early 209west2637 ( October 17, 2010)

The disposition imposing value-added tax on the plaintiffs who are registered business operators who newly built and sold the loan is legitimate.

The plaintiffs should be deemed to be the plaintiffs and it is difficult to recognize that they are the construction companies. The exclusion period for the imposition of value-added tax on the non-reported value-added tax is seven years, and since the new construction and sale of the loan commenced without business registration, it is legitimate to impose the non-registered additional tax.

2010Guhap43013 Revocation of Disposition of Imposition of Value-Added Tax

1.이〇〇2.김△△3.이□□

〇〇 세무서장

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s imposition of value-added tax for the second period of February 1, 2009 against the Plaintiffs of KRW 76,133,780 and value-added tax for the first period of February 1, 2003 shall be revoked.

1. Details of the disposition;

가. 원고들은, 원고 이AA 소유의 〇〇 〇〇구 〇〇동 841-17 대지 282.3㎡' 원고 김BB 소유의 같은 동 841-16 대지 285.3㎡, 원고 이CC 소유의 같은 동 841-2 대지 277.3㎡와 각 그 지상 건물 3채(이하 '이 사건 각 대지 및 지상 건물'이라 한다)를 철거하고, 이 사건 각 대지 위에 5층 10세대 규모의 빌라(이하 '1차 □□빌라'라 한다)를 신축하여 분양할 목적으로, 2001. 11. 12. ◇◇종합건설 주식회사(이하 '◇◇건설'이라 한다)와 사이에 건축공사계약(도급금액 33억 원)을 체결하고, 1차 □□빌라에 대한 건축허가(2001. 11. 27. 원고 이CC, 이AA가 건축허가를 받았고, 2002. 1.경 건축관계자 변경신고를 통해 원고 김BB이 건축주로 추가되었다)를 받아 공사를 진행하였다.

B. After January 11, 2002, the plaintiffs transferred the price calculated based on the appraised value of each of the lands and above-ground buildings in this case between △△ Construction (800,000,000 won for the land and building price owned by the plaintiff KimB, 812,00,000 won for the land and building price owned by the plaintiff KimB, and 797,000,000 won for the land and building price owned by the plaintiff KimB, and 2,409,000,000 won for the total of 797,000,000 won for the land and building price owned by the plaintiff KimB, and the price was completed as the payment in kind for each of the households designated by the plaintiffs after the completion of the first △△△△ Construction. On January 24, 2002, the registration of transfer of ownership of each of the above sites and above-ground buildings was completed in lieu of the sale price agreement that the seller wishes to be invalidated (the above ownership transfer of ownership of each of the aggregate building in this case becomes invalidated).

C. △△ Construction changed the owner in his name on June 27, 2002, and completed the first △△ Housing around December 2002, and completed the registration of preservation of ownership for each of the above lending households, and filed an assessment of value-added tax on the sale of the above lending households, excluding three households, for which payment was to be made to the Plaintiffs, in the taxable period of the second and the first 2003 value-added tax in 202 and 203.

D. The head of Sung-dong Tax Office confirmed that the plaintiffs were the actual owner of the first △△ branch, who was subject to tax evasion reporting (the contents that the plaintiffs were the actual owner of the first △ branch) from DoD and confirmed that the plaintiffs were the actual owner of the first △ branch, and notified the defendant of the taxation data on it.

E. Accordingly, on February 13, 2009, the Defendant newly constructed and sold the first △ branch loan without business registration, and confirmed that the sales revenue of the said seven households was KRW 4,491,343,00 (including the tax-exempt amount of KRW 1,236,54,796,00, the tax-exempt amount of KRW 3,254,796,000). On February 13, 2009, the Defendant corrected and notified the Plaintiffs of value-added tax for the second period of KRW 76,13,780 (including the non-registered additional tax of KRW 3,31,604) and value-added tax for the first period of KRW 163,485,780 (including the non-registered additional tax of KRW 9,053,872) (hereinafter collectively referred to as the “each of the above dispositions”).

F. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 30, 2009, but the Tax Tribunal dismissed all the Plaintiffs’ appeals on August 17, 2010.

