Whether the balcony Warer Corporation is exempt from tax due to services essential for national housing construction services.

Whether to conclude a balcony new construction contract is a matter of choice of buyers, and the Plaintiff received written consent from buyers who want to request construction from the Plaintiff. Of the buyers, some of the buyers did not request the Plaintiff, but did not provide services incidental to the fact that they decided to perform construction by themselves.

Article 106 of the Restriction of Special Taxation Act

Article 108 of the Enforcement Decree of the Restriction of Special Taxation Act

1. The plaintiff's claim is dismissed.

2. The costs of the claim are assessed against the Plaintiff.

The Defendant’s disposition of imposition of value-added tax for the second term of 2005 against the Plaintiff on 02.09.205 (22,86,590) and value-added tax for the first term of 20,137,020 (20,137,020) shall be revoked.

1. In the case of disposition:

A. The plaintiff was established on August 6, 1996 and operated a housing construction business, etc., and completed the registration as a housing construction business operator under the Housing Act on December 20, 199.

B. In February 2005 and year 1, 2006, the Plaintiff performed construction works on the balcony 2 of ○○○○○ apartment (hereinafter “instant apartment”) located in 943, Jeonju-dong 2, ○○○○○○○ apartment (hereinafter “instant construction works”). The Plaintiff determined that the said construction is subject to value-added tax exemption as national housing and construction services of the relevant housing, and reported to the Defendant on the tax base of value-added tax for two years in 2005 and one year in 2006, excluding the above construction revenue.

C. As a result of the investigation of corporate tax against the Plaintiff from September 7, 2006 to November 6, 2006, the Director of the Gwangju Regional Tax Office determined that the instant construction is not subject to value-added tax exemption and notified the Defendant of the rectification of the Plaintiff’s value-added tax on the services that are supplied separately from the instant apartment, and accordingly, notified the Defendant of the rectification of the Plaintiff’s value-added tax on February 9, 2007. Accordingly, on February 9, 2007, the Defendant issued the instant disposition that imposed value-added tax on the Plaintiff at KRW 226,86,590, and value-added tax for the first year of 20,137.020, respectively

[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, 3, Gap evidence 2, Eul evidence 1-1, Eul evidence 2, Eul evidence 3-1, Eul evidence 3-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On August 31, 2003, the Plaintiff consistently subcontracted the construction of the instant apartment to ○○○○○ Company (formerly named ○○○○ Company’s Mutual Development; hereinafter the same) including the instant construction. Unlike the existing apartment buildings, the instant apartment buildings have the same floor height of the living room and balcony from the first construction stage so that a separate balcony expansion construction is not required for the convenience of occupants. The instant apartment buildings are designed to facilitate the escape and side of the windows in the living room and balcony between the living room and the balcony so that the construction of the balcony may not be carried out simultaneously at the time by the occupants’ choice. Accordingly, in the instant apartment, the construction of the apartment is an essential element for the balcony new construction of the instant apartment, and the cost of the construction of the apartment is also included in the price of the instant apartment. Thus, the instant construction, which is a national housing, should be exempt from value-added tax on the construction of the instant apartment, or at least the supply of services incidental thereto, and thus, the instant disposition is unlawful.

(b) Related statutes;

Article 106 of the Restriction of Special Taxation Act

Article 108 of the Enforcement Decree of the Restriction of Special Taxation Act

C. Determination

(1) Article 106(1)4 of the Restriction of Special Taxation Act (amended by Act No. 8050, Oct. 4, 2006; hereinafter the same) and Article 106(4)2 of the Enforcement Decree of the same Act stipulate that the supply of housing by a person registered under the Housing Act, etc. shall be exempted from value-added tax for housing construction services below national housing scale. This is to contribute to housing stability, etc. by facilitating housing construction below national housing scale by exempting value-added tax on construction services of national housing. In light of the fact that Article 1(4) of the Value-Added Tax Act provides that the supply of goods or services inevitably annexed to the supply of services, which are the main transaction, shall be included in the supply of services, the supply of national housing construction services and the supply of goods or services inevitably annexed thereto, shall be included in the housing construction services below national housing scale subject to tax exemption.

(2) In this case, according to Gap evidence Nos. 5, it is difficult to view that the construction cost of this case is naturally included in the apartment sale price, or that construction work of this case is necessarily incidental to the construction of the above apartment, and the construction work of this case is determined as KRW 86,984,00,00 between 0 and 00 and 00, but it is unclear whether the construction work of this case is included in the above construction contract. Even if the above construction work of this case is included in the above construction contract as the plaintiff's assertion, and it is difficult to view that the construction cost of this case is naturally included in the apartment sale price of this case, or that the construction work of this case is necessarily incidental to the construction of the above apartment, and the construction work of this case constitutes a new apartment sale contract of this case with the plaintiff's new apartment sale price under the name of 0,000,000, and the construction work of this case can not be acknowledged separately from the plaintiff's new apartment sale price of this case's construction contract with the plaintiff's new apartment sale price.

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim seeking its revocation is dismissed as it is without merit. It is so decided as per Disposition.