Incheon District Court-2013-Gu -10971 ( April 24, 2015)

The value of donated property in the BOT method shall be the subsequent rental fee.

This case's building is subject to the transfer of ownership after the expiration of the lease term and the tax base should be presumed to be the appraisal price of the land rental services provided by the plaintiff.

Article 13 of the Value-Added Tax Act

2015Nu4559 Revocation of Disposition of Imposing corporate tax, etc.

Then, Incheon ○○ Corporation

○ Head of tax office

Incheon District Court Decision 2013Guhap10971 Decided April 24, 2015

March 8, 2017

June 7, 2017

1. The judgment of the first instance, including the Plaintiff’s claim extended and reduced in this Court, shall be modified as follows:

A. On October 1, 2009, the Defendant’s imposition disposition of KRW 73,710,292,190 in excess of KRW 73,710,292,190 in the imposition disposition of KRW 14,964,692,314 in the year 2008 against the Plaintiff (amount corrected), the amount exceeding KRW 9,762,73,524 in the imposition disposition of KRW 9,762,73,524 in the business year 2005, the amount exceeding KRW 5,239,493,618 in the imposition disposition of KRW 7,778,325,345 (amount corrected) in the business year 2006, and the amount exceeding KRW 5,239,493,618 in the imposition disposition of corporate tax in the business year 207, KRW 3,446,030,311 (amount corrected).

B. The plaintiff's remaining claims are dismissed.

2. 3/5 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant.

1. Purport of claim

The Defendant’s imposition of KRW 73,628,841, and 196 of the imposition of KRW 73,628,841, and 314 of the first-year value-added tax (amount corrected) for 2008 against the Plaintiff on October 1, 2009; the imposition of KRW 690,280,325,530 of the corporate tax for 2005 business year; the imposition of KRW 778,78,325,345 (amount corrected); and the imposition of KRW 3,46,030,311 (amount corrected) for 207 business year (amount corrected); and the imposition of KRW 790,280,530 of the corporate tax for 206 business year; and the imposition of KRW 3,46,030,311 (amount corrected) for 207 (the Plaintiff extended and reduced the purport of the appeal).

2. Purport of appeal

A. The plaintiff

The judgment of the court of first instance that ruled against the plaintiff shall be revoked. The disposition of imposition of KRW 376,412,398 among the disposition of imposition of KRW 74,005,253,594 (amount corrected) against the plaintiff on October 1, 2009, and KRW 14,306,036,990 among the disposition of imposition of KRW 14,964,692,314 (amount corrected) of KRW 14,96,964,692,314 (amount corrected), and KRW 7,043,297,625,625, corporate tax for the business year 2006, KRW 7,778,325,345 (amount corrected), and KRW 3,46,030,311 (amount corrected) of corporate tax for the business year 207.

B. Defendant

The part against the defendant in the judgment of the court of first instance shall be revoked. The plaintiff's claim corresponding to the revocation shall be dismissed.

1. Quotation, etc. of judgment in the first instance;

The reasoning of this court's judgment is as stated in the reasoning of the judgment of the first instance except for the modification of the corresponding part of the judgment of the court of first instance as follows 2. Thus, it shall be cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Revised parts

○ 4 2 pages 2, “(the tax amount for which the plaintiff seeks revocation by issue is as shown in Appendix 6)”

○ 5. From 1 to 6.

○ 5 7, 13, and 21 'C', 'D', 'Ma', 'Ma', 'B', 'C', and 'D', respectively.

○ Change of 6 pages 8,000 to 8,000,000

○ 6. Up to 12.00 up to 19.0

“B) The point at which the period of use of the land for the instant building expires shall be determined by various Acts and subordinate statutes.

Even after the expiration of the number of years, it is unfair to evaluate the market price as about 37% of the newly built market price because it does not reflect the actual value. Since the Re-Procurement Cost Law used for the valuation of the buildings of this case is the method of calculating the price premised on the new construction or creation of the buildings in this case, the disposition of this case based on the amount assessed by this method is illegal.

C) Even if there is a nature of subsequent payment of rent on the part of the agreement to transfer the ownership of the instant building, it shall be supplied with land leasing services and shall receive any other consideration than money.

Since the market price of the land lease service supplied by the Plaintiff during the period of value-added tax should be the tax base of value-added tax, the disposition imposing value-added tax for calculating the market price of the instant building at the time when the lease contract term expires by calculating the calculated tax base during the lease contract period is unlawful.

