Article 6 (Supply of Goods)

2. The costs of lawsuit shall be borne by the Plaintiff.

This court's reasoning is that "(see, e.g., Supreme Court Decisions 2004Du10593, Dec. 10, 2004; 2005HunBa69, Apr. 27, 2006; 2005HunBa69, Apr. 27, 2006)" is added to "the grounds for this court's reasoning is the same as the reasons for the judgment of the first instance, except for the change of Article 25 of the former Value-Added Tax Act, which is stated in the 8th to 18th to 9th 15th e.g., in the attached Form, Article 8 (2) of the Administrative Litigation Act and Article 420 of the Private Private Sector Transfer Act."

2. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Details of the first instance judgment

Daejeon District Court 2005Guhap3358 ( April 12, 2006)

Title :

Overall transfer and takeover of business

Journal

To be excluded from the supply of goods through a comprehensive transfer or acquisition of the business, not only the transferor of the business but also the transferee of the business shall maintain the identity of the business as a general taxable person.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of value-added tax amounting to KRW 49,171,50 for the first period of 2003 against the Plaintiff on March 1, 2005 shall be revoked.

The following facts are not disputed between the parties, or may be recognized by considering the whole trend of pleadings in each entry in Gap evidence of subparagraphs 1 through 6, and Eul evidence of subparagraphs 1 through 5 (including each number):

A. From July 25, 200 to 00 ○○○○○○○○○○○○○○, located in 1296, the Plaintiff operated a health club (hereinafter “instant workplace”) under the trade name “○○○○○○○○○○○○○○○○○○○○”. On March 18, 2003, the Plaintiff transferred to ○○○○○○ on March 18, 200, business rights, such as health equipment, other auxiliary facilities and equipment, and membership lists, such business rights as KRW 3.5 million (hereinafter “transfer”). On March 24, 2003, the Plaintiff reported the closure of business.

B. Meanwhile, ○○○ was registered as a simplified taxable person on March 19, 2003, following the transfer date of this case.

C. Accordingly, on March 1, 2005, the Defendant issued a revised and notified the Plaintiff of the value-added tax amounting to KRW 49,171,500 for a period of 1st, 2003, on the ground that the Plaintiff, a transferee, was a simplified taxable person, and the type of business changes and the identity of the business is not maintained. As such, the transfer of this case is not a comprehensive transfer of business. On March 1, 2005, the Defendant issued a revised and notified the Plaintiff of the value-added tax of KRW 49,171,50 for a period of 1st, 2003. On August 24, 2005, based on the Plaintiff’s value-added tax included in the value-added tax (hereinafter “instant tax disposition”).

2. Whether the instant taxation disposition is legitimate

A. The plaintiff's assertion

The Plaintiff comprehensively transferred all the facilities within the instant business place and all the rights and obligations related thereto to ○○ through the instant transfer. At the time of the instant transfer, the Plaintiff was registered as a general taxable person and the actual sales of the instant business place constituted a general taxable person and objectively satisfying the requirements as a general taxable person. Therefore, even though the tax authority should review the appropriateness of the type of taxation and make a business registration as a general taxable person, the Plaintiff neglected to do so and made a business registration as a simplified taxable person, and thus, the instant transfer should be deemed non-taxation under the Value-Added Tax Act as a comprehensive transfer of business.

In addition, the reason why ○○○ was registered as a simplified taxable person and does not regard the transfer of a business which is exempt from taxation under the Enforcement Decree of the Value-Added Tax Act is limited to the transfer of a simplified taxable person to a transferee who is a simplified taxable person as of the date of the transfer of business, and where the transferor transfers a simplified taxable person to a transferee who is a simplified taxable person as of the date of the transfer of business, it constitutes the transfer of a business that is exempt from taxation. Thus, the Defendant asserts that the instant disposition against the Plaintiff by deeming the type of

On the other hand, the Plaintiff asserted that the disposition of this case is unlawful by relaxing the circumstances that the Plaintiff did not make any mention of value-added tax at the time of the transfer of the workplace of this case, on the grounds that the Plaintiff did not pay value-added tax when he comprehensively transfers the business from a certified tax accountant around 196.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

(1) First, as to the Plaintiff’s assertion that even if an entrepreneur reported as a simplified taxable person, it should be evaluated as a general taxable person as long as it objectively satisfies the requirements as a general taxable person, it is difficult to accept the Defendant’s application as long as it does not fall under the exceptional business prescribed in Article 3T(1) of the Value-Added Tax Act and Article 74(1) and (2) of the Enforcement Decree of the same Act.

