[1] Whether the commencement, discontinuance, etc. of business under the Value-Added Tax Act is determined by the substance of the pertinent fact, regardless of registration or reporting under the Act (affirmative)

[2] The case holding that the real estate sales businessman cannot be deemed to have an impact on the business feasibility of the real estate sales businessman only on the ground that the real estate sales businessman newly constructed a leisure building and operates or rents the house

[1] The commencement, discontinuance, etc. of business under the Value-Added Tax Act shall be determined by the substance of the pertinent fact, regardless of registration or reporting under the Act.

[2] The case holding that it cannot be said that it affected the feasibility of a real estate sales businessman as a real estate sales businessman on the ground that he/she engaged in or leased the inn business in a newly built in a leisure building during a period of more than a period of possession of real estate for business activities

[1] Article 5 of the former Value-Added Tax Act (amended by Act No. 5032 of Dec. 29, 1995), Article 10 (1) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 14471 of Dec. 31, 1994) / [2] Article 5 of the former Value-Added Tax Act (amended by Act No. 5032 of Dec. 29, 1995), Article 10 (1) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 14471 of Dec. 31, 1994)

[1] Supreme Court Decision 95Nu14480 delivered on May 28, 1996 (Gong1996Ha, 2049), Supreme Court Decision 96Nu16193 delivered on June 27, 1997 (Gong1997Ha, 2401), Supreme Court Decision 97Nu20625 delivered on September 18, 1998 (Gong1998Ha, 2534) / [2] Supreme Court Decision 93Nu17522 delivered on September 9, 1994 (Gong194Ha, 262), Supreme Court Decision 94Nu14025 delivered on November 7, 1995 (Gong195Ha, 3939), Supreme Court Decision 97Nu2979 delivered on June 139, 197 (Gong1979)

Plaintiff

Daejeon Head of the District Tax Office

Daejeon High Court Decision 99Nu101 delivered on June 18, 1999

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, since the Plaintiff transferred 148 square meters of a building constructed on the ground of 215.7 square meters on the Seo-gu, Daejeon ( Address 1 omitted), on December 14, 1989, and thereafter newly constructed a building 426 square meters on the ground, on December 5, 1990. On July 16, 1991, the Plaintiff acquired a 233 square meters of 10 square meters of 44 square meters of 5 stories of 5 stories of 5 stories of 1997 and did not sell 10 square meters of 97 square meters of 5 stories of 195 stories of 5 stories of 196 stories of 100,000 on the ground, and the Plaintiff did not sell 100 square meters of 10,0000 square meters of 10,0000 square meters of 14,0000 square meters of 15th of 192.

2. Commencement, closure, etc. of a business under the Value-Added Tax Act shall be determined by the substance of the relevant fact, regardless of registration or reporting under the relevant law (see Supreme Court Decision 96Nu16193, Jun. 27, 1997). Even according to the facts acknowledged by the court below, the act of new construction and transfer of the above building, including the new construction and transfer of the above leisure building, shall be deemed to be a profit-making business, and it is sufficient to view it as a continuing and repeated business activity in light of its size, frequency, attitudes, etc., and as long as the above business activity continues to be conducted repeatedly and repeatedly, it cannot be deemed to affect the business feasibility of the above leisure building as a real estate sales businessman (see Supreme Court Decision 97Nu10192, Oct. 24, 1997). Thus, it shall not be deemed that the plaintiff's real estate sales business was closed by the transfer of the real estate in this case.

Nevertheless, the court below decided that the Plaintiff’s real estate sales business was closed on January 15, 1992, and that the exclusion period for the imposition of value-added tax shall be calculated from February 10, 1992, which was 25 days after the date of the decision, is erroneous in the misapprehension of legal principles as to the closure of real estate sales business, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the Daejeon High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Ji-dam (Presiding Justice)