Appropriateness of a request for correction based on revaluation of business rights;

The original method of evaluating business rights is not illegal, and it cannot be deemed that the appraiser has breached the duty of good manager at the time of the evaluation, and the initial value of the evaluation cannot be deemed to have been excessively assessed, so the rejection disposition of the request for correction is justifiable.

Article 59 of the Enforcement Decree of the Value-Added Tax Act

1. All of the plaintiff's claims are dismissed.

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

The judgment of the first instance shall be revoked. The defendant's claim for rejection of the claim for correction of value-added tax base and amount of value-added tax at the first time in 2003 against the plaintiff on June 16, 2005 shall

1. Circumstances of the disposition and related Acts and subordinate statutes;

In this part, the court's instructions are modified as follows, and Article 2 (Taxpayer) (1) of the "Article 2 (referring to the goods provided for in Article 1; hereinafter the same shall apply) or services (referring to the services provided for in Article 1; hereinafter the same shall apply) independently from business regardless of the existence or absence of profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making business.

(2) At the time of the said conversion into a corporation, the Plaintiff entered into a contract of transfer with the ○○ Certified Public Accountants, Inc., a corporation with the value of the film theater’s business right KRW 1,101,00,000, with the Plaintiff’s appraisal and assessment on June 25, 2003, the Plaintiff entered into an agreement of transfer with the ○○ Company with the Plaintiff on the transfer of all of the following rights and obligations with respect to the ○○ Movie film theater’s film theater at KRW 962,458,035 (hereinafter “contract of transfer in dispute”).

(1) Current status of property to be transferred and acquired.

Tangible assets: Facilities (including value added tax, 44,046,90, value added tax), goodwill (including value added tax of KRW 1,221,140,000)

Current assets: ○ Bank 18,091,875 won

(2) The current status of liabilities to be transferred: Total 70,915,452 won.

3. Determination

A. The portion of the claim on the premise that the initial tax base and the tax return are excessive

(1) The plaintiff's assertion

At the time of the conclusion of the instant contract for the transfer of issues, the value of the goodwill was unfairly high, and the Plaintiff and the ○ enterprise revaluated the appraised value of the goodwill into KRW 275,250,000 (amount of revised supply), and the Plaintiff again issued and issued a revised statement under Article 59 of the Enforcement Decree of the Value-Added Tax Act, and filed a request for correction to the Defendant pursuant to Article 45-2(1) of the Framework Act on National

(2) Determination

(A) The correction claim system refers to a system in which a taxpayer has filed an excessive return on the tax base and amount of tax in violation of the provisions of tax-related Acts and may file a request for correction, and the reason is an ordinary claim concerning the case where the cause exists temporarily from the time of filing the report (Article 45-2(1) of the Framework Act on National Taxes) and a request for correction based on the ex post facto reasons concerning the case where the cause occurs after filing the report (Article 45-2(2) of the Framework Act on National Taxes). Thus, in order to make a request for correction in accordance with the ordinary provisions of Article 45-2(1) of the Framework

(B) In this case, as to whether there were any original reasons for the Plaintiff’s excessive return of tax base and tax amount contrary to the provisions of tax laws at the time of filing the initial tax base and tax amount, ① a person who independently supplies goods or services is liable to pay value-added tax (Article 2). In this case, the tax base of value-added tax on the supply of goods or services is the tax base if the Plaintiff receives the price in cash (Article 13(1)1), and each provision provides that a person who is registered as a taxpayer shall deliver a tax invoice stating the value of supply and value-added tax to the recipient of the goods or services (Article 16). In this case, the supplier of the goods is liable to report value-added tax according to the transfer market price; ② in this case, the Plaintiff and ○○ enterprise, who has undergone an appraisal by an appraisal by an appraisal corporation, concluded a transfer contract with 1,101,000 won and transferred all rights and obligations to ○ enterprise including business rights, and the Plaintiff cannot be deemed to have paid the value-added tax invoice based on the transfer price of this case.

