Seoul Administrative Court 2008Guhap31758 ( September 30, 2009)

Where a lease contract is terminated but the leased object is not clear, the tax base shall be calculated;

If a building lease contract is terminated but the object of lease is not stipulated, the lessee continues to use the object of lease, and the lessor has a relation of de facto deduction from the rental deposit without returning the rental deposit, it shall be deemed that the relationship of use and profit-making of the object of lease has been maintained and thus constitutes the supply of services

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

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant's imposition of value-added tax of 202 on October 10, 2007 15,184,190, value-added tax of 15,503, value-added tax of 2003, value-added tax of 1,504,020, value-added tax of 203, value-added tax of 50,445,250, value-added tax of 2, 2004, value-added tax of 9,369,50, value-added tax of 2,04, value-added tax of 85,796,260, value-added tax of 2, 204, value-added tax of 830,510, value-added tax of 2,205, and the imposition disposition of 85,435,402, value-added tax of 203, 2003, 9168,6364, 64, 605

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account each entry of Gap evidence 1, 2, Eul evidence 1-1 through 6, Eul evidence 2-1 through 5, Eul evidence 3-1, 2, Eul evidence 5, and Eul evidence 22-30.

A. The Plaintiff is a corporation established on January 17, 2002 for the purpose of running the housing construction and sales business on three floors of ○○○○○○-dong 317-1, ○○○-dong 317-1.

B. The Director of Busan Regional Tax Office conducted a tax investigation against the Plaintiff and notified the Defendant of the tax investigation results with the following contents:

① In operating ○○ Hot Spring Building (hereinafter “instant building”) located from May 2002 to January 2004, which the Plaintiff acquired through auction on May 13, 2002, the Plaintiff omitted a total of KRW 847,201,295 ( KRW 77,668,548 in business year 2002 + KRW 721,709,517 in business year 2003 + KRW 47,823,230 in business year 204 + supply value base).

② From January 2003 to December 2, 2006, the Plaintiff omitted the Plaintiff’s primary income of KRW 1,090,909,089 ( KRW 181,818,181 + KRW 909,090 + KRW 909,90,908, and each supply value base) from the date of leasing the first or the sixth floor of the instant building from February 2004 to February 2009.

③ 원고는 이 사건 건물 중 일부를 임차한 주식회사 ▲▲로부터 2003년 1기 12,000,000원, 2003년 2기 14,000,000원, 2004년 제2기 12,000,000원, 2005년 2기 12,000,000원의 각 임대료를 수령하였음에도 그 중 일부만을 신고한 채 38,000,000원을 신고 누락하였다.

④ On March 6, 2003, the Plaintiff was awarded a bid for 42 △△ apartment H-102 and H-103 under the bottom of ○○○○-dong, ○○○○○-dong, and subsequently transferred △△△ apartment H-102 to KimA on September 15, 2003, and for △△△ apartment H-103, on January 13, 2004, the Plaintiff reported that the total transfer value was insufficient to transfer KRW 1,276,34,417, while the total transfer value was KRW 1,190,00,000.

C. On October 10, 207, based on the omitted income amount notified as above, the Defendant imposed and notified the Plaintiff of value-added tax of KRW 15,184,190 for the second period of value-added tax in 2002, KRW 83,504,020 for the first period of value-added tax in 2003, value-added tax of KRW 50,445,250 for the second period of value-added tax in 203, KRW 9,369,50 for the first period of value-added tax in 204, KRW 85,796,260 for the second period of value-added tax in 204, KRW 830,510 for the second period of value-added tax in 205 (hereinafter "value-added tax in this case"), KRW 85,435,402, KRW 2030 for the year of 200, KRW 3684,2005.

D. The Plaintiff filed a request for examination with the Board of Audit and Inspection on December 12, 2007, but was dismissed on June 8, 2008.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The Plaintiff asserts that the disposition imposing the value-added tax of this case is unlawful on the following grounds, and accordingly, the notice of change in income amount of this case is also unlawful.

