Daegu District Court 2012Guhap1596 ( October 23, 2013)

early 201Gu2840 (2.08, 2012)

Since the whole business, including real estate, is deemed to have been comprehensively transferred, it does not constitute the supply of goods.

Even if the plaintiffs leased the real estate of this case, it cannot be deemed that the plaintiffs leased the real estate of this case with continuous and repeated intent in light of the above plaintiffs' period of holding the real estate of this case, reasons for leasing, contents of the lease contract, the lessee's period of use and conditions before and after the lease. Thus, the disposition of this case

Article 6 of the Value-Added Tax Act

2013Nu377 Revocation of the imposition of value-added tax

AA and 2

Racing Head of the Tax Office

Daegu District Court Decision 2012Guhap1596 Decided January 23, 2013

August 16, 2013

August 30, 2013

1. Revocation of a judgment of the first instance;

The imposition of value-added tax for the second term of January 3, 201 by the Defendant against the Plaintiffs on January 3, 201 shall be revoked.

2. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On July 28, 2005, Plaintiff AA registered its business as "B industry", "O-Eup O-type 1172-8", and "real estate business manufacturing and metal shop" (as seen below, hereinafter referred to as "real estate business"). "B. Plaintiff AA completed the registration of transfer of the ownership of each of the instant real estate 172-8 factory site and its above-ground factories (A, B, D, and hereinafter referred to as "the instant building"), and the machinery and equipment (hereinafter referred to as "real estate and equipment") after purchasing and completing the registration of transfer of the ownership of the instant real estate 200,90,000,000 for each of the instant real estate 25,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000.

(d) On November 15, 2005, the plaintiffs established BB industry (registration number**********************, and on April 26, 2006, the trade name was changed to EE industry; hereinafter referred to as the "E industry") under the plaintiffs' wife, and transferred the real estate of this case to EE industry on November 21, 2005 (hereinafter referred to as the "transfer of this case"). The plaintiffs did not file a value-added tax return with the defendant on the ground that the transfer of this case constitutes business transfer under Article 6 (6) 2 of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006).

f. The defendant did not recognize the identity of the business between the plaintiff and the EE industry, and on January 3, 201, on the ground that the transfer of this case does not fall under the business transfer under Article 6 (6) 2 of the former Value-Added Tax Act, and on January 3, 2011, the defendant issued a disposition to impose and notify the plaintiffs of the second value-added OOOOO of the second time in 2005 (hereinafter "the disposition in this case"). The plaintiffs appealed against this on September 9, 201 and filed a request with the Tax Tribunal for the trial, and on September 2012.

2. 8. The claim was dismissed.

[Basis of Recognition] The non-contentious facts, evidence 1 to 5 (including household numbers, hereinafter the same shall apply) and evidence 2 and 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiffs' assertion

The instant disposition is unlawful for the following reasons.

① Since the Plaintiffs did not engage in real estate rental business, they do not constitute “a person who supplies goods or services independently for business purposes” under Article 2 of the Value-Added Tax Act.

② Since the Plaintiffs comprehensively transferred to the EE industry all the physical facilities including the instant real estate, human resources, and rights and obligations, the instant transfer does not constitute the supply of goods, as provided for in Article 6 (6) 2 of the former Value-Added Tax Act.

2) The defendant's assertion

The plaintiffs transferred the real estate of this case which is the object of the real estate leasing business, and since the transfer does not constitute the business transfer under Article 6 (6) 2 of the former Value-Added Tax Act, the disposition of this case is legitimate.

(b) relevant statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination as to whether the plaintiffs engaged in real estate rental business

1) Whether the plaintiffs operated the business of leasing the instant real estate to theCC industry

The written evidence Nos. 2 and 18 shall take into account the overall purport of the pleadings, and the plaintiffs on Oct. 1, 2005

The reason why the plaintiff reported value-added tax for the second half of the year 2005, and the defendant corrected the main business of the BB industry as "real estate rental business" on December 24, 2010 on the basis of the above lease contract. It is recognized that the plaintiff made an ex officio correction of the main business of BB industry as "real estate rental business from manufacturing and metal shop business".

However, the above evidence and the statements in Gap's 6, 7, and 8, and 13, and 19 are considered as follows. The plaintiffs are shareholders who have established theCC industry, and the plaintiffs have no special benefit in engaging in the business of leasing the real estate in this case to theCC industry, and the terms and conditions of the above lease agreement (non-deposit monthly rent) are too low compared to the purchase price of the real estate in this case (out of deposit). TheCC industry was established on October 7, 2005, and it was closed on November 18, 200 and 10th of the previous year, and as seen below, it is not necessary to recognize that the plaintiffs prepared a lease agreement with the owner and the owner of the real estate in order to make a business registration by using the real estate as the location of the real estate in this case.

2) Whether the plaintiffs engaged in the business of leasing the real estate of this case to JJ

In full view of Gap, 9, 10, 11, 21, 22, 25, and 4 through 7, 9, and 10 of Eul, and 10 of the witnesses of the first instance trial, and part of the testimony of all of the witnesses G, the J equipment Co., Ltd., (i) was contracted with KKK for construction of the instant building from the KKK Co., Ltd., and (ii) was not paid construction cost due to the default of KKK Co., Ltd., (hereinafter referred to as the "JJ") but was established in the name of its employees on October 22, 204, and (ii) the JJ had been registered with the supply company of the instant building from its employees to HHHH (hereinafter referred to as "HH"), and that the plaintiffs were supplied with the instant building during the period between 0 and 30 of the instant real estate to HJ, and that the plaintiffs were supplied with the instant building during the period between HaJ and 25 of the Plaintiffs.

According to the above facts, even though it can be seen that the plaintiffs, theCC industry, and the EE industry were engaged in metal painting business using parts of the J's name and human and physical facilities, and that the plaintiffs were engaged in the real estate leasing business of this case to the J in return for the use of their names, it cannot be viewed that the plaintiffs engaged in the real estate leasing business of this case to the J (otherwise, the defendant also argued that the plaintiffs did not engage in the real estate leasing business of this case, and on September 29, 2005, the plaintiffs purchased the real estate of this case on October 7 of the year and November 15 of the year, after the acquisition of the real estate of this case, it is difficult to see that the plaintiffs were engaged in the real estate leasing business of this case separately in the form of a legal entity.

3) Whether there exists a continuous and repeated doctor

Even if the plaintiffs leased the instant real estate to theCC industry or the J, it cannot be deemed that the plaintiffs leased the instant real estate with continuous and repeated intent in light of the aforementioned plaintiffs' period of possession, the circumstances leading up to the lease, the details of the lease agreement, the period of use of the lessee, and the circumstances before and after the lease.

4) Sub-determination

Therefore, the disposition of this case based on the premise that the plaintiffs continued to engage in real estate rental business due to continuous and repeated intent is unlawful.

3. Conclusion

If so, all of the plaintiffs' claims are reasonable, and the judgment of the court of first instance is concluded.

the disposition of this case is unfair, and the first instance judgment and the first instance judgment are revoked.

The decision shall be rendered as above.