The fact that the service payment was directly remitted cannot be viewed as a false tax invoice.

The fact that the service cost was directly remitted from the contractor to the subcontractor cannot be viewed as a false tax invoice that the Plaintiff received from the subcontractor.

Article 32 of the Value-Added Tax Act

Incheon District Court-2016-Gu Partnership-53689 Revocation of Disposition Rejecting Refund of Value-Added Tax

AlleyOE Co., Ltd.

OO Head of the tax office

2017.024

2017.03.17

1. The Defendant’s value-added tax for the second period of 2015 against the Plaintiff on October 00, 2000 (Additional acid)

The imposition of tax shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

(a) AA and BB were co-owned by each of 1/2 shares 000 shares;

Sub-land 48 rooms, hotel rooms 180 rooms, '00 officetels rooms in the size of 180 rooms.

It is necessary to implement a project to newly construct and sell tele-officetels (hereinafter referred to as the "building of this case").

여, 2014. 2. 11. 부동산업(상가신축판매)을 업종으로 정해 'QQQQ'라는 상호로 사

After completing business registration, on November 5, 2014, 'AA' and 1 other 'A' as the owner of the instant building on November 5, 2014

(2) The construction permit was issued.

B. AA and BB with respect to the new construction and sale of the instant building on June 9, 2015 international

자산신탁 주식회사(이하 '국제자산신탁'이라 한다)와 사이에서 'AAA, BBB가 QQQQ의 사업자로서 이 사건 건물의 신축・분양사업을 함에 있어 국제자산신탁이 신

The buyer of the consigned real estate by preserving and managing the ownership of the consigned real estate;

(1) In the event that any obligation to be borne by AAB is not fulfilled, the trust property shall be refunded.

The sales management trust contract with the content that "shall be settled by provisional disposal" was concluded, and the same date is the same.

International Asset Trust, CCC Development Co., Ltd. (hereinafter referred to as "CCC Development"), and the Corporation

Business arrangements and agency contracts concluded between an outing financial institution and community credit cooperatives (hereinafter referred to as "business contracts")

'이 사건 대리사무계약'이라 한다)을 통하여 '국제자산신탁이 QQQQ의 사업자인 AAA, BBB의 자금집행요청에 따라 사업자금을 집행한다'는 약정을 하였다.

The total amount of supply value on the date of setting up the sequence shall be the sum of the values of supply;

1 October 23, 2015 150,000,000 15,000,000,000 165,000,000

2 November 2, 2015 450,000,000 45,000,000,000 495,000,000

3 November 37, 2015 37,500,000 37,500,500,412,500,000

4 December 3, 2015 237,00,000 23,700,000, 260,700 260,700,000

5 December 11, 2015 240,000,000 24,000,000,000 264,000,000

Total 1,114,50,000 145,200,000 1,597,200,000

다. 한편 AAA 외 1인은 2014. 9. 23. 개인사업체인 QQQQ와 동일한 상호로

In establishing the Plaintiff, a stock company, on November 8, 2014, and between the Plaintiff and the Plaintiff on November 8, 2014, “the portion of the instant building.”

both agencies, and at the request of the plaintiff at the end of a half-year period to which the object of sale belongs;

It was agreed that the two agency fees will be settled.

D. Between HHC Co., Ltd. (hereinafter “H”) and the Plaintiff on October 21, 2015

HH’s acting as a sales agent of the building of this case, and the one household sold as a repair thereof.

The contract was made that 22,00,000 won (excluding value-added tax) shall be paid to each other, and the amount of the service shall be paid to an international person.

The money was transferred from the trust to Escenm directly without going through the plaintiff.

E. The Plaintiff’s total sum of those supplied from HH as follows is the Plaintiff.

1,597,200,000 won (hereinafter referred to as “instant tax invoice”) 5 copies of the electronic tax invoice of “1,597,200,000 won

H. 152,151,212 won shall be the amount of refundable tax when filing the return of value-added tax for the second period in January 2016, 2015.

was written.

F. The defendant is responsible for the sales agency even though the sales rate for the building of this case is at least 70%.

1) On August 5, 2016, the Plaintiff issued tax invoices listed in the 5 table below to the director of the Namcheon District Tax Office on August 5, 2016 on the ground that the issuance of the tax invoices was ex post

A. According to Article 45(1) of the Framework Act on National Taxes, a return on tax base by the statutory deadline for filing a return of tax base by the statutory deadline for filing the return.