(1) Claim as to the lease income of real estate

The Defendant issued each of the above dispositions on the premise that the monthly rent is deducted in sequence from each of the money received by the Plaintiff as the down payment or the deposit money. However, each of the above dispositions on the premise that the monthly rent is deducted in order from the (e.g., the (e., the) rent. However, the lease contract entered into between the Plaintiff and Chungcheongnam is not a supply of services subject to value-added tax because only the damages equivalent to the deposit remains due to the cancellation of the Plaintiff’s deception, and the monthly rent is not deducted from the deposit. (ii) the lease contract entered into between the Plaintiff and Chungcheongnam Holdings is not a supply of services subject to value-added tax because the failure to perform the obligation to pay the balance of the deposit to the said down payment was confiscated. (iii) Even if the monthly rent is deducted from the down payment and the deposit money, even if the amount equivalent to the monthly rent is deducted from the above down payment and the deposit money, the amount deducted from the overdue rent, the amount of the deduction would have been unlawful from 90,000 won to 190,2909,2000 won.

(2) Claim as to real estate transfer classes

The Plaintiff received a successful bid in △△ apartment H-102 and H-103 and KRW 1,199,99,99, and disbursed 150,352,380 won as registration tax, education tax, purchase of national housing bonds, expenses for certified judicial scrivener, etc. The Plaintiff deducted necessary expenses, and thus, the Plaintiff is not subject to value-added tax.

(3) Claim on the estimation of revenue amount of ○○ Hot Spring

Even though the Plaintiff did not actually operate a normal business during the period in which the Plaintiff directly operated ○○ Hot Spring, and did not incur a minimum amount of expenses to maintain the instant building, such as basic personnel expenses, electricity charges, and gas charges, the Plaintiff calculated the amount of income by including it only in deductible expenses on the account book. Furthermore, it is against the necessity of estimation, and it is illegal because there is no possibility of objective comparison between the same kind of business operator in the selection of the business operator with the right of partner.

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Determination by issue

(1) Determination as to the assertion of real estate rental income

The supply of services subject to value-added tax refers to providing services or allowing a lessee to use goods, facilities or rights under all contractual or legal grounds. If an entrepreneur receives a lease deposit or a lease deposit for lease on a deposit basis, the amount calculated by the interest rate on a deposit basis shall be deemed as the payment of consideration other than money prescribed in Article 13 (1) 2 of the Value-Added Tax Act (so-called rent), and if the entrepreneur receives a monthly rent together with a lease deposit or a monthly rent, the aggregate of deemed rent and monthly rent shall be the tax base for value-added tax. In this case, if an entrepreneur agrees to receive a lease deposit or monthly rent and has supplied a real estate lease service, value-added tax shall be paid as a matter of course for the supply of the services regardless of the actual profits generated from the lease deposit or monthly rent. Furthermore, even if the lease contract was terminated and occupation of the lessee becomes illegal, it shall be deemed that the lessee still uses the building without the order of lease deposit or the amount of rent payable for the next month shall be calculated as value-added tax (see, e.g., Supreme Court Decision 2000Da148Da198.

