Seocho 208west 2523 (Law No. 96.30)

Where financial services are supplied incidental to a main taxable business, the relevant input tax amount shall be exempted.

In the event that financial services are provided in addition to the main taxable business, the input tax amount related to the expenses paid to provide them shall be deemed the tax-free input tax amount. In the event that loans are used for the loan and operating funds, the relevant input tax amount shall be calculated in accordance with the calculation

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

1. The plaintiff's claims are all dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s imposition of value-added tax for the second period of 2006 against the Plaintiff on April 2, 2008 and the imposition of KRW 162,77,00 for the first period of 207 is revoked, respectively.

1. Circumstances of the disposition;

A. On October 21, 2005, the Plaintiff was engaged in overseas investment and investment advisory business, sales agency business, consulting business, etc., which was established on February 18, 2006, and entered into a consulting service contract (hereinafter referred to as “instant service contract”) with respect to a project to develop high-rise residential complex and commercial facilities on the ground of 282,189 m2,189 m2 in the area of the ○○○○○○○, a local corporation located in the Republic of ○○○○○○ (hereinafter referred to as “local corporation”) and the ○○○○○○○○, a local corporation, a local corporation located in the Republic of ○○○○○○○○○.

나. 원고는 현지 법인에 이 사건 개발사업 비용을 대여하기 위하여 필요한 자금 등을 조달하기 위한 자문수수료로 2006. 8. 31. ◆◆증권 주식회사에 2억 원(다만, 부가가치세 제외)을, 2006. 9. 27. ●●증권 주식회사에 3억 9,000만 원(다만, 부가가치세 제외)을 각 지급하였다.

C. On Apr. 2, 2008, the Defendant rendered a disposition on Feb. 18, 2007, on the ground that the time of supply for the service under the instant service contract was agreed to receive a payment at a local level, and on the ground that the Plaintiff did not report the zero tax rate, the part related to the tax-free loan business, among the input tax amount relating to the above advisory fees (20 million won + 39 million won) and the tax amount of 59 million won (20 million won) related to the above advisory fees, cannot be deducted from the value-added tax to be paid by the Plaintiff, on the ground that the Plaintiff was deducted from the value-added tax to be paid by the Plaintiff, the Defendant rendered a disposition on Feb. 2, 2006 (41,859,2250 won + 10,301,554 won + 10,554 won: 50 million won; hereinafter referred to as the “instant disposition”).

D. On June 25, 2008, the Plaintiff filed a request with the Tax Tribunal for a trial on the disposition of the case, but was dismissed on June 30, 2009.

[Ground for Recognition: Evidence No. 2-1, Evidence No. 3-2 through 4, Evidence No. 1 through 4, Evidence No. 6-1 and 2, Evidence No. 6-2, Testimony of Witness No. A, and the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Because of the following reasons, the disposition of a dual case is illegal, it should be revoked.

(i) value-added tax for the first period of 2007;

The instant service contract states that the service cost can be settled on a one-year date from the date of the contract, but in light of the fact that the development project of this case takes four years or more, it is merely a formal phrase, and even if it is not so, the instant service contract without any agreement on down payment is not an interim service supply contract under the Value-Added Tax Act, but an ordinary service supply contract or a service supply contract under the condition of payment. Therefore, the time when the supply of the instant service is completed should be deemed the time of supply

(ii) value-added tax for the second half year 2006;

The plaintiff is not engaged in financial business, but engaged in consultation and agency business on project financing, as well as advice and agency business on project financing, and since it is difficult to view the above advisory fees as an essential business incidental to the service of this case as an independent business, it is difficult to view the consultation and agency business on project financing as an independent business, the input tax amount on the above advisory fees shall be deducted from the 2-term value-added tax amount payable by the plaintiff. Even if it is not so, the advisory fees under the above advisory agency contract are commonly used for the financial business based on the service supply and loan agreement under the service contract of this case, and it cannot be divided into actual attribution. Thus, the proportional distribution of the input tax amount should be based on the ratio of the purchase price related to the total purchase price pursuant to Article 61 (4) 1 of the Enforcement Decree of the Value-Added Tax Act, but the defendant should be 59 million won for each of the above advisory fees as the ratio of the local loans of this case, 41,859,259 won cannot be deducted from the input tax amount.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) On February 18, 2006, the Plaintiff concluded the instant service contract with a local corporation on the instant development project as follows, and provided services, such as the establishment of the project plan and the preparation of design documents necessary for the instant development project from around that time. On February 22, 2006, the Plaintiff acquired all of the shares of the local corporation equivalent to US$ 5 million.

