Daejeon District Court-2014-Gu Partnership-100565

Whether the value-added tax is imposed on the part of the construction work for expanding balcony and the additional tax is exempted in the case of supplying the whole district to the buyer by constructing a balcony expansion type.

Even if the whole district was constructed by a balcony expansion type, the service of balcony expansion construction is subject to value-added tax, and it cannot be deemed that there is any justifiable reason for tax exemption.

Articles 1, 12, and 16 of the former Value-Added Tax Act, Article 3 of the Enforcement Decree of the same Act

Daejeon High Court-2014-Nu-12664 (O2, 2015)

(a) prepare a separate contract and calculate the cost of service separate from the cost of sale;

In addition, Daejeon supplied by the Plaintiff by designating the entire apartment units as a balcony expansion type.

In the case of the composition district and the first village project district of a happy city, the amount to be supplied with the aggregate of balcony expansion;

It is calculated and applied separately, and in particular, in the case of apartment houses in the Daejeon District, the announcement of the invitation of residents.

The cost of expanding balcony in Section 5 of the Notice (No. 9-1) is different from the housing supply amount.

As a value-added tax, it includes the content of "value-added tax".

4) Most of the buyers of the apartment of this case enter into a contract for sale in lots, and the balcony is possible.

It was possible to choose whether to be the head, and the first village project site in the Daejeon District, even though it was possible to choose apartment and happy City.

In the case of apartment houses, etc. of the Gu, the whole apartment units in the relevant project district have occurred from the beginning.

The provision of the balcony expansion services in itself to the relevant buyers by determining and supplying the form of expansion;

Even if there was no room for choice, the expansion of balcony supplied by the plaintiff alone.

It is common that the nature of the service is different or that the entire apartment household is supplied in the form of balcony expansion.

It is difficult to deem that only the Plaintiff is an ordinary transaction practice (the entire apartment tax in a specific project district).

In the case that the building is supplied only in the form of balcony expansion, the supply of the services to expand the balcony shall be the value-added tax.

Tax-free goods, which are classified into balcony expansion type and balcony expansion type by the Plaintiff, and supplied by the Plaintiff.

in the case of balcony expansion services, provided that the supply of balcony extension services does not constitute a tax exemption of value-added tax.

the plaintiff's intention or choice whether the service extended to balcony is subject to value added tax exemption;

unfair results are likely to result).

(C) Therefore, the Defendant’s assertion on this part is without merit.

(2) The Plaintiff misleads the Plaintiff that the supply of the instant service constitutes an exemption from value-added tax.

Whether there are justifiable grounds for non-performance of obligations, such as tax payment,

(A) The penalty tax under tax law is to facilitate the exercise of the taxation right and the realization of the taxation right.

(2) If a taxpayer violates any of the obligations referred to in the law, such as reporting and tax payment, without any justifiable reason;

taxpayer's intentional and negligent acts are not considered as administrative sanctions imposed pursuant to the law.

(1) The land, mistake, etc. of a statute does not constitute a justifiable ground that does not constitute a violation of the duty.

No penalty shall be imposed (see, e.g., Supreme Court Decision 2008Du12986, May 13, 201). Moreover, imposition of penalty tax shall be imposed.

Justifiable grounds falling under the grounds for avoidance are deemed as grounds for exemption of penalty tax, so special reasons are considered as grounds for exemption.

Unless there are circumstances, a taxpayer is responsible to prove that there is a justifiable reason.

I would like to say.

(B) In light of the aforementioned legal principles, the purport of the entire argument in the instant case and the evidence duly admitted

In light of the following circumstances, the Plaintiff’s assertion is solely based on the circumstance alleged by the Plaintiff

A. Liability to pay taxes, etc. on the ground that the supply of the instant service constitutes an object of value-added tax exemption.

It is difficult to deem that there is a justifiable reason for failure to implement the obligation.