According to Gap evidence 7 and Eul evidence 6-1 through 4, it is recognized that the business place of this case does not constitute an exception business stipulated in the Value-Added Tax Act, so the plaintiff's above assertion is without merit.

(2) In addition, Article 6(1) of the Value-Added Tax Act provides that where an entrepreneur delivers or transfers goods under a contractual or legal reason, the supply of goods shall be subject to value-added tax. Thus, unless there is a special provision that the entrepreneur is exempt from value-added tax or not subject to value-added tax, the requirements for value-added tax shall be satisfied if the entrepreneur independently supplies goods for business purposes, and the supply of the goods does not vary within a certain scope. However, the comprehensive transfer of business under Article 6(6)2 of the Value-Added Tax Act and Article 17(2) of the Enforcement Decree of the same Act does not constitute an exception to the supply of goods. The reason why the transfer of the business is subject to non-taxation is not consistent with the nature of the value-added tax where the transferee succeeds to the status of the former entrepreneur as it is, and pays the price for the business by determining the overall value of the business and paying the price for the specific goods, it is anticipated that the transferee would deduct the input tax amount without any exception, while the transferee is expected to be subject to taxes and pressure on the tax policy or policy.

그런데 일반과세자가 사업의 양도를 일반과세자에게 하는 경우에는 양수인은 매입세액을 공제받게 되어 과세실익이 없고, 양수인은 부가가치세를 부담한 후 이를 환급받기 때문에 자금압박 등의 부담이 늘어나는 것을 방지하고자 하는 제도의 취지에 부합하나, 거래 상대방이 간이과세자인 경우에는 일반과세자의 공제 매입세액(공급가액 ｘ 10%)에 간이과세자가 발생시키는 매출세액(공급대가 ｘ 업동별 부가가치율 ｘ 10%)이 미치지 못하므로 과세관청으로서는 과세실익이 없다고 할 수 없어 이러한 경우에는 사업의 포괄양도를 비과세대상으로 삼은 입법취지를 충족시키지 못하고 있음에 비추어 볼 때, 부가가치세법 제6조 제6항 제2호 및 같은 법 시행령 제17조 제2항에 의하여 비과세대상이 되는 사업의 양도는 사업의 양도ㆍ양수자 모두 과세유형이 동일할 것을 전제하고 있다 할 것이고, 같은 법령 후단은 "일반과세자가 간이과세자에게 사업을 양도한 경우를 제외한다"고 하여 이러한 법리를 명문화한 것으로 보아야 한다.

Therefore, as of the end of the taxable period, it is reasonable to interpret that the above provision is applicable to a simplified taxable person, and that the type of taxation of the transferee at the time of the transfer or acquisition of the business cannot be viewed differently because the type of taxation of the transferee is not fixed. Therefore, the plaintiff's assertion on

(3) In general, in order to apply the principle of trust and good faith to a tax authority’s act in a tax law relationship, the tax authority should issue a public determination that is the subject of trust to taxpayers, and the taxpayer should not be responsible for the taxpayer’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance, and should make a disposition contrary to the tax authority’s reliance on the taxpayers’ interest.

In light of the above legal principles, since the tax authority cannot be deemed to have issued the Plaintiff a public opinion statement or given trust on the basis of the Plaintiff’s above assertion alone, the Plaintiff’s assertion on this part is without merit.

(4) Therefore, since the Plaintiff’s business registration as a general taxable person and the Plaintiff’s transferee as a simplified taxable person before the end of the taxable period after the transfer of this case, the transfer of this case between the Plaintiff and UBS cannot be deemed to fall under the comprehensive transfer of business where the identity of the business is maintained. Thus, the Defendant’s disposition of this case is lawful since it cannot be said that it is the transfer of business under Article 6(6)2 of the Value-Added Tax Act and Article 17(2)

3. Conclusion

Thus, the plaintiff's claim of this case seeking revocation of the disposition on the premise that the disposition of this case is illegal is dismissed as there is no ground.