D) In calculating the corporate tax base, the Defendant, at the expiration of each business period, took the instant disposition in proportion to the market price of the instant buildings in each taxable period, which was unlawful as a disposition that did not consider the time value of currency.

○ From 7 pages 2 to 9, as follows:

“A) Considering the following facts and circumstances as a whole, whether the transfer of ownership of the instant building constitutes the payment of rent after the expiration of the lease period, it is reasonable to deem that the instant building, which the Plaintiff agreed to acquire ownership after the expiration of the lease period, constitutes a rental fee for the Plaintiff’s land lease. It is difficult to view that the Plaintiff’s transfer of ownership of the instant building was merely a dispute resolution method to facilitate the removal of the instant building. The Plaintiff’s assertion on this part is without merit.

① If the Plaintiff was to easily remove the instant building after the expiration of the lease term, it would be reasonable to conclude an agreement with the instant lessee not in the form of acquiring the ownership of the instant building from the instant lessee, but in the purport of granting the Plaintiff the right to directly remove the instant building. As such, the Plaintiff agreed to have the instant building transferred its ownership from the instant lessee after the expiration of the lease term. However, the Plaintiff would remove the building only when the Plaintiff needs to do so.

② The instant buildings are anticipated to exist even after the expiry of the lease period of five to fifty years. According to the appraisal results on the instant buildings, the aggregate value of the instant buildings after the expiration of the lease period reaches KRW 177,052,766,330.

According to Article 8(2) of the Civil Act, “The State-owned land investment inducement plan (No. 3) in Incheon International ○○ International Business Area” is based on the premise that the instant building exists even after the expiration of the lease term (Article 8(3) of the Civil Act). Article 6 of the concession agreement with the ○○ hotel network (hereinafter “K○○”) of the same Act provides that the State-owned land invested and constructed by the project implementer may continue to use the facility after consultation with the Plaintiff, if the project implementer intends to use and profit from the facility after the expiration of the lease term (the lease term), and the project implementer is obligated to transfer ownership (Article 8(2) of the same Act), and the project implementer may continue to operate the State-owned facilities unless there is any special defect in the operation of the facility after the ownership transfer (Article 8(3) of the same Act).

B) Feasibility of appraisal of the instant buildings

Article 31 of the Public Notice of Values and Appraisal of Real Estate Act provides for matters concerning the appraisal and assessment of property, such as land, land, buildings, movable property, etc., and the principles and standards to be observed by an appraisal business entity in order to ensure fairness and rationality in the appraisal and assessment of land, etc., and accordingly, the rules on appraisal and assessment provide for the principles and standards to be observed by an appraisal business entity when an appraisal and assessment is conducted by an appraisal business entity.Article 11 of the rules on appraisal and assessment provides that an appraisal business entity shall conduct an appraisal in accordance with the cost method, comparative method and profit method, and Article 15 provides that an appraisal business entity shall apply the cost method when an appraisal and assessment of a building is conducted in accordance with the cost method, and shall follow

In full view of the purport of the argument in Gap evidence No. 27, the plaintiff requested an appraisal of the building of this case, the Korea Appraisal Board's appraisal ○○ shall be based on the rate of increase in the production price and the rate of increase in construction cost, based on the re-financing cost for the building of this case at the time

Considering the fact that the value at the time of expiration of the period of use of land in this case was assessed as KRW 177,052,766,30 by means of a provisional revision after calculating the cost of refinancing at the time of expiration of the period of use of land in this case, the said appraiser assessed the value of the building in this case according to the cost method, which is the method of appraisal of the building under Article 15 of the Rules on the Appraisal and Evaluation, as to the method of determining the appraised value, and unlike the appraisal of the general aggregate buildings, the appraisal of only the building should be assessed except land, and similar cases after the expiration of the period of time, and the opinion that it was difficult to calculate the net profit

In light of the provisions of the above laws and regulations regarding appraisal method, it does not seem to have been erroneous in calculating the above value of the building of this case. Furthermore, the Plaintiff’s assertion that the appraisal value of the building of this case is excessive on the ground of the expiration of the above service life is not accepted, since the service life of the building claimed by the Plaintiff is the numerical value of the purpose of including depreciation, etc. of the building at early costs under the accounting principles of repair and accounting, and it