1) As seen earlier, the procedures for modifying the structure of the Housing Act, the Enforcement Decree of the Building Act, and balconys

Rules on the standards for installation, calculation of sales prices of multi-family housing, balcony design and apartment house

In addition to the supply of housing in the related statutes, such as guidelines for structural changes;

The matters are stipulated as the contents, and the sales contract between the plaintiff and the buyer for the apartment of this case is also defined as the sales contract.

The plaintiff entered into a balcony expansion contract in a separate selective manner, which is based on the interpretation of that name.

(1) The service in this case is naturally incidental to the supply of the apartment on a national housing scale.

(3) If it was found that the value-added tax is exempt, it is merely a legal site.

B. We seem to fall under misunderstandings.

2) Although some lower courts lower courts rendered balcony expansion services are essential to supply apartment buildings.

Even if it was determined that the supply is incidental, the final and conclusive precedents or legal principles

In addition, at the time of reporting the value-added tax by the Plaintiff, the same judgment was already rendered.

It is recognized that high-priced trust and reported the supply of the instant service subject to tax exemption.

there is no evidence, and if the balcony expansion service is naturally incidental to the supply of the apartment

If there is a precedent against whether or not there is a conflict of precedent, the value-added tax as a plaintiff is once

After the report and payment, it is necessary to discuss the legality of the disposition.

3) The National Tax Service shall issue a receipt, instead of a tax invoice, for a balcony expansion service.

the tax authority's right to ask questions to the effect that " even if the tax authority asked questions to that effect, that alone shall

If the duty to issue a tax invoice in the supply of the service by special words, etc.

under section 16(1) of this title. The Corporation shall grant a trust in believing that no additional tax is levied.

It is difficult to view that they were.

(C) Therefore, the Plaintiff’s assertion on this part is without merit.

(3) The Plaintiff’s recipient to whom the instant service was supplied, provided a receipt in lieu of a tax invoice.

whether or not there may be an additional statement

(A) Article 16(1) of the former Value-Added Tax Act provides for goods or services registered as a taxpayer.

When a service is supplied, a tax invoice shall be issued to the person who received the service.

Article 32 of the former Value-Added Tax Act provides for the obligation to issue tax invoices in principle by the operator.

According to paragraph (1) and Article 79-2 (1) 7 of the former Enforcement Decree of the Value-Added Tax Act, mainly an entrepreneur.

(2) Any business prescribed by Ordinance of the Ministry of Strategy and Finance as supplying goods or services to consumers other than those;

with respect to an entrepreneur operating a business, a receipt shall be issued in lieu of exempting the obligation to issue a tax invoice.

As a result, Article 25-2 subparagraph 3 of the former Enforcement Rule of the Value-Added Tax Act is the residence.

A receipt may be issued for a building supply business (including a case of self-construction of a residential building).

set forth in the project.

(B) Article 25-2 subparag. 3 of the former Enforcement Rule of the Value-Added Tax Act provides for the instant service.

(1) in lieu of issuing a tax invoice included in the "residential building supply business";

As seen earlier, whether the service of this case is a project

level of water is a residential building to the extent that the residential building itself can be supplied or the same as the residential building;

It is difficult to see that it is an essential construction service in supplying water and a residential building supply business.

As such, Article 32(1) of the former Value-Added Tax Act and Article 32(1) of the former Value-Added Tax Act shall apply

It shall be deemed that the obligation to issue a tax invoice is exempted pursuant to Article 79-2 (1) 7 of the Enforcement Decree of the Customs Act.

subsection (b) of this section.

(C) Therefore, the Plaintiff’s assertion on this part is without merit.

D. Sub-determination

Therefore, the Defendants are separate independent from imposing value added tax on the supply of the instant service.

All of the dispositions of this case against the Plaintiff are legitimate, and the Plaintiff’s assertion disputing this is asserted.

all are without reason.

