beta
(영문) 서울고등법원 1993. 09. 24. 선고 93구9592 판결

부동산매매업자 해당 여부[국승]

Title

Whether a real estate broker is a real estate broker

Summary

The case where the comprehensive income tax on the business income is imposed on the newly built and transferred five households for each apartment house as the real estate sales businessman.

The decision

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

Text

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

Reasons

1. Details of the imposition value;

원고가 1987. 8. 경 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ의 8 대 245 평방미터 지상에 건물 1동 지하 1층 지상 2층 연면적 328.35평방미터를 신축하여 같은해 8. 7.양도하였고, 같은해 9. 경 같은동 ㅇㅇ의 6 대 280.9 평방미터 지상에 건물 1동 지하 1층 지상 2층 연면적 327.12평방미터를 신축하여 같은해 9. 11.양도하였으며, 1988. 1. 경 같은동 ㅇㅇ의 1 대 254평방미터 지상에 건물 연면적 327.96평방미터를 신축하여 1988. 1. 12.양도한 사실및 피고가 이에 대하여 위 각 주택의 양도로 인한 소득을 소득세법 제20조제1항제5호,같은법시행령 제33조제2항(1988.12.31.대통령령 제12564호로 개정되기 전의 것,이하같다)에 의한 건설업및 부가가치세법 제1조제1호,제2조, 같은법시행령 제1조,같은법시행규칙 제1조제1항에 의한 부동산매매업을 영위한 데서 발생한 사업소득으로 보아 청구취지 기재와 같은 각 부과처분(이하 이사건 처분이라 한다)을 한 사실에 관하여는 당사자간에 다툼이 없거나 을 제1내지 5호증및 제7호증의 각1,2,을 제8호증의 각 기재에 의하여 인정된다.

2. The legality of a disposition of imposition.

A. The parties' assertion

The plaintiff argues that the disposition of this case is unlawful since the plaintiff's new construction of a building or real estate sale business is not a business operator but a non-resident at the time of the transfer of each of the above real estate, and it cannot be deemed that he newly constructed and transferred each of the above real estate as a non-resident at the time of such transfer, and it is unlawful that the defendant made a different report even though he did not take any tax imposition measures for four years after the above transfer date, it is considered as a business operator and the disposition of this case is unfair in light of the equity and purpose of taxation. Third, since the three houses subject to the disposition of this case can live independently by various households, and the size of the household does not exceed the national housing scale, the standard rate of income applied in calculating global income tax should be exempt from value-added tax, and the income rate applied in calculating global income tax should not exceed 23.9% of the national housing scale, but not below 19.6% of the national housing scale, and the disposition of this case should be revoked on the premise that the national housing scale is below national housing scale.

B. Determination

First, the first argument is considered.

Article 20 (1) 5 of the Income Tax Act provides that income generated from construction business shall be deemed business income, and Article 3 (2) of the Enforcement Decree of the same Act provides that a business that newly constructs and sells a house shall be deemed a construction business. Whether income from the new construction of a house or the sale and purchase of such house belongs to business income shall be determined in light of social norms in consideration of the circumstances such as whether the building or the sale and purchase of such house is for profit, and whether the building or the sale and purchase of such house has continuity and repetition to the extent that business activities can be seen in light of the size, recovery, mode, etc. of the business activity. Article 1 (1) and Article 2 of the Value-Added Tax Act and Article 1 of the Enforcement Decree of the same Act provide that a person who supplies goods or services independently for business regardless of the existence or absence of profit-making profits with respect to the scope of the real estate sale and purchase business on which value-added tax is imposed shall represent the sale and sale of real estate (including the sale of real estate by new construction) or brokerage, and shall be deemed to sell real estate more than once.

그런데, 을 제6호증의 1내지 4, 을 제7호증의 각 1,2, 을 제8호증, 을 제9호증의 각 1,2,3의 각 기재에 변론의 전취지를 종합하면, 원고는 1986. 12. 12.ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ의 8 대 245평방미터를 취득하여 동지상에 건물 1동 지하 1층 지상2층 연면적 328.35평방미터를 신축하여 1987. 8. 7. 소외 김ㅇㅇ에게 금165,000,000원에 양도하였고, 같은해 5. 11. 같은동 ㅇㅇ의 6 대 280.9평방미터를 취득하여 그 지상에 건물 1동 지하 1층 지상2층 연면적 327.12평방미터를 신축하여 같은해 9. 11. 소외 장ㅇㅇ에게 양도하였으며, 같은해 9. 4. 같은동 ㅇㅇ의 1 대 254평방미터를 취득하여 그 지상에 건물 연면적 327.96평방미터를 신축하여 1988. 1. 12.소외 허ㅇㅇ에게 금2억원에 양도한 사실외에도, 1986. 1. 30.ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ호의 대지상에 단독주택 2세대를 신축하여 같은해 8. 26. 타인에게 양도하고,1986. 5. 30.ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ 대 167.80 평방미터를 매수하여 1986. 10. 31. 연립주택 5세대를 신축하여 그무렵 그 일부세대를 타인들에게 양도하는 등 이 사건 3개의 부동산의 양도를 전후하여 여러차례에 걸쳐 토지를 취득하고 그 지상에 주택을 신축하여 양도한 사실이 각 인정된다.

According to the purport of the relevant laws and regulations as seen earlier and the above facts, the Plaintiff’s transfer of each of the instant real estate constitutes a case where real estate is acquired more than once and sold more than twice during one taxable period considered as real estate sales business under the Value-Added Tax Act, and it is sufficient to recognize that the Plaintiff’s continued and repeated intent was made for profit purposes in light of the collection, frequency and size, mode, holding period, holding status, etc. of each of the instant real estate newly constructed and sold on the ground after acquiring the site. Accordingly, the income therefrom should be deemed as business income under the Income Tax Act and the Value-Added Tax Act, and the Defendant’s imposition disposition of each of the instant global income tax and the instant value-added tax by deeming that the Plaintiff was engaged in real estate sales business is legitimate, and the Plaintiff’s above assertion is therefore groundless.

Next, according to the above second argument, the plaintiff's new construction or transfer of each building, which is the premise of the disposition of this case, can be seen as having caused the disposition of this case since the defendant did not pay taxes by voluntary report at that time, and the defendant did not pay taxes by voluntary report at that time, and 4 years have passed thereafter, since the disposition of this case was delayed due to the above reasons, it cannot be deemed that the disposition of this case violates the equity and purpose of taxation, and therefore, the above assertion also is groundless.

Finally, the third argument of the plaintiff is that a national transfers the land to a housing constructor registered pursuant to Article 6 of the Housing Construction Promotion Act as a construction site for a house smaller than the scale prescribed by the Presidential Decree. The first part of Article 30 (1) of the Enforcement Decree of the Housing Construction Promotion Act, which is based on the scale of national housing reduced or exempted from capital gains tax, provides that the housing area per house or per household shall not exceed 85 square meters. The first part of Article 30 (1) of the Enforcement Decree of the Housing Construction Promotion Act, which is based on the scale of national housing as defined in Article 50 (2) of the Enforcement Decree of the same Act, provides that the plaintiff transferred the land to a housing constructor registered pursuant to Article 6 of the Housing Construction Promotion Act, or on the premise that a new building is jointly residing by several households, shall be less than the above 85 square meters per household area. However, according to the evidence above, the three houses subject to the disposition of this case are newly built and transferred to the land purchased by the plaintiff, and there is no reason for the plaintiff's assertion that the above above 200 square.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as without merit, and the costs of lawsuit are assessed against the losing party and it is so decided as per Disposition.