Cho High Court Decision 2015No4045 ( December 03, 2015)

In the case of rental housing projects prescribed by relevant Acts as supplied by the State and local governments, the place in which the affairs concerning the projects are controlled shall be deemed the place of business

In the case of rental housing projects prescribed by the relevant laws as supplied by the State and local governments, the place in charge of the business shall be deemed the place in charge of the business, and the place in charge of the business of rental housing shall be deemed the place in charge of the business, and the place in charge of the business of rental housing shall not be registered as an independent place in a separate place, and the head of a branch office

Article 4 of the Value-Added Tax Act

2016Guhap5677 Revocation of Disposition rejecting a claim for rectification

○○ ○

○ Head of tax office

June 23, 2016

August 11, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant 20 x. 】. 】. 】 20 】 The plaintiff 】 year 】 the disposition rejecting the request for correction of the value-added tax ○○○○○○○.

1. Details of the disposition;

A. The plaintiff's status

The plaintiff is a juristic person established with the entrustment of the ○○ Minister to contribute to the stabilization of the livelihood and the improvement of the welfare of ○○○ and his/her bereaved family members, which is a business of paying benefits, collecting contributions, charges and other expenses, collecting ○○ Pension Fund, ○○○ Welfare Project, housing construction, supply and lease, and acquiring housing sites (Articles 1 and 16 of the ○○ Pension Act).

(b) An entrepreneur who concurrently operates tax, tax-free and non-taxable business and a per entrepreneur;

1) The Plaintiff concurrently operates a tax-free business that operates ○○ Rental Apartment across the country for the purpose of tax-free business, such as payment of ○○○○ Benefits, collection of expenses, lease of offices, operation of sports facilities, etc., and residential stability of homeless ○○○○○○○○○○○ Housing, and 20 x x.

2) Meanwhile, among the plaintiff's business place, AA branch, BB branch,CC branch, and D branch (hereinafter collectively referred to as "four branch offices of this case") are located in ○○○○○○ (hereinafter referred to as "the building of this case"), located in ○○○○, Seoul, which is owned by the plaintiff. The plaintiff's ○○ apartment business is located in A branch, ○○ area rental apartment business in the plaintiff's BB branch, ○ area, ○○ area rental apartment business in the plaintiff's BB branch, ○ area, ○○ area, and ○○ area, ○○ area rental apartment business in the plaintiff's Da branch (hereinafter referred to as "the lease apartment of this case"). The lease apartment business of this case is located in the plaintiff's ○○ area (hereinafter referred to as "the lease apartment business of this case"), and 'the rental apartment business of this case', and the related business

C. Plaintiff’s value-added tax return

The plaintiff reported and paid the value-added tax by adding up the four business places of this case that manage each apartment house for the rental apartment business of this case, which is a tax-free business during the taxable period of the value-added tax 】 (20 years).

D. Claim for correction of this case and disposition of this case

The Plaintiff is a business independent of the instant rental apartment business and the instant four branch offices, and when calculating the value-added tax of the instant four branch offices due to the Plaintiff’s mistake, the Plaintiff filed a request for correction with the content that the tax data of the instant rental apartment should be excluded from the total purchase price of the instant four branch offices and the tax-free purchase price in calculating the common purchase tax amount. The instant tax data should be excluded from the total purchase price of the instant four branch offices and the tax-free purchase price. The common purchase tax amount of the instant four branch offices in the instant case x 20 x x x. x 20 x (20 x year x 00 ○○○○).

For this reason, the defendant rejected the plaintiff's request for correction on the ground that 20 x (20 x year x year x year x year x no provision that taxpayers can choose at will (hereinafter referred to as "disposition in this case").

(e) Procedures of the previous trial;

The plaintiff is dissatisfied with the disposition of this case x 20 x. 】. 】. The Tax Tribunal has requested a trial to the Tax Tribunal, but the Tax Tribunal x 20 x x. 】. The above request for a trial was dismissed.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant rental apartment business site is not a general place for the Plaintiff’s business of the instant rental apartment business, but the location of the instant rental apartment. Even if the Plaintiff’s general place for business of the instant rental apartment business ought to be seen as the foregoing business place, the foregoing general place for business ought to be seen as the Plaintiff’s headquarters (○○ business office), rather than the instant four branch offices.