4. Conclusion

Thus, the plaintiff's claim against the defendants of this case against the defendants is dismissed in its entirety on the ground that it is without merit.

F. The judgment of the first instance court is unfair on the ground that it is unfair to conclude otherwise, and thus, the appeal by the defendants is accepted by the first instance court

Korea ○○○ Corporation

Daejeon District Court Decision 200

Daejeon District Court-2014-Gu Partnership-100565

2015.06.04

2015.07.02

1. Of the judgment of the court of first instance, the part against the Defendants regarding the remaining part, excluding the invalidated part due to the reduction of claims in the court of first instance, shall be revoked, and all of the Plaintiff’s claims corresponding

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

Paragraph (1) shall apply.

1. Purport of claim

Disposition of imposition of each value-added tax on the Plaintiff by the Head of Seogu Daejeon District Tax Office as shown in attached Table 1.

Of them, each disposition of imposition and additional tax on the column of "tax amount for cancellation of this tax" shall be taken.

1) Each value-added tax set out in the separate sheet No. 3 attached hereto, which the director of the competent tax office against the plaintiff

Each disposition of imposition and additional tax in the column of "tax amount for cancellation of the main tax" shall be subject to each disposition of imposition in the column of "additional tax".

All of its revocation is revoked. Each added value listed in the separate sheet No. 5 that the director of the tax office of astronomicalan against the plaintiff

The imposition of penalty tax on the "additional Tax" column shall be revoked (the plaintiff shall be in accordance with the first attached Form 6).

Imposition of each value-added tax stated in the list of tax dispositions (attached Form 1, 3, and 5)

In order to seek the revocation of the entire disposition, the agency shall have the same effect as the disposition, and the agency shall

the Gu has been reduced.

2. Purport of appeal

1. Scope of the deliberation of the political party;

In the first instance court, the Plaintiff filed a claim against the Defendants for the revocation of the entire imposition of each value-added tax (principal tax and additional tax) stated in the attached Table 6 list, and the first instance court rendered a judgment that accepts the Plaintiff’s claim in full

In response, the Defendants filed an appeal. The Plaintiff reduced the claim as stated in the purport of the appeal to the effect that: (a) part of the principal tax among the imposition of value-added tax by the head of the Seogu Daejeon District Tax Office on March 20, 2015; (b) part of the principal tax among the imposition of each value-added tax by the head of the competent tax office; (c) the principal tax among the imposition of each value-added tax by the head of the competent tax office; (d) part of the principal tax among the imposition of each value-added tax by the head of the competent tax office; and (e) part of the principal tax and the additional tax among the imposition of each value-added tax by the head of the competent tax office on Seogu Daejeon District Tax Office;

Therefore, among the judgment of the first instance court, the part of the Plaintiff’s withdrawal of claim from the first instance court [1] 4,872,20,890 won out of the total of 1 through 2, 201, 208, 220, 890 won (=5,46,683,071 won - 594,462,181 won) 4,836,891 out of the total of 1, 2011 and 2, 2011, 30, 205, 208 through 47, 209, 201, 207, 201, 34, 206, 205, 201, 36, 201, 365, 365, 365, 346, 74, 34, 201, 206, 207, 201.

2. Details of the disposition;

A. During the taxable period of value-added tax from January 2008 to February 201, the Plaintiff supplied part of the apartment units (hereinafter referred to as the “ apartment units of this case”) with national housing size (the exclusive size of 85 square meters or less) in three districts located outside the Daejeon Dong-gu, Daejeon Special Self-Governing City, and four districts outside the first village project district located in the ○○ Dong-dong of Sejong Special Self-Governing City, and the ASEAN △△△△△△△△△△△△△△△△△△△△△△△ located outside the Do, located in the ○○ Dong-dong of Sejong Special Self-Governing City, and the apartment units (hereinafter referred to as the “multi-family units of this case”) located in the ASEAN △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, upon the

B. The Plaintiff determined that the supply of the instant service is included in the supply of the instant apartment subject to value-added tax exemption and declared the value-added tax exemption on the instant service.

