Daegu District Court-2015-Gu Partnership-22037 (2016.02.17)

Review-department -2014-148 (2015.03)

A disposition imposing value-added tax on the representative on the transfer of a truck number plate by a corporate name is legitimate.

Since the representative of the trucking transport company purchased the truck registration number and acquired the right to exclusively use and dispose of the motor vehicle under the name of the corporation, and the user transferred the right and possession to the user, the transfer of the truck number plate is subject to value-added tax.

Article 1 of the Value-Added Tax Act

Article 6 (Supply of Goods)

2016Nu475 Disposition to revoke the imposition of value-added tax.

○ Kim

○ Head of tax office

Daegu District Court Decision 2015Guhap22037 Decided February 17, 2016

December 8, 2017

February 12, 2018

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

The Defendant’s imposition of value-added tax on October 1, 2014 by KRW 00 in excess of KRW 00 in the imposition disposition of KRW 1,00 in 209 (including additional tax) and the imposition disposition of KRW 00 in 2009 on KRW 00 in the imposition disposition of KRW 2,00 in 209, respectively, shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. 80% of the total litigation costs shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant.

The judgment of the first instance court shall be revoked. The Defendant’s imposition of value-added tax on October 1, 2014 by imposition of the first term portion ○○○○○○○○○○○○○○○○○○○ in 2009, the second term portion 2009, the first term portion ○○○○○○ in 2010, the second term portion 2010, the first term portion ○○○○○○ in 201, the second term portion 201, the second term 200, the second term ○○○ in 201, the first term portion 200, and the second term 2012, each of the imposition of value-added tax imposed on the Plaintiff on October 1, 2014.

1. Details of the disposition;

A. The Plaintiff operated a large number of transportation companies including ○○ Transportation Co., Ltd. (hereinafter “○○ Transportation”) in the border area north, and served as the president of the ○○ Association from around 2007.

B. As a result of the corporate tax investigation conducted from May 7, 2014 to August 29, 2014 with respect to ○ Transport from 2009 to 2012, the Defendant determined that the Plaintiff purchased and sold the motor vehicle registration number for the trucking transport business (hereinafter “the instant motor vehicle registration number”) and received the payment in its own account.

C. On June 27, 2014, the Defendant: (a) registered the Plaintiff as an individual entrepreneur (a business type: a service and a category: an intangible property right brokerage business); (b) imposed the Plaintiff the value-added tax on the sales of the instant vehicle registration number on October 1, 2014, on the first term portion ○○○○○ in 2009, the second term portion ○○○○ in 2009, the first term portion ○○ in 2010, the second term portion ○○ in 2010, the first term portion ○○○ in 2010, the second term portion ○○○ in 201, the second term portion ○○○ in 201, the first term portion 200 in 2011, the first term portion ○○○ in 2012, and the second term portion ○○ in 2012 (hereinafter referred to as the “instant disposition”).

D. On October 27, 2014, the Plaintiff filed a request for examination of the instant disposition with the Commissioner of the National Tax Service, but was dismissed on February 3, 2015.

Each entry of the evidence of subparagraphs 1 through 3, and Eul's evidence of subparagraphs 1 through 4 (including each number; hereinafter the same shall apply) and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The assertion that the act of mediating and arranging the sale and purchase of automobile registration number

On January 204, in order to prevent the excessive supply of truck for business use, the new permission was limited, and the demand for automobile registration number of the truck transportation company increased. The Plaintiff, as the president of the ○○ Association, received the payment for purchasing the automobile registration number from its members for the convenience of its members who want to purchase the automobile registration number, and purchased the automobile registration number corresponding to the amount, and does not sell it to its members. In the process, the Plaintiff purchased the automobile registration number, registered in the name of ○○ Company (hereinafter “○○”) and withdrawn the form of transferring it to its members. However, it was only for seeing the benefits of the low premium rate subject to ○○ Transportation. Even if the Plaintiff gains profits in the process of arranging a transaction between the seller of the automobile registration number and the final transferee, this is merely merely an intermediary or intermediary for the transfer of the automobile registration number. Since the Plaintiff did not have an intention to own the instant automobile registration number, the Plaintiff does not constitute a premise for the transfer of the ownership, and the Defendant cannot impose the registration number of this case on behalf of the Plaintiff.