A person who has submitted a document shall, in specified cases, be notified by the head of the competent tax office after determining or correcting the tax base and amount of the national tax

A revised tax base return may be filed before the period under Article 26-2(1) expires. In this case, the plaintiff may file the revised tax base return with the defendant.

A. On or after June 10, 2016, the value-added tax amount of 36,608,780 won was corrected and notified of the tax base and amount of tax for the second term portion of value-added tax for the year 2015.

Since the revised return of value-added tax was submitted only, such revised return is the number prescribed in Article 45(1) of the Framework Act on National Taxes.

No person shall have the effect as a psychiatrist.

The sales of an intentional sales agency for sale are less than 71,315,665 won and the sales of Alleys are less than 71,315,665;

342,44,500 won or more has been reported, and the owner of the land for the new construction and sale of the building in this case and

이 사건 건물의 건축주 명의가 QQQ의 대표자인 AAA와 BBB로 되어 있는

점 등의 사정을 감안하였을 때, 원고가 아닌 QQQ가 HHH로부터 실질적

that the Plaintiff is supplied with a sales agency service, and that the Plaintiff is the person to whom the sales agency service was provided.

Part of this tax invoice on the ground that the tax invoice was prepared differently from the fact

The value-added tax shall not be deducted as an input tax amount, and on June 10, 2016, the portion of the provisional value-added tax shall be paid to the Plaintiff on February 2015.

Value-added tax (including additional tax) of KRW 000 is revised and notified (hereinafter referred to as the "disposition in this case").

was made.

G. The Plaintiff is dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 9, 2016.

In addition, on October 6, 2016, the instant lawsuit was filed, and the Tax Tribunal pending the instant lawsuit.

On December 14, 2016, the above appeal was dismissed.

[Ground for Recognition] Unsatisfy, Gap evidence 1 (including a Ga number; hereinafter the same shall apply), Gap 2 and 4

set forth in No. 6, No. 1, 6, and 7, respectively, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

AAA BBB가 이 사건 건물의 신축・분양사업을 시행하기 위하여 QQQ

“A business entity” has been established, but the private business entity is likely to smoothly carry out the business.

In terms of the side, the Plaintiff, a stock company, established the Plaintiff and entrusted the sales agency to the Plaintiff, and the Plaintiff

such sales agency contract with HH in order to carry out such sales agency contract.

In fact, as well as the supply of the sale agency services from them, a private enterprise

on behalf of the head of the Si, the agency has been carrying out the relevant duties on behalf of the head of the Si, and the agency is the operator.

be transferred directly to HH without going through the Plaintiff at the request of DCO’s funding

나 2015년 제2기에 발생한 원고의 분양대행매출액이 QQQ의 분양매출액에 현저

히 미치지 못한다는 사정만으로, 원고가 아닌 QQQ가 HHH로부터 직접

Inasmuch as it cannot be deemed that the sales agency was supplied, the premise that HH was the person being supplied with the sales agency service is that it was the person.

The instant disposition was unlawful.

B. Relevant statutes

Attached Form 3 is as shown in the "relevant Acts and subordinate statutes".

C. Determination

1) Relevant legal principles

Any specific transaction among any series of transactions shall be the supply of goods as provided for in the Value-Added Tax Act.

Whether a transaction constitutes a transaction by trade, the purpose, details, and manner of the transaction, and profits of each transaction;

It shall be individually and specifically determined by comprehensively taking into account various circumstances, such as the subject and the payment relationship of consideration.

on the pretext that the specific transaction is a nominal transaction for which no substantial delivery or transfer of goods is made.

tax invoice received in the course of the transaction is denied the deduction of the input tax amount.

section 39 (1)(2) of this title constitutes a tax invoice different from the facts provided for in section 39 (1)(2).

The burden of proof is the principle that the tax authority bears the burden (Supreme Court Decision 2008Du13446 Decided June 23, 2009).

see, e.g., Supreme Court Decision

(ii) the facts of recognition

The following facts are not in dispute between the parties, or are not in dispute between the parties, Gap 1, 7 through 13, 16, 17, 20, 24

The statements in subparagraphs 2 through 5 of this paragraph may be recognized by integrating the purpose of the whole pleadings.

Date of concluding a contract for the type of contract

1 Design Contract (Amendment) around February 2014, 2014, the Certified Architect Office

2. A development company on September 30, 2014

3. Construction Co., Ltd. on December 26, 2014

4 subway Advertising Contracts (Planning) around July 2015

5 Model House Agreement, November 5, 2015, Inc.

A) The Plaintiff entered into the following contracts related to the construction and sale of the instant building:

In this case, a contractor who is a direct party to a contract has entered into a contract.

