Review-department -2017-015 (21 March 2017)

Each sales contract shall constitute the supply of goods subject to value-added tax.

Each sales contract constitutes the supply of goods subject to value-added tax, not the comprehensive transfer of business.

Article 10 of the Value-Added Tax Act (Special Cases concerning Supply of Goods)

2017Guhap21273 Revocation of Disposition of Imposition of Value-Added Tax

○ ○

○ Head of tax office

on October 2017 022

on 06 October 2017

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

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

Cheong-gu Office

Value-added tax of 18,646,400 won for the first period of December 2, 2015, imposed on the Plaintiff on December 2, 2016 by the Defendant;

Value-added tax on January 4, 2017 KRW 5,673,300 for the second term of 2014, and KRW 12,587,650 for the first term of 2015.

such taxation disposition shall be revoked in full.

1. Details of the disposition;

A. On November 21, 2014, the Plaintiff entered into a sales contract with ○○ Housing Guarantee Co., Ltd. and Busan ○○○○○○○○ City Co., Ltd. with respect to 120, 120 ○○○○○○○○○○ Dab101-B120 (hereinafter referred to as “individual number of stores”) and completed registration as real estate sales business or real estate rental business for each shop. The status of business registration of individual stores at issue in the instant case is as follows.

The same shall apply.

Business registration number

Places of business

Opening date of business

Main Business / Sub-Business

617-21-80957

B101〜B105호

December 20, 2014

Real estate sales / Real estate rental

617-23-5199

B106〜B108호

January 20, 2015

Real estate sales / Real estate rental

606-38-90827

B16 No. 116

January 25, 2015

Real estate sales / Real estate rental

B. On December 2, 2014, the Plaintiff concluded a sales contract with UN○○ and B106-B108 on the said individual store (hereinafter “each of the instant sales contracts”), and at the time of reporting the first value-added tax in 2014 and 2015, the Plaintiff did not issue a tax invoice by regarding the transfer of the said individual store as “transfer of business” under Article 10(8)2 of the Value-Added Tax Act and Article 23 of the Enforcement Decree of the same Act at the time of reporting the first value-added tax in 2014 and 2015, and did not include the said sales price in the sales amount at the time of reporting the second and the first value-added tax in 2014.

Real estate

Conclusion date of Trading

A transferee

Sales proceeds;

B101 No.2

December 18, 2014

longer-time iron

52,744,100

B102〜B105호

December 18, 2014

Kim Jin-man

210,976,400

B106〜B108호

December 2, 2014

Maternes

300,000,000

B16 No. 116

December 19, 2014

Park Young-young

100,000,000

C. The head of ○○ regional tax office: (a) deemed that the Plaintiff transferred real estate as a real estate sales broker and omitted a value-added tax return; and (b) deemed that each of the instant sales contracts does not constitute a comprehensive business transfer and constitutes a supply of goods subject to value-added tax; and (c) imposed value-added tax on the Plaintiff on December 2, 2016, KRW 18,646,40 on the Plaintiff on the ground that value-added tax was imposed on the Plaintiff on the first half of 2015, KRW 5,673,30, and KRW 12,587,650 on the first half of 2015 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed a request for examination with the National Tax Service on January 20, 2017, but the Commissioner of the National Tax Service rendered a decision to dismiss the Plaintiff’s request on March 21, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1, 5 evidence, Eul evidence 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since each of the instant sales contracts is a comprehensive transfer of real estate sales business or real estate rental business itself, it does not constitute value-added tax taxable objects.

B. Relevant statutes

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

C. Determination

Article 10(8)2 of the Value-Added Tax Act and Article 23 of the Enforcement Decree of the same Act provide that transferring a business and comprehensively succeeding to all rights and obligations relating to the business shall not be deemed the supply of goods. The term "transfer of a business not deemed the supply of goods" refers to the comprehensive transfer of physical and human facilities, rights and obligations, etc., including business property, to replace only the management body while maintaining the identity of the business. Thus, the business is separated from the management body as an organic combination of human and physical facilities.

to be recognized as independent, and the subject of the transfer is not a simple physical facility

D. The fact that such organic combination is a cause of a taxation obstacle in value-added tax.

The burden of proof that a taxpayer has been liable for tax payment (Supreme Court Decision 97Nu12778 delivered on July 10, 1998, Supreme Court Decision 201Nu278 delivered on

Supreme Court Decision 2004Du8422 Decided April 28, 2006; Supreme Court Decision 2005Du17294 Decided November 29, 2007

[Reference]

Therefore, in light of the following circumstances, as to whether each of the sales contracts of this case constitutes "transfer of business not considered as supply of goods", it is insufficient to view that the Plaintiff transferred an individual store to ○○○○, etc. as a comprehensive business transfer only by itself, and there is no evidence to acknowledge otherwise.

Therefore, the plaintiff's assertion is without merit, and each sales contract of this case is subject to value-added tax.

Since the disposition of this case constitutes the supply of goods, the disposition of this case is legitimate.

1) The Plaintiff only prepared a sales contract while transferring the said individual store, and did not separately prepare a comprehensive transfer/acquisition contract. Each of the instant sales contracts only includes the details ordinarily entered in real estate transactions, such as the subject matter of sale, the purchase price, and the payment date, and does not include any content such as comprehensive transfer of the Plaintiff’s business or succession of the obligation related to the business

2) The issue of value-added tax on the portion of the building is stipulated as the "general succession of the rights and obligations concerning the project to the purchaser under the comprehensive acquisition agreement under Article 6 of the Value-Added Tax Act" with respect to the sales contract, which is entered into by the Plaintiff and Park○○, and the special terms and conditions of each sales contract entered into by the Plaintiff, head○○, and Kim○○, shall be entered into a comprehensive acquisition agreement (con

The document is written in that the buyer is responsible for and prepared. However, the issue of whether it constitutes a "transfer of business" not deemed a supply of goods is whether it satisfies the objective requirements, and it does not constitute a "transfer of business" under the above agreement of the parties. There is no content that the plaintiff can see that the plaintiff comprehensively transfers physical and human facilities, including business property, and rights and obligations, and there is no stipulation that the sales contract prepared between the plaintiff and the U.S. ○○ is a comprehensive transfer of business.

3) There is no evidence to deem that there was a price for business transfer and takeover at the time of each of the instant sales contracts, or an appraisal of assets and liabilities related to real estate sales business conducted by the Plaintiff, or a transfer of confidential and managerial organization, etc. for large-party customer relations and businesses.

4) On December 2014, 2014, prior to the transfer of the registration of ownership for the said individual store by ○○ Housing Guarantee Co., Ltd., the Plaintiff entered into each of the instant sales contracts with ○○○○, etc., and thereafter, the Plaintiff was registered as a real estate sales business or a real estate rental business after the conclusion date of each of the instant sales contracts. In other words, the Plaintiff was registered as a real estate sales business or a real estate rental business. In light of the Plaintiff’s timing of purchase and the timing of business registration, etc., it is difficult to view that there exists a business that can be recognized as socially independent

3. Conclusion

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

shall be ruled.