propriety of the disposition of calculating the amount of tax to be paid in inventory by conversion of taxation type

It cannot be deemed that a general taxable person who has reported the waiver of the special taxation may not be deemed to have implicitly expressed the declaration of the waiver of the special taxation in the purport that the return of the special taxation shall be made only without filing the return of the waiver of the special taxation despite the conversion of the type

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

Supreme Court Decision 88Nu7064 Delivered on November 10, 1989

The plaintiff's claim is dismissed. All costs of lawsuit shall be borne by the plaintiff.

1. 성립에 다툼이 없는 갑제1호증(납세고지서), 갑제2호증(결정서), 갑제3호증(심판청구서), 갑제4호증의 1(국세심판결정통지), 2(결정서), 갑제5호증(사업자등록증), 갑제6호증(신고서), 갑제12증내지 갑제14호증, 갑제19호증내지 갑제31호증(각 부가가치세예정 및 확정신고서), 환송전 당심증인 최ㅇㅇ의 증언에 의하여 진정성립이 인정되는 갑제7,8호증(각 임대차계약서), 갑제9호증(전세계약서), 갑제10, 11호증(각 입주사실확인서)의 각 기재와 위 증인의 증언에 변론의 전취지를 종합하면, 원고는 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 소재 ㅇㅇ빌딩의 임대업을 영위하는 사업자로서 1983. 10. 23. ㅇㅇ시 ㅇㅇ구청장으로부터 건물(지하 1층, 지상 3층, 연건평 2,313.23제곱미터)신축허가를 받아 1983. 12. 2. 피고에게 부가가치세 일반과세자로 신고하고, 1983. 12. 8. 일반사업자로 사업자등록증을 발급받았으며, 건물신축시의 공사원가에 대한 매입세금계산서를 교부받아 1983. 2기 부가가치세 확정신고시에는 매입부가가치세 금 34,376,185원등 합계 금39,454,710원의 부가가치세를 환급받은 사실, 위 신축건물은 1984. 6. 5.자로 준공되었는바, 피고는 원고의 1984. 1기분 부가가치세 과세표준 금368,000원을 기준으로 하여 1984년 1역년 공급대가를 환산한 금액이 부가가치세법 시행령(1988. 6. 9. 대통령령 제12459호로 개정되기이전의 것) 제74조 제1항 제1호 의 금24,000,000원에 미달하고 부가가치세법 제30조 의 규정에 의한 과세특례포기신고가 없었다는 이유로 1985. 1. 1.부터 과세유형이 일반과세자에서 과세특례자로 전환된것으로 보아 감가상각재산에 대한 재고납부세액을 계산하여 1986. 9. 1.자로 1985. 1기분 부가가치세 금19,288,310원으로 경정결정하여 부과고지(이하 이 사건 부과처분이라한다)한 사실을 인정할 수 있고 달리 반증이 없다.

2. As to the defendant's assertion that the disposition of this case was legitimate on the grounds of the above disposition and the applicable provisions of law, the plaintiff

(1) Article 74-3(3) of the Enforcement Decree of the Value-Added Tax Act provides that the deductible input tax on the inventory goods and depreciable assets at the time of the conversion of the type of taxation shall be paid in addition to the payable tax amount, as in the case of this case, by limiting the predictability of taxpayers by re-payment of the refundable tax amount, and undermining the principle of no taxation without the delegation of the parent law, thereby violating the principle of no taxation without the delegation of the parent law, thereby imposing the deductible input tax

(2) Even if the above provision is valid, it is objectively apparent that the building of this case does not meet the requirements for special taxation because it is the annual scale, and only some of the stores have been leased after the completion of the building, and the defendant's report is deemed to be illegal to have exceeded the scope of the discretionary authority to recognize that the building of this case is a special taxable person under Article 25 of the Value-Added Tax Act, based on normal lease performance for a period for which the marina rent agreement was not

(3) Article 74-2 (2) of the Value-Added Tax Act provides that the head of the competent district tax office shall notify the person subject to special taxation at least 20 days prior to the commencement of the taxable period and deliver the same type of conversion to the person subject to special taxation by the day prior to the commencement of the taxable period, even in cases where the person subject to special taxation is converted to the person subject to special taxation as well as to the person subject to special taxation. This provision provides that the person subject to special taxation shall be a compulsory provision in order to facilitate the performance of the tax liability, such as providing the person with an opportunity to report the waiver of special taxation, etc., and in this case, the defendant shall not be allowed to commence the time of application of the converted type of taxation, on the premise that the period of application of the above type of conversion is commenced without such notification. Thus, the disposition of this case, which was made on the premise that the period of application of the above type of conversion is illegal and even if the conversion

(4) Since the Plaintiff had continued to register as a general taxable person from the beginning of the business, and to file the scheduled and final return of value-added tax, this is not a declaration of intent to be subject to special taxation, but a implied expression of intent to be subject to taxation as a general taxable person, and thus, the instant disposition of taxation as a special taxable person is unlawful from this point.

