Whether the transaction is an interim payment condition

If the instant real estate was already completed at the time of the contract, it does not constitute an interim payment transaction even in cases where the price other than the down payment is paid in installments before the goods are delivered.

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

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

1. Details of the instant disposition;

다음 사실은 일부는 당사자들 사이에 다툼이 없고, 일부는 갑1호증, 갑2호증의1,2, 갑3호증의1,2, 갑4호증의1,2,3, 갑6호증, 갑7호증, 을1호증의1,2, 을2호증의1,2,3, 을4호증, 을8호증의 각 기재, 증인 전ㅇㅇ, 윤ㅇㅇ의 각 증언, 변론의 전취지를 종합하여 이를 인정할 수 있다.

가. 원고들은 1985. 5. 18. 원고들 소유인 ㅇㅇ시 ㅇㅇ동 ㅇㅇ번지 대 2,123.6평방미터 위에 지하2층, 지상6층, 연면적 11,255.3275평방미터인 건물을 신축하였다.

B. At the second half of 1987, the plaintiffs filed a value-added tax on September 31, 1987 with the total area of 4,55,60 square meters on the ground (the area of exclusive use, 3,551.805 square meters, the area of 1/2 of the real estate in this case from the following day) and the total 725.81 square meters (the area of exclusive use, 640.4625 square meters, and 2 real estate in this case from the following day) of 1/2 of equity of 1987 and the total 319,021,218 won.

다. 그런데, 원고들은 실제로는 이 사건 1부동산을 1988. 12. 23. 주식회사 ㅇㅇ공사에게 800,000,000원(부가가치세를 뺀 금액 727,272,727원)에 분양하면서, 계약금 140,000,000원은 그날에, 중도금 540,000,000원은 1989. 6. 30.에, 잔금 120,000,000원은 1989. 7. 31.에 받기로 하되 명도와 소유권이전등기는 잔금지급과 동시이행으로 하기로 약속하였고 실제로 소유권이전등기만 조금 늦게 하였을 뿐 (1989. 10. 4.)나머지는 서로 그와 같이 이행하였다. 또한, 원고들은 1989. 6. 30.무렵 이 사건 2부동산을 주식회사 ㅇㅇ산업에게 종전 채무에 대한 대물변제로 소유권을 이전하기로 약정하여 소유권이전등기 서류를 건네주었고, 그 뒤 위 회사가 1989. 8. 17. 소유권이전등기를 하였다(다만 두차례에 걸친 위 소유권이전등기는 모두 양도인과 양수인이 쌍방 합의하여 소외 황ㅇㅇ를 거쳐 양수인 앞으로 하였다).

D. Accordingly, the Defendant conducted a tax investigation on the Plaintiffs, which was difficult to conduct a tax investigation, and notified the Plaintiffs of the amount of KRW 727,272,727, and KRW 270,983,636, the total amount of KRW 270,636, and KRW 679,235,145, and the time of supply for the goods was omitted. The time of supply for the goods was also July 31, 1987, and KRW 2,00,000, KRW 88,30,567, which was August 17, 1989, which was the date of ownership transfer registration, on January 16, 1995, the Defendant imposed value-added tax on the Plaintiffs on KRW 88,30,567, which was imposed on January 16, 1995 (the next disposition of this case).

2. The parties' assertion

A. The plaintiffs' assertion

1) Since the transaction on the real estate of this case constitutes an interim payment condition transaction under Article 21(1)4 of the Enforcement Decree of the Value-Added Tax Act, the time of supply for the goods falls under the sale price for each of the goods promised to receive the payment, and the goods amounting to KRW 140,00,000 for the down payment of KRW 140,000 on December 23, 1988 are supplied for the part payment of KRW 540,00 on June 30, 1989. Therefore, the taxable period of value-added tax on the down payment and the part of the part of the part of the part of the intermediate payment becomes one year in 1989. Thus, the exclusion period of the imposition of national tax is five years from the expiration date of the final return of the tax base, and thus the exclusion period of the disposition of this case has expired.