B) The Plaintiff needs to newly construct and sell the instant building from January 1, 2015 to July 2, 2015.

Korea Cadastral Corporation for cadastral surveying, design, construction machinery rental, electrical equipment, advertisement, etc.

Private, stock company, certified architect office, 00 construction, stock company 00 mechanical company, 00 power generation

Z. 00 Electricity, stock company 000, Lemond, stock company 000, stock company 000, stock company 00 ophs

Goods from households, stock companies, 000 Doz., 00 Effers, 000 Law Offices, etc.

(b) Upon receipt of the service supplied, a tax invoice for individual supplier was issued, and the office operated by the Plaintiff.

The tax invoice by seller from the Incheon Metropolitan City Economic and Trade Promotion Agency, a foundation that is a lessor of the property;

was issued.

다) 2015. 10. 4. 개인사업체인 QQQ를 매도인으로 하여 이 사건 건물 중

The supply contract was concluded to sell 307 rooms in 146,280,000 won, but the supply contract was entered into.

사업 주체와 관련하여 '시행사의 지위가 승계시행사(원고)로 변경될 경우 QQQ의

All rights and obligations shall be comprehensively succeeded to by the successor executor and the buyer shall consent thereto.

2) Although the date of preparation under the Standard Contract (Modification) for the Building (No. 16) is written as " February 2014", this part of the design contract is written as "the date of preparation under the Standard Contract for the Building (No. 16)."

The change contract is the change contract, and the name and business registration number of the plaintiff are stated in the building owner column, and the time when the plaintiff has completed his/her business registration on September 2014.

23.O.S., on January 14, 2015, the price shall be paid to T. E. E. E. E. A. office, and a tax invoice by seller shall be issued from the office above.

In consideration of the receipt, the date of conclusion of the contract under the above contract seems to have been written in writing or retrospectively.

3) The construction contract that was concluded once the No. 2 contract was terminated is a construction contract again.

The agreement is specified, and accordingly the plaintiff is also named as the successor to the supply contract.

Until now, this method has been applied to individual heading rooms in the building of this case.

D. Sales contracts are concluded.

D) Meanwhile, an international asset trust is held in the name of the Plaintiff upon a request by AABB for its financing execution.

Account: 31,00,000 won on July 17, 2015; 85,075,000 won on August 7, 2015; and 28,000,000 won on September 25, 2015;

AABB deposited the source (in particular, the operating expenses of the executive on August 5, 2015 to the International Asset Trust.

10,000,000 won was deposited into the Plaintiff’s account and requested it to be received). The account in the Plaintiff’s name.

From October 15, 2014, the transferor as the executor of the new construction and sale of the building of this case from October 15, 2014.

design cost for the 000 architect office, and the building of this case

The sale red, such as the model house construction cost of the other source corporation necessary for the sale agency business;

At the same time, universal costs, etc. have been paid.

E) As seen in paragraph (c) above, the supply contract was made on the instant building

재된 골드코스트의 소재지는 이 사건 건물의 대지로서 신축공사 현장인 '000'로 되어 있을 뿐만 아니라 QQQ에서 2015년에 근무한 직원이 전혀

On the other hand, the Plaintiff was operating the office on a leased basis, and only one shareholder and the representative director.

and three executives and employees, including AA and BB, a company director, and three executives and employees.

They are currently serving in December 31, 2015.

F) Meanwhile, on June 19, 2015, the Plaintiff Company 000 (hereinafter referred to as “00”)

on August 30, 2015 (hereinafter referred to as "industrial development") 00 industrial development Co., Ltd. on August 30, 2015

(2) On October 21, 2015, when entering into a sales agency contract with HH on October 21, 2015, the monthly portion

In addition to the establishment of a specific set of the two target rates, the amount of agency fees per household for sale (00)

Switzerland: 10,500,000 won for industrial development, 14,000,000 won for industrial development, and H: 22,000,000 won for industrial development,

The method of calculating the agency fee under the sale of buildings in units shall also be provided with specific provisions, which shall be regularly caused.

For example, remuneration has been settled.

