjustment by the insurance company, and the instant construction company also concluded the instant contract as the same doctor.

A. After the contract of this case was concluded through the aforementioned circumstances, AA is the Ministry of Land, Infrastructure and Transport of this case

By October 28, 2011, some of the instant construction business entities paid KRW 2,09,00,000 to some of the instant construction business entities, as shown in attached Table 2. This is paid as it is according to the content of appraisal by a certified damage adjuster entrusted by an insurance company. Since then AA paid KRW 358,747,123 as listed in attached Table 3 in the first period of 2012, and thereafter AA finally paid the remainder of the construction cost as stated in attached Table 3. This also was paid as it was in accordance with the content of appraisal by a certified damage adjuster of the insurance company. Therefore, until a certified damage adjuster exists, it was impossible to find all of the contracting parties to whom the construction cost of the instant construction contract becomes final and conclusive.

C) Therefore, the instant special terms and conditions are simply paid by “AA” to the insurer with insurance proceeds.

In other words, rather than a special agreement on the method of paying the construction price, it is reasonable to regard the agreement that "AA shall fix the insurance proceeds received from the insurance company through the adjustment procedure as the price for the construction contract of this case, i.e., the agreement to determine the construction price later. If so, at the time of the conclusion of the contract of this case or at the time of the completion of the construction project of this case, the tax invoice cannot be issued on the basis of "the time when the provision of services is completed", since the "value of supply and value-added tax" is not yet determined at the time of the conclusion of the contract of this case, and at the time of the completion of the provision of services (as at the second of 2011), the portion related to the first issue of this case among the construction of this case where the supply price and value-added tax amount were determined at the time of the supply of goods or services, but there was no change in the supply price or there was an error in the payment of the tax invoice, the portion related to the construction project of this case cannot be seen as unlawful.

D) However, since cleaning services of KRW 18,362,027, among the construction details stated in the tax invoice 1 of this case, AA itself recognize that the supply price of KRW 18,362,027, which was provided by DD, was not included in the subject of insurance of AA, it shall be deemed that the supply price was determined at the second half of 2011, not the subject of Article 22 subparagraph 3 of the former Value-Added Tax Act, and therefore, it shall be deemed the time of supply for the second half of 2011, which was "the time the provision of services is completed" pursuant to subparagraph 1 of Article 22 of the former Value-Added Tax Act, not the subject of Article 22 subparagraph 3 of the former Value-Added Tax Act. Ultimately, among the disposition of this case, "the portion of this case was lawful on the ground that the receipt of the purchase tax invoice at D through D through 1, 2012 constitutes a tax invoice different from the fact, the remaining portion related to the tax invoice 1 of this case is unlawful (However.).

2) Determination as to the argument on the instant tax invoice 2

(a) the reasons for the disposal of aa

The grounds for disposition of the part relating to the tax invoice 2 of the instant disposition are as follows.

· This section is not the supply of goods or services used or to be used for the parking lot business of AA;

Even if there is no direct connection with the business of the AA, if AA issued sales tax invoices on this portion to the occupants, it is possible to deduct the input tax amount. However, even in this case, it is possible to deduct the input tax amount by issuing sales tax invoices at the end of February 2, 2011, for which the issues of the instant case 2 tax invoices were received. AA issued sales tax invoices (hereinafter “instant sales tax invoices”) to the occupants at the end of January 2012, and thus, it is impossible to deduct the input tax amount.

B) Determination on the grounds for the above disposition

Accordingly, AA asserts that the tax invoice 2 of this case is also related to goods or services used or to be used for the parking lot business of AA. However, according to the facts and evidence examined earlier, the part related to the tax invoice 2 of this case during the construction of the instant construction project is for the maintenance of facilities for the entire use of the instant building as well as the instant parking lot, and for the goods or services for the entire management of the instant building. Thus, it is in principle possible to receive purchase tax invoices related thereto (to examine the exception in the followingc) since the parts related to the tax invoice 2 of this case among the construction of this case are for business use of the instant parking lot, and it is determined that AA, a part of the instant building of this case, can not receive the purchase tax invoice. Accordingly, the allegation in this part of AA cannot be accepted.