C) Whether this case’s imposition of value-added tax is unlawful

As seen earlier, in a case where the Plaintiff, a lessor, had the lessee of this case newly build a new building on the land and use it for a certain period, and then had the ownership of the building of this case transferred without compensation, the building constitutes a price other than money for the lease of land, and thus includes the amount of rent income.

former Value-Added Tax Act (Amended by Act No. 9915, Jan. 1, 2010; hereinafter the same shall apply)

Article 13(1) main sentence of Article 13(1) provides that "the tax base of value-added tax on the supply of goods or services shall be the sum of the values in each of the following subparagraphs." subparagraph 1 provides that "if the payment is made in money, the payment shall be made in such money, and if the payment is made in addition to money, the market value of the goods or services supplied by the person himself/herself." Thus, the value-added tax base for the first period of 2008 shall be calculated by adding up the market value of the parts related to the instant building among the lease services actually supplied by the plaintiff during the pertinent taxable period pursuant to Article 13(1)2 of the former Value-Added Tax Act (see Supreme Court Decision 2008Du18939, Jun.

However, since the Defendant imposed value-added tax on the aggregate of taxable periods calculated by simply dividing the market price by the number of months during the contract period at the expiration of the business period of the instant building, the Defendant’s imposition of value-added tax for the first period in 2

As to this, the defendant's market price of the portion of the land rental service supplied by the plaintiff during the taxable period is ultimately the "market price of the portion of the land rental service relationship with the building in this case".

However, Article 49-2 of the Enforcement Decree of the Value-Added Tax Act provides that "if a business operator supplies real estate rental services over two or more taxable periods and receives the fees in advance or in advance, the total amount of each taxable period divided by the number of months during the contract period shall be the tax base," and the above provision provides that "if the business operator receives the fees in advance or in advance, for the supply of real estate rental services over two or more taxable periods, the total amount of each taxable period shall be the tax base," i.e., the case where the amount received the fees in cash is the tax base, i., the case where the payment in consideration is provided for the supply of real estate rental services over two or more taxable periods, and the payment in consideration is received in money and in addition to money, the above provision shall not be applied. Therefore, the defendant's assertion

Whether a disposition is lawful is determined depending on whether it exceeds a legitimate tax amount. The parties concerned may submit objective tax bases and materials supporting the tax amount until the closing of arguments in the fact-finding proceedings, and when a legitimate tax amount to be imposed is calculated based on such materials, only the portion exceeding the legitimate tax amount shall be revoked.

According to the purport of Article 13(1)1 and 2 of the former Value-Added Tax Act, the tax base of value-added tax is the aggregate amount of the market price of the part related to the building of this case among the land leased services supplied by the Plaintiff to the actual payment of the rent of the Plaintiff. However, with respect to the assessment of the market price of the land leased services supplied by the Plaintiff corresponding to the portion related to the price of the building of this case, the time when the Plaintiff acquired ownership of the building of this case and the time when the period of use of the building of this case expires. Since the market price of the building of this case is the price under the name of the future at which the market price of the building of this case at the time when the period of use of the building of this case expires reflecting the future monetary value at the time of the expiration of the period of use of the building of this case, it is not easy to calculate the estimated price at the time of taxation by reflecting the time value of currency in order to estimate the reasonable price of the building of this case for the purpose of taxation. However, in principle, it is unreasonable to deem that the Plaintiff and the land rent of this case.

Therefore, according to the health team, the appraisal result of this court's appraiser Kim-○ and the purport of the entire pleadings, since the appropriate rent for the first term portion of 2008 of the land in this case is a total of 2,077,590,500 won, the amount of 81,450,994 won calculated based on the tax base is the legitimate tax amount on the plaintiff's land lease service among the value-added tax for the first term portion of 2008. Thus, the defendant is subject to the imposition of the first term value-added tax for the plaintiff on October 1, 2009.

Of KRW 74,005,253,594 (amount corrected), 236,493,419 (amount corrected) (i.e., KRW 317,94,413 on the Plaintiff’s land lease services in the disposition of this case) must be revoked in an unlawful manner.