2) On August 28, 2006, the Plaintiff added to a local corporation and a modified contract with "one-year 1,740,000 US dollars" (hereinafter referred to as "the first modified contract"), and on September 10, 2008, reduced the scope of consulting services under the instant service contract to 1st block development projects among the instant development projects, on the other hand, the Plaintiff made an agreement to provide advice and agency (including related expenses and financial fees), on the provision of services for 1st block development projects, on the operation of the marketing center for sale in lots, on the overall public relations activities, on the sales in lots, and on the basis of the modification of the contract to 20,000 US dollars within 20,000,000 from the date of completion of the project, and on the other hand, the contract shall be amended to 200,000 US dollars, and the contract shall be amended to 20,000 US dollars.

3) On February 24, 2006, the Plaintiff: (a) borrowed 40 billion won from Lone Star Loan Co., Ltd. for its own initial project expenses; or (b) concluded a loan agreement with a local corporation on November 18, 2005 and February 21, 2006, and leased part of the above loan; (b) on June 7, 2006, the Plaintiff concluded a loan agreement with several financial institutions and the total principal limit of the loan was 20 billion won in order to repay the above principal and interest of the loan and lend additional business funds to the current branch corporation (hereinafter “the instant loan agreement”). On August 25, 2006, the Plaintiff acquired the Plaintiff’s loan obligations with five financial institutions, including the National Agricultural Cooperative Federation, etc., which acquired the Plaintiff’s entire share as the construction project of the instant development project.

4) On September 4, 2006, the Plaintiff created a pledge of priority on September 4, 2006 for the instant loan agreement and the said loan financial institution as a pledgee of the said loan agreement to secure the debt owed to the said loan financial institution under the said modified agreement.

5) 원고는 이 사건 대출채권매매 등으로 특별자산펀드의 설정 또는 자산유동화를 진행하여 이 사건 개발사업에 필요한 자금을 조달하기 위하여 2006. 8. 31. ◆◆증권 주식회사와 금융자문계약을 체결하면서 자문수수료로 2억 원을 지급하였고, 같은 해 9. 27. ●●증권 주식회사와 금융자문계약을 체결하고 자문수수료로 3억 9,000만 원을 지급하였다.

6) Meanwhile, under each shareholder loan agreement with a local juristic person from February 16, 2006 to August 10, 2007, the Plaintiff loaned 141,895,679,481 won (US$ 147,978,216) to a local juristic person at an annual interest rate of 15% for 30 times as funds raised under the above shareholder loan agreement with a local juristic person. From February 16, 2006 to August 10, 207, the Plaintiff received US$ 12,90,000 from June 13, 2007, and received US$ 9,64,277 as interest on the above loan from February 16, 2006 to November 27, 2006.

[Grounds for Recognition: Evidence Nos. 1 and 2-3, Evidence Nos. 3-1 through 4, Evidence Nos. 4, 6, and 7-1, 2, A, 5, 8 through 11, Evidence Nos. 1 through 5, Evidence Nos. 6-1 and 6-2, Evidence Nos. 6-1 and 6-2, witness witness witness testimony, and purport of the whole pleadings]

D. Determination

(i) the value-added tax for the first period of 2007;

A) Article 21(1)7 of the Framework Act on National Taxes provides that the liability to pay value-added taxes shall be established at the end of the taxable period. Meanwhile, Article 3 of the Value-Added Tax Act (amended by Act No. 8826, Dec. 31, 2007; hereinafter the same) provides that the taxable period of value-added taxes shall be from January 1 to June 30, and the second period shall be from July 1 to December 31, 200. Article 9(2) of the same Act provides that the time of supply for services is the time of supply or the use of goods, facilities, or rights. Article 9(4) of the Enforcement Decree of the same Act provides that the time of supply shall be when the goods are supplied or the remaining time of supply shall be at least 16 months prior to the date of delivery or installment of the services, and Article 22 subparag. 2 of the Value-Added Tax Act provides that the remaining time of supply is at least 9 months prior to the date of delivery or installment of the services.

B) Inasmuch as the instant service contract is a contract under which comprehensive and complex services, such as the establishment of an overall project plan and the establishment of criteria for selection regarding the instant development project, are continuously supplied until the completion of the instant development project, it constitutes a continuous supply of services that cannot be classified by the unit of supply pursuant to Article 22 Subparag. 2 of the Enforcement Decree of the Value-Added Tax Act, and thus, the time of supply is determined to receive each portion of the cost.

