Whether a real estate broker is a real estate broker

In light of the Plaintiff’s real estate transaction history, because it constitutes a real estate sales businessman, the value-added tax should be imposed on the transfer of business assets of the real estate sales businessman rather than a comprehensive transfer of business.

Article 6 (Supply of Goods)

1. The plaintiff's appeal is dismissed.

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

Cheong-gu and purport of appeal

The judgment of the first instance shall be revoked. The defendant's imposition of value-added tax of KRW 176,686,690 against the plaintiff on October 1, 2004 shall be revoked.

이 사건에 관하여 이 법원이 설시할 이유는, 제1심 판결 제4면 제1행 맨 앞에 "여관건물을 신축·운영하기 위하여 총 20억 원을 대출받아"를 추가하고, 제5면 제8행의 "규모가 작지 아니한 점" 을 "규모가 작지 아니하고 2001. 3. 25. 주택신축판매업으로 사업자등록을 한 적이 있는 점"으로, 제10행의 "원고는 이를 납부한 사실"을 "원고는 위 주택신축판매업을 폐업한 후의 거래임에도 이를 납부한 사실"로, 제12행의 "다액인 점"을 "다액이며, 대출금채무가 20억 원인 점"으로, 제6면 제12행의 "갑 5호증, 갑 8호증의 각 기재가 있으나"를 "갑 제5, 8호증의 각 기재와 제1심 증인 문〇〇, 당심 증인 이〇〇의 각 증언이 있으나"로 각 고쳐 쓰는 것 이외에는 제1심 판결의 그것과 동일하므로 행정소송법 제8조 제2항, 민사소송법 제420조에 의하여 이를 인용한다.

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be justified as it is, and the plaintiff's appeal shall be dismissed.

The first instance judgment

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s imposition of value-added tax of KRW 176,686,690 against the Plaintiff on October 1, 2004 shall be revoked.

1. Details of the disposition;

A. On December 18, 2002, the Plaintiff acquired ○○○-dong ○○○○-5 large 359.3 square meters (hereinafter “instant land”) on the ground and newly constructed accommodation facilities and detached houses with a total floor area of 1,779,74 square meters on the ground (hereinafter “the leisure building in this case”), and completed registration of preservation of ownership on September 4, 2003.

B. From around that time, the Plaintiff engaged in a inn business with the trade name called ○○○ apartment in the instant leisure building. On March 17, 2004, the Plaintiff transferred the instant land and the inn building (hereinafter collectively referred to as “the instant real estate”) to Nonparty 0○, and completed the registration of ownership transfer on April 23 of the same year.

C. The Defendant determined that the transfer of the instant leisure building constitutes the transfer of inventory assets for business by a real estate sales businessman. On October 1, 2004, the Defendant imposed KRW 176,686,690 on the Plaintiff in 204 (hereinafter the instant disposition).

D. The plaintiff filed a request with the Commissioner of the National Tax Service on December 21, 2004, but the request for review was dismissed on March 24, 2005.

[Grounds for Recognition: Evidence No. 1, Evidence No. 2, Evidence No. 1, 2, Evidence No. 1, 2, and No. 2, and the purport of all pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① The Plaintiff did not operate a real estate sales business; ② The transfer of the instant leisure building constitutes a transfer of a lodging business conducted by the Plaintiff, which constitutes a transfer of a business under Article 6(6) of the Value-Added Tax Act, and thus cannot be deemed a supply of goods subject to value-added tax, the disposition otherwise determined is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

(1) Around April 22, 1999, the Plaintiff acquired ○○○○ apartment ○○○○○○○ apartment ○○○○○○○○○○○○, and resided therein, and sold it on or around September 18, 2001. ② On March 15, 2001, the Plaintiff acquired ○○○○○-dong ○○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 641.7 square meters on the ground and newly constructed 2nd 2nd 201 and completed registration of preservation of ownership on October 25, 201, and thereafter resided in this area. ③ The Plaintiff requested ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 374.3 square meters on the ground, and it is difficult to expect that the Plaintiff’s demand for the construction of a new multi-family house to sell the land.

