[2] The case holding that, in a case where the price is determined and traded collectively without distinguishing the value of the building site and the ground building, the price for the building site and the building shall be deemed to have been paid together at the time of each payment of the down payment, intermediate payment, and remainder, unless there

[2] The case holding that, barring any special circumstance such as an agreement to pay the down payment, intermediate payment, and remainder in a case where the value of the building site and the building on its ground are traded and purchased in a lump sum without distinguishing it from that of the building site and the building site, the price for the building site and the building shall be deemed to have been paid together at the time of each payment,

1. On the first ground for appeal

Whether the transaction of real estate constitutes a real estate trading business, which is a taxation requirement of value-added tax, ought to be determined in light of social norms, considering whether the transaction is for profit-making purposes and whether the transaction continues to be and repeated to the extent that it can be seen as business activities in light of its scale, frequency, mode, etc. (see, e.g., Supreme Court Decision 94Nu1170, Mar. 3, 1995).

기록에 의하면, 원고와 원심 원고 소외인(이하 '원고 등'이라고 한다.)이 공동으로, 1988. 7. 2. 부산 북구 (주소 1 생략). 임야 3,640㎡의 지분 ½씩을 취득하여 (주소 2 생략). 공장용지 529㎡(제3 대지)와 (주소 3 생략). 대 1,126㎡(제4 대지) 등으로 분할 및 지목변경한 후, 1989. 12. 30. 제4 대지상에 연면적 472.56㎡의 지하 1층, 지상 2층 근린생활시설(제3 건물)을, 1990. 1. 5. 제3 대지상에 연면적 468㎡의 지하 1층, 지상 2층 공장건물(제2 건물)을 각 완공하면서 그 완공 이전인 1989. 11. 11. 제3, 4 대지 및 제2, 3 건물을 총대금 1,250,000,000원에 소외 주식회사 한남체인에 양도하였으며, 그 이외에도 1988. 8. 29. (주소 4 생략). 임야 9,818㎡의 지분 ½씩을 취득하여 (주소 5 생략). 대 1,171㎡(제1 대지)와 (주소 6 생략). 대 845㎡(제2 대지) 등으로 분할 및 지목변경한 후 1989. 1. 31. 제1 대지를, 1990. 11. 3. 제2 대지를 각 양도하고, 1986. 12. 27. (주소 7 생략). 임야 226㎡의 지분 ½씩을 취득하여 공장용지로 지목변경한 후 그 지상에 건물을 신축하여 1988. 8. 5. 양도하였음을 알 수 있는바, 이러한 부동산 거래의 태양이나 규모, 횟수, 보유기간 등에 비추어 보면, 원고는 수익을 목적으로 사회통념상 사업활동으로 볼 수 있을 정도의 계속성, 반복성을 가지고 이 사건 제2, 3 건물을 양도한 것으로서 부동산매매업을 영위한 경우에 해당한다고 봄이 상당하다.

In the same purport, the court below is just in holding that the transfer of buildings Nos. 2 and 3 of this case was made as part of real estate sales business which is subject to value-added tax, and there is no error of law such as misunderstanding of legal principles

2. On the fourth and fifth grounds for appeal

Article 48-2 (3) of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 14988 of Apr. 27, 1996) provides that "in cases where a business operator concurrently supplies land, a building built on such land, and other structures, the value of the relevant building and other structures shall be calculated based on the actual transaction value: Provided, That in cases where the distinction between the value of land and the value of the building and other structures is unclear from the actual transaction value, it shall be calculated in proportion to the value calculated according to the standard market value under the Local Tax Act as of the date of the supply contract." This proviso provides that "In cases where a business operator concurrently supplies land and a building built on such land, etc., the total supply value shall be determined in proportion to the value calculated according to the standard market value under the Local Tax Act as of the date of the supply contract, unless the actual transaction value is different from the value of the building that is subject to value-added tax and the supply value of the land subject to tax exemption, and thus, the method of calculating tax standard market value proportional (see, etc.).

According to the reasoning of the judgment below, the court below held that the actual transaction price of the building site and the building is unclear considering the following: the price under the sales contract prepared at the time when the plaintiff et al. transferred the building Nos. 3, 4, 2, and 3 to Hannam chain Co., Ltd. in this case is divided into the site and the building unit price; the price of the building site and the building is not separately stipulated at the time of acquisition by the purchaser; the site and the building price of the building was arbitrarily appropriated in the ledger as the price of the building site and the building was not stipulated at the time of acquisition by the purchaser; and the stamp contract prepared at the time of application for registration of transfer of ownership of a building was made with a content different from the fact for convenience. In light of related statutes and records,

3. On the sixth ground for appeal

Even if the Plaintiff is engaged in real estate sales business, the part exceeding the Plaintiff’s share among the buildings Nos. 2 and 3 of this case cannot be included in the subject of taxation. This part of the ground of appeal is a new argument in the trial, and thus, it cannot be a legitimate ground of appeal.

4. On the seventh ground for appeal

According to the reasoning of the lower judgment, the lower court determined that: (a) the Plaintiff’s transfer of KRW 125,00,000 for down payment (225,00,000 in the lower judgment appears to be erroneous) on the day when the Plaintiff, etc. received the intermediate payment of KRW 600,000 on December 25, 1989, and the intermediate payment of KRW 525,005,00 for the remainder payment of KRW 525,00,00,00 without distinguishing the value of the building site and building from that of the instant case to the Hannam chain Co., Ltd. on November 11, 1989; (b) in light of the fact that the sales contract, intermediate payment, and payment agreement were concluded on March 10, 199, and that the intermediate payment of KRW 194,194, which is a condition for the supply of value-added tax and the intermediate payment of KRW 194,194,29,294, supra.

However, in a case where the purchase and sale of the site and buildings are made by setting the price in a lump sum without distinguishing the value of the site and buildings, barring special circumstances such as the agreement to pay the down payment, intermediate payment, and balance as the price for each part of the site and buildings, the price for the site and buildings shall be deemed to have been paid together at each time of payment. Thus, the court below erred in the misapprehension of legal principles as seen above in holding that the down payment and intermediate payment cannot be deemed the price for the building, although it is unclear that the price of the site and buildings is set at the time of the sale and purchase contract in a lump sum without distinguishing the value of the site and buildings at the

5. Therefore, the part of the judgment of the court below regarding value-added tax for the first term of 1990 is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-hun (Presiding Justice)