[부가가치세등부과처분취소][집39(1)특,570;공1991.5.1.(895),1198]
(a) The case holding that a real estate sales businessman who is subject to the assessment of value-added tax shall not be deemed to be a person who newly constructs one unit of apartment and building for the purpose of sale, and rents five unsold stores to other units for not less than seven years, and transfers two of them to a lessee;
(b) The case holding that the lessor as referred to in the above "A" has continued to conduct real estate rental business with the remaining unsold stores even after the transfer of the above store, and thus it cannot be deemed that the transfer of the above store cannot be deemed to be self-supply of the remaining goods
A. In a case where the Plaintiff: (a) newly constructed one building for the purpose of sale in lots; (b) completed business registration as a construction business and a real estate lease business; (c) sold all the remaining apartment buildings and stores except five stores among the above buildings; and (d) leased two stores to the lessee for at least seven years after the registration of the construction business was cancelled; and (c) did not engage in real estate sales business by constructing and selling other buildings than the above building; (d) the transfer of the above real estate does not have continuity and repetition; and (e) the sale of real estate under Article 1(1) of the Enforcement Decree of the Value-Added Tax Act does not constitute sale of real estate for the purpose of sale, or real estate is acquired at least twice during one taxable period and sold at least twice; and (e) the Plaintiff is not subject to value-added tax.
B. If the Plaintiff under the above “A” is in the position of a businessman who continues to operate a real estate rental business with the remaining unsold stores after the above transfer, the Plaintiff is not in the position of the final consumer as to the above transferred stores, and the transfer of the store cannot be deemed as the self-supply of the remaining goods at the time of discontinuance of
(a) Articles 1(1), 1(2), and 2 of the Value-Added Tax Act, Article 1(1) of the Enforcement Decree of the Value-Added Tax Act, and Article 1(1)(b) of the Enforcement Decree of the said Act;
A. Supreme Court Decision 86Nu915 delivered on August 25, 1987 (Gong1987, 1530)
rules of merit
Head of Maritime Affairs Office
Busan High Court Decision 89Gu2240 delivered on July 13, 1990
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
According to the reasoning of the judgment below, the court below acknowledged that the plaintiff newly constructed one unit of apartment and store building for the purpose of sale in lots on February 1976, after completing business registration as a construction business and real estate rental business, all the apartment and store except five stores among the above buildings from around 1980 to around 1980 have sold them in lots and cancelled the business registration of the construction business, and thereafter, on July 13, 1987, two stores have been leased to others, and the plaintiff has not been engaged in real estate sales business by constructing and selling other buildings than the above building to the non-party 2 Dongsan-dong community credit cooperative, a lessee, and the plaintiff has not been engaged in real estate sales business. The judgment of the court below is justified in finding that the sale and purchase of real estate as stipulated in Article 1 (1) of the Enforcement Decree of the Value-Added Tax Act has not been made for the purpose of sale in real estate with the purpose of business, and the sale and sale of real estate has not been made more than once during the above taxable period, and thus it cannot be viewed as illegal.
In addition, according to the records, the plaintiff is in the position of the business operator who continues to operate the real estate rental business with the remaining unsold stores after the transfer of the store in this case, and since the plaintiff is not in the position of the final consumer, the above transfer of the store in this case cannot be deemed to be a self-supply of the remaining goods at the time of discontinuance of business.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Choi Jae-ho (Presiding Justice)