Early High Court Decision 201J 1434 (Law No. 13, 2011)

It is determined that the Plaintiff’s instant officetel was supplied for self-supply by converting it to residential use.

The lessee of the instant officetel asserted by the Plaintiff is a representative of the Plaintiff (or the Plaintiff) and there is no specific evidence that the Plaintiff was paid monthly rent as its representative, and the instant officetel has a structure suitable for residence, and the Plaintiff’s family members had an address in the instant officetel. In light of the following: (a) the Plaintiff used the instant officetel for residential purposes; and (b) the instant officetel had an address in the instant

Article 6 of the Value-Added Tax Act

Article 15 of the Enforcement Decree of the Value-Added Tax Act

2011Guhap3727 Disposition of revocation of Value-Added Tax Imposition

XX Kim

Head of the High Tax Office

June 19, 2012

July 17, 2012

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 000 against the Plaintiff on January 3, 2011 shall be revoked.

1. Details of the disposition;

A. On December 5, 2002, the Plaintiff: (a) was a person who registered as a real estate rental business and registered as a business operator; and (b) was sold in lots from Yongsan-gu, Yongsan-gu, Busan-si, 1330 Dong 101 Dong 1001 Dong 1001 (hereinafter “the instant officetel”); (c) during the taxable period of value-added tax from 2 years to 2 years 2002, the Plaintiff reported 100 won equivalent to 10% of the sales price of the instant officetel during the taxable period of value-added tax as an input tax amount and was refunded.

B. From the first taxable period of the value-added tax in 2007, the Defendant used the instant officetel for residential purpose, and imposed on January 3, 201 the Plaintiff KRW 000 of the value-added tax for the first taxable year of 207 (hereinafter referred to as the “instant disposition”). Article 6(2) of the Value-Added Tax Act (amended by Act No. 8826, Dec. 31, 2007; hereinafter the same shall apply) and Article 15(1)1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20626, Feb. 22, 2008; hereinafter the same shall apply) on the Plaintiff on January 3, 201 (hereinafter referred to as the “instant disposition”).

C. On April 7, 2011, the Plaintiff appealed to the Tax Tribunal, but the said claim was dismissed on June 13, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, 2-2, Gap evidence 3, Eul evidence 1, Eul's each entry, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

After acquiring the instant officetel, the Plaintiff only leased it for business purposes to the O industry or Y, a lessee, to the present day, and the instant officetel was not used for residential purposes. Therefore, the Defendant’s disposition on a different premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

(c) Fact of recognition;

(1) The content of the instant officetel monthly rent contract presented by the Plaintiff is as follows. The lessee’s O industry is the Plaintiff’s children, and Y is the representative director. Y is the Plaintiff.

(2) The status of the Plaintiff’s transfer of resident registration after the acquisition of the instant officetel is as follows.

(3) The internal structure of the instant officetel is as indicated in the annexed drawing. A written statement (No. B. 8-1) prepared by a public official belonging to the Defendant after visiting the instant officetel to conduct an on-site investigation (the document No. 8-1) is as follows.

- home appliances for kitchen use, such as meal and kimchi cooling, were installed in the kitchen which seems to be opened by the entrance, and the entrance left by the left side of the entrance, and there was a wall be no less than 40 persons on the wall of a wall which appears to be a small wave, tteb and a small wave.

- The rear room of the wall installed by TV using the wall bed shall be such that it can be seen that it is used as a string, high-class bed with bed, a string, and a stringer cosmetic, so it seems that there is a problem of privacy infringement.

- There is a space available for cremation due to cosmetics on the inside and outside.

-TV located on the right side of the lower entrance of the warehouse, as well as any other room with computers, electromagnetic systems, etc.;

-It shall be memory that only a vehicle registered in the name of the spouse and children of the taxpayer on the Resident Management Card, as confirmed by visiting the management office;

- A residential household, which can be seen as a high-class household, not a book and a glnet office building, is equipped with a residential household, such as a flick, flick, table, kimchi cooling house, etc., with a sound system for personal use, and a taxpayer (Plaintiff) appears to have used for residential purposes, such as smelling female cosmetics around the bedrooms.

(4) As to the rent of the instant officetel, the Plaintiff did not file a value-added tax return during the taxable period from No. 1 to No. 1, 2010 for the instant officetel, or filed a non-sale report, but filed a return after February 28, 201, which was subsequent to the instant disposition.

(5) In the integrated national tax network (TIS), the location of the O industry, the place of business of the Y, the corporation, etc., is indicated in the Goyang-gu P.S. P. 1329-1.

[Based on the recognition] The evidence Nos. 4-1 through 3, Eul evidence Nos. 2 and 3-1 through 3, Eul evidence Nos. 4 and 5, Eul evidence Nos. 6-1 through 5, Eul evidence Nos. 8-1 and 2, and the purport of the whole pleadings

[Evidence Evidence] The statement of Gap evidence No. 8, the witness's testimony

D. Determination

In full view of the following circumstances revealed as seen earlier, the Defendant’s disposition imposing value-added tax is deemed legitimate on the ground that the Plaintiff’s use of the instant officetel for residential purpose constitutes a case where the Plaintiff supplied goods acquired in connection with his/her own business to a person exclusively for the tax-free business. Therefore, the Plaintiff’s assertion on a different premise is without merit.

(1) The Plaintiff submitted a monthly rent contract (Evidence No. 4-1 to 3) on the ground that the instant officetel was leased for business purposes. However, the representative of the O industry asserted by the Plaintiff as the lessee is the Plaintiff, and the representative of the YY corporation, the Plaintiff is the Plaintiff, and all the above two enterprises are recorded as having a place of business in the YY-1329-1, Yongsan-gu, Busan Metropolitan City. In addition, the Plaintiff did not report the value-added tax on the amount of the rent from the first to the first taxable period of the value-added tax in 2006, and did not present specific evidence that the Plaintiff did not receive monthly rent from the above lessee. Therefore, it is difficult to trust the contents of the said monthly rent contract, etc. submitted by the Plaintiff.

(2) The instant officetel has a structure suitable for residence rather than for office use as written in the annexed drawing. The circumstance that, in the field investigation of the instant officetel by a public official belonging to the Defendant, the sound equipment, etc. for residential households or personal use, such as sofinites, bed, sediment, food table, kimchi cooling, etc., was discovered and used for residence.

(3) As seen earlier, the Plaintiff’s family members, including the Plaintiff, had a resident registration for at least one year on the instant officetel with a residential structure.

3. Conclusion

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