Therefore, the instant rental apartment business is independent business separate from the instant 4 branch offices, so the instant taxation data should not be added to the value-added tax at the place of business of the instant 4 branch offices. However, the Plaintiff erroneously reported and paid the instant taxation data in excess of the value-added tax of the instant 4 branch offices when calculating the common purchase tax amount of the instant 4 branch offices. Accordingly, when calculating the common purchase tax amount of the instant 4 branch offices, the instant taxation data should be excluded from the total purchase price and the tax-free purchase price.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant rental apartment house is located under anywhere

First of all, we examine whether the instant rental apartment business site should be deemed the location of real estate or the place which exercises overall control over business affairs.

In addition, Article 16-2 of the ○○ Pension Act provides that "the plaintiff may construct, supply and lease housing or acquire housing sites for ○○○ as prescribed by the Housing Act, the Housing Site Development Promotion Act, or the Special Act on Private Rental Housing, or the Special Act on Public Housing. In such cases, the plaintiff shall be deemed the State or a local government." In addition, Article 4 (1) 13 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter referred to as the "former Enforcement Decree of the Value-Added Tax Act") provides that "the place in which the affairs related to the business are overall" shall be "the place in which the State, a local government, or a local government association supplies a business under Article 38 (3) of the Enforcement Decree of the ○○ Pension Act (real estate rental business, etc.).

In full view of the above provisions, it is reasonable to view that the instant rental apartment business provided by the Plaintiff to ○○○ as a real estate rental business provided by the State or a local government, and its workplace is a place in charge of overall management of the business.

2) Where the overall control of the business is located

Next, we examine whether the place in charge of the instant rental apartment business should be deemed the Plaintiff’s headquarters (house business office) or the instant four branch offices.

In full view of the following circumstances, it is reasonable to see that the above facts and evidence are the four branches of this case, not the plaintiff headquarters (○○ Business Office) in light of the following circumstances, in view of the following circumstances, which are acknowledged as comprehensively considering the overall purport of pleadings in the statement in Gap evidence Nos. 6 through 8, and Eul evidence No. 3:

① According to the attached Table ○ of the Enforcement Rule of the Plaintiff’s internal regulations, the duties of division of the Plaintiff’s headquarters’s ○○○ Business Office are “management of rental housing, housing project performance management, rental housing real estate and property management, safety management, etc.” and the other duties entrusted by the headquarters are “management of facilities, such as rental housing occupants and commercial buildings, support, refund of rental housing deposit, overdue interest, relocation, and management of service companies.” According to the above provision, the Plaintiff’s housing business office performs planning, such as operation and management of rental housing, and each of the instant four branches including the instant four branch offices are mainly responsible for the instant rental apartment business.

② Article 4(1) of the former Value-Added Tax Act provides that "the value-added tax shall be reported and paid at each place of business," and Article 5(1) of the same Act provides that "the business operator shall register at each place of business with the head of the competent tax office within 20 days from the date of commencement of the business, as prescribed by Presidential Decree." The plaintiff has not registered the location of real estate of the rental apartment in this case as a separate place of business and 20 x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x

③ Under the Plaintiff’s delegation discretionary agreement, the head of the branch office has been designated as the discretionary authority in almost all the affairs, such as pension management, collection, and payment of wages, and in relation to rental housing, the head of the branch office has become the discretionary authority in terms of the allocation and management of rental housing, management of occupants, filing of a lawsuit, management of occupants’ charges, and management of leased facilities. In light of this, the instant four branch offices have overall control over the affairs of the instant rental apartment project (in relation to the purchase of ○○ rental housing, the instant four branch offices are separately engaged in the transaction related to the instant rental apartment separately from the construction companies, advertising companies, etc. located in each region, not the Plaintiff headquarters, and the Plaintiff appears to have managed the instant ○○ rental apartment project for each of the four branch offices of the instant four branch offices of this case and conducted all the affairs after separately receiving purchase tax invoices therefor).

3) Sub-determination

Therefore, it is reasonable to view that the rental apartment business of this case is not the location of each real estate, but the place in charge of overall business affairs, and that the above place is the four branch offices of this case. Therefore, the prior disposition of this case is legitimate on the same premise, and the plaintiff's assertion is without merit without further review.

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.