As seen earlier, the service cost was paid to USD 70,000 within 20,000 within 1 year from the date of the settlement of accounts, and the amount was increased to USD 9,500,000 within 1 year from the date of the first change contract (the service cost was increased to USD 1,740,000 within 1 year), and the service cost was changed to USD 45,00,00,00 within 7 years from the date of the second change contract to December 31, 201 (the amount is equivalent to USD 9,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00.

C) Therefore, this part of the Plaintiff’s assertion is without merit, premised on the fact that the instant service contract was an ordinary service supply contract or a service supply contract subject to a condition of payment, and that the time of supply has not yet arrived.

2) For value-added tax for the second period of 2006:

A) Article 1(4) of the Value-Added Tax Act provides that the supply of services that are essential to the supply of services that are the main transaction shall be deemed to be included in the supply of services that are the main transaction, and Article 12(1)10 of the same Act provides that the supply of services prescribed by Presidential Decree, which are financial and insurance services, shall be exempted from value-added tax. Article 33(1) of the Enforcement Decree of the same Act provides that the specific list of financial and insurance services that are exempt from value-added tax, such as one banking and other monetary credit services, under the Banking Act, and Article 12(2) of the same Act provides services identical or similar to the financial and insurance services that are incidental to the main business.

In this case, as seen earlier, the Plaintiff entered into a loan agreement with a local corporation separately from the contract of this case to provide funds necessary for the implementation of the development project of this case after concluding the contract of this case with a local corporation as an enterprise engaged in overseas investment, investment advisory, sales agency, consulting business, etc. from February 16, 2006 to November 27, 2006. Under the above loan agreement, the Plaintiff extended KRW 141,895,679,481 ($ 147,978,216) to the local corporation for the purpose of providing funds necessary for the implementation of the development project of this case to the local corporation. From February 16, 2006 to November 27, 2006, the Plaintiff was not entitled to receive additional tax from the local corporation to the local corporation, and the Plaintiff was not entitled to receive additional tax from the local corporation to the local corporation for the purpose of providing the loan of this case with the loan of this case and the loan of this case to the local corporation within the scope of the settlement agreement of this case.

B) According to the provisions of Article 17(1) and (2) of the Value-Added Tax Act, the value-added tax amount to be paid by an entrepreneur to the Government shall be the amount after deducting the input tax amount from the output tax amount, and the input tax amount (including the input tax amount related to investments) related to the business that supplies the services exempt from the value-added tax shall not be deducted from the output tax amount. Article 61(1) of the Enforcement Decree of the same Act, which provides that where an entrepreneur concurrently runs a taxable business and a tax-free business, the input tax amount related to the tax-free business shall be calculated based on the actual attribution, but it shall be calculated based on the common input tax amount, the tax-free supply price/total supply price (hereinafter “common input tax amount”) related to the tax-free business. In applying the provisions of paragraph (1) of the same Article, where there is no supply price for the relevant taxable period or there is no supply price for any business, it shall be deemed that the total purchase price (excluding the common purchase price) related to the tax-free business is related to the tax-free business.

이 사건에 돌아와 보건대, 앞에서 본 바와 같이 원고는 현지 법인에 대여할 자금과 자신의 운영경비를 조달하기 위하여 2,000억 원을 대출받은 점, 원고는 위 2,000억 원을 대출받기 위하여 ◆◆증권 주식회사 등과 금융자문계약을 체결하고 자문수수료로 5억 9,000만 원을 지급한 점, 원고는 현지 법인에 위 2,000억 원 중 141,895,679,481원을 대여하였고 나머지는 원고의 운영경비 등으로 사용한 점, 이미 대출받은 돈의 사용처에 따라 그 돈을 대출받기 위한 비용이 달라진다고 볼 수 없으므로 그 대출금의 액수에 따라 그 비용이 안분되어 귀속된다고 봄이 상당한 점 등에 비추어 보면, 위 자문수수료 5억 9,000만 원 중 면세사업에 관련된 부분은 전체 대출금에서 위 현지 법인에 대여된 141,895,679,481원이 차지하는 비율만큼 실지귀속되었다고 봄이 상당하고, 이에 따라 면세사업에 관련된 부분을 계산하면 그 금액은 418,592,254원 (5억 9,000만 원 x 141,895,679,481원/2,000억 원)이라 할 것이므로, 이를 전제로 원고에게 2006년 2기분 부가가치세 52,160,770원(41,859,225원 + 가산세 10,301,554원, 다만 10원 미만은 버림)을 부과 ・ 고지한 피고의 이 사건 처분은 적법하다 할 것이다.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.