Facts without dispute over the basis of recognition, Gap 1 through 7 evidence, Eul 1 evidence (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) △△ Construction: (a) transferred each of the instant sites and the instant ground buildings from the Plaintiffs, changed the name of the owner; (b) newly constructed and sold them directly; (c) reported the value-added tax pursuant thereto; and (d) included the unsold portion in lots as the final inventory asset at the time of corporate tax return. Therefore, since a person who actually newly built and sold the first △△△ Construction, the instant disposition issued by the Defendant on a different premise is unlawful.

2) Even if the plaintiffs were the actual business operators who newly built and sold the first △△ branch, the return of value-added tax was filed by △△ Construction by reporting all of the value-added tax related to the construction and sales revenue of the above loan. Thus, the exclusion period for the imposition of value-added tax of this case shall be five years pursuant to Article 26-2 (1) 3 of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006; hereinafter referred to as the "former Framework Act on National Taxes"), and the disposition of this case is unlawful since five years have elapsed since it was against the exclusion period for imposition.

그렇지 않다고 하더라도, 원고들은 2003. 2. 28. 또 다른 빌라를 신축 ・ 분양하기 위하여 1차 □□빌라 인근의 〇〇 〇〇구 〇〇동 803-3을 사업장소재지로, 개업일을 2003. 2. 28.로, 사업종목을 건설/주택신축판매업으로 한 사업자등록을 하고, 신축한 빌라의 분양에 따른 2003년 제1기분 부가가치세를 신고 ・ 납부하였는바, 위 또 다른 빌라의 소재지를 1차 □□빌라를 포함한 주택신축판매 업무를 총괄하는 장소(사업장)로 볼 경우 원고들은 2003년 제1기 부가가치세 과세기간 중 발생한 1차 □□빌라의 분양에 따른 부가가치세 선고를 단순 누락한 것에 불과하므로, 이 사건 처분 중 2003년 제1기분 부가가치세 부과처분은 부과제척기간 5년을 도과하여 이루어진 것으로서 위법 하다.

3) In addition, even if the plaintiffs are the actual new construction and sale business operators of △△△ Housing, the plaintiffs fall under the title-holder who reported value-added tax in the name of △△ Construction, and thus, the input tax amount of the tax invoice received in the name of △△ Construction pursuant to the General Rule 22-0-1 of the Value-Added Tax Act should be deducted from the output tax amount of the plaintiffs, and does not fall under the subject of the additional tax on unregistered registration.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The details of transfer of ownership by each household of the above lending, after the registration of preservation of ownership in the name of △△ Construction with respect to the first △△△△ Loan, are as follows.

2) Kim E-E, which purchased 401 △△△△ 401, paid 700 million won to the former representative director of △△ Construction, to the latter, and in the case of HH certificates (which received 400 million won in cash, Nov. 20, 2002, Nov. 27, 2002, and Dec. 10, 2002), the seal of the Plaintiff A, along with the corporate seal of △△ Construction, is affixed.

3) On August 202, 2002, KimF, who purchased 502, the first Dol-Ba 502, concluded a sales contract with the plaintiffs who are the actual owner of the above Dol-Ba at the real estate brokerage office, and paid the down payment. On December 2002, 202, the former Dol-Ba, which is the owner of the above Dol-Ba, and the others paid the remainder of the sales price to the Dol-Ba at the same place where the plaintiffs were jointly located (the first Dol-F concluded a sales contract with the defendant as to the above 502, and submitted a written confirmation to the defendant that the sales price was paid to the Dol-Ba, but thereafter, submitted a written confirmation to reverse

4) JungG completed the registration of ownership transfer with respect to 501, May 6, 2003, Y, which was the owner prior to the real estate injury, and entered into a sales contract with the Plaintiff, including the Plaintiff, who was the owner of the building, and paid KRW 37 million the down payment around April 2003, and the remainder of KRW 328 million to this part of the wife, around May 2003.

5) In around 2003, the Plaintiffs filed a complaint with DoD and △△ Construction Subcontractors on the charge of fraud, theft, and embezzlement (DD, YJ received a non-prosecution disposition that is not suspected of being suspected on January 28, 2004). This II and Plaintiff KimB, and thisCC concluded a contract with △△ Construction with the first △△ Construction, and paid KRW 3.3 billion as the construction cost, taxes and public charges, KRW 3.3 billion as additional construction cost, KRW 100 million as the additional construction cost (the construction cost on the rooftop), and △△△△ Construction stated that 3.7 billion as the security of each site of this case, KRW 8.5 billion as loans from △△△ Life Co., Ltd. were partially KRW 3.7 billion in the name of △△△△ Construction, which was newly constructed and paid to 3.3 billion in the name of the Plaintiffs and the owners of △△△ Construction in the name of 3.3 billion in lots.