돌이켜 이 사건에 관하여 보건대, 앞서 든 각 증거와 갑제8호증, 갑제26 내지 31호증, 갑제42호증의 1, 2, 을제6호증의 1, 2, 3, 을제7호증의 각 기재에 변론 전체의 취지를 종합하면,① 원고는 2003. 12. 30. □□씨와 사이에 임대기간 2004. 2. 10.부터 2009. 2. 9.까지, 임대보증금 10억 원, 월 임대료 l억 2,500만 원으로 하여 이 사건 건물 지하 1층 내지 6층에 관한 임대차계약을 체결하였다가 2004. 2. 10. 임대보증금 15억 원, 월 임대료 1억 원으로 위 임대차계약을 변경함과 아울러 그에 따른 임대보증 금 10억 원을 수령하였으나, □□씨로부터 매월 임대료를 지급받지 못한 사실,② 원고와 □□씨는 임대차계약의 해약이 확정되면 임대인은 임대보증금을 임대목적물의 명도시에 지급하되, 임차인이 부담할 관리비, 연체 임대료, 각종 공과금, 전기 ・ 수도 ・ 가스요금 등을 임대보증금에서 공제하고 지급하기로 약정한 사실,③ □□씨는 2004. 3. 10.부터 위 임대목적물에서 '○○온천'이라는 상호로 찜질방을 운영하다가 이 사건 건물 중 엘리베이터, 배관시설 및 주차시설 등의 설비가 제3자 소유이어서 그 소유권을 둘러싸고 원고와 사이에 분쟁이 발생하면서 ○○온천의 영업에 차질을 빚게 되었고, 이에 □□씨는 찜질방 내부의 매점, 세신, 식당 등의 분양자들이 설립한 법인인 ◇◇스파에게 위 임대목적물을 전대하여 ◇◇스파가 이를 운영하게 된 사실,④ 원고는 □□씨가 임대료 등을 제대로 납부하지 아니하자 ◇◇스파와 □□씨를 상대로 건물명도 소송을 제기하였고 □□씨는 원고를 상대로 반소로써 손해배상을 청구하였는바{○○중앙지방법원 2007가합24188(본소), 2007가합84470(반소)}, 위 법원은 2009. 3. 18. 원고가 이 사건 건물 내의 엘리베이터, 배관시설 및 주차시설 등 설비의 소유권을 둘러싸고 제3자와 분쟁이 있음에도 이러한 사실을 알리지 아니한 채 임대차 계약을 체결한 것은 기망에 의한 불법행위를 구성하므로 원고는 임대보증금으로 지급 받은 10억 원 상당을 손해배상으로 □□씨에게 지급할 의무가 있고, 한편 원고는 □□씨가 임대목적물을 점유함으로써 얻은 차임 상당의 부당이득반환채권을 가지므로 위 손해배상채권과 서로 상계할 수 있다고 할 것인데, 위 연체 차임이 59억 원에 달하므로 결국 원고의 본소청구와 □□씨의 반소청구를 모두 기각한다는 판결을 선고하였고 위 판결은 그 시경 확정된 사실,⑤ 피고는 원고가 □□씨로부터 지급받은 임대보증금 10억 원을 임대료로 대체하여 임대보증금 잔액이 없어질 때까지의 기간 동안에 임대료를 지급받은 것으로 보아 2004년 제1기 과세기간 중 4억 원(2004. 3.경부터 2004. 6.경까지, 공급대가 기준), 2004년 제2기 과세기간 중 6억 원(2004. 7.경부터 2004. 12.경까지, 공급대가 기준)을 위 각 과세기간별 수입금액으로 계상하고 그에 해당하는 부가가치세를 경정 ・ 고지한 사실,⑥ 또한 원고는 웨딩홀과 사이에 임대기간 2003. 1.부터 2006. 12.까지, 임대보증금 10억 원, 월 임대료 3,000만 원으로 각 정하여 이 사건 건물 지상 2, 3층에 관한 임대차계약을 체결하고 그에 따라 임대보증금 중 일부로 2억 원을 지급받았으나, 웨딩홀로부터 매월 임대료를 지급받지 못한 사실,⑦ 원고와 웨딩홀은 임대차계약의 해약인정은 시설물의 원상복귀가 된 후에야 가능하며 해약이 확정되면 임대인은 임차인이 부담할 관리비, 연체 임대료, 각종 공과금, 전기 ・ 수도 ・ 가스요금 등을 공제하고 나머지 임대보증금을 반환하기로 약정한 사실,⑧ 원고는 웨딩홀이 2기 이상의 차임을 연체하였다는 이유로 박CC(웨딩홀 운영주) 등을 상대로 위 임대차계약을 해지하고 임대목적물의 명도를 구하는 소송을 제기하였는데{○○북부지방법원 2005가합2244(본소), 2006가합3060(반소)}, 위 법원은 2006. 7. 13. 박CC은 원고에게 이 사건 임대목적물을 명도하라는 판결을 선고하였고 위 판결은 그 시경 확정된 사실,⑨ 피고는 원고가 웨딩홀로부터 지급받은 임대보증금 2억 원을 임대료로 대체하여 보증금 잔액이 없어질 때까지의 기간 동안 임대료를 지급받은 것으로 보아 2003년 제1기 과세기간 중 1억 5,000만 원(2003. 2.경부터 2003. 6.경까지, 공급대가기준), 2003년 제2기 과세기간 중 5,000만 원(2003. 7.경부터 2003. 8.경까지, 공급대가기준)을 각 과세기간별 수입금액으로 계상하고 그에 해당하는 부가가치세를 경정 ・ 고지한 사실 등을 인정할 수 있다.

According to the above facts, even though the Plaintiff entered into a lease agreement with Dokdong and PSkdong on the building of this case and the lease agreement was canceled on the ground of fraud, or terminated on the basis of the rent, the above lessee continued to use the leased object without ordering it, and the Plaintiff also owned each of the above money which the Plaintiff had already received as a down payment or a deposit deposit, and was de facto deducted from the lease deposit by means of appropriation or offsetting, etc. of the amount equivalent to the rent that would have already occurred or will occur. Thus, the process of allowing Dokdong and PSkdong to use the building of this case constitutes the "supply of services" under the Value-Added Tax Act and the relationship of use and profit-making on the leased object is maintained, and thus, the Plaintiff is liable to pay value-added tax to the Plaintiff. Furthermore, according to the contents of each lease agreement between the Plaintiff and the above lessee, in order to deduct the management fees and various public charges to be borne by the lessee from the lease deposit, the agreement between the Plaintiff and the lessee did not have any effect on the above rental deposit.

