Whether the business falling under the supply of goods is comprehensively taken over under the Value-Added Tax Act.

The Plaintiff’s transfer of rights to apartment sale business to Korea Housing Guarantee Co., Ltd. constitutes a business transfer that comprehensively succeeds to all rights and obligations concerning the business, and thus does not constitute a supply of goods.

Article 6 of the Value-Added Tax Act (Supply of Goods) Article 17 of the Enforcement Decree of the Value-Added Tax Act (Provisions on Security, Business Transfer and Payment

2012Guhap23242 Revocation of Disposition of Imposition of Value-Added Tax

AAA, Inc.

Gangwon-gu Director of the District Office

October 4, 2013

November 1, 2013

1. The imposition of OOO (including additional tax) that the Defendant rendered to the Plaintiff on November 10, 201, on November 10, 2011, is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

(a) Conclusion, etc. of a contract for guarantee for sale and trust;

(1) On December 29, 2005, the Plaintiff obtained approval of a business plan for constructing three main apartment units with a building area of 8,479.6 square meters (13,882.58 square meters in total floor area) and ancillary welfare facilities (hereinafter referred to as the “instant business”) from OO-si, O-dong O-dong O-dong, O-dong, O-dong, O-dong, 62 square meters, and 25 square meters (hereinafter referred to as “instant business site”).

(2) On July 2007, the Plaintiff entered into a standard housing sale trust contract (hereinafter “trust contract”) with respect to the instant project site with BB house guarantee company (hereinafter “BB house guarantee”).

Housing sale trust standard contract (sale type)

Article 1 (Trust Real Estate)

Trust real estate refers to the land indicated in the attached Table ‘Trust Real Estate List> that the Plaintiff wishes to operate a housing construction project with the approval of the project plan under the provisions of Article 16 of the Housing Act (including the land same as the project site in this case and including access roads and land subject to donation on the approval of the project plan; hereinafter referred to as the ‘land') and the building constructed or constructed on the land.

Article 2 (Purpose of Trust)

The purpose of this trust is to manage, sell and dispose of trust real estate (including the transfer of ownership of land or housing; hereinafter the same shall apply) for the purpose that the BB house guarantee under Article 106 (1) 1 (a) of the Enforcement Decree of the Housing Act provides that if the plaintiff constructs housing and appurtenant and welfare facilities (hereinafter referred to as "housing") and executes the sales contract to the buyer, or the plaintiff is unable to perform the sales contract, the BB house guarantee under the sale guarantee under Article 106 (1) 1 (a) of the Enforcement Decree of the Housing Act is

Article 5 (Building and Sale of Housing in Lots)

① The Plaintiff, as a project undertaker, constructs and sells housing.

(2) The Plaintiff shall have a guarantee for sale of BB house guarantee before sale under paragraph (1).

Article 6 (Succession Business, etc.)

① In the event that the Plaintiff is unable to perform the sales contract due to dishonor, bankruptcy, company reorganization procedure, application for commencement of composition, etc., and thus a successor business is conducted, such as filing an application for change of a business entity as designated by BB house guarantee or B B house guarantee, the Plaintiff may not raise an objection

(2) Any person designated by the BB house guarantee or BB house guarantee shall, as the trust affairs under paragraph (1), perform the affairs concerning the management, sale and disposal of trust real estate in order to perform the sale guarantee.

Article 7 (Management, Operation and Disposal of Real Estate in Trust)

(2) In cases of Article 6, BB house guarantee shall be managed, operated and disposed of by the following methods:

1. Housing construction and incidental services thereto;

2. Sale or disposal of real estate in trust; and

3. Acts necessary for repairing, preserving, or improving trust real estate by prescribing appropriate methods, time, scope, etc.

4. To subscribe to an adequate value non-life insurance contract. In this case, a pledge or a pledge may be established on the claim for insurance money as debt and other security for obligation.

5. Delegation of the management affairs of repair, preservation, improvement, etc. of trusted real estate to a third person designated by the BB house guarantee.

(3) Where the BB house guarantee is to be refunded, or the sale in lots is to be made to several buyers pursuant to paragraph (2), if the trust principal and profits are made, the BB house guarantee may dispose of trust property at a reasonable method and value, and the amount of disposal of trust property shall be paid in the following order:

1. Taxes, public charges, and various expenses for the performance of trust affairs;

2. Claims for BB house guarantee referred to in Article 12 (2) 3;

Article 10 (Trust Originals)

The trust principal shall be as follows:

1. Real estate in trust and money in trust;

2. Sale price of real estate in trust;

3. Property acquired by subrogation of real estate in trust; and

4. Borrowings and obligations for repayment of deposits, etc. acquired in connection with the sale and disposal of borrowed money and trusted real estate;

Article 11 (Trust Profits)

The proceeds from trust shall consist of the proceeds from sale of real estate in trust, the amount of disposal of real estate in trust, and the proceeds from management of money belonging to trust property and their equivalent

Article 12 (Beneficiarys)

1. The original beneficiary under this trust contract shall be the “B Housing Guarantee” which guarantees the performance of the contract for sale in lots between the Plaintiff and the “Plaintiff.”

