Busan District Court-2017-Gu Partnership-21273 (2016.06)

The transfer of real estate by a taxpayer shall not be deemed a comprehensive transfer of business.

that a taxpayer transfers real estate shall not be a comprehensive transfer of the business but a transfer of inventory goods.

Article 9 (Supply of Goods)

2016Nu22886 ( November 24, 2017)

Is 00

○ Head of tax office

October 27, 2016

November 24, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The Defendant’s disposition of value-added tax of KRW 18,646,40 for the first term of December 2, 2016, which was imposed on the Plaintiff on the Plaintiff on January 4, 2017, KRW 5,673,30 for the second term of January 2, 2014, and KRW 12,587,650 for the first term of January 2, 2015, shall be revoked.

1. Quotation of judgment of the first instance;

The judgment of the court of first instance that the disposition of this case is not unlawful even if the evidence presented in the court of first instance shows the evidence presented in the court of first instance. This part of the court's reasoning is consistent with the reasoning of the judgment of the court of first instance, except for adding the following judgments under Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, since the court's reasoning for this part is the same as that of the judgment of the court of first instance.

2. Additional determination

A. The plaintiff's assertion

There is a conflict of opinion of each court on the comprehensive transfer and acquisition of business, and value-added tax is sufficient when the transferee of the business from the plaintiff sells or leases it to the final consumer, and the plaintiff did not avoid the obligation to pay value-added tax intentionally or by negligence. Therefore, at least the penalty tax of this case is illegal

B. Determination

Under the tax law, penalty taxes are administrative sanctions imposed in accordance with the provisions of the tax law in order to facilitate the exercise of the right to impose taxes and the realization of tax claims where a taxpayer violates a return, tax liability, etc. under the tax law without justifiable grounds, and the taxpayer’s intention or negligence is not considered. However, in a case where there is a circumstance where the taxpayer cannot be deemed to have been aware of his/her duty, or where there is a circumstance where it is unreasonable for the taxpayer to expect the performance of his/her duty to do so, and where there is a justifiable reason to believe that it is unreasonable for him/her to do so (see Supreme Court Decision 2011Du13842, Feb. 27, 2014).

It cannot be deemed that there is a conflict of views on the interpretation of tax law regarding the comprehensive acquisition of business. In this case, since the supply of goods constitutes the supply of goods, the Plaintiff collected the output tax from the business operator who receives the supply and paid it to the State, but it is evident that the Plaintiff failed to perform such obligation, and there is no evidence to deem that there is a justifiable reason for failure to report and pay value-added tax, the Plaintiff’

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.