[2] The case holding that in calculating the value-added tax base where a real estate rental entrepreneur who is a general taxable person transfers a commercial building to a simplified taxable person for the discontinuance of business, the provision on deeming the supply of the remaining goods may not be applied at the time of recalculation of the input tax pursuant to the conversion of the taxable type under the former Value

[2] The case holding that when a real estate rental entrepreneur who is a general taxable person transfers a business building to a simplified taxable person to discontinue the business, the provisions for calculating the input tax amount pursuant to the conversion of the type of taxation under the former Value-Added Tax Act or the provisions for deeming the remaining goods to be supplied at the time of discontinuance of the business

1. According to the provisions of the Value-Added Tax Act and the Enforcement Decree of the Value-Added Tax Act, the supply of goods subject to value-added tax refers to the delivery or transfer of goods under all contractual or legal grounds. The taxpayer is a person who independently supplies goods or services for profit regardless of whether it is for profit. Thus, in a case where the entrepreneur delivers or transfers goods due to contractual or legal grounds, it is subject to the imposition of value-added tax (see Supreme Court Decisions 91Nu621, Jul. 28, 1992; 91Nu621, Jul. 28, 1992; 9Nu625, Apr. 16, 2008; 2008Du8475, Apr. 16, 207).

The court below acknowledged the fact that the plaintiff acquired the building of this case and operated a real estate rental business after completing business registration on September 10, 1986, and then closed on October 30, 200 after selling the above building and site to the non-party, and the non-party completed the registration of ownership transfer on the above building and site on December 6, 200, and registered the business as a simplified taxable person. In light of the above legal principles, the transfer of the building of this case, which the plaintiff had provided for a real estate rental business, constitutes a case of transferring business-related goods under a contract as a business operator, and regardless of whether profit-making or the transfer of the building continues to exist or repeated. Thus, the court below did not err in the misapprehension of the judgment of the court below since the court below did not err by misapprehending the legal principles as to the plaintiff's transfer of capital goods, such as the building of this case, and thus, does not constitute a transaction subject to value-added tax.

2. Article 26-2 of the former Value-Added Tax Act (amended by Act No. 8826 of Dec. 31, 2007) and Article 74-4 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17041 of Dec. 29, 2000) provide that in a case where an entrepreneur himself/herself has converted the type of taxation from a general taxable person to a simplified taxable person, he/she shall pay an inventory purchase tax for the depreciable assets, etc. for which the input tax amount was deducted at the time when he/she was a general taxable person (see Supreme Court Decision 2006Du17727, Feb. 24, 2008). Thus, in this case where the instant building was transferred from the Plaintiff who is a simplified taxable person to the non-party who is a simplified taxable person, the value-added tax base for the transfer of the said building may not be calculated by the method under

In addition, according to Article 6 (1) of the former Value-Added Tax Act (amended by Act No. 8412 of Dec. 30, 2006), the supply of goods is to deliver or transfer goods on all contractual or legal grounds. However, even in the case of self-supply, personal supply, business donation, and remaining goods at the time of closure of business, etc. under paragraphs (2) through (4) of the same Article, the supply of goods shall be regarded as exceptionally the supply of goods for fair taxation purposes. Even if a business operator transfers business assets for the purpose of discontinuance of business, as long as the business operator supplies goods on contractual or legal grounds, there is no room for application of Article 6 (4) of the Act to deeming that the provision on deeming the supply of remaining goods under paragraph (4) of the same Article is applicable. Accordingly, according to the above factual basis, the transfer of the building of this case constitutes the case where the plaintiff transfers goods on contractual grounds as a business operator. Thus,

Therefore, even if the court below did not determine whether the value of supply of the building of this case should be calculated based on the conversion of the type of taxation or the assertion that the remaining goods should be residual value after depreciation in accordance with the provisions on remaining goods at the time of closure of the business, such error of the court below did not affect the conclusion of the judgment, and thus, it cannot be said that the judgment below is erroneous

3. Therefore, the appeal is dismissed, and the 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 Kim Ji-hyung (Presiding Justice)