부가가치세 과세･면세 사업구분 기준에 관한 고찰 ― 지방자치단체의 준설토 판매행위를 논의소재로 ―

The current law provides the general rule of exempting VAT on goods or services supplied by the state or local governments for reasons such as relaxing regressivity, but again sets forth an exception to this rule by excluding the supply of certain goods or services from exemption in order to ensure competitive neutrality with private enterprises. However, it does not separately provide a concept of business which is excluded from exemption and merely provides in Article 4 (1) of the Enforcement Decree of the VAT Act that such shall be determined ‘in accordance with the Korean Standard Industrial Classification'. In this paper, we reviewed a recent case in which a local government had entered into an aggregate disposal agreement with the state and sold a large quantity of dredged soil supplied thereunder to a private organization whereby the issue of whether such sale shall be seen as a VAT taxable transaction was raised, and by doing so, we tried to present a legal framework which sets correctly the scope of goods and services supplied by the state or local governments which shall be excluded from VAT exemption. First, we examined the normative meaning of Article 20 of the Basic Act for National Taxes which provides that “corporate accounting standards and practices shall be respected” and Article 43 of the Corporate Tax Act which provides that “corporate accounting standards or practices shall be complied with” and thereby demonstrated that the ‘Korean Standard Industrial Classification’ set forth in the Enforcement Decree of the VAT Act which has a similar legal wording structure shall also not be regarded as a source of law which binds the judge. Further, we reached the conclusion that the criterion for determining whether a business falls under a VAT exempted business or a VAT taxable business shall not be understood with a yardstick given from the outside of the VAT Act such as the one provided mechanically by the Korean standard industry classification, etc. but shall be understood with a legal concept to be found from within the VAT Act. In addition, we also confirmed that legislative supplementation such as presenting normative standards through statutory law on the distinction of businesses based on their similarity in industrial activities is ultimately required.