early 2010 to 3532 ( December 09, 2010)

Transfer of a leased building does not constitute a comprehensive business transfer.

In case where a housing construction and sales business operator newly constructs and leases a multi-family house and transfers it to another person, the disposition imposed on the supply of goods is legitimate, and the inquiry reply cannot be deemed as a public official’s statement of opinion, so it does not violate the principle of trust protection.

2011Revocation of disposition imposing value-added tax

Gue XX

O Head of tax office

June 29, 2011

July 13, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant revoked the disposition of imposition of value-added tax of KRW 13,365,910 against the Plaintiff on August 4, 2010.

1. Details of the disposition;

A. From July 1, 2005 to June 30, 2007, the Plaintiff newly built multi-households and neighborhood living facilities 51.68 square meters (hereinafter “the instant building”) on the land of 244.5 square meters in Chungcheongnamnam-gun, Chungcheongnam-do, 2007, and around June 28, 2007, the Plaintiff transferred the building price of 610,000,000 won to KimA.

B. On August 4, 2010, the Plaintiff deemed that the transfer of the instant building constitutes “transfer of business not deemed the supply of goods” under Article 6(6)2 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010; hereinafter “former Value-Added Tax Act”), and did not report this part of the value-added tax. The Defendant did not report this part of the value-added tax on the ground that the transfer of the instant building constitutes “supply of goods” (including additional tax) on August 4, 2010, on the ground that the transfer of the instant building constitutes “supply of goods” (hereinafter “the instant disposition”). The Plaintiff appealed to the Tax Tribunal on November 3, 2010, but was dismissed on December 9, 2010.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 5, Eul evidence Nos. 1 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The transfer of the building of this case constitutes "transfer of business not considered as the supply of goods" under Article 6 (6) 2 of the former Value-Added Tax Act, and even if not, the plaintiff did not report the value-added tax on the transfer of the building of this case by reliance on the inquiry reply of the National Tax General Counseling Center head around April 19, 2007, as seen below. The defendant's disposition of this case different from the above reply is unlawful against the principle of trust protection and equity.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the transfer of the building in this case can be seen as "transfer of the business"

Article 6 (6) 2 of the former Value-Added Tax Act and Article 17 (2) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 20626 of Feb. 22, 2008) mean the comprehensive transfer of physical, human and human facilities, rights, and obligations including business property to replace only the management body while maintaining the identity of the business. Thus, the business must be separated from the management body and can be recognized social independence as an organic combination of human and physical facilities. The fact that the object of transfer is not a simple physical facility but such an organic combination is not a real facility. The burden of proof is the taxpayer (see, e.g., Supreme Court Decisions 97Nu1278, Jul. 10, 1998; 2002Du800, Jan. 10, 2003; 2002Du800, Jan. 10, 2003).

2) Whether the instant disposition violates the principle of trust protection

In general, in tax legal relations, in order to apply the principle of trust protection to the tax authority's act, the tax authority must issue a public opinion list subject to trust to the taxpayer, and if the tax authority's expression of intent is merely a general opinion list, the application of the above principle is denied (see, e.g., Supreme Court Decision 95Nu10181, Nov. 14, 1995). However, in full view of the overall arguments in evidence Nos. 1, 2, and 4, the court held that the KimCC, an employee of Korea Tax AccountantB, the plaintiff's bookkeeping agent, newly constructed a three-story house after completing business registration as a new house construction business on April 9, 207, and that the above house was transferred to another rental business operator on the condition that the above house constitutes a transfer of business under the Value-Added Tax Act, and that the head of the National Tax Counseling Center can not recognize the transfer of the right and the duty of supply of the goods as a whole after the change of the above new type of business.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.