C) Determination on the grounds for the above disposition

On the other hand, a managing body under the Act on the Ownership and Management of Aggregate Buildings shall be the managing body itself.

Even if it is not used or used for a business, the purchase tax invoice for the goods or services jointly purchased on behalf of the occupants of an aggregate building can be received on behalf of the occupants. In this case, the common expenses required for the purchase are settled and the sales tax invoice is requested to be collected by the occupants, and if the sales tax invoice is issued to this end, the tax invoice can be deducted on the purchase tax invoice as above. In addition, in the current VAT system adopting the Act on the Tax Credit at Former Stage, the tax invoice system has the function of mutual verification between the taxpayers that facilitate the collection of the income tax and the corporate tax as well as the value-added tax by exposing the transaction between the parties, and it is essential that the preparation and issuance of the tax invoice should be done within the taxable period to which the transaction date belongs (see Supreme Court Decision 2002Du5771, Nov. 18, 2004). In this case, the tax invoice or the sales tax invoice is to be interpreted as being supplied to the occupants of the management body within the taxable period.

In light of the above legal principles, the key issue 2 tax invoice of this case is that AA was issued from e,fff, g, hhh, and 3, which is part of the construction companies of this case, and the above companies also completed all of the construction works of this case at 2011, as the remaining construction companies of this case, but only a part of the construction work of this case was adjusted until 2011, the tax invoice of this case was issued at 201, and the remaining part of the tax invoice of this case cannot be seen as being issued at 10 years since the tax invoice of this case was issued at 20 years before the above 20-year tax invoice of this case. However, since the tax invoice of this case was issued at 10 years before the above 20-year tax invoice of this case, the tax invoice of this case cannot be seen as being issued at 20 years prior to the above construction or 20-year tax invoice of this case.

3) Determination as to the argument on the instant tax invoice 3

AA asserts that the instant tax invoice 3 is also related to goods or services used or to be used for the parking lot business of AA. However, according to the facts and evidence examined earlier, the part related to the instant tax invoice 3 of the instant construction among the instant construction is an electrical construction and cleaning of the instant building. As such, as in the instant tax invoice 2, the parts related to the instant tax invoice 3 of the instant construction are supplied not only to the instant parking lot but also to the maintenance of facilities for the use of the entire building of the instant building, and to the goods or services for the management of the entire building of the instant building. Therefore, the receipt of the relevant purchase tax invoice is, in principle, the occupant of the instant building using the instant building. AA, which is only a part of the instant building, uses the instant parking lot for business, can not receive the purchase tax invoice. Accordingly, this part of the allegation cannot be accepted.

D. Sub-committee

Therefore, the part concerning the tax invoice 1 of this case among the dispositions of this case (referring to the part concerning the value-added tax of this case: Provided, That the part on the ground that "AA received a written notice of purchase price calculation from dddd in 2012 from ddd in 1 January, 2012" is illegal, and the remaining part is lawful. Thus, the part on the disposition rejecting refund of value-added tax of 262,285,577 won and the disposition imposing value-added tax of 46,296,890 won among the dispositions of this case should be revoked, and the remaining claims of AAA cannot be accepted.

3.In conclusion

If so, the AA's claim is reasonable within the above scope of recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Related Acts and subordinate statutes

▣ 구 부가가치세법(2013. 6. 7. 법률 제11873호로 개정되기 전의 것)

Article 9 (Transaction Time)

(2) The time when services are supplied shall be the time services are provided or goods, facilities or rights are used.

(3) Where an entrepreneur receives all or part of the price for goods or services before the time under paragraph (1) or (2) and at the same time issues a tax invoice under Article 16 or a receipt under Article 32 with respect to the received price, the time of issuance shall be deemed the time of supply for the goods or services, respectively.

(4) Matters necessary for the timing of supply under paragraphs (1) and (2) shall be prescribed by Presidential Decree.

