영업권은 재산적 가치가 있는 권리로서 ‘재화’에 해당함[국승]
Busan District Court 2012Guhap4099 (29 March 29, 2013)
early 201J 3176 ( October 27, 2011)
business rights constitute "goods" as property-value rights.
"Business rights" means the intangible property value of an enterprise, including its tradition, social credit, location conditions, existence of special manufacturing technology or special transaction relations, which can bring greater profits than the profits raised by another enterprise engaged in the same kind of business due to the monopoly of the manufacture and sale, and this constitutes "goods" as provided in the Value-Added Tax Act and subordinate statutes, and thus cannot be excluded from its tax base.
Article 2 of the Value-Added Tax Act
Article 6 of the Value-Added Tax Act
2013Nu925 Disposition of revocation of Disposition of Imposition of Value-Added Tax
AAAA
Head of North Busan District Tax Office
Busan District Court Decision 2012Guhap4099 Decided March 29, 2013
July 10, 2013
August 21, 2013
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance is revoked. The first instance court's decision against the plaintiff on March 1, 201, which was issued by the defendant on March 1, 201, is revoked, and the imposition of the first instance surcharge against the plaintiff on March 2, 201, which was made on March 2, 201 by the defendant, shall be revoked.
1. Quotation of judgment of the first instance;
The reasons for the court's explanation concerning this case are as follows: (1) additional evidence that is submitted in the first instance court, and that is insufficient to recognize the plaintiff's assertion, and (2) it is an important property" in the first instance court No. 5 of the judgment, and (3) 12 of the first instance court's judgment. [The plaintiff's assertion that the real value of the land and buildings in this case is above OOO of the plaintiff's assets as of the date of the settlement of accounts before transfer + (OOOOO of the plaintiff's assets in this case + (OOO of the actual value of the land and buildings in this case - about 50% of the actual value of the land and buildings in this case) - Additional 2 of the "OOOO of the above case" and 9 of the Enforcement Rule No. 2 of the Civil Procedure Act, which is not directly related to the plaintiff's business and 9 of the Value-Added Tax Act (OOO of the above case) 50,500,000 won.
2. Additional determination
A. The plaintiff's assertion
1) Since the transfer of goodwill does not constitute a “supply of goods subject to value-added tax”, the OOOO of the transfer proceeds of the instant transfer proceeds should be excluded from the tax base.
2) Under the premise that the transfer of this case constitutes not the transfer of business, but the transfer of inventory assets during the transfer of this case constitutes the transfer of goods at a low price to a related party, and thus, the disposition of imposition of corporate tax in this case should be revoked on the ground that the transfer of this case constitutes the transfer of business.
B. Determination
1) As to the first argument
Article 4 of the Value-Added Tax Act provides that "the supply of goods or services by an entrepreneur" as a taxable object of value-added tax, and Article 2 subparagraph 1 of the same Act provides that "goods" means goods or rights with property value. Necessary matters concerning the scope of goods and rights shall be prescribed by Presidential Decree, and Article 2 (2) of the Enforcement Decree of the Value-Added Tax Act provides that "the rights under Article 2 (1) of the Act shall be all goods with property value other than those under paragraph (1), such as mining rights, patent rights, and copyrights," and "business rights" means the intangible and social credibility and conditions of the enterprise, and the existence of special manufacturing technology or special transaction relations, etc., and other companies engaged in the same kind of business due to the monopoly of the manufacture and sale (see, e.g., Supreme Court Decision 2003Du7804, Apr. 9, 2004).
According to the above provisions of the Value-Added Tax Act and the concept of goodwill, business rights constitute goods with property value as provided by the Value-Added Tax Act, and the plaintiff's above assertion is without merit.
2) As to the second argument
As seen above, the transfer of this case constitutes the supply of goods, not the transfer of business, and the plaintiff's assertion that the transfer of this case is the transfer of business is without merit.
3. Conclusion
Then, the plaintiff's claim is dismissed due to the lack of reason, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without reason, and it is so decided as per Disposition.