6) On November 27, 2007, Doz. Doz. stated that Doz. Construction took part in the real estate registration for each household of Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. 1 and Doz. Doz. 2, Doz. 1 and Doz. 1, Doz. 1, 201, and Doz. 1, Doz. 1, 201, and Doz. 1, Doz. 1, 202.

7) 위 황JJ은 ◇◇건설의 원고들에 대한 채권을 양수하였음을 이유로 원고들을 상대로 양수금청구의 소를 제기하였는데, 위 사건의 항소심(〇〇고등법원 2006나 105391)은 2007. 6. 20. 아래와 같은 사실관계를 전제로 황JJ의 일부승소 판결을 선고하였다(이에 대하여 쌍방이 상고하였으나 대법원에서 모두 상고 기각됨으로써 위 판결이 확정되었다).

① The Plaintiffs (standing Defendants in the judgment above) agreed to separately pay KRW 3.3 billion for the construction cost of the first △△△ Construction, and separately to pay KRW 300 million for the case cost and KRW 100 million for the rooftop. However, for the convenience of tax relations, the name of the owner of the building for the new building and the name of each of the instant sites was put in the name of the contractor in the name of △△ Construction, a contractor.

② After the completion of the construction around December 2002, △△ Construction completed the registration of ownership transfer to the plaintiffs or buyers at that time, and completed the registration of ownership transfer to each of the households of △△ branch of △△ branch of the same month.

③ 원고들은 1차 □□빌라 신축공사와 같은 방식으로 또 다른 빌라의 신축 ・ 분양 사업을 추진하기로 하고, 2002. 4. 22. ◇◇건설에게 〇〇 〇〇구 〇〇동 803-3 지상 지하 1층, 지상 7층, 연면적 2,625.5㎡의 빌라(이하 '2차 □□빌라'라 한다) 신축공사를 공사대금 28억 원에 도급주면서, 위 공사대금과는 별도로 사례비 2억 원을 지급하기로 약정하였다. 그러나 ◇◇건설은 2차 □□빌라 신축공사를 진행하던 중 2003. 1.경 공사를 중단하고, 2003. 2. 14. 원고들에게 공사포기각서를 작성 ・ 교부하였다.

④ △△ Construction was reimbursed KRW 2,980,00,000 in total from the Plaintiffs until December 8, 2002, and again, prepared a confirmation statement and a statement of performance that the Plaintiffs received the payment of construction price for the first △△△△△△△△△△△△△, etc. on December 9, 2002 from the Plaintiffs EA, E-A, E-CC, etc. on December 25, 2002, KRW 20,300,000,000 on December 30, 202, and KRW 30,000,000 on December 38, 2002.

⑤ On July 24, 2002, the Plaintiffs borrowed KRW 8.5 million from △△ Life Insurance Co., Ltd. as collateral for each of the instant sites (the instant site), and borrowed KRW 1.3 billion to △△ Construction as collateral for the second △△△ Construction on or around March 2002, and paid KRW 1.3 billion to △△ Construction, while each of the instant sites was registered in the name of △△ Construction, the respective debtors of each of the above loans were in the name of △△△ Construction.

8) 한편, 원고들은 ◇◇건설이 2차 □□빌라 건축공사를 중단한 후인 2003. 2. 28. 2차 □□빌라를 신축 ・ 분양하기 위하여 〇〇 〇〇구 〇〇동 803-3(2차 □□빌라 부지)을 사업장소재지로 개업일을 2003. 2. 28.로 사업종목을 건설/주택신축판매업으로 한 사업자등록을 하였고, 이후 2차 □□빌라의 분양에 따른 2003년 제1기분 부가가치세를 선고 ・ 납부하였으며, ◇◇건설은 2003. 3. 16. 폐업하였다.

