Appellate Court 2015No597 (Law No. 135, 2015)

The plaintiff's rental housing project is a real estate rental business provided by the State or a local government, and its workplace is a place in charge of the affairs of the project.

The plaintiff did not register the rental housing business place as a separate independent (subsidiary) business place, and the head of the branch office becomes the full-time owner, such as housing allotment and management, and facility management, so it is reasonable to view the four branch offices of this case in charge of actual operation of rental housing as the general business place.

Article 4 (Tax Return and Place of Tax Payment)

2015Guhap70652 Revocation of Disposition rejecting a claim for rectification of value-added tax

AA

YThe director of the tax office

on October 23, 2016

November 2016

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s rejection of each claim for correction against the Plaintiff for value-added tax of 1st 201 X. X. 201X, OOO of 201X, OO of 2nd 201X, X. X. 201X. The Defendant’s rejection of each claim for correction of value-added tax of OO of 1st 201 X 201 X. against the Plaintiff is revoked.

1. Details of the disposition;

A. The plaintiff's status

The plaintiff is a corporation established by the entrustment of the BB Director (former CCC Minister) to contribute to the stabilization of the livelihood and the improvement of the welfare of DD and their bereaved family members, such as payment of benefits, collection of contributions, charges, and other expenses, projects to disadvantageous DD pension funds, DD welfare projects, housing construction, supply and lease, and acquisition of housing sites (Articles 1 and 16 of DDR Act).

(b) An entrepreneur who concurrently operates tax, tax-free and non-taxable business and a per entrepreneur;

1) The Plaintiff concurrently operates a tax-free business that operates DD rental apartment across the country for non-taxable projects, such as payment of DD benefits, collection of expenses, lease of offices, operation of sports facilities, etc., and residential stability of DD. From X. 201 X. to X., the Plaintiff reports and pays tax data of the main place of business and the place of business affiliated with OO in the main office.

2) Meanwhile, the EE branch, F branch, GG branch, and H branch (hereinafter collectively referred to as the "four branch offices of this case") among the Plaintiff's workplace are located in the OO-gu located in the Plaintiff's office (hereinafter referred to as the "the building of this case"), and the rental apartment business in the OO,O, andO area is in charge of the Plaintiff's EE branch, OO, OO, and OO's rental apartment business in the O, F branch, O, and OO's rental apartment business in the Plaintiff's H branch (hereinafter referred to as the "4 rental apartment of this case"), and the Plaintiff's GG branch, OO branch, and O's rental apartment business in the O andO area (hereinafter referred to as the "4 rental apartment of this case").

C. Plaintiff’s value-added tax return

The Plaintiff reported and paid value-added tax on the instant leased apartment business, which is a tax-free business during the VAT period from 1st to 1st 201st 201X, in total at the instant four business places managing each apartment house.

D. Claim for correction of this case and disposition of this case

The Plaintiff’s instant leased apartment business and the instant 4 branch offices are independent businesses, and when calculating the value-added tax of the instant 4 branch offices due to the Plaintiff’s mistake, the Plaintiff filed excessive return and payment of the value-added tax by adding the tax data for the instant leased apartment (hereinafter “tax data”). When calculating the common purchase tax amount, the instant tax data should be excluded from the total purchase price of the instant 4 branch offices and the tax-free purchase price. The instant tax amount for the instant 4 branch offices is reasonable to be divided in proportion to the ratio of the tax or non-taxable use area. The Plaintiff filed a claim for correction by claiming that the amount of common purchase tax for the instant 4 branch offices would be divided in accordance with the ratio of the tax or non-taxable use area. X OO for the first quarter of X 201X, X 201 X 2, X 201X 200, X OOO for the second quarter, X 201 X 201 X.

On the other hand, the Defendant rejected the Plaintiff’s request for correction on the ground that the value-added tax for the first and second half years of X. 201 X. 201 X. X. 201 X. 201 X. 201 X. 201 X. The method of calculating the common purchase tax amount applied to the building in this case cannot be deemed as a normal calculated calculation under the Value-Added Tax Act and the Enforcement Decree of the same Act, and cannot be treated as a correction claim. (hereinafter “instant disposition”).

(e) Procedures of the previous trial;

On the other hand, the Plaintiff filed an appeal with each Tax Tribunal against the rejection of a request for correction of the first and second parts of the instant disposition in 201X 201X. X., and against the rejection of a request for correction of the first and second parts of the instant disposition in X., 201X 201X. XX., the Tax Tribunal dismissed each of the above appeals on X. X. and X. 201X 200.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1 (including each number, if any) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant rental apartment business site is not a general place for the Plaintiff’s instant rental apartment business, but the location of the instant rental apartment. Even if the Plaintiff’s general place for business of the instant rental apartment business ought to be deemed the place for business, the foregoing general place for business ought to be deemed the Plaintiff’s headquarters, rather than the instant four branch offices.