2) The assertion that it constitutes a transfer of business and thus is exempt from value-added tax

Since the truck registration number represents the right to permit the trucking transport business, transferring the trucking transport business is practically transferring the right to the trucking transport business.However, the "transfer of business" does not correspond to the "supply of goods" subject to value-added tax pursuant to Article 10(8)2 of the Value-Added Tax Act and Article 23 of the Enforcement Decree of the same Act. Therefore, the imposition of value-added tax on

3) The taxpayer of the instant value-added tax is ○○ Transportation

The subject of acquisition and transfer of each truck registration number of this case is ○○ Transportation. The Plaintiff merely performed its duties as an operator of ○ Transport, and does not transfer a truck registration number to the Plaintiff. Therefore, even if the instant truck registration number is subject to value added tax, the taxpayer of value added tax is ○ Transportation. Ultimately, the instant disposition is unlawful as a taxation against a person who is not a taxpayer.

(iv) argument regarding individual transactions.

Of the instant truck registration numbers that the Defendant is subject to value-added tax, the transaction relating to the following vehicles is not the Plaintiff’s transfer of the truck registration number.

A) Vehicles Gyeongbuk ○○○○○○○

On February 3, 2009, the Defendant imposed value-added tax on the transaction if the Plaintiff sold the registration number of the ○○○ Freight Truck to A in the price ○○○○○○○○○○ Cargo Company. However, the above vehicle was purchased from B logistics, and the Plaintiff was registered in the name of B logistics to lower the premium rate upon the request of A logistics corporation, and immediately completed the registration of transfer in the name of B logistics corporation, but the Plaintiff was registered in order to lower the premium rate, and the price was also returned directly to A logistics corporation to B, the Plaintiff, the representative director of B logistics corporation, and thus, the transaction related to the above vehicle cannot be said to be the case where the Plaintiff supplied goods.

B) Vehicles ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

On February 12, 2009, the Defendant imposed a value-added tax on the transaction if the Plaintiff sold the registration number of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○.

C) Vehicles: Gyeongbuk ○○○○○, Gyeongbuk ○○○○○○○○

On May 4, 2009, the Defendant imposed value-added tax on the transaction if the Plaintiff sold the registration number of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the purchase price for the said vehicle. However, in light of the price formed on the car registration number at the time, the said ○○○○○○○○○○○○○○○○○○○○ was a two towing type

D) Transaction dated May 26, 2009

On May 26, 2009, the Defendant: (a) deemed that the KRW ○○○○, which transferred to the Plaintiff’s bank account on May 26, 2009, was the cost for the transfer of the truck registration number, and imposed a value-added tax thereon. However, the Plaintiff did not have

E) Gyeongbuk ○○○○○○○

Although the Defendant imposed value-added tax on Kim○ on the ground that Kim○-○ purchased a truck registration number with no material and sold it as no material, the Defendant was unlawful since it imposed value-added tax on the said vehicle, if the Plaintiff transferred the said vehicle but omitted sales.

F) Gyeongbuk ○○○○○○○

On February 10, 2009, ○○○○○○○○○○○ is owned by ○○ Transportation, and around February 10, 2009, the Defendant transferred to ○○○○○○○○○○○○○○○ Company. However, on August 17, 2009, the Defendant deemed that the Plaintiff transferred the said vehicle to ES○○○○○○○ Company E, based on the details of the Plaintiff’s transfer of the vehicle to ○○○○○○○○ Bank account, and imposed value-added tax thereon. However, the Plaintiff did not have any relation with the said vehicle owner, and thus, the imposition of value-added tax on the premise that the Plaintiff transferred the automobile registration number of the automobile of ○○○ Company to E