[Ground of recognition] Facts without dispute, Gap 2, 7, 9, 10 evidence, Eul 2 through 8 (including each number), the purport of the whole pleadings

D. Determination

1) Determination on the first argument

The following circumstances revealed through the purport of the above facts and the entire pleadings, i.e., (1) the plaintiffs were deemed to have newly constructed and sold the first △△ Housing in the name of △△ Construction in order to avoid the opening of the building site on three persons. (2) The plaintiffs completed the first △△ Housing and completed the registration of ownership transfer of each of the above households without involvement in △△ Construction and completed the registration of ownership transfer (only the sales price income was paid as the construction price). (3) The plaintiffs paid KRW 3.7 billion to △△ Housing as the actual building owner of △△△△ Housing, and it is difficult to view that the plaintiffs paid KRW 1.5 billion as taxes and public charges for the construction price, etc. of △△ Housing, and the fact that the plaintiffs paid KRW 1.5 billion to △△ Housing Construction in the name of △△ Housing Construction, which is due to the fact that it is difficult to recognize that the plaintiffs paid the remainder of the housing site in the name of △△ Housing Construction in the name of △△ Housing Construction.

Therefore, this part of the plaintiff's assertion is without merit.

2) Determination on the second argument

Article 26-2 (1) 2 of the former Framework Act on National Taxes provides that if a taxpayer fails to file a tax base return within the statutory due date of return, national taxes may be imposed for seven years from the date on which the relevant national tax may be imposed, and Article 19 (1) of the former Value-Added Tax Act (amended by Act No. 7007 of Dec. 30, 2003) provides that a business operator shall file a tax base, etc. with the head of the competent district tax office having jurisdiction over the place of business within 25 days after the end of the taxable period. The fact that a business operator newly constructed and sells the first △ branch and sells the first △ branch, who is the actual business operator, was liable to pay value-added tax, did not file a tax base return within the statutory due date of return on the second 2002 and first 1, 2003 following the fact that the exclusion period of imposition on the plaintiffs' value-added tax of this case does not fall under the said tax base of △△ branch.

The plaintiffs reported the value-added tax base for the first period of 2003 with respect to the sale in lots in the second Doldong, but merely simply omitted the part related to the sale in lots in the first Doldong in 2003. However, the exclusion period for imposition of value-added tax for the first period of 2003 is not 7 years but 5 years. However, as seen above, the plaintiffs were to have reported value-added tax pursuant to the Housing Construction and Sales Business when they run housing construction and sales business with respect to the new construction and sale in the first Doldong loan in the first Doldong loan in the second Dol loan in 2003. Therefore, it cannot be deemed that the plaintiffs merely omitted the value-added tax for the first period of 1, 2003 following the sale in lots in the second Dol loan in 203.

3) Judgment on the third argument

A) Article 5(1) of the former Value-Added Tax Act provides that a person who newly starts a business shall register at each place of business with the head of the competent district tax office having jurisdiction over the place of business within 20 days from the date of commencing the business under the conditions as prescribed by the Presidential Decree. Article 22(1) provides that in case where a business operator fails to file an application for registration within the time limit prescribed by Article 5(1), with respect to the supply price from the date of commencing the business to the date of filing the application for registration (the pertinent taxable period if the time limit for preliminary return expires, the pertinent taxable period) the amount equivalent to 1/100 shall be added to the payable tax or deducted from the refundable tax amount. As seen earlier,

B) Meanwhile, the general rule of the Value-Added Tax Act (amended by Act No. 850, Oct. 14, 2008) provides that in cases where the value-added tax is revised for a person under the name of another person who has registered as a business operator and has reported and paid the value-added tax on behalf of another person, the input tax amount of the tax invoice issued under the name of another person shall be deducted from the output tax amount of the person under the name of another person under Article 14 of the Framework Act on National Taxes, and the penalty tax shall not apply to the unregistered business operator who has reported and paid the value-added tax. The basic rule provides that in cases of the actual business operator who has reported and paid the value-added tax after lending another person's name, the input tax amount of the tax invoice issued under the name of another person shall be deducted from the output tax amount of the person under the name of another person under the name of another person under the name of another person under the name of another person under the name of another person under the name of another person under the name of another person under the name of another person under the registration of this case.

C) Therefore, the plaintiffs' assertion on this part is without merit.

3. Conclusion

The plaintiffs' claims are dismissed in entirety because they are without merit.