(2) On November 1, 2001, the Plaintiff again acquired ○○○-dong ○○○○○-○ ○○ ○○ 204.6 square meters on the ground, and newly built a multi-household house on the fourth floor composed of 11 households on the ground. On February 20, 2002, before the completion of the said multi-household house, the Plaintiff entered into a sales contract with Nonparty Jong-○ and the said multi-household house. On March 11, 2002, the Plaintiff entered into a registration of preservation of ownership on the said multi-household house, and completed the registration of ownership transfer on the same day to ○○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

(3) After that, on December 18, 2002, the Plaintiff acquired the instant land, completed the instant leisure building on the ground on September 2, 2003, completed the preservation of ownership on September 4, 2003, and thereafter engaged in in in the inn business since that time. On September 23, 2004, the Plaintiff entered into a contract for business transfer/acquisition with Nonparty 00,000 and the Plaintiff completed the registration of ownership transfer of the instant real estate on April 23, 2004, where he did not properly operate the business due to the damage caused by typhoon storm and the restoration, etc. of the damage caused by typhoon, and on March 7, 2004, he did not properly operate the business.

(4) On the other hand, on March 25, 2001, the Plaintiff registered a business with the name of ○○○○○ and the type of business under the Housing Construction and Sales Business Act, and closed the business on May 4, 2001.

[Evidence Grounds: Evidence mentioned above, evidence of No. 2-3 to No. 6, evidence of No. 3, evidence of No. 4-1,2-A, evidence of No. 5, evidence of No. 6,7-2, evidence of No. 8, evidence of No. 9-1 through 4, evidence of No. 3-2, evidence of No. 3-4, evidence of No. 5, evidence of No. 6-2 through No. 11, and testimony of No. 7-2, respectively]

D. Determination

(1) Whether a real estate broker is a real estate broker

Whether the transaction of real estate constitutes a supply of goods subject to the Value-Added Tax Act, which is a part of a real estate trading business, shall be determined in light of social norms by taking into account whether the transaction for the purpose of profit-making and whether the transaction continues to be and repeated to the extent that it can be seen as business activities in light of the size, frequency, mode, etc. (see, e.g., Supreme Court Decision 96Nu8758, Oct. 11, 1996). In making such a determination, not only the transaction of real estate for the purpose of the relevant transfer, but also all the circumstances surrounding the transfer of real estate held by the transferor throughout the entire real estate owned by the transferor during the entire period of the transfer (see, e.g., Supreme Court Decision 97Nu13849, Nov. 28, 1997). Even if a building was transferred while engaging in a temporary leisure business in a newly-built leisure building, if the transfer act constitutes business activities of a real estate sales broker, it shall

In light of the following circumstances, the Plaintiff purchased 5 real estate including the instant real estate from April 22, 199 to March 7, 2004, the transfer date of the instant real estate from March 7, 2004, and sold 4 real estate among them. One of them is a multi-household house on the fourth floor composed of 11 households, and its size is not small. In relation to the transfer of the said multi-household house, the Defendant imposed value-added tax and global income tax on the Plaintiff by deeming it as the sale of inventory assets for business of the housing construction and sales business operator. The Plaintiff paid this amount. The instant apartment building is a large amount of 1,79.74 square meters on the ground. The transfer price of the instant real estate is a large amount of 2,100,000,000 won on the ground, and the remaining one is a multi-household house on the ground, and it is reasonable to deem that the Plaintiff continued to sell the instant real estate without considering the Plaintiff’s intention to engage in the sale of the real estate.

(2) Whether it constitutes a transfer of accommodation business

Article 6 (6) of the Value-Added Tax Act provides that the transfer of business shall not be deemed the supply of goods subject to value-added tax, and Article 17 (2) of the Enforcement Decree of the Value-Added Tax Act provides that the transfer of business pursuant to Article 6 (6) of the Value-Added Tax Act provides that the transfer of business shall comprehensively succeed to all the management of the business (excluding those related to outstanding amounts) and obligations (excluding those related to unpaid amounts) for each place of business. The term "transfer of business" refers to the comprehensive transfer of physical, human and rights and obligations, including business property, to replace only the management body while maintaining the identity of the business. Thus, the business shall be separated from the management body as an organic combination of human and physical facilities so that the social independence can be recognized. The fact that the transfer is not a simple physical facility but a organic combination of these facilities shall be liable to pay the burden of proof for the failure of taxation (see, e.g., Supreme Court Decision 97Nu1278, Jul. 10, 1998).

As to the instant case, there are evidence showing that the Plaintiff’s real estate transfer corresponds to the transfer of business, Gap evidence Nos. 5 and Eul evidence No. 8, but the Plaintiff owned the instant leisure building for the remaining six months after completion of the instant leisure building and transferred it, and the Plaintiff himself made a statement that the Plaintiff could not actually engage in a leisure business due to the typhoon’s damage from September 2003. In light of the size of real estate sales business operated by the Plaintiff, etc., the instant building is newly constructed for real estate sales business, and it appears that the transfer of each of the instant buildings would have been achieved on such extension line, and there is insufficient evidence to acknowledge that there was a transfer of business by considering the following circumstances.

3. Conclusion

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