Therefore, the instant rental apartment business is independent business separate from the instant 4 branch offices, so the instant taxation data should not be added to the value-added tax at the place of business of the instant 4 branch offices. However, the Plaintiff erroneously reported and paid the instant taxation data in excess of the value-added tax of the instant 4 branch offices when calculating the common purchase tax amount of the instant 4 branch offices. Accordingly, when calculating the common purchase tax amount of the instant 4 branch offices, the instant taxation data should be excluded from the total purchase price and the tax-free purchase price.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant rental apartment house is located under anywhere

First of all, we examine whether the instant rental apartment business site should be deemed the location of real estate or the place which exercises overall control over business affairs.

On the other hand, the plaintiff is running a business such as the lease of housing pursuant to Article 16 subparagraph 5 of the DDR Act, and Article 16-2 of the DDR Act provides that "the plaintiff may construct, supply and lease housing or acquire housing sites for DDR as prescribed by the Housing Act, the Housing Site Development Promotion Act, or the Special Act on Private Rental Housing, or the Special Act on Public Housing. In this case, the plaintiff shall be deemed the State or a local government. In addition, Article 4 (1) 13 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter referred to as the "former Enforcement Decree of the Value-Added Tax Act") provides that "the place of business that exercises overall control over the business of the State, a local government, or a local government association under Article 38 subparagraph 3 (real estate rental business) of the Enforcement Decree of the DDR Act shall be "the place of business."

In full view of the above provisions, it is reasonable to see that the rental apartment business of this case where the plaintiff provides housing rental services to DD is a real estate rental business provided by the State and local governments, and the place of business is a place in charge of overall management of the business.

2) Where the overall control of the business is located

Then, we examine whether the place in charge of the instant rental apartment business should be deemed the Plaintiff’s headquarters (JJ business office) or the instant 4 branch offices.

In full view of the following circumstances, it is reasonable to see that the above facts and evidence are the four branches of this case, not the plaintiff headquarters (JJ business office) in light of the following circumstances, in view of the following circumstances, which are acknowledged as comprehensively considering the overall purport of arguments in Gap evidence Nos. 6 through 8, and Eul evidence Nos. 7:

① According to the attached Table 5 of the Enforcement Rule of the Rules on the Organization of the Plaintiff’s Self-Governing Organization, the duties of the Plaintiff’s Self-Governing Headquarters are “management of rental housing, housing project performance management, rental housing real estate and property management, safety management, etc.,” and the other duties entrusted by the instant four branches are “management of facilities, such as rental housing occupants and commercial buildings, support, refund of rental housing deposit, overdue interest, relocation, management of service companies, etc.” (Evidence A through 8). According to the above provision, the Plaintiff’s Self-Governing Headquarters’s Self-Governing Department, performs planning of operation, management, etc. of rental housing, and each of the instant four branches including the instant four branches, are mainly responsible for the instant rental apartment business, such as the management of rental housing occupants entrusted by the headquarters.

② Article 4(1) of the former Value-Added Tax Act provides that "the value-added tax shall be reported and paid at each place of business," and Article 5(1) of the same Act provides that "the business operator shall register at each place of business with the head of the competent tax office within 20 days from the date of commencement of the business, as prescribed by Presidential Decree." The plaintiff did not register the location of real estate of the rental apartment in this case as a separate place of business and did not belong to the subordinate place of business in the specifications of the subordinate place of business to which the business unit tax applies from January 1, 2010. The plaintiff himself did not regard the rental apartment in this case as a separate place of business.

③ Under the Plaintiff’s delegation agreement provisions, the head of the branch office has been designated as the discretionary authority for almost all the affairs, such as pension management, collection, and payment of wages, and in relation to rental housing, the head of the branch office has become the discretionary authority for the allocation and management of rental housing, management of occupants, filing of a lawsuit, management of occupants’ charges, and management of leased facilities, etc. (Evidence 7). In light of the above, the instant four branch offices have overall control over the affairs concerning the instant rental apartment project (as to the sales of DD rental housing free of charge, the instant four branch offices have conducted transactions related to the instant rental apartment separately from the construction companies, advertising companies, etc. located in each region (Evidence 2-3). The Plaintiff, not the Plaintiff headquarters, is deemed to have managed the instant D rental apartment project for each of the four branch offices of the instant branch offices, and received separate purchase tax invoices for them).

3) Sub-determination

Therefore, it is reasonable to view that the rental apartment business of this case is not the location of each real estate, but the place in charge of overall business affairs, and that the above place is the four branch offices of this case. Therefore, the prior disposition of this case is legitimate on the same premise, and the plaintiff's assertion is without merit without further review.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.