C. The Defendants determined that the instant service was supplied separately from the supply of the instant apartment, and thus constitutes subject to value-added tax. (1) Defendant Western District Tax Office imposed and notified the Plaintiff of the total value-added tax amounting to KRW 8,309,626,050 (including additional tax, as stated in the separate sheet No. 1; hereinafter the same shall apply); (2) Defendant Gongju Tax Office imposed and notified the Plaintiff of the total amount of KRW 510,820,60 (including additional tax; hereinafter the same shall apply) on June 1, 2013 and July 5, 2013, and KRW 8,050 (hereinafter the separate sheet No. 30; hereinafter the same shall apply); and (3) Defendant Gongju Tax Office imposed and notified the separate list No. 20,820,00 (including the separate sheet No. 30; hereinafter the same shall apply) on July 1, 2013.

D. Of the instant disposition No. 1, the details of the disposition imposing value-added tax by the head of Seo-gu Daejeon District Tax Office on the Defendant’s provision of the balcony extension services, which the Plaintiff performed by setting and supplying the entire apartment units in the Daejeon Daejeon District as a form of expanding balcony, are as shown in the attached Table 2. Of the instant disposition No. 2, the details of the disposition imposing value-added tax by the head of the Defendant Public Notice Tax Office on the Defendant’s imposition of value-added tax on the service of expanding balcony which the Plaintiff performed while setting and supplying the entire apartment units in

E. On August 29, 2013, the Plaintiff dissatisfied with each of the dispositions in the instant case and filed a request with the Tax Tribunal for a trial on August 29, 2013. However, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s request on November 22, 2013 regarding the instant disposition of the head of Seo-gu Daejeon District Tax Office, and on the instant disposition of the head of Seo-gu District Tax Office, as to the instant disposition of the head of Seo-gu District Tax Office, on December 3, 2013, and on December 3, 2013 regarding the instant disposition of the head of Seo-gu

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 4, 9 (including branch numbers, hereinafter the same shall apply) and the purport of the whole pleadings

3. The plaintiff's assertion and judgment

A. The plaintiff's assertion

(1) It is reasonable to deem that the sales contract for the apartment of this case and the contract for the service of this case concluded with the buyer constitutes a single contract, not actually separate contract, and that the price for the service of this case is also received in the same account as the sale price for the apartment of this case, and the part of the apartment of this case was constructed in advance by dividing it into the balcony expansion type and the balcony non-extension type. In particular, in the case of a part of the apartment of this case, there is no room for choice for the balcony expansion service to the buyer by setting the entire apartment units into the balcony expansion type. In light of the above, at least the part of the service of this case regarding the balcony extension service, the plaintiff designated and supplied the whole apartment units from the beginning in the Daejeon-Sae and the Gapy City first Village type with the apartment of this case as the transaction practice, and thus, it constitutes an object of value-added tax exemption. Therefore, each of the disposition of imposition of value-added tax and the separate list No. 2 of the attached Table No. 1 of this case is unlawful.

(2) Even if the supply of the instant service does not constitute an object of value-added tax exemption, a penalty tax shall not be imposed if there is a justifiable reason that the taxpayer failed to perform his/her duty pursuant to Article 48(1) of the Framework Act on National Taxes. In light of the fact that there was a lot of different interpretations as to whether the balcony expansion service is naturally incidental to the supply of the apartment house on a national housing scale, and thus, there was no opinion as to whether the value-added tax is exempted, and in particular, in the case of the supply of balcony extension service by the National Tax Service, the tax office provided a receipt instead of the tax invoice extension service, and that there was a justifiable reason that the Plaintiff provided the instant service by mistake that the supply of the instant service constitutes an object of value-added tax exemption, thereby failing to perform its duty

(3) In addition, Article 32(1) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter the same shall apply); Article 79-2(1)7 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 23595, Feb. 2, 2012; hereinafter the same shall apply); Article 25-2 subparag. 3 of the former Enforcement Rule of the Value-Added Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 269, Feb. 28, 2012; hereinafter the same shall apply), the Plaintiff may issue a receipt, instead of issuing a tax invoice, to the buyer who is supplied with the instant service, the portion of additional tax on non-delivery

B. Relevant statutes

Attached 7 is as shown in the "relevant Acts and subordinate statutes".