(5) In addition, the plaintiff initially decided to conduct business registration as a general taxable person without permission by the defendant considering the size, etc. of the building of this case. In the preliminary return of the value-added tax for the second half of the year 1984, the defendant had been aware or could have known that the plaintiff had already satisfied the requirements of the special taxable person, but continued to recognize the plaintiff as a general taxable person until the preliminary return of the value-added tax for the second half of the year 1986, and the subsequent censorship of the business registration certificate was conducted. Thus, it was recognized that the defendant was not subject to the conversion of the taxation type against the plaintiff from the first half of the year 1984 to the second half of the year 1986. Thus, the defendant, who was the tax authority, recognized the plaintiff as a general taxable person without the conversion of the taxation type for the second time after the first half of the year 1984, the disposition of this case against

3. First of all, under Article 17(1) of the Value-Added Tax Act, the tax amount to be paid by the general taxable person is the amount after deducting the input tax amount from the output tax amount of the goods supplied by him, and the above provision does not apply to the special taxable person (Article 25(1) of the same Act). In view of the nature of the value-added tax system under which a return and payment system are made, in a case where a general taxable person purchases goods within a specific taxable period and yet supplies goods to another person, but the tax authority had already deducted the input tax amount, but did not supply them to another person by the time when the special taxable person is changed, the amount equivalent to the input tax amount to be deducted in advance under the interpretation of Article 17(1) of the Value-Added Tax Act can be collected in addition to the input tax amount to be deducted from the input tax amount under Article 74-3(3) of the Enforcement Decree of the Value-Added Tax Act as of the date of the relevant change (see Article 36(1) of the Value-Added Tax Act).

다음 위 (2) 주장에 관하여 보건대, 건물연건평의 규모가 크다하여 실질적인 임대실적과 관계없이 당연히 일반과세자가 되는것이라 할 수 없고, 또 피고가 과세유형을 전환함에 있어 1역년 공급대가로 환산한 1984년 1기분의 과세표준액이 비정상적인 임대수입이라는 점은 당원이 믿지않는 증인 최ㅇㅇ의 증언부분 외에는 이를 인정할 증거가 없을 뿐 아니라 원고의 신고, 납부에 근거하여서한 피고의 과세유형전환을 두고 재량권의 범위를 일탈한 것이라고는 할 수 없으므로 위 주장 또한 이유없다.

The following (3) If a general taxable person who is not subject to Article 25 of the Value-Added Tax Act becomes a special taxation subject to the above provision, Article 74-1 (3) of the Enforcement Decree of the Value-Added Tax Act concerning the period of application of the provision shall apply to a business operator subject to the provisions of Article 25 of the Act at the time prescribed in paragraph (1) regardless of the notice under paragraph (2), and if the type of taxation is converted to a special taxation subject, Article 25 of the Act shall apply to a business operator subject to the special taxation subject to the provision of Article 74-2 (2) of the Enforcement Decree of the Value-Added Tax Act regardless of the notice under paragraph (2), the provision of Article 74-2 (1) of the same Enforcement Decree concerning the type of taxation shall be applied to the business operator who violated the above provision of the Act at the time prescribed in Article 74-2 (3) of the same Enforcement Decree without any justifiable reason. In this case, the plaintiff's assertion that the tax amount subject to the special taxation pursuant to the provision of Article 252 of the Value-Added Tax Act shall not be applied to the said provision.

Next, as to the argument above (4), if a business operator becomes a general taxable person after having registered his business as a public health zone or a general taxable person and becomes a business operator falling under the criteria for special taxation under Article 25 of the Value-Added Tax Act, he shall submit a report of waiver of special taxation under Article 30 (2) of the same Act and Article 78 (1) of the Enforcement Decree of the same Act to the head of the competent district tax office, and if the report of waiver of special taxation is not submitted, the type of taxation shall be naturally converted to the business operator subject to special taxation at the time prescribed in Article 74-2 (1) of the Enforcement Decree of the same Act. Thus, since the plaintiff continued his business registration as a general taxable person after he registered his business, it shall not be deemed that the return of waiver of special taxation is implicitly made to the purport that he will continue to be subject to the tax as the initial general taxable person

Finally, I examine the argument of the above (5).

Article 15 of the Framework Act on National Taxes means that the principle of trust and good faith should not be infringed upon the interests of the other party who acted in trust in his speech and behavior. To apply this principle to the acts of the tax authorities, the tax authorities must, as one of the requirements, indicate a public opinion that is trusted to the taxpayer, and the tax authorities' statement of opinion is justified and there is no cause attributable to the taxpayer (see Supreme Court Decision 88Nu6597 delivered on September 26, 1989). In this case, the mere fact that the defendant received the scheduled value-added tax and the final return as a general taxpayer and followed the censorship of the business registration certificate following it cannot be said that the defendant, who is the tax authorities, expressed the implications or public opinion to recognize the plaintiff as the taxpayer who is the taxpayer as a general taxable person, and it is clear that the defendant's collection of deductible purchase tax by converting the plaintiff from the general taxable person to the special taxable person under the provisions of Acts and subordinate statutes and does not change any public opinion about the interpretation and application of Acts and subordinate statutes, and thus, the case is not inconsistent with the above principles of good faith.

4. Thus, the disposition of this case is justified, and the plaintiff's claim of this case seeking revocation is without merit on the premise that the disposition of this case is unlawful, and all costs of the lawsuit are dismissed and decided as per Disposition with the burden of the losing plaintiff.