(2) Where "Plaintiff" among the beneficiaries of the original under paragraph (1) falls under any of the following cases, "Plaintiff" shall lose the right to benefit and the benefit of time based on the original:

3. Where the Plaintiff fails to perform his/her obligation to guarantee BB housing.

On July 16, 2007, the Plaintiff delivered a letter of transfer to BB Housing Guarantee as follows, and on July 23, 2007, the Plaintiff made a trust registration in the name of BB Housing Guarantee.

Transfer Closing Note

1. If the Plaintiff, as a project operator, is no longer able to continue the business due to inevitable reasons, such as bankruptcy or bankruptcy, the following rights relating to the business shall be transferred to BB house guarantee under the condition that BB house guarantee (including a person designated by B house guarantee and a joint guarantor of B house guarantee; hereinafter the same shall apply) bears the responsibility to guarantee the buyer in accordance with the Acts and subordinate statutes related to housing construction, rules of sale guarantee or B house guarantee.

2. In addition, while BB house guarantee is replaced by BB house guarantee or continues to implement housing projects, the Plaintiff’s consent or consent is naturally considered to have been obtained even if it is necessary for the Plaintiff’s consent or consent, and the Plaintiff promises that no objection has been raised.

(a) The project site (referring to the land necessary for the relevant housing project, such as the site and other lot for contribution acceptance) and all rights thereto;

(b) All buildings on the ground and underground (including buildings under construction), such as houses, apartments, commercial buildings, model houses, construction management offices, etc., and all rights thereto;

(c) All rights held against the seller and the third party in connection with the sale in lots, such as the right to sell lots and the right to receive the sale price;

(d) Any other rights related to the business.

(3) On July 25, 2007, the Plaintiff entered into a contract on BB house sales guarantee and “(1) where the Plaintiff is deemed unable to perform the prime multi-family housing sales contract due to dishonor, bankruptcy, etc.” (2) where the performance rate verified by the supervisor falls short of 25% compared to the expected progress rate, and where the guarantee creditor is requested to discharge the guarantee creditor, the BB house apartment sales guarantee contract (hereinafter referred to as the “sale guarantee contract”). The housing sales guarantee contract, part of the sales guarantee contract, is as follows.

Article 1 (Definitions)

The definitions of terms used in this Agreement shall be as follows:

4. The term "guarantee incident" means a case where the guarantee company notifies the guaranty creditor of the suspension of payment of the occupancy deposit or the change of the account for payment of the occupancy deposit due to any of the following causes:

(a) Where a guarantee company recognizes that the primary debtor is unable to execute a housing sale contract due to a default or bankruptcy;

(b) Where the execution ratio verified by the supervisor falls short of 25 percent higher than the scheduled progress ratio (the progress ratio in the schedule of scheduled progress to be submitted to the supervisor by the principal debtor), and there exists a request for performance of the guarantee creditor

Article 3 (Contents of Guarantee Obligation)

Where the principal debtor becomes unable to execute a sales contract due to a guarantee accident pursuant to Article 106 (1) 1 (a) of the Enforcement Decree of the Housing Act, the guarantee company shall bear the responsibility to sell the house in question or to refund the down payment and intermediate payment paid.

Article 11 (Subrogation and Claims for Indemnification)

(1) Where a guarantee company has performed a guarantee obligation, it shall have a right to indemnity against the principal debtor and the guarantee creditor shall exercise the right in subrogation of the principal debtor.

(b) Execution, etc. of the sale guarantee;

(1) On January 11, 2010, the instant project was discontinued at the rate of 22% due to the nonperformance of the CC Construction, a contractor.

(2) Since then, the BB house guarantee was refunded the down payment and intermediate payment to the buyer, and then notified the Plaintiff that the Plaintiff would pay the indemnity amount following the fulfillment of the guarantee obligation to sell the house, but the Plaintiff did not perform the obligation to pay the indemnity amount.

(3) BB house guarantee was refunded from OO on December 27, 2010 to 258 households that the Plaintiff paid.