B. Relevant statutes

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

C. Determination

1) As to the assertion that the act of mediating and mediating the motor vehicle registration number

In full view of the following facts or circumstances, the Plaintiff purchased the instant vehicle registration number and sold it to the final transferee, the Plaintiff’s assertion on this part cannot be accepted, since it is sufficiently assessed that the Plaintiff purchased the instant vehicle registration number and sold it to the final transferee, in full view of each of the aforementioned evidence, Gap evidence Nos. 4, Eul evidence Nos. 5 to 12, and Eul evidence Nos. 5 to 12, and witness testimony

① Around January 2004, the new permission was restricted in order to prevent the excessive supply of truck for business use, and thereafter, the demand for truck registration number of the truck transportation company increased, and accordingly, the vehicle registration number was active. ○○ Transportation purchased the vehicle registration number in addition to the instant vehicle registration number from 2009 to 2012, and sold the vehicle registration number in the name of ○○ Transportation. The value-added tax was paid for the sales.

② The Plaintiff paid a serial number plate to the seller of the instant automobile registration number by means of the Japanese bank account and the Korean bank account. The Plaintiff traded the instant automobile registration number from the final transferee. However, the transfer and acquisition contract was registered under the name of the Plaintiff’s ○○ Transportation, etc., and transferred the instant automobile registration number to the final transferee. A sales contract was not concluded between the seller of the instant automobile registration number and the final transferee. The transfer and acquisition contract was made only between the seller and the seller, between ○ Transportation, etc., and between ○○ Transportation, etc. and the final transferee.

③ The Plaintiff asserts that the case of purchase and sale for the purpose of sale among the car registration number transacted after registering in the name of ○○ Transportation and the case of intermediation and brokerage of the acquisition and transfer of a car registration number is distinguished. However, there is no sign to distinguish the difference between the time and method of transaction, ○ Transport, or the sales marginal profit (fee) received by the Plaintiff, in addition to the fact that the accounts using the transaction differ. There is no difference between the legal nature of the transaction registration number and the instant transaction made through the account of ○○○.

④ If the Plaintiff simply arranged and arranged the acquisition and transfer of the instant vehicle registration number, the agreement between the seller and the final transferee on the purchase price and the terms and conditions of transaction should be reached. There is no evidence to confirm it, and the purchase price and terms and conditions of transaction are likely to have been reached between the Plaintiff and the final transferee and the final transferee.

⑤ As alleged by the Plaintiff, vehicles newly registered in the name of ○ Transportation from around 2009 to around 2012 are subscribed to ○○ Transportation Non-life insurance (group insurance) and may be subject to premium rates, and, even if the vehicle is transferred to and transferred by the final buyer to the insurance of the Financial Cooperative, there was an interest rate maintained by the said premium rate even if the vehicle is converted by the final buyer into the insurance of the Financial Cooperative. However, this cannot be the ground that the instant vehicle registration number transaction was not conducted. However, the Plaintiff merely appears to have been able to engage in any more trading or set the terms and conditions of the instant transaction in the status reflected in the interest point of the said premium rate, and it is difficult to view that the said rate was an interest rate, without going through a simple procedure for directly transferring the vehicle from the seller to the final buyer.

(6) After purchasing the instant automobile registration number, the Plaintiff acquired the right to exclusively use and dispose of the instant automobile under the name of ○○ Transportation, etc., and transferred the right and possession to consumers again. Even if the Plaintiff did not have an intention to do so, the Plaintiff’s act constitutes the supply of the instant automobile registration number, which is goods, and does not constitute mere brokerage and good offices.

2) As to the assertion that the transfer of business constitutes a transfer of business and is exempt from value-added tax

A) Article 6(6)2 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter the same) provides that "the transfer of business is prescribed by Presidential Decree as one of the items not deemed the supply of goods", and Article 17(2) of the former Enforcement Decree of the Value-Added Tax Act provides that "the former Enforcement Decree of the Value-Added Tax Act shall comprehensively succeed to all rights and obligations related to the business of each place of business." In such cases, Article 1(1) of the former Value-Added Tax Act provides that "the provision of goods or services shall be imposed on each of the following transactions," and Article 1(2) provides that "any tangible goods and intangible goods having property value" shall be "any other things having property value" and Article 6(6)2 of the former Enforcement Decree of the Value-Added Tax Act provides that "any other things having property value, such as rights and obligations related to the business shall be comprehensively succeeded to."