2) The time of supply for the goods in the instant real estate transaction is not the date of registration of ownership transfer, but the date of registration of ownership transfer. Therefore, the taxable period of value-added tax on this portion becomes one of June 30, 1989, and the period of exclusion of the imposition of national tax is the same as that of July 25, 1994, and thus, the instant disposition of this case has expired.

B. Defendant’s assertion

1) In the transaction subject to interim payment under Article 21(1)4 of the Enforcement Decree of the Value-Added Tax Act, the transaction refers to a transaction that supplies goods not completed at the time of the contract within a reasonable period of time in the future. Thus, the transaction pertaining to real estate 1 of this case is not an interim payment condition transaction, but the time of supply for the goods, which are made available after full payment, shall be July 31, 1989. Therefore, the taxable period for value-added tax on this portion becomes two years in 1989. Since the period of exclusion from the imposition of national tax is five years after the date of the final return of the tax base, the disposition of this case is valid only before the expiration of the exclusion period for this portion.

2) Since the transaction of the instant 2 real estate is an accord and satisfaction, and in this case, the payment for ownership transfer is established, the time of supply for the goods ought to be seen as August 17, 1989, which is the date of registration of ownership transfer. Therefore, the taxable period of the value-added tax on this portion becomes two years in 1989, and the period of exclusion from the imposition of national taxes is also the same as the period of January 25, 1995, and thus, the instant disposition is valid even before the lapse of the exclusion period as to this portion.

3) Ultimately, the instant disposition is lawful as it is in accordance with the aforementioned grounds and relevant statutes.

3. Whether the instant disposition is lawful

(a) Relevant statutes;

(i) Time of supply for goods under the Value-Added Tax Act;

Article 6 (1) of the Value-Added Tax Act: The supply of goods shall be a delivery or transfer of goods pursuant to all contractual and legal grounds.

Article 9 (1) of the same Act: The time when the goods are supplied shall be the time provided for in the following subparagraphs. In case where the moving of the goods is required, if the moving of the goods is not required at the time when the goods are delivered, the time when the supply of the goods is decided, in case where the provisions of subparagraphs 3 and 2 cannot be applied at the time when the goods are made available:

Article 21 (1) of the Enforcement Decree of the same Act: The time of supply for the goods as provided in Article 9 (1) of the Act shall be as follows: If the goods are supplied on the basis of completion level payment or interim payment, or if the goods are continuously supplied on the basis of electricity or other supply units, the time of receiving each part of the price (the payment omitted)

Enforcement Rule of the same Act (amended by Ordinance of the Prime Minister No. 494 of March 31, 1995): The cases of the supply of goods or services under interim payment terms as provided in Article 21(1)4 of the Decree and Article 22 subparag. 2 of the Decree shall be as follows:

(ii) the period of exclusion from the imposition of national taxes;

Article 26-2 (1) of the Framework Act on National Taxes (amended by Act No. 4810 of Dec. 22, 1994): National taxes may not be imposed after the expiration of the period prescribed in the following subparagraphs. The income tax, corporate tax, inheritance tax, gift tax, gift tax, revaluation tax, unjust enrichment, value-added tax, defense tax, and education tax (general omission) for five years from the date on which the national tax is assessable (satis omitted)

Under Article 12-2 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13192, Dec. 31, 1990): The date on which national taxes under Article 26-2 (1) 1 and 2 of the Act may be imposed shall be any of the following dates: In cases of national taxes on which the tax base and amount of tax are reported on the following day of the deadline for filing a report or the deadline for filing a return on the tax base and amount of national taxes (hereinafter referred to as "in cases of national taxes reported on the tax base and amount of tax"), interim prepayment, preliminary return and the deadline for filing a revised return shall not

Article 19 (1) of the Value-Added Tax Act (amended by Act No. 5032, Dec. 29, 1995): The businessman shall report to the Government the tax base and tax amount payable or refundable amount for each taxable period within 25 days (50 days in the case of foreign corporations) after the end of the taxable period under the conditions as prescribed by the Presidential Decree

Article 3 (1) of the same Act: The taxable period for value-added tax on a business operator shall be as follows:

The first period: January 1 to June 30: The second period: July 1 to December 31.