C. Determination

(1) Whether the supply of the instant service constitutes a value-added tax exemption

(A) Article 106(1)4 of the Restriction of Special Taxation Act, Article 106(4)1, and Article 51-2(3) of the Enforcement Decree of the Restriction of Special Taxation Act, and Article 2 subparag. 3 of the former Housing Act (amended by Act No. 11243, Jan. 26, 2012; hereinafter the same) provide that one of the objects of tax exemption is a national housing with an exclusive area of 85 square meters or less, and the facts constituting the instant apartment are as seen earlier.

Meanwhile, Article 1(4) of the former Value-Added Tax Act provides that the supply of goods or services essential for the supply of goods or services, which are the main transaction, shall be deemed to be included in the supply of goods or services, which are the main transaction. Article 12(3) of the former Value-Added Tax Act provides that the supply of goods or services essential for the supply of exempted goods or services shall be deemed to be included in the supply of goods or services. Article 3 subparag. 2 of the former Enforcement Decree of the Value-Added Tax Act provides that “the supply of goods or services, which are the main transaction, is ordinarily deemed to be included in the supply of goods or services, which are the main transaction practice,” and that “the supply of goods or services is ordinarily deemed to be incidental to the supply of goods or services, which are the main transaction.” Moreover, it is difficult to view that any transaction falls under the supply of the goods or services, which is a specific type of goods or services, which is the supply of the goods or services, as a whole, by comprehensively taking into account the specific transaction details and production process, etc. (see Supreme Court Decision 2000Du98).

1) With the amendment of the Enforcement Decree of the Building Act on December 2, 2005, the alteration of the balcony structure was legalized. This is intended to make the balcony installed in the balcony, which is a buffer space connecting the inside and outside of the building, to improve the convenience of occupants and the quality of their dwelling available for various purposes, such as the living room, bedroom, storage, etc., if necessary.

2) The relevant provisions were enacted or amended in accordance with the amendment of the above Acts and subordinate statutes. Article 7 of the procedures and standards for the alteration of the structure of balcony, etc. and the installation of balcony, etc. (Notice of the Ministry of Construction and Transportation No. 2005-400, Dec. 8, 2005) provides that where a project proprietor applies for approval for housing supply, he/she shall submit expenses for alteration of the structure of balcony, etc., separate from the sale price when he/she applies for approval for housing supply. In making a public announcement for housing supply, he/she shall make all of the above expenses open to the public. Article 38 (1) 3 of the former Housing Act and Article 38 (1) of the Rules on the Calculation, etc. of Sale Price of Multi-Family Housing (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 447, Mar. 9, 2012) separately from the public announcement for alteration of the structure of balcony, and Article 3, 4, and 7 of the Ordinance to expand the construction price of balcony in question.

The first outer wall shall be the area calculated on the basis of the internal line of the outer wall, which seems to have been applied without changing the tax benefits, etc. on the original part of the national housing scale even if there is a change in the balcony structure.

3) In supplying multi-family housing, most project undertakers have concluded a contract including balcony expansion separately from a housing supply contract and received the price for the apartment separately from the sales price. The plaintiff also prepared a sales contract for the apartment of this case.

Defendant with respect to the remainder other than the invalidated portion due to the reduction of claims in the court of the first instance;

The part against them shall be revoked, and all of the plaintiff's claims corresponding to that part shall be dismissed, and state

It is so decided as per sentence.