D) Whether the disposition of the instant corporate tax was unlawful

Article 71(1) of the former Enforcement Decree of the Corporate Tax Act, upon delegation under Article 40(2) of the former Corporate Tax Act, provides that "the business year in which earnings and losses accrue from the lease of assets shall be the business year which includes the following dates: Provided, That where the period for payment of rents exceeds one year, an amount equivalent to the rental fees and expenses corresponding to the period that has already passed shall be included in the gains and losses for the relevant business year, respectively." This provision aims to resolve the problems arising from inclusion of losses only and non-Inclusion of profits in the amount of deferred taxation, thereby promoting the rationalization of profits and losses for each taxable period (see Supreme Court Decision 2008Du21713, Oct. 13, 201).

On the other hand, Article 72(1) of the former Enforcement Decree of the Corporate Tax Act by delegation under Article 41(1) of the former Corporate Tax Act provides for the method of calculating the acquisition value of purchased assets, manufactured, produced, or constructed assets, assets, stocks, etc. by investment in kind under subparagraphs 1 through 4, and Article 72(1) of the former Enforcement Decree of the Corporate Tax Act provides that the acquisition value of the assets acquired by means other

As seen earlier, the Plaintiff’s acquisition of ownership of the instant building after the expiration of the project period constitutes a subsequent payment of land rents for the instant building site. According to the foregoing provision, the assessment of each corporate tax for the business year 2005, 2006, and 2007, which is the object of the instant disposition, shall be included in gross income in calculating the tax base of each corporate tax for the pertinent business year pursuant to the proviso to Article 71(1) and Article 72(1)5 of the former Enforcement Decree of the Corporate Tax Act (see Supreme Court Decision 2008Du18939, Jun. 30, 201).

In fact, since the time when the Plaintiff acquired the ownership of the instant building and acquired the rent is when the period of use expires, it is necessary to calculate the estimated price at the time of taxation by reflecting the time value of money in order to estimate the reasonable building price for the purpose of taxation as seen earlier. Therefore, it is reasonable to view that the market price of the instant building deemed as part of the rent in the pertinent business year is the amount divided in proportion to the market price of the instant building at the time of the expiration of the period of use by reducing the market price of the instant building at a reasonable interest rate and deduction

However, in calculating "the part corresponding to the business year" among the market price of the building of this case, the defendant did not deduct intermediate interest without considering the time value of money.

The amount of each appraisal of the instant buildings is simply divided according to the terms of the land lease contract, and the rent for each pertinent business year was calculated by adding up the proportionally distributed amount to the amount of money that the Plaintiff actually received by the Plaintiff. This is contrary to the principle of vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-vis-

Therefore, the part of the disposition of this case which was included in the taxable income for each business year is unlawful, without deducting intermediate interest from the Defendant.

The materials submitted by the Defendant alone cannot calculate the reasonable amount of tax on the land lease service provided by the Plaintiff among the dispositions in this case. This court also cannot calculate the reasonable amount of tax on October 1, 2009, since the Plaintiff and the Defendant did not submit any materials to confirm the interest rate for the deduction of the intermediate interest. Thus, the Defendant’s imposition of corporate tax against the Plaintiff on October 1, 2009, 1,895,094,456, and 1,617,986,824 of the disposition of imposing corporate tax for the business year 2006, among the disposition of imposing corporate tax for the Plaintiff on October 1, 2005, shall be revoked.

○ 10th 7th 10th 7th 7th "the entry," adding "the cost of "the land site creation work" and "the golf course construction work" to "the cost of 1,33.1 billion won" and "the cost of 1,22 billion won"

○ 10 pages 2 below the 10 table "any amount spent by ○○ for the creation of the above golf course" shall be amended to "the Plaintiff paid".

○ 12 Up to 13 pages 11 up to 14 up to 14 pages as follows:

Considering the following facts and circumstances as a whole, each evidence Nos. 6, 7, and 35, and the fact-finding process and the purport of the entire pleadings with respect to the Ministry of Land, Infrastructure, and Transport of this Court, the Plaintiff cannot be deemed to have received the cost of creating the instant golf course at the time of completion of the instant golf course construction. Therefore, the part of the Defendant’s disposition that calculated the corporate tax and value-added tax base by deeming the cost of creating the instant golf course as the user fee as the amount of the instant golf course construction cost, and the Defendant’s disposition of imposing corporate tax on the Plaintiff on October 1, 2009 for the business year of 2005 should be revoked.

