Whether the project is comprehensively transferred

The transferor does not constitute a comprehensive transfer of business in the case of a general taxable person or a transferee as a simplified taxable person, since the type of taxation has been changed.

Article 6 of the Value-Added Tax Act

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of imposition of value-added tax for the second period of 2002 against the plaintiff on March 1, 2005 is revoked.

1. Details of the disposition;

A. On April 20, 2002, the Plaintiff purchased a 281m2 and a 4-story o-dong ○○○○○○○, ○○○-dong ○○○○○○, and registered the business as a general taxable person on April 25, 2002 by making the type of the business to the Defendant as an inn business.

B. On July 23, 2002, the Plaintiff: (a) leased the instantns to Park○○ on the part of the Plaintiff so that he/she may operate his/her business; and (b) on August 14, 2002, changed the type and type of business into a real estate leasing business.

C. On November 7, 2002, the Plaintiff transferred all facilities, such as the instant inn, its house fixtures, and fixtures, to ○○○ and Lee ○○○ (hereinafter referred to as the “transfer”). On November 26, 2002, the Plaintiff reported the closure of business on November 7, 2002, and made a report on the closure of business. Meanwhile, on November 28, 2002, the remaining ○○ and Lee ○○ shall start the business on November 7, 2002, the date the business was commenced on November 28, 2002, and registered as a simplified taxable person and registered as a simplified taxable person. The Plaintiff leased the instant house to ○○○ as well.

D. On March 1, 2005, the Defendant rendered the instant disposition imposing value-added tax of KRW 86,022,770 on the Plaintiff on the ground that the instant transfer constitutes not a business transfer under Article 6(6)2 of the Value-Added Tax Act, but a simple supply of goods.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence No. 6-1,2, Eul evidence Nos. 1, 3, and 5, Eul evidence Nos. 6 and 7-1, 2, Eul evidence No. 8-1 to 3, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

The transfer of this case is also comprehensively transferred not only to all business facilities, such as the instant inn and its house and fixtures, but also to the lessor's status as a lessor for the gambling of a lessee. Thus, it does not constitute the supply of goods subject to value-added tax as a transfer of business under Article 6 (6) 2 of the Value-Added Tax Act. Since the transfer of this case is only a simplified taxable person after the transfer of this case, it cannot be deemed that the general taxable person transfers the transfer of this case to a simplified taxable person, and therefore, the disposition of this case is unlawful.

(b) Related statutes;

/ Value-Added Tax Act (amended by Act No. 6905 of May 29, 2003)

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.

(6) The goods falling under any of the following subparagraphs shall not be deemed the supply of goods:

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.

Article 25 (Simplified Taxation)

(1) With respect to any individual entrepreneur (hereinafter referred to as a "simplified taxable person") whose proceeds (referring to proceeds including the value-added tax; hereinafter referred to as the " proceeds from supply") from the supply of goods and services in the immediately preceding calendar year are not less than 48 million won and less than the amount prescribed by the Presidential Decree within the limit of not more than the amount equivalent to 130/100 of that amount, notwithstanding the provisions of Chapters IV through VI, value-added tax shall be imposed and collected pursuant to this Chapter: Provided, That the same shall not apply to any entrepreneur prescribed by the Presidential Decree in

(2) With respect to a private businessman who newly starts a business in the immediately preceding or immediately preceding taxable period, the provisions of paragraph (1) shall apply on the basis of the amount calculated by converting the total sum of the proceeds from supply from the date of commencing his business to the end of the taxable period. In this case, if there is any fraction less than one month

(3) In one calendar year including the day on which a new business commences, if the total sum of the proceeds from supply is anticipated to fall short of the amount provided for in paragraphs (1) and (2), the individual business operator who newly starts his business shall, along with the registration provided for in Article 5 (1), report to the head of the competent tax office

(4) Any individual entrepreneur who has made a report under paragraph (3), shall be a simplified taxable person in the first taxable period: Provided, That this shall not apply to an entrepreneur falling under the proviso of paragraph (1).

(5) In one calendar year which includes the date of commencing a business as an individual entrepreneur who is not registered pursuant to the provisions of Article 5 (1), if the total amount of the proceeds from supply falls short of the amount provided in paragraphs (1) and (2), it shall be a simplified taxable person in the first taxable period

(6) An individual entrepreneur whose proceeds from supply corrected or re- corrected pursuant to the provisions of Article 28 (1) exceed the amount provided for in paragraph (1) shall be deemed a simplified taxable person until the taxable period in which the date of correction or re-revision falls.

(1) Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17827 of Dec. 30, 2002)

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

(2) 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 under 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, it shall be deemed that he comprehensively succeeds to

1. The amount receivable;

2. A document concerning accounts payable;

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

Article 74 (Scope of Simplified Taxation)

(1) The term “amount prescribed by the Presidential Decree” in the main sentence of Article 25 (1) of the Act means 48 million won.

(2) The businessmen as prescribed in the provisos of Article 25 (1) and (4) of the Act shall be those who operate the businesses falling under any one of the following subparagraphs:

6. Real estate rental determined 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 the supply of goods or services subject to value-added tax, even if the goods or services subject to supply cannot be deemed the goods or services due to the nature of the value-added tax, or the supply of such goods is inappropriate. The transfer of a business does not correspond to the intrinsic nature of the supply of value-added tax, which serves as the taxation requirement for the individual supply of specific goods, but rather, its transaction amount and the value-added tax amount are expected to be deducted without exception, and thus, it is expected that the transferee would be entitled to deduct the input tax without exception, and thus, the transfer of a business which is not considered the supply of goods is connected to the tax or economic policy consideration that should avoid unnecessary pressure by the transferee of the business, and thus, the transfer of the business shall be deemed the replacement of only the other party to the business with the burden of proving its identity by comprehensively transferring physical, human, rights, and duties, including the business property for each place of business, and the transfer of the business shall be deemed a simplified taxable person with the burden of proof of 17.

(See Supreme Court Decision 2004Du10593 Decided December 10, 2004).

Therefore, it can be acknowledged that the transfer of this case is a comprehensive business transfer which can be seen as replacing only the owner of business while maintaining the identity of the business, and as to whether the transfer of this case constitutes the transfer of business under Article 6 (6) 2 of the Value-Added Tax Act, according to each of the above evidence Nos. 4, 5, 6-1 and 2, the plaintiff agreed to deduct the amount equivalent to the lease deposit amount for the ○○○ from the balance at the time when the plaintiff sells all of the facilities such as the inn, house house, fixtures, etc. of this case to the ○○○○○○○ and the ○○○○○○ from the balance, and the plaintiff discontinued the real estate lease business as of November 7, 202, and this case's business registration was conducted on the same day as the date when the business was commenced, but the above recognition alone does not constitute a comprehensive transfer of the business, and it is difficult to view that the above transfer of this case's business constitutes the transfer of the ○○○.

In addition, whether the type of taxation at the time of business registration shall be a general taxable person or a simplified taxable person shall be determined by the applicant's judgment. The defendant shall accept the business registration as long as it does not fall under the exception business under Article 25 (1) of the Value-Added Tax Act and Article 74 (1) and (2) of the Enforcement Decree of the same Act. Even if the proceeds from supply are determined or corrected as a general taxable person, it shall be deemed a simplified taxable person up to the taxable period to which the date of decision or correction belongs (Article 25 (6) of the Value-Added Tax Act), since the plaintiff's assertion based on the premise that there is any error against the defendant in relation to the registration of business as a simplified taxable person, the disposition of this case

3. Conclusion

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