Therefore, each of the dispositions of this case based on the premise that the Defendant incurred rent and revenue from deemed lease due to the supply of real estate leasing services by the Plaintiff, cannot be said to be erroneous as alleged by the Plaintiff.

(2) Determination as to the assertion of real estate transfer income

The supply of goods on which value-added tax is levied refers to the delivery or transfer of goods under all contractual and legal grounds, and in the case of monetary payment for the supply of such goods, it is the tax base thereof. As such, the Plaintiff is obligated to pay an amount equivalent to 10% of the transfer price as value-added tax inasmuch as the Plaintiff transferred the total of 1,276,334,417 won of the instant △△ apartment H-102 and H-103. Even if necessary expenses, such as acquisition tax and registration tax, were incurred while acquiring each apartment, as alleged by the Plaintiff, even if they were to be considered in calculating the transfer income tax, they do not constitute the amount of money that should be deducted from the value-added tax of this case. Accordingly, the Plaintiff’s assertion

(3) Determination on the assertion of estimation of revenue amount of ○○ Hot Spring

(a) Requirements for estimated taxation

The estimated taxation under the tax law is exceptionally acknowledged in cases where there are no books or documentary evidence of a taxpayer, which serves as the basis for income or tax base, or where it is impossible to use them as the basis taxation because the details are incomplete or false. Thus, if there are documents presented by a taxpayer, etc., or there are parts suspected of false or fraudulent, the tax authority may determine the tax base and tax amount by the means of estimated investigation only if it is found that the tax base and tax amount cannot be determined even if the documents presented by the taxpayer are defective or new materials are presented and that the contents of all documentary evidence are clearly false as a result of the on-site investigation, and the method and contents of the estimation shall also be determined by the reasonable and reasonable basis so as to reflect the income or actual income amount adjacent to the truth, and if there is a dispute about the legitimacy or validity of the estimated taxation, the tax authority shall bear the burden of proving such reasonableness and validity (see, e.g., Supreme Court Decision 94Nu103

(B) Determination on the instant case

However, in light of the fact that ○○○○○-si’s sales revenue amount was not calculated by 1, 4, 10, 14, 15, 2, 17 through 31, and 32, the Plaintiff’s report on the operation of ○○-si’s hot spring facilities based on 1, 4, 100, 2, and 15, 2, and 17, 32, and 30, 206, and 2, it is reasonable to view that ○○-si’s sales revenue amount was not calculated by 0,000, and that 1,000, 2,000,000, 2,000,000,000 won and 1,00,000,000 won and 2,00,000,00,000 won and 2,00,00,00,00 won.

Furthermore, it is difficult to conclude that the method of trading right of this case is an unreasonable method in calculating the plaintiff's revenue amount on the sole basis of the fact that the difference between the ratio of contribution of the amount of electricity and gas consumption of each of the above companies is high due to the increase in the sales amount of the above companies, and the fact that the ratio of contribution of the amount of electricity and gas consumption of the above companies is high as well as the difference in the calculation of the profit amount of the plaintiff's revenue amount.

This difference is reasonably accepted by calculating the average sales amount of each of the above businesses considering the changes in business environment and business ability which seems to be due to the difference in the sales amount. ③ In this case where the plaintiff submitted data related to the expenses without submitting books and other evidentiary documents, the revenue amount can be the reason for calculating the expense ratio ratio method and the reasonable revenue estimation method. ④ According to the defendant's revenue estimation method, it is reasonable to view that the revenue amount per each of the above businesses is calculated by multiplying the contribution ratio to the plaintiff's electricity and gas amount by the amount of electricity and gas used by the plaintiff, so it is not only to reflect it in proportion to the plaintiff's electricity and gas amount, but also to reflect it in proportion to the plaintiff's electricity and gas amount, and even in the month without the use amount, it is not limited to the estimation method, it is not an example method, and it is also possible to use the estimation by mixing it with a reasonable and reasonable method.

(4) Sub-determination

Therefore, the Defendant’s imposition of value-added tax in this case and the subsequent notice of change in the income amount in this case, which included the Plaintiff’s real estate lease and transfer income as the tax base, and estimated the income amount from the operation of ○○ Hot Spring.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.