[증여세등부과처분취소][공1996.4.15.(8),1150]
[1] The case holding that even though a family state with a certain occupation and revenue does not clearly state the source of part of the real estate acquisition fund, it cannot be deemed that the fund was donated to the husband
[2] Requirements for real estate transactions falling under real estate transactions, which are the taxation requirements for business income tax and value-added tax
[3] The case holding that business income tax and value-added tax are real estate sales business
[1] The case affirming the judgment of the court below which held that since the main state of a family has a job expected to have a considerable income and it is recognized that there was a substantial income, it cannot be concluded that the state of a family has made a donation from the husband solely on the ground that the state of a family does not present daily source of the real estate acquired before several years, or that it cannot be concluded that the fund was donated from the husband
[2] Whether a real estate transaction constitutes a real estate transaction, which is a taxable requirement for business income tax and value-added tax, shall be determined in light of ordinary social norms by considering whether the transaction is for profit, and whether the transaction has continuity and repetition to the extent that it can be seen as a business activity in light of its size, frequency, mode, etc., and whether it is possible to view it as a real estate transaction. Article 1(1) of the Enforcement Rule of the Value-Added Tax Act is merely an exceptional provision that can be seen as a real estate transaction, and so long as the real estate transaction as a whole took place with continuity and repetition under the business purpose, the business feasibility
[3] The case reversing the judgment of the court below on the ground that it constitutes real estate sales business, which is a requirement for taxation of business income tax and value-added tax, in light of the mode, scale, frequency, etc.
[1] Article 29-2 of the Inheritance Tax Act / [2] Article 20 (1) 8 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) (see Article 19 (1) 12 of the current Enforcement Decree of the Income Tax Act), Article 36 subparagraph 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994), Article 1 (1) 5 of the Enforcement Decree of the Value-Added Tax Act, Article 2 (1) 1 of the Enforcement Rule of the Value-Added Tax Act / [3] Article 20 (1) 8 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), Article 1 (1) 8 of the former Enforcement Rule of the Value-Added Tax Act (amended by Presidential Decree No. 1467 of Dec. 13, 1994)
[1] Supreme Court Decision 90Nu738 delivered on June 8, 1990 (Gong1990, 1484) Supreme Court Decision 90Nu1018 delivered on March 27, 1991 (Gong1991, 1308) Supreme Court Decision 91Nu2106 delivered on July 12, 1991 (Gong1991, 2180) / [2] 2/3] Supreme Court Decision 92Nu14526 delivered on February 23, 1993 (Gong193Sang, 1105), Supreme Court Decision 93Nu17522 delivered on October 25, 194 (Gong194, 2662), Supreme Court Decision 9Nu19405 delivered on March 194, 195 (Gong194, 197Nu194545 delivered on March 194, 1995).
Plaintiff (Attorney Lee Young-soo et al., Counsel for the plaintiff-appellant)
The Director of the Pacific District Office
Seoul High Court Decision 92Gu35891 delivered on June 21, 1995
The part of the judgment below regarding the imposition of global income tax and value-added tax shall be reversed, and that part of the case shall be remanded to the Seoul High Court. The defendant's remaining appeal shall be dismissed, and the costs of appeal shall
We examine the grounds of appeal.
1. On the first ground for appeal
According to the reasoning of the judgment below, the court below determined that since the Plaintiff’s remaining funds excluding 84,189,000 won out of 183,409,00 won, part of the real estate acquisition fund of this case, excluding 183,40,000 won, as a nurse and midwifery clinic, had considerable income, and offered savings to financial institutions or regular money to operate the same with his and her own members, and that the Plaintiff purchased the real estate of this case in order by using the lease deposit, financial institution loans, real estate sales proceeds, etc., and that the Plaintiff purchased each of the real estate of this case in order to purchase the real estate of this case by using the lease deposit, real estate rental deposit, real estate loan, real estate sales proceeds, etc., the court below did not conclude that the Plaintiff’s financial source of the real estate acquired before several years cannot be presented daily or that the Plaintiff’s assertion was not reliable.
The above fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles, such as theory of lawsuit. We do not agree with the reasoning.
2. On the second ground for appeal
According to the reasoning of the judgment below, although the plaintiff acquired 14 real estate between 1987 and 191 and transferred 4 real estate in particular, among them, four real estate acquired 4 real estate between January 1, 1989 and June 30 of the same year and three real estate were transferred, and the real estate transaction was conducted by transferring 3 real estate, etc. before 1987, the court below determined that the plaintiff's act of selling 14 real estate was not conducted continuously or repeatedly since it did not constitute real estate transaction for the purpose of continuously or repeatedly since it did not constitute the plaintiff's profit since it was acknowledged that the plaintiff had continuously disposed of 3 real estate before 1987.
However, whether a real estate transaction constitutes a real estate transaction, which is a taxable requirement for business income tax and value-added tax, should be determined in light of social norms by considering whether the transaction is conducted for profit, and whether the transaction has continuity and repetition to the extent that it can be seen as a business activity in light of its size, frequency, mode, etc. In addition, Article 1(1) of the Enforcement Rule of the Value-Added Tax Act is merely an exceptional provision on cases that can be seen as a real estate transaction, and so long as the real estate transaction has continued and repeated under the overall business purpose, the transaction does not constitute a transaction that falls short of the number of sales under the above provision even if it was conducted during the pertinent taxable period (see Supreme Court Decision 95Nu92, Nov. 7,
Even according to the court below's decision, the plaintiff acquired 14 real estate during three years from 1987 to 1991 and transferred 4 real estate. In particular, the plaintiff acquired 3 buildings during the period from January 1, 1989 to June 30 of the same year. In addition, according to the records, real estate acquired by the plaintiff shall be deemed as falling under the real estate transaction of this case, when it falls under the real estate transaction of this case or the number of times of real estate transaction of this case, and 3,00 square meters located within 5,950 square meters in the field of Young-do, Young-do, Gyeonggi-do, Seoul, 6 apartment units in Seoul, 6 stores in Gangdong-gu, Gangdong-gu, and 1 building sites in Ansan-si, and 1 building sites in Ansan-si.
Nevertheless, the court below determined that the Plaintiff’s instant real estate transaction does not constitute real estate trading business on the grounds as stated in its holding, and thus, the court below erred by misunderstanding facts or misapprehending the legal principles on real estate trading.
There is reason to point this out.
3. Therefore, the part of the judgment of the court below regarding the imposition of global income tax and value-added tax is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's remaining appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent
Justices Ahn Yong-sik (Presiding Justice)