[1] Standard for determining whether a real estate transaction constitutes a real estate sale business, and whether the transaction of an apartment sold specially in return for consultation and expropriation under the Land Expropriation Act becomes a factor in recognizing business feasibility (affirmative)

[2] Whether the imposition of value-added tax by recognizing the transfer income tax as a real estate sales businessman after imposing transfer income tax on the transfer of real estate constitutes double taxation disposition (negative)

[1] Whether the transaction of real estate constitutes a real estate trading business, which is a taxation requirement of value-added tax, should be determined in light of social norms, considering whether the transaction is for 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 its size, frequency, mode, etc. In making such judgment, not only the transaction of real estate for the purpose of transfer, but also all the circumstances surrounding the transfer of real estate held by the transferor throughout the entire real estate held by the transferor throughout the period before and after the time when the transfer took place. It does not mean that the transaction of apartment buildings, which are specially sold in lots, is an apartment

[2] As long as the act of transferring real estate constitutes real estate sales business that is subject to value-added tax, the tax authority is obligated to pay value-added tax separate from the income tax on the income accrued from such transfer. Thus, even if the tax authority imposed a transfer income tax and defense tax on the taxpayer's act of transferring real estate, the disposition of imposing value-added tax separately cannot be deemed unlawful

[1] Article 2(1) of the Value-Added Tax Act; Article 2(1)5 of the Enforcement Decree of the Value-Added Tax Act; Article 1(1) of the Enforcement Rule of the Value-Added Tax Act / [2] Article 51 of the Framework Act on National Taxes; Article 19(1)12 of the Income Tax Act; Articles 1(1) and 2(1)

[1] [2] Supreme Court Decision 96Nu8758 delivered on October 11, 1996 (Gong1996Ha, 3362), Supreme Court Decision 96Nu1081 delivered on February 25, 1997 (Gong1997Sang, 988) / [1] Supreme Court Decision 94Nu1170 delivered on March 3, 1995 (Gong1995Sang, 1640 delivered on September 15, 1995), Supreme Court Decision 94Nu16021 delivered on September 15, 1995 (Gong195Ha, 3444), Supreme Court Decision 94Nu14025 delivered on November 7, 1995 (Gong195Ha, 3939) and Supreme Court Decision 95Nu19639 delivered on September 25, 195 (Gong1995Nu196595).

Kim Jae-ho (Law Firm Gwangju, Attorneys Kim Tae-ho et al., Counsel for the defendant-appellant)

The Director of the sericultural Tax Office

Seoul High Court Decision 95Gu5119 delivered on November 14, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

With respect to points 1, 2, and 5

Whether the transaction of real estate constitutes real estate trading, which is a taxation requirement of value-added tax, should be determined in light of social norms by considering whether the transaction is for profit and whether the transaction is continuous and repeated to the extent that it can be seen as business activities in light of its size, frequency, mode, etc. (see, e.g., Supreme Court Decision 94Nu1170, Mar. 3, 1995). In making a judgment, not only for the purpose of the transfer, but also for the real estate owned by the transferor, but also for all the circumstances before and after the time the transfer took place throughout the entire real estate owned by the transferor (see Supreme Court Decision 94Nu14025, Nov. 7, 195). It does not mean that the special sale of real estate in return for consultation and expropriation under the Land Expropriation Act is an apartment building transaction, and it is not excluded from the above consideration materials.

According to the reasoning of the judgment below, the court below held that the plaintiff acquired real estate such as the above detached house from July 28, 1990 to October 1990, on the ground of 15 to 231.5 square meters in Songpa-gu, Seoul, Songpa-gu, 238, 231.5 square meters and newly constructed brick 248.94 square meters, which is the building of this case, the building of this case, on September 28, 1990, the above building site and building were transferred, and the above building site and building were transferred from July 1982 to October 199, the above building site and building were acquired on 12 occasions, such as the above detached house of 128-79 square meters in Gangdong-dong, Gangdong-gu, Seoul. The court below held that the period for which the plaintiff owned the above transferred real estate was relatively short-term to 4 to 1 year, and that the plaintiff did not have any legal principles as to the sale of real estate since the transfer of the building of this case.

The court below's decision that "the plaintiff was involved in the business of newly building and selling apartment houses on the site of 855-18, South-dong, Incheon Metropolitan City, pursuant to the decision that "the plaintiff was involved in the business of newly building and selling apartment houses on the site of 855-18, Nam-dong, Incheon," could not be known whether the plaintiff was a newly-built apartment house or the plaintiff was merely a lease of the name of the newly-built apartment houses, such as the theory of lawsuit, and the court below did not properly confirm the above part's facts, but even based on the remaining facts duly confirmed by the court below, the transfer of the building of this case can be deemed as part of the plaintiff's business

The Supreme Court's decision that points out the theory of lawsuit is different from this case, and it cannot be appropriate to invoke this case. All the arguments are without merit.

With respect to heading 3, 4, 6, 7, and 8

Inasmuch as the Plaintiff’s act of transferring the instant building constitutes a real estate sales business that is subject to value-added tax, the Plaintiff is obligated to pay value-added tax separate from the income tax on the income accrued from such transfer. Thus, even if the Defendant imposed the original transfer income tax and defense tax on the Plaintiff’s act of transferring the instant building, the disposition imposing value-added tax cannot be deemed unlawful as double taxation (see Supreme Court Decision 96Nu8758, Oct. 11, 1996).

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the principle of no taxation without law, the principle of no taxation without law, the principle of no taxation without law, the principle of no taxation without law, the principle of proportionality, the principle of proportionality, the principle of no excessive prohibition, the impartiality of administrative acts, and the fairness of administrative acts, Article 18 and

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)