(c) Disposition, etc.;

(1) On September 201, the Board of Audit and Inspection requested the Commissioner of the National Tax Service to refund the down payment and intermediate payment paid by the seller due to a guarantee accident under the terms and conditions of the house sale guarantee, and where BB house guarantee has been refunded to the buyer, the real control over the trusted real estate is transferred to BB house guarantee in accordance with the trust contract and the transfer note on the date of the guarantee accident, and thus, the value-added tax is imposed and collected in accordance with Article 6(1) of the Value-Added Tax Act.

(2) Accordingly, on November 10, 2011, the Defendant notified the Plaintiff of the rectification and notification of the value-added tax OOOO (including additional tax) on the basis of the amount equivalent to the value of the building subject to taxation refunded on the ground that “the right to de facto control over the trusted real estate is transferred with BB housing guarantee and constitutes the supply of goods pursuant to Article 6(1) of the Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter the same).”

(3) On February 27, 2012, the Plaintiff filed a request for review on February 27, 2012, and received a decision of dismissal from the Commissioner of the National Tax Service on April 16, 2012.

(d) Public auction, etc.

(1) On December 28, 201, the instant project site and the unregistered buildings were sold to the DDR Co., Ltd. (hereinafter “DD”) following the public auction notification as follows.

Public auction notification No. 5 in 2011

BB Public auction notification shall be given for the real estate owned by the BB house guarantee as follows:

1. Indication and sale conditions of the property for public auction;

Location of place of business

Land sale area (land size)

The number of households

The non-Completion Process Rate

OO-si OO-dong No. 62 O-dong other

14,008.30

404 Apartments

22%

- All matters such as lien, taxes and public charges, and restrictions on rights, such as the amount of subcontract bonds and conditions for approval of the project plan (such as sites for contribution acceptance), are conditions under which the successful bidder purchases in a state (hereinafter

7. Cautions;

(1) Administrative regulations, structures, specifications, quality, quantity, subcontract bond amount, approval of a project plan, conditions of lien, etc., of unregistered buildings, machinery, apparatus, etc. due to the public book and cadastral defects of tender items, substitute lot, etc., and administrative regulations, structures, specifications, quality, quantity, amount of subcontract bonds, conditions of a project plan, lien, etc.

* In the case of a refund place of business, BB housing guarantee shall provide the purchaser with a statement of business transfer (or a standard contract for housing sale trust) submitted by the project operator at the time of issuance of the sale guarantee, and cooperate with the change of the project operator, but the responsibility for the project, such as the change of the

(2) On April 27, 2012, DD made a registration of transfer of ownership on the instant project site, and made a registration of trust to EE Trust Co., Ltd. (hereinafter “EE Trust”).

(3) On May 3, 2012, EE Trust: (a) “The project proprietor changes the project proprietor from the Plaintiff to the EE Trust”; (b) obtained the modified approval of the housing construction project plan.”

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, 8, 10 (including virtual defense), Eul evidence Nos. 1, 2 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the transfer of real estate trusted falls under a business transfer under Article 6 (6) 2 of the Value-Added Tax Act, the disposition of this case taken in view of the supply of goods is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) “Transfer of business” under Article 6(6)2 of the Value-Added Tax Act and Article 17(2) of the Enforcement Decree thereof (amended by Presidential Decree No. 24638, Jun. 28, 2013) refers to a comprehensive transfer of the property for business and other physical and personal facilities, rights, and duties, etc., including the property for business, to replace only the managing body while maintaining the identity of the business by comprehensively transferring the property for business to another place of business. In such cases, even if the former employee was not transferred to another person, the transfer of the business cannot be an obstacle to recognizing the transfer of the business (Supreme Court Decision

See Supreme Court Decision 2006Du17895 Decided December 24, 2008

(2) The purport of the instant case: (1) because the value-added tax was not imposed on the transfer of the B-B right to the instant construction project; (2) the purport of the instant case’s transfer of the B-B right to the instant construction project is that the transfer of the B-B right and the instant construction project is non-taxable; (3) if the goods or services subject to the supply of value-added tax cannot be deemed as the goods or services due to the nature of the value-added tax; (4) the transfer of the business is not consistent with the intrinsic nature of the supply of value-added tax, but rather, it is anticipated that the purchaser would be entitled to deduct the input tax amount without exception; and (4) the transfer of the B-B right and the instant construction project’s transfer of the B-B right and the instant construction project’s transfer of the B-B right and the instant construction project’s transfer of the B-B right and the instant construction project’s transfer of the B-B housing construction project, and thus, the Plaintiff’s transfer of the ownership right and the instant construction project’s obligation need to be determined to 205.

(3) Therefore, the instant disposition taken in view of the supply of goods is unlawful.

3. Conclusion

Therefore, the claim of this case is reasonable, and it is decided as per Disposition.