G) H H = October 23, 2015; November 2, 2015; November 6, 2015; and November 6, 2015;

In January 7, 2016, February 1, 2016, and February 15, 2016, sale by proxy of the building of this case against the Plaintiff on February 15, 2016

용역의 제공에 따른 수수료를 각 청구하였고, 그때마다 AAA BBB는 QQQ

00 Industrial Development and Search as provided for in the agency contract of this case in the capacity of the representative of the

with the consent of that community credit cooperative, the bank has requested the international asset trust to pay the funds.

The Plaintiff in the settlement of the service cost with the Department of Industrial Development 000 and 000.

The transfer of business funds to the Plaintiff shall cause the Plaintiff to develop the industry 000 and 000.

on the other hand, HH made after the settlement of each service price.

The plaintiff shall go through the settlement of the price for the service on behalf of the seller for the reason that it will prevent the use of funds.

In addition, the direct service fee was transferred to HH.

3) Whether the instant tax invoice constitutes a false tax invoice

In other words, the Plaintiff is aware of the following facts in full view of the above facts acknowledged:

건물의 신축・분양사업의 시행사인 QQQ와의 분양대행계약에 따라 QQQ와

FF and subway advertising contracts for the sale of the building of this case with separate offices

B signed the contract with the corporation 000, and entered into the model house construction contract with the corporation 000.

The same shall apply to the conclusion of a sales agency contract with the E.S., 00 industry development, or HH

분양에 필요한 업무를 실제 수행하여 온 점, ② 한편 원고는 QQQ로부터 이 사

Before being entrusted with the sale agency business of the building in this case, the contract for the new construction of the building in this case

계변경계약을 도급인인 당사자로서 직접 체결하였고, 시행사인 QQQ의 지위를

The plaintiff directly participated as a successor in the conclusion of the sales contract on the premise that he succeeds to the sales contract.

of the building of this case as well as the company related to the vicarious sale of the building of this case.

Receipt a tax invoice by seller directly from an enterprise related to quantity, construction machinery rental, or electric installations;

Affairs with money received from an international asset trust upon request for the execution of the project funds of the ABS

Expenses related to the actual operation expenses and the sales agency, as well as expenses related to the operation of the event such as design expenses.

지출하여 온 점, ④ HHH는 QQQ가 아니라 분양대행을 맡긴 원고에게

수수료의 지급을 청구하였고, QQQ의 대표자인 AAA BBB가 이 사건 대리

as a party to a business contract, the request for the execution of the funds to the International Asset Trust, which shall be implemented.

In accordance with the business system leading to HH, which is re-entrusted by the Plaintiff as a private person, the Plaintiff, the sales agent, and the sales agent, and 5 in the process, international asset trust is directly conducted.

HHH에게 대금을 송금하였는데, 그와 같은 대금의 지급은 QQQ나 원고

(1) was subject to the unilateral decision of an international asset trust to prevent the use of funds not requested by the court.

In addition, it is difficult to readily conclude that such a form of payment is equivalent in light of the circumstances of transactions.

없는 점, ⑥ 원고의 대표자와 QQQ의 운영자가 동일하고 이 사건 건물의 분양과

관련하여 작성된 공급계약서에 '시행사의 지위가 QQQ에서 원고로 변경될 가능

In a situation where an agreement stipulating "the buyer's consent to the performance" is stipulated;

고용 근로자가 없는 QQQ와는 다르게 원고가 실제 사무실과 임직원을 보유하고

in consideration of the fact that not only the affairs of the sale of buildings in units but also the affairs of the events in the city.

때, QQQ가 국제자산신탁을 상대로 사업자금의 집행을 요청한 것은 이 사건 건

The sales management trust contract for the new construction and sale business of water or the party to the agency contract of this case

여전히 QQQ로 되어 있기 때문이라고 볼 여지가 충분히 있는 이상, 국제자산신

탁으로부터 HHH로 용역대금이 직접 송금되었다는 사실만으로 QQQ가

the fact that it cannot be justified to deem that the sales agency was directly supplied by HH, and that the sales agency was not directly supplied by H.

어 보면, 원고가 QQQ의 분양대행자뿐만 아니라 원고의 대표자가 개인사업자 자

the construction and sale of the building of this case with the actual status of the event held in

An agreement with HH for sale as an agent in charge of all business affairs, and a division thereof;

It is reasonable to view that both services have been supplied as an agent.

D. Sub-committee

Therefore, the Plaintiff’s sales agency service provided by HH for its own business

Value-added tax on the tax invoice of this case on the issue shall be deducted as the Plaintiff’s input tax amount.

Therefore, the disposition of this case imposed without deduction shall be revoked as illegal.

(c)

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.