B. Determination

1) The part concerning the instant real estate 1

Article 9(1) of the Value-Added Tax Act provides that the time of supply for the goods is to be deemed the time of supply for the goods if the goods are to be delivered, and that the time of supply for the goods is to be deemed the time of supply for the goods if the goods are to be transferred, such as the transaction of movable property under the Civil Act. In other words, the time of delivery for the goods is to be deemed the time of supply for the goods if the transfer of the goods is not required under Article 9(1)2 of the Value-Added Tax Act, which provides that the time of supply for the goods is to be deemed the time of supply for the goods if the goods are made available, such as the transaction of real estate under the Civil Act (However, the land is exempt from the value-added tax pursuant to Article 12(1)12 of the Value-Added Tax Act), shall be deemed the time of supply for the goods if the goods are delivered or the ownership transfer is to be made available for the buyer, and Article 21(1)3 of the Enforcement Decree of the Value-Added Tax Act shall be deemed the time of supply for the goods separately determined.

In addition, considering that Article 21 (1) 4 of the Enforcement Decree of the Value-Added Tax Act provides both the transaction subject to completion standard or interim payment condition, it is different in that the transaction subject to completion standard or interim payment condition is paid in installments at a certain period, regardless of the degree of completion of the goods, in proportion to the completion of the goods. It is reasonable to view that the goods are completed and supplied only after the transaction contract is completed and their completion and supply are over a long period of time so that it is difficult to determine the time of supply of the goods. However, even if there is no restriction on the goods subject to interim payment condition transaction under Article 9 (1) 1 of the Enforcement Decree of the Value-Added Tax Act, it shall be interpreted that the goods already completed at the time of the transaction contract shall be excluded from the transaction subject to interim payment condition in light of the above legislative intent of the upper law. Accordingly, as seen above, as long as the real estate transaction contract of this case was completed at the time of delivery of the goods other than the down payment condition, even if the contract was concluded before the delivery of the goods, it can not be settled.

Therefore, the exclusion period of value-added tax against this is the same as January 25, 1995, which was five years from January 25, 1990 based on the final return of tax base. On the other hand, the disposition of this case was made on January 16, 1995, prior to the expiration of the exclusion period. Thus, the exclusion period of value-added tax is lawful.

2) The part concerning the instant 2 real estate

As seen earlier, the time of supply for goods in a real estate transaction (except for the land) generally refers to the time when the goods are made available by means of surrenderation or registration of transfer of ownership. However, in a case where the other benefits are realizing the ownership transfer of the real estate in lieu of the original obligation, if the other benefits are the ownership transfer of the real estate, the supply of the goods shall be deemed to have been made only when the registration of ownership transfer is completed, and since the existing obligation is extinguished upon the completion of the registration of ownership transfer (see Supreme Court Decision 91Nu8432 delivered on November 12, 191).

Therefore, the time of supply for the goods in the instant two real estate transactions is July 31, 1989, which is the time of the transfer of ownership as a substitute payment, and the period of exclusion of value-added tax for this is as of January 25, 1995, as in the instant one real estate transaction. On the other hand, the instant disposition of imposition was made on January 16, 1995, prior to the expiration of the exclusion period, and thus lawful.

In addition, there is no other reason for illegality in the disposition of imposition of the first and second real estate in this case.

4. Conclusion; and

Therefore, the plaintiff's claim is improper, so it is dismissed and it is so decided as per Disposition.