On the other hand, "transfer of business" that is not considered as the supply of goods refers to the comprehensive transfer of physical, human, and rights and obligations including business property, and the replacement of only the management body while maintaining the identity of the business. Thus, the business must be separated from the management body as an organic combination of human and physical facilities so that it can be recognized as a social independence. The fact that the object of transfer is not a simple physical facility, but such organic combination is not a real facility, the burden of proof for the reason of tax disability is the taxpayer (see, e.g., Supreme Court Decision 97Nu12778, Jul. 10, 1998).

B) In full view of the following circumstances that can be acknowledged by comprehensively taking account of the health stand, the facts acknowledged earlier, and the overall purport of arguments, the evidence submitted by the Plaintiff alone is insufficient to recognize that the transfer of the instant truck registration number constitutes the “business transfer that comprehensively succeeds to all rights and obligations regarding the relevant business by business place” under Article 6(6)2 of the former Value-Added Tax Act and Article 17(2) of the former Enforcement Decree of the Value-Added Tax Act. Rather, it is reasonable to deem that selling the truck registration number of the transport business constitutes the supply of intangible goods, and thus, the sale of the truck registration number of the transport business constitutes the taxable object of value

(1) The sale and purchase of a truck registration number for transport business shall be deemed to be the sale and purchase of "right to use a truck registration number for transport business" representing the relevant truck registration number actually.

② After the revision of the Trucking Transport Business Act on January 20, 2004, the trucking transport business was changed from the registration system to the permission system, in principle, the premium is formed and traded on the number of truck business assigned to the existing trucking business operator, as new permission and increased permission are prohibited.

③ In the case of the transfer of the truck registration number for the instant transport business, the right to use the truck registration number for a part of the transport business related to the truck registration number to be transferred is merely the transfer of the right to use the truck registration number for the instant transport business, and the right to operate the business is not comprehensively transferred. Therefore, it is difficult to regard it as a “transfer of business not considered as the supply of goods under the former Value Added Tax Act”

3) As to the assertion that the instant taxpayer is ○○ Transportation

According to the evidence mentioned above and Gap evidence No. 11, most vehicles related to the instant truck registration number transaction were registered in the name of ○○ Transportation and registered in the name of the transferee. However, in full view of the following circumstances known in addition to the entire purport of each of the above evidence, it is reasonable to view that the Plaintiff is the subject to whom the instant truck registration number transaction belongs, and thus, the Plaintiff’s above assertion cannot be accepted.

① In relation to the instant truck registration number transaction, the Plaintiff received the price through a deposit account in the Plaintiff’s personal name when purchasing or selling the truck registration number.

② In the first lawsuit in this case, the Plaintiff asserted that ○○ Association member companies, etc. were mediating and arranging the sale and purchase of a truck registration number upon the request of the Association member companies, etc., but only the Plaintiff was the principal of the act, and did not claim that the Plaintiff is the principal of the act.

③ At the time of the tax investigation related to the corporate tax of ○ Transport operated by the Plaintiff, the Plaintiff clearly divided the number of truck registration that ○○ Transport transferred by ○○ as a trading entity and the truck registration number that the Plaintiff participated in (the Plaintiff alleged that the transaction was merely an act of brokerage or intermediation).

4) As to the assertion regarding individual transactions

A) Vehicles Gyeongbuk ○○○○○○○

According to the statement No. 2 of Eul (the statement of omitting sales of the truck's number plate), the defendant is deemed to have received KRW 18 million in return for the supply of the Plaintiff's registration number to A logistics corporation on February 3, 2009, and thus, the value-added tax is imposed on the transaction.