(C) In addition, in a case where the tax authority requests a correction of the tax base and amount reported by the taxpayer on the ground that the tax base and amount reported by the taxpayer were erroneous in a tax return method such as value-added tax, the liability to prove that the initial tax base and amount reported by the taxpayer were erroneous shall be deemed to be the taxpayer requesting a correction of the amount of tax. In this case, whether the initial tax base and amount reported by the Plaintiff are excessive

1) First, business rights refer to intangible property value, such as the company’s tradition, social credibility, location conditions, existence of a special manufacturing technology or special transaction relationship, etc., which means the excess profit-making capacity that makes it possible for other companies to profit from the business under the said Article due to the monopoly of manufacturing and sale (see, e.g., Supreme Court Decision 2003Du7804, Apr. 9, 2004). It is not easy to accurately estimate the anticipated net profit as it may change ex post facto business environment at the time of the evaluation, but it is not easy to estimate the anticipated net profit accurately. Thus, in the evaluation of the business rights, unless the appraisal business entity had exercised due care of a good manager ordinarily required in the course of the appraisal and assessment, it cannot be readily concluded that the appraisal and assessment was made by mistake in changing the family business environment or changing the business environment established at the time of the appraisal and assessment.

2) According to the ○○○○○○○○○○○○ Company’s appraisal results, it is difficult for the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ 2, supra, to recognize the sales value of the ○○○○○○○○○○○○○○○○○○ 2, supra, based on the financial data for the past three years and the analysis data for the ○○○○○○○○○ 2, supra, based on the ○○○○○○○○○○○○○○○ 2, supra, based on the ○○○○○○ 2, supra, based on the ○○○○ 2’s appraisal right at the time of accounting audit, and based on the ○○ 2, supra, the ○○○ 2, supra. The ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 2, based on the valuation method.

B. The part of the claim premised on the rescission of the agreement on the transfer contract at issue

(1) The plaintiff's assertion

After the conclusion of the instant contract for the transfer of issues, there was an agreement between the Plaintiff and the ○○ enterprise to cancel the existing transfer contract on the ground of the excessive evaluation of business rights. This is immediately unlawful since the contract related to the validity of transaction, act, etc., which served as the basis of the tax base and tax amount under Article 45-2(2) of the Framework Act on National Taxes and Article 25-2(2) of the Enforcement Decree of the same Act, is cancelled due to unavoidable reasons that occurred after the formation of

(2) Determination

(A) On the other hand, Article 45-2 (2) of the Framework Act on National Taxes provides that "after the expiration of the statutory due date of return due to the reasons for a request for correction by later filing, the latter reasons (paragraph (5)" is stipulated in Article 25-2 of the Enforcement Decree of the same Act, and "when the contract related to the validity of the transaction or act, etc., which is the basis of the tax base and the amount of tax, is cancelled by the exercise of the right of rescission or is cancelled due to unavoidable reasons that occurred after the formation of the contract in question."

(B) As to the instant case, it may be reasonable to view that the Plaintiff and ○○ Company concluded a modified transfer agreement by reducing the appraised value of business rights in KRW 275,250,000 on March 205, and the Plaintiff prepared revised tax invoices and delivered them to ○○ Company on the 31st of the same month, based on the consideration that the Plaintiff had an over-evaluation of business rights between ○○ Company, and concluded a modified transfer agreement with the content of the modified transfer amount, under the consideration that the Plaintiff had an over-evaluation of business rights.

(C) However, unlike the statutory cancellation or the termination of an agreement (if the grounds for cancellation are stipulated in advance as the agreement of the parties) stipulated in the above Act, the validity of the agreement is merely a new contract between the parties with the same nature, and thus, the validity of the agreement is always attributable to the party's subjective intent. After the completion of the taxation requirements, the agreement cancellation is exceptionally permitted only when there are inevitable reasons for legal stability of imposing tax, considering that the parties actually in collusion with the purpose of evading tax, etc., and the inevitable reasons should be recognized binding force on the original contract in consideration of the tax justice, tax equity, the principle of substantial taxation, and the purport of the claim system for correction.

(D) However, in this case, it is difficult to see that the issue amount, which is the appraised value of the goodwill during the original contract for the transfer of the issue, is excessive, and considering the fact that the Plaintiff is the representative director of the ○○ enterprise and the Plaintiff and his family members hold 100% of the issued shares, it cannot be deemed to constitute an inevitable termination of the agreement, which is the ground for filing a subsequent request for correction, solely for the reasons as alleged by

4. Conclusion

Therefore, all of the plaintiff's claims shall be dismissed because they are without merit, and the conclusion of the first instance court is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.