National High Court Decision 2008Du3232 ( November 17, 2008)

Whether a lessee is subject to taxation where he/she illegally occupies a house and obtains unjust enrichment through a lawsuit upon notification of termination of a building lease contract.

Even if a civil lawsuit, such as the name map of a building, was filed and a favorable judgment was rendered on the agreed amount claim, it is reasonable to view that the previous possession based on the profits from the use is deemed continued until the execution of the name map is completed by civil litigation, such as the name map of the building, as long as the leased portion is delivered for profit pursuant to the lease contract

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The defendant's imposition of value-added tax against the plaintiff on April 1, 2008 of KRW 10,209,940 for the second term of 2004 and KRW 9,874,250 for the first term of 2005 (the "the date of disposition on April 6, 2008," which is the date of disposition on amendment of the purport of the claim, seems to be a clerical error in the statement on April 1, 2008).

1. Details of the imposition;

A. The Plaintiff is a businessman who runs a real estate rental business in the trade name of ○○-dong, Seoul, ○○-dong, ○○-46.

B. On September 21, 2004, the Plaintiff: (a) on September 21, 2004, the real estate listed in the list of real estate (hereinafter referred to as “instant building”) in the attached Table 1 (hereinafter referred to as “non-party company”); (b) KRW 399,000 (hereinafter referred to as “the part of the dispute lease”) in total with the size of 133 square meters for the second, third, and fourth floor of the building; (c) KRW 100,000 (the contract being paid the down payment of KRW 90,000 on October 30, 2004; and (d) KRW 15,00,000 (value-added tax separate); (c) monthly management expenses; (d) KRW 2,394,00 (value-added tax); and (d) from September 21, 2004 to September 205, the Plaintiff did not make the lease contract at least 100,000.

C. The Defendant confirmed the fact that the Plaintiff entered into the instant lease agreement with the Nonparty Company, the fact that the Plaintiff was transferred the title of the non-party company’s patent right, etc. as collateral for the non-party company’s attempted rent, etc. that the Plaintiff failed to receive from the non-party company, and deemed that the Plaintiff omitted the value-added tax return on the aggregate of KRW 141,30,164 equivalent to the rent under the instant lease agreement as indicated below, and on April 1, 2008, the value-added tax was levied on the Plaintiff on April 1, 2004.

The instant disposition was taken to correct and notify the amount of KRW 9,874,250 for the first term in 2005.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, Gap evidence 3, Eul evidence 4-1, 2, Eul evidence 1-1, 2, Eul evidence 2, Eul evidence 3-1, 2, Eul evidence 3-1, 4, and the purport of the whole pleadings

2. Whether the disposition of imposition is lawful.

A. The plaintiff's assertion

① Under the instant lease agreement, the Plaintiff was necessary to obtain a loan from the Small and Medium Enterprises Promotion Office, and the Plaintiff just accepted the remainder of the deposit from the non-party company until October 30, 2004, the remainder of the deposit was not paid until the remainder of the deposit due, and the non-party company was not actually using the key part of the deposit. ③ The Plaintiff was transferred the patent right, etc. owned by the non-party company from the non-party company as a collateral title on February 24, 2005, and was deferred payment of unpaid deposit and monthly rent, etc. by May 20, 2005, and the non-party company was not subject to the non-party company’s agreement to obtain a refund from the non-party company to the non-party company under the general provisions of the Value-Added Tax Act. However, the Plaintiff did not know that the non-party company was subject to the non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party-party-party-party-party-2.

Therefore, even though the Plaintiff did not fully receive rent from the non-party company under the instant lease agreement, the Defendant’s disposition of this case, which was based on the premise that the non-party company provided lease services for the key part of the lease, was erroneous, and was in violation of the principle of substantial taxation.

(b) Related statutes;

Article 2 (Taxpayer of Value-Added Tax Act)

Article 7 (Supply of Value-Added Tax Act)

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

Article 2 (Scope of Services)

Article 22 (Time of Supply for Services)

Article 48 (Calculation of Tax Base of Value-Added Tax Act)

(c) Fact of recognition;

(1) On June 7, 2004, the Plaintiff entered into a lease contract with the non-party company to automatically extend the lease term by 20 million won, monthly rent of 20 million won, 2755,000 won (excluding value-added tax), management expenses monthly, 588,000 won (excluding value-added tax), and from July 8, 2004 to July 7, 2005. If the monthly rent is late at least three (3) days before the expiration of the lease term, the Plaintiff paid damages for delay at the rate of 2.5% per month to the non-party company to automatically extend the lease term by 2 months before the expiration of the lease term (hereinafter referred to as the "previous lease contract"), and received from the non-party company the remainder of the lease deposit from the non-party company to the non-party company as the down payment term of 10 million won, and from July 8, 2004 to the non-party company's office to the non-party company.

(2) After that, on September 21, 2004, the Plaintiff entered into the instant lease agreement with the Nonparty Company as seen earlier, and on the same day, received KRW 10 million from the Nonparty Company as the down payment, and thereafter, made the Nonparty Company use the leased part of the issue as the office, etc. from that time.

