Daejeon District Court-2014-Gu Partnership-104970 ( August 13, 2015)

Whether the time the time of supply for the instant real estate transaction is determined

(1) The instant real estate is deemed to have been supplied in the first taxable period in 2013. As such, the disposition imposing the instant real estate on the premise that it was supplied in the second taxable period in 2012 is unlawful.

Article 9 (Transaction Time of former Value-Added Tax Act)

2015Nu12791 Revocation of Disposition of Imposition of Value-Added Tax

Co., Ltd. 00

00. Head of tax office

Daejeon District Court 2014Guhap104970 ( August 13, 2015)

March 17, 2016

April 7, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

Value-added tax imposed on the Plaintiff on August 7, 2013 by the Defendant for the first period of 2013

708,000,000 won (including additional duties) shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is " August 6, 2013" of the 3th judgment of the court of first instance and " August 6, 2013".

7."Freshing to "...........................................

Inasmuch as the reasoning of the first instance judgment is the same as that of the first instance judgment, Article 8(2) of the Administrative Litigation Act, the main text of Article 420

this shall be cited as it is.

2. Parts changed;

D. Determination

1) The supply of goods under the Value-Added Tax Act refers to the delivery or transfer of goods under all contractual or legal grounds, and in light of the nature of value-added tax, such delivery or transfer is premised on the act of transferring ownership for the use or consumption of the goods. Accordingly, the delivery or transfer of the goods is premised on the act of transferring ownership for the use or consumption of the goods. After concluding a sales contract for the sale of the building by the business

the building in question may be exclusively used and disposed of by an owner of the building in fact.

If the possession was transferred, it constitutes the supply of goods under the Value-Added Tax Act (Supreme Court).

See Supreme Court Decision 2005Du2926 decided Oct. 13, 2006

Meanwhile, Article 9 of the Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013)

Paragraph (1) 2 shall, where the moving of goods is not required, the time when the goods are made available.

The term "when the goods are made available" means the time when the goods are actually used, so if the goods supplied are real estate, the time when the goods are ordered to be ordered to be ordered, unless there are special circumstances (see Supreme Court Decision 2008.).

9. 11. see, e.g., Supreme Court Decision 2006Du9900, supra)

2) Examining the following circumstances in light of the aforementioned legal principles, which can be seen by adding the overall purport of the pleadings to each of the above facts of recognition, evidence No. 11, and evidence No. 5, it is reasonable to deem that the time of supply of the instant real estate under the Value-Added Tax Act falls under the first taxable period of value-added tax for 2013, January 3, 2013.

A) From August 1, 2012, the Plaintiff occupied and used the instant real estate as a lessee, and subsequently completed the registration of ownership transfer on January 3, 2013, the Plaintiff is entitled to legal action only after completing the registration of ownership transfer on the instant real estate.

As the oil supplier, the instant real estate was occupied and used (as of January 3, 2013, the value-added tax (the part of the building) out of the purchase price of the instant real estate (hereinafter “value-added tax”) has yet to be paid 360,000,000 won from the Plaintiff, but aa may give up the right to defense of simultaneous performance and complete the registration of ownership transfer first. This is also inconsistent with the Plaintiff’s assertion that there was an agreement on the method of settling the bonds and obligations between the Plaintiff, including the value-added tax, and the third sales contract includes the details of settlement agreement as alleged above by the Plaintiff).

B) The Defendant: (a) Article 2(1) of the sales contract of the instant real estate sales contract provides that “The sales price and the timing of payment of the instant real estate shall be KRW 1,350,000,000 ( December 26, 2012); (b) any balance of KRW 7,650,000,000 ( December 31, 2012).

(3) Article 6 of the Value-Added Tax Act provides that “The value-added tax of this case shall be calculated on December 31, 2012 (excluding the value-added tax of this case) and shall be calculated on December 31, 2012, and shall be calculated on December 31, 2012, and the Plaintiff paid all the down payment and remainder, except the value-added tax of this case, to the Plaintiff as of December 31, 2012, and at the time, the Plaintiff actually occupied the real estate of this case as the owner, and thus, the time of supply of the real estate of this case is deemed as the time of supply.” However, the term “value” under each of the above provisions refers to the full payment of the value-added tax of this case, including the value-added tax of this case, and the Plaintiff is in accord with the general intent of the parties to a sales contract to a sales contract. The value-added tax of this case was not paid as of December 31, 2012.

In addition, pursuant to Articles 2(1) and 6 above, the Plaintiff’s balance other than the value-added tax of this case

At the same time, the possession of the real property of this case is not transferred from Aa to another person;

From August 1, 2012, only the lessee has been in possession of the instant real estate from August 1, 201.

F. The provision of Article 6 above is that the plaintiff who is the buyer has already occupied the real estate of this case as the lessee.

In this case, the parties are not specifically intended to do so, but to a general sales contract.

because it appears that the expression used for official purposes was derived from borrowing without any increase or decrease, each of the above provisions

Therefore, interpreting the time of supply of the instant real estate as December 31, 2012 would be an excessively formal logic to interpret it as December 31, 2012.

