Whether it constitutes "transfer of business" which is not considered as the supply of goods;

In the case of a general entrepreneur who has taken over a building leasing business and directly runs an inn business after filing a business registration as a simplified taxable person, it does not constitute a transfer of business not deemed a supply of goods.

Article 6 (Supply of Goods)

1. The plaintiff's claim is dismissed.

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

The imposition of value-added tax of KRW 61,383,280 on February 7, 2006 by the Defendant against the Plaintiff on February 7, 2006 shall be revoked.

1. Details of the disposition;

A. On October 19, 2002, the Plaintiff acquired the ownership of ○○○○-○○○○○○○○ 1,483 square meters in Gyeonggi-gun on October 19, 200, and registered as a general taxable person on November 30 of the same year with the type and type of business as “real estate leasing business.”

B. On February 27, 2003, the Plaintiff newly constructed a telecom and completed registration of preservation of ownership on the above land (hereinafter referred to as the "real estate in this case"). On June 3 of the same year, the Plaintiff entered into a contract to establish a lease on a deposit basis for lease on a deposit basis, and on June 2, 2005, the term of the lease on a deposit basis was 40 million won, and the lease on a deposit basis was 40 million won on the following day.

C. After that, on May 8, 2004, the Plaintiff sold the instant real estate to Kim○○, and on the 20th of the same month.

The transfer registration of ownership was made, and the report was made on the 27th of the same month. Kim○○ did not make a business registration even after the purchase of the real estate in this case for a considerable period of time, but on April 11, 2005, business registration was made as a simplified taxable person by making the item of the business as a "welve business", and the registration of establishment of chonsegwon made in Kim○○○○ was cancelled on the 18th of the same month.

D. On February 7, 2006, the Defendant rendered the instant disposition imposing value-added tax of KRW 61,383,280 on the Plaintiff on the ground that the Plaintiff’s transfer of the instant real estate to Kim○○○ constitutes not a business transfer but a mere supply of goods on the grounds that it constitutes a mere supply of goods.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-2, Gap evidence 2-3, Eul evidence 1-3

2. Determination of legality of disposition

A. The plaintiff's assertion

The transfer of this case is a comprehensive transfer of not only the instant inn, but also the lessor’s status to Kim ○, a lessee. This does not constitute the supply of goods subject to value-added tax, as a transfer of business under Article 6 subparag. 6 subparag. 2 of the Value-Added Tax Act. This is the same even if Kim○-○ did not register business after one year after the transfer of this case, and the disposition of this case is unlawful.

(b) Related statutes;

/ Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006)

Article 6 (Supply of Goods)

(1) The supply of goods shall be a delivery or transfer of goods pursuant to all contractual and legal grounds.

The supply of goods shall not be deemed the supply of goods for each of the following subparagraphs:

2. Transfer of business as prescribed by the Presidential Decree: Provided, That this shall not apply in case where an entrepreneur delivers a tax invoice under Article 16, and as prescribed by the Presidential Decree.

(1) Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 1930 of Feb. 9, 2006)

Article 17 (Provision of Security, Transfer of Business and Payment of Taxes in Kind)

(1) For the purpose of the main sentence of Article 6 (6) 2 of the Act, the term “those as prescribed by the Presidential Decree” means comprehensively succeeding to all rights and obligations with respect to the business to each place of business (including the case of division meeting the requirements of Article 46 (1) of the Corporate Tax Act, but excluding the case where a general taxable person transfers the business to a simplified taxable person). In this case, even if he succeeds to the business without including those falling under any of the following subparagraphs among the rights and obligations with respect to the business, the relevant business shall be deemed comprehensively succeeded to:

1. The amount receivable;

2. A document concerning accounts payable;

3. Land, buildings, etc. not directly related to the relevant business as prescribed by the Ordinance of the Ministry of Finance and Economy.

C. Determination

The purport of the Value-Added Tax Act is that the transfer of a business shall not be deemed a supply of goods or services subject to value-added tax, even if the supply of goods or services is deemed a supply of goods or services subject to value-added tax, and where the supply of goods cannot be deemed a supply of value-added tax due to the nature of the goods or services subject to value-added tax, or the supply is inappropriate, the transfer of the business does not correspond to the intrinsic nature of the supply of value-added tax, which serves as a requirement for taxation. In addition, the transfer of the business does not correspond to the intrinsic nature of the supply of the value-added tax, the transaction amount and the value-added tax amount are expected to be deducted from the input tax without any exception, and the transferee is anticipated to collect the output tax as well as the tax or economic policy consideration that the business transferee should avoid unnecessary pressure and avoid it. Thus, the transfer of the business that is not considered a supply of goods refers to the transfer of the business to replace only the business owner while maintaining the identity of the business as a organic combination of human and physical facilities, and the burden of proof is determined as a taxpayer (7).

Therefore, as to whether the transfer of this case constitutes the transfer of business under Article 6 (6) 2 of the Value-Added Tax Act as a comprehensive business transfer which can be seen as replacing only the owner of business while maintaining the identity of the business, it is stated that the transfer of this case constitutes the transfer of business under Article 6 (6) 2 of the Value-Added Tax Act, and that the contract between the plaintiff and the Kim○○○○○○○ constitutes the transfer of business under the special agreement (Evidence No. 3). However, in the same special agreement column, the contract between the plaintiff and Kim○○○○○, which was submitted by the plaintiff, states that "the rent shall be paid until the moving of the house accommodation business," and the contract between the plaintiff and the plaintiff Kim○○○○○○○, which is stipulated that "on the condition that the term of the lease on a deposit basis is about one year, it is difficult to view the sale of the real estate as the subject of the lease on a deposit basis between the plaintiff and the plaintiff and the above transfer of the lease on a deposit basis.

Therefore, the Plaintiff’s assertion disputing the legality of the instant disposition on a different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges ○○○○ ○

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