(1) Where an entrepreneur registered as a taxpayer supplies goods or services, he/she shall issue an invoice stating the following matters (hereinafter referred to as "tax invoice") to the person who receives the supply, as prescribed by Presidential Decree, at the time specified in Article 9 (referring to the time specified otherwise by Presidential Decree, if any). In such cases, a tax invoice may be revised and issued, as prescribed by Presidential Decree, if any ground prescribed by Presidential Decree, such as error or correction, occurs after the issuance of the tax invoice:

1. Registration number, name or denomination of the businessman who provides;

2. Registration number of the person who receives;

3. Supply value and value-added tax;

4. Date of preparation;

5. Matters prescribed by Presidential Decree, other than those under subparagraphs 1 through 4.

Article 17 (Payable Tax Amount)

(1) The amount of value-added taxes payable by an entrepreneur (hereinafter referred to as the "paid tax amount") shall be the amount computed by deducting the tax amount under the following subparagraphs (hereinafter referred to as the "in-house tax amount") from the tax amount on the goods and services supplied by him/her (hereinafter referred to as the "the output tax amount"): Provided, That in cases of an input tax amount exceeding

1. The tax amount for the supply of goods or services used or to be used for his own business;

2. The tax amount for the import of goods used or to be used for his own business; and

(2) The following input taxes shall not be deducted from the output tax amount:

1. An input tax amount where the list of total tax invoices by customer is not submitted under Article 20 (1) and (2), or the input tax amount on the portion not entered or the portion entered differently from the fact, where the whole or part of the registration numbers or supply values by transaction parties is not entered or differently entered from the fact, from among the entries on the list of total tax invoices by customer submitted: Provided, That in such cases as prescribed by Presidential Decree,

2. Where a tax invoice under Article 16 (1), (2), (4) and (5) is not issued, or where a tax invoice issued is not to be entered under Article 16 (1) 1 through 4 (hereinafter referred to as "necessary entry");

An input tax amount, where all or part of the input tax amount is not entered or entered differently from the fact: Provided, That in cases prescribed by Presidential Decree, the input tax amount shall be excluded.

2-2. An input tax amount where a tax invoice is issued on any goods or services exempt from value-added tax (including any goods or services exempt from value-added tax): Provided, That the input tax amount in cases prescribed by Presidential Decree where the entrepreneur who has supplied the relevant goods or services fully pays the tax amount payable under paragraph (1) shall be excluded;

3. An input tax amount for payments not directly related to the business.

▣ 부가가치세법 시행령(2012. 2. 2. 대통령령 제23595호로 개정되기 전의 것)

Article 22 (Time of Supply for Services)

법 제9조 제2항에 규정하는 용역의 공급시기는 다음 각 호에 따른다. 다만, 폐업 전에 공급한 용역ž�

Where the time of supply arrives after such cessation, the time of such cessation shall be deemed the time of supply.

1. In the case of ordinary supply, when the offer of the service is completed;

2. Where services are supplied on the basis of the standard payment, interim payment, long-term installment or under other conditions, or services are continuously supplied on the basis of which the unit of supply is not possible, when each part of the price is received;

3. Where the provision of services is completed and the value of supply is determined, in case where the provisions of subparagraphs 1 and 2 are not applicable.

Article 59 (Grounds and Procedures for Issuance of Revised Tax Invoice)

(1) A revised tax invoice under the latter part of Article 16 (1) of the Act may be issued in accordance with the following grounds and procedures:

1. Where goods supplied initially are returned: The date on which the goods are returned shall be written and the date on which the original tax invoice is written shall be written and the goods shall be issued with red or negative marks written in red form after the date on which the initial tax invoice is written in the remarks column;

2. Where goods or services are not supplied due to cancellation of a contract: At the time of cancellation of a contract, the date of preparation shall be stated in the date of cancellation of the contract in the remarks column, and shall be issued with red or negative sign after the date of cancellation of the contract is stated in the remarks column;

3. Where an amount is added or deducted from the value of supply as a result of termination, etc. of a contract: The date on which the cause of increase or decrease arises shall be stated as the date of preparation, and the amount added shall be written in black, and the amount deducted shall be issued by means of red coloring or marking.