C) The Defendant: (a) requested a tax invoice from December 26, 2012, on May 10, 2013, the Plaintiff issued an electronic tax invoice after the lapse of the due date, although the Plaintiff demanded a tax invoice from December 26, 2012.

because of the absence of a specific tax invoice, but the issuance of the tax invoice is not addressed on the next day.

D. On the basis of the fact that the Plaintiff’s supply time of the instant real estate was indicated, the second period of 2012.

It is alleged that the time when the plaintiff demanded the issuance of the tax invoice is the time of the request.

not only can it be readily concluded that it is the time of supply insan, but also the advance payment of the price for the issuance of the tax invoice.

Although this is not necessarily required, from the standpoint of Aa, not only December 26, 2012, but also December 2012

12. On January 31, 201, there was a pre-paid portion of the instant value-added tax, among the real estate sales proceeds, with no payment of KRW 360,00,000,00, which was already made (On the other hand, aa was still issued a tax invoice retroactively to the Plaintiff as of January 1, 2013 when the instant value-added tax was not paid on January 31, 2013. This is consistent with the Plaintiff’s assertion that there was an agreement on the method of settling bonds and debts, including the instant value-added tax, and the details of the settlement agreement as above, in the third sales contract) and the Defendant’s assertion is not acceptable.

D) The Value-Added Tax Act provides that the input tax amount of the relevant goods may be deducted by being submitted within the prescribed time limit (the tenth day of the month following the month to which the time of supply belongs) upon receipt of a tax invoice at the time of supply for the goods, and the current Value-Added Tax Act adopts the aforementioned Act (the Act on Tax Credit at Former Stage 1) as well as value-added tax

It has the function of mutual verification between taxpayers that facilitate the dissemination of income tax and corporate tax;

1) In the way of deducting input tax amounts from the output tax amount of value-added tax, there is an advantage that a tax invoice can be used as a medium for each phase of transaction, thereby cultivating taxation data.

the nature of the value-added tax in which the calculation and mutual verification of the tax amount are conducted for each taxable period.

In order to function properly as a mutual verification function, the preparation and issuance of a tax invoice shall be

Inasmuch as it is essential to normally take place within the taxable period to which the future time belongs (Supreme Court)

The Supreme Court en banc Decision 2002Du5771 Delivered on November 18, 2004

tax invoice by applying the wrong time of supply for goods, even if there was no intention of tax avoidance;

The defendant's purport that the receipt of input tax shall be subject to disadvantage such as non-deduction of input tax.

The argument is reasonable as a general theory, but in the case of this case, the plaintiff leased the real estate of this case.

Since the purchase was made while being used, the separate possession transfer was not necessary, and No. 2

There was no clear provision on the timing of the possession transfer of the instant real estate in the sales contract.

In light of the fact that the value-added tax in this case has not yet been paid until December 31, 2012, and the registration of transfer of ownership of the real estate in this case was completed on January 3, 2013, the Plaintiff cannot be deemed to have erred in receiving tax invoices and filing a value-added tax return as of January 1, 2013 by applying the supply timing of the real estate in this case as the first installment in 2013. Therefore, the Defendant’s failure to impose sanctions, such as non-deduction of the input tax amount, cannot be found to have caused the Plaintiff’s failure to transfer the real estate in this case before December 31, 2012, as the Plaintiff was not the lessee of the real estate in this case, or the Plaintiff and A had agreed to transfer the real estate in this case as of December 31, 2012 from the second sale contract to the date of delivery of the real estate in this case, or had paid or completed the transfer of ownership of the real estate in this case by December 31, 2012.

E) The Defendant asserts to the effect that the third sale contract is null and void on the ground that the second sale contract was based on the grounds for registration for transfer of ownership of the instant real estate. However, while the third sale contract confirms the contents of the second sale contract for the instant real estate, the third sale contract specifies the time of delivery of the instant real estate, adds the instant facilities to the sale object, and there is no ground to deem it null and void as a separate contract stipulating the method of settling claims and obligations between the Plaintiff and A, including the value-added tax and the purchase price for the instant facilities.

In addition, from August 1, 2012, the Plaintiff occupied the instant real estate as a lessee.

Therefore, at any time, whether the Plaintiff was handed over the instant real estate as the purchaser’s status.

A. It was necessary to clarify B. Accordingly, after concluding an agreement on the method of settling claims and debts, including the value-added tax, with the firstman A, on January 2013, it appears that the third sales contract was included in the contents specifying the time of delivery of the instant real estate as of January 1, 2013. Since the Plaintiff possessed the instant real estate as of January 1, 2013, and the transfer registration of ownership of the instant real estate was completed on January 3, 2013 after this title, the effect of the third sales contract can not be denied (in this respect, the time of supply of the instant real estate can be deemed to be January 1, 2013 from the third sales contract to be specified in the third sales contract, but the value-added tax of this case does not affect the conclusion of this case because the time of supply of the instant real estate constitutes the taxable period of January 1, 2013).

3. Conclusion

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