① The report (No. 35) on the plane arrangement of the Incheon ○○ Construction Master Plan (after the second phase), which was drafted on December 22, 2008, states that the instant golf course site is a strategic reservation that is linked with the third terminal development plan and may be additionally developed. The instant golf course site is designated as a third terminal construction site even in the Incheon ○ Construction Master Plan (Evidence No. 7) on March 2009, the land adjacent to the instant golf course site.

② The Ministry of Land, Infrastructure and Transport respondeded to review the utilization plan including the site of the instant golf course as part of reviewing the necessity of airport expansion according to the trend of increase in the demand for Incheon ○○ aviation.

③ The concession agreement entered into between the Plaintiff and ○○ (No. 6) stipulates that the concessionaire’s duty to transfer or remove the facility concurrently upon the expiration of the period of use of the land (Article 10), and stipulates that the concessionaire’s duty to pay the deposit for removal of the facility upon the completion of the project (Article 25(1)). In the process of concluding the concession agreement, the Plaintiff’s obligation to transfer the site of the instant golf course and use it for the purpose of the golf course is not determined

④ No evidence was submitted to the effect that the market price of the instant golf course site, which is the land owned by the Plaintiff, has increased due to the construction of the instant golf course site. Even if such a market price has been increased, if the Plaintiff demanded restitution of the instant golf course site to ○○ in order to use the instant golf course site as the third terminal site, the Plaintiff cannot be deemed to have obtained profits equivalent to the construction cost of the instant golf course. Therefore, it is difficult to evaluate that the Plaintiff received the construction cost of the instant golf course at the time of completion of construction of the instant golf course, the determination of restitution of which

○ 22. 5. to 11.......................................

○ 23 Up to 24 pages 24 up to 18 up to

(8) According to the purport of each statement and pleading of evidence No. 18 through 21 of the Ministry of Construction and Transportation, the Plaintiff constructed the instant road on the condition of permission for reclamation of public waters for the construction of Incheon Metropolitan City. The Plaintiff decided to vest in Incheon Metropolitan City at the same time as the completion of the construction of urban planning facilities after the determination of urban planning facilities. ② The Plaintiff completed the registration of preservation of ownership on November 9, 2001 by the Incheon District Court No. 39128, which was received on November 9, 2001. ③ The Plaintiff requested the Plaintiff to take over the instant road on the ground that the Plaintiff’s construction and management of the instant road should be maintained and managed by the State or the Plaintiff. ④ The Plaintiff did not hold any dispute over the instant road, the Ministry of Construction and Transportation, the Ministry of Aviation and Transportation, the Aviation Safety Headquarters, the Plaintiff, and the Plaintiff’s holding of the instant road on March 27, 2003. It is reasonable to acknowledge that the Plaintiff did not hold the instant road again from the Incheon Metropolitan City 206.

However, even though the original road of this case was planned to be donated to any of the State or Incheon Metropolitan City, it is reasonable to view that the road of this case constitutes the Plaintiff’s fixed assets for business (construction) in the calculation of corporate tax base, since the Plaintiff completed registration of preservation of ownership and continued to own, maintain, and manage the road of this case for 16 years or longer from the completion of construction of the road of this case around October 1, 2000, and since it appears that the donation of the road of this case was de facto impossible for 16 years or longer from the date of the closing of argument in this court, it is reasonable to view that the road of this case constitutes the Plaintiff’s fixed assets for business (construction). Therefore, since the Defendant’s disposition of this case regarding the road of this case as capital expenses in the calculation of corporate tax base, it is unlawful in the portion of non-deductible of depreciation costs (each of 753,063,321 won) of the corporate tax of this case as to the Plaintiff on October 1, 2009.

○ 27 9 pages "a search equipment" shall be amended to "airport facilities".

○ 30 30 3

(j) Sub-committee;

Therefore, the defendant's imposition of value-added tax for 1, 208 1,05, 74,05, 253, 294, 297, 205, 297, 294, 297, 364, 297, 297, 197, 294, 367, 297, 3964, 297, 297, 2963, 467, 3965, 2964, 297, 367, 2964, 205, 3967, 297, 3696, 294, 365, 3696, 297, 3696, 405, 3696, 3965, 3696, 2964, 3967, 3965, 2967, 39696

3. Conclusion

If so, the plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as there is no reason. Since the judgment of the court of first instance partially different conclusions are unfair, the judgment of the court of first instance, including the plaintiff's extension and reduction claims, shall be modified as set forth in Article 1-A and Paragraph (b) of the Disposition.