(3) On September 21, 2004, the non-party company promised to pay to the Plaintiff KRW 2,000,000,000,000,000,000,000,000,000,0000,000,0000,000,0000,000,000,000,000,000

(4) As of December 9, 2004, the non-party company: (a) as of October 9, 2004; (b) as of October 2004; and (c) as of November 2004; and (d) as of November 9, 2004, the total sum of KRW 38,266,80,00, including the remainder of the lease deposit under the instant lease agreement; and (b) as of December 9, 2004, the non-party company shall pay to the Plaintiff the full amount of KRW 38,266,80, and as of December 9, 2004; (c) in case of default, the key part of the lease shall be ordered to be clarified

(5) The non-party company paid only monthly rent and management expenses up to October 2004 under the previous lease agreement, and delayed payment of KRW 90 million under the previous lease agreement and the remaining monthly rent under the instant lease agreement, and the unpaid lease deposit under the instant lease agreement. On February 24, 2005, the plaintiff delayed payment of the unpaid lease deposit and monthly rent to the non-party company by May 20, 2005, instead of delaying payment of the aforementioned unpaid lease deposit and monthly rent, etc., the non-party company provided the patent right, etc. owned by the non-party company as security, and paid KRW 418,796,035 in aggregate, including the unpaid lease deposit and monthly rent, management expenses, delay damages, and interest on the lease, etc. up to the time as indicated in the table below, and if delayed payment, it agreed to pay damages by adding the amount of damages at the rate of 1.5% per month (hereinafter referred to as the "instant agreement").

(6) On February 23, 2005 and February 24, 2005, the Plaintiff registered the transfer of patent rights, etc. offered as security by the non-party company in the name of the Plaintiff.

(7) On March 10, 2005, the Plaintiff demanded the non-party company to take over the right of patent, etc. provided as security after paying a sum of KRW 172,463,542, including the monthly rent in arrears under the previous lease agreement and the instant lease agreement. By March 20, 2005, the Plaintiff sent to the non-party company by content-certified mail a notice stating that the non-party company shall demand the presentation of the right of patent, etc. provided as security until March 20, 2005.

(8) On August 12, 2005, the Plaintiff filed a lawsuit against the non-party company with the Seoul Eastern District Court 2005Kahap10621, and on January 27, 2006, “previous lease agreement and the instant lease agreement” had been lawfully terminated on July 11, 2005. Therefore, the non-party company delivered the Plaintiff the 84 square meters of the fourth floor of the instant building and the leased issues, respectively, until May 20, 2005, with the obligation to pay the Plaintiff the amount of KRW 224,296,035 (i.e., monthly rent, management fee, delay damages, etc. until May 20, 2005 (i.e., the agreed amount of KRW 414,296,035,000 won - KRW 1000,000,000 won - KRW 990,000,000) and the aforementioned decision was rendered at least 20.5.215.

(9) The Red ○○ Steel Co., Ltd., in charge of the management of the building of this case, has to perform the interior decoration construction in order to prove the fact of the lease when the Small and Medium Enterprises Promotion Office wishes to obtain a loan. However, the Plaintiff did not comply with the agreement on Oct. 8, 2004 that the Plaintiff would be able to provide the rent and management fee from Sep. 21, 2004, which is the contract date, and paid 20 million won to the lessee until Oct. 8, 2004. Accordingly, the Plaintiff did not prepare the lock door for the leased issue on Oct. 9, 2004, and gave testimony to Nonparty 3 as a witness of the instant case. The Plaintiff did not comply with the agreement that the Plaintiff would be able to provide the interior decoration construction work until Oct. 8, 2004.

[Ground of recognition] Unsatisfy, Gap evidence 1-1, Gap evidence 2-1 through 3, Gap evidence 3, 5, Eul evidence 4 through 8, part of Gap evidence 6 and 7, witness red satfy, witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness 1-1, Gap evidence 2-1 through 3, Gap

D. Determination

(1) Even if a lessor’s termination notice of a building lease agreement was terminated and thus a lessee’s occupation is illegal possession, if the lessee continues to use the building without ordering it, and if the lessor’s possession of the leased deposit without returning it and deducts the amount of monthly rent from the deposit, it constitutes a supply of services subject to value-added tax, and whether the lessee actually received the price as long as the lessee provided services to others upon receiving the price constitutes a supply of services subject to value-added tax. (See Supreme Court Decision 2002Du8534, Nov. 28, 2003).

(2) According to the above facts, even if the plaintiff's assertion was made, the plaintiff delivered the part on the lease of the building to the non-party company from September 21, 2004 to the non-party company. Accordingly, it is reasonable to deem that the non-party company continued to use the part on the lease of the building without the plaintiff's consent until September 21, 2004, the starting point of which was the starting date of the lease term under the lease contract of this case. The non-party company did not raise any objection against the non-party company's delivery of some of the issues on the lease of the building of this case to the non-party company or the non-party company's non-party company's non-party company's non-party company's non-performance of the lease contract of this case until the non-party company's non-party company's non-party company's non-performance of the lease contract of this case's non-party company's non-party company's non-performance of the lease contract of this case.

(3) Therefore, the Defendant’s disposition of this case is lawful, regardless of whether the Plaintiff actually received the payment of rent, etc. under the instant lease agreement, so long as it is recognized that the Plaintiff provided the services to Nonparty Company through the lease of the key part, and the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is rejected as it is without merit, and it is decided as per Disposition.

section 3.