In addition to the purport of the argument in Gap's statement No. 11, it can be acknowledged that the ○○○○○○○○○○○○ was registered in the name of ○○○○ Transportation and purchased insurance, and the transfer of ○○○○○○○○○○○○○○○○○ was registered as A logistics corporation. However, according to the evidence Nos. 10 and 11, the company transferring ○○○○○○○○○○○○○○○○ to the Plaintiff's bank account on February 3, 2009 can recognize the fact that it is not A logistics corporation but C. (the plaintiff's name transfer column of ○○ bank account). As above, in light of the fact that the remitter of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was recorded in the Plaintiff's account on February 3, 2009.

B) Vehicles ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

According to Eul evidence Nos. 2, the defendant, on February 12, 2009, supplied ○○○○○○○○○○, Gyeongbuk○○○○○○, Gyeongbuk○○○○○, Gyeongbuk○○○○○, and Gyeongbuk○○○○○○○, as a consideration for supplying ○○○○○○○○○, as a consideration for supplying ○○○○○○○, and received ○○○○○○, and thus, imposed value-added tax on the transaction.

According to the evidence No. 11-1, No. 10, No. 11-1-2, No. 10-2, and No. 11-2, each of the statements stated that the ○○○○○○○○○○○○, Gyeongbuk○○○○○○○○, and Gyeongbuk○○○○○○○○○○○○○○○ was registered in the name of ○○○○○, and that the ○○○○○○○○○○○ was registered in the name of ○○○○○○○○, and that the ○○○○○○○○○○○○○○○ was transferred to the Plaintiff’s account on February 12, 2009. Meanwhile, the Plaintiff’s assertion that the ○○○○○○○○○○○ was transferred from another ○○○○○○○, and that the ○○○○○○○ was not accepted as indicated in the Plaintiff’s account’s statement of transfer from the Plaintiff’s account.

C) Vehicles: Gyeongbuk ○○○○○, Gyeongbuk ○○○○○○○○

According to Eul evidence Nos. 2, the defendant, on May 4, 2009, supplied ○○○○○○, and Gyeongbuk○○○○○○○○○○, as a price for supplying ○○○○○○ Truck, Co., Ltd., the plaintiff received ○○○○ in return, and thus, it seems that the value-added tax was imposed on the transaction.

According to the statement No. 9, the fact that C transferred ○○○○○○○○ in the Plaintiff’s account on May 4, 2009 is recognized. However, according to the statement No. 11-3, it is recognized that the Gyeongbuk○○○○○○○○○○○ was registered in the name of F.A. on November 2009, and it is registered as D Logistics Co., Ltd. on or around November 2009, and there is no evidence to prove that the Plaintiff purchased ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was the price for the automobile registration number operated by the Plaintiff and that it was transferred to C. This part of the Plaintiff’s assertion is without merit.

D) Transaction dated May 26, 2009

According to the statement in Eul evidence Nos. 2, the defendant seems to have received transfer of ○○○○ from ○ on May 26, 2009 and transferred ○○○○○○ to G Co., Ltd., and imposed value-added tax on the transfer of ○○○○○.

However, the certificate No. 2 does not indicate the truck subject to the transaction, and all the transferor and transferee are written in G. The statement No. 2 is insufficient to recognize that the Plaintiff received transfer of ○○○ Won from ○○ on May 26, 2009 and transferred the truck registration number to G, and there is no other evidence to acknowledge otherwise. Accordingly, the Plaintiff’s assertion on this part is with merit.

E) Gyeongbuk ○○○○○○○

According to the statement in Eul evidence No. 2, the defendant, on July 16, 2009, is deemed to have received ○○○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

According to the statement in Eul evidence No. 9, it is recognized that C remitted the registration number of the plaintiff's ○○○○○ Truck on July 16, 2009 to the plaintiff's account. However, according to the statement No. 11-5 of the evidence No. 11, the above vehicle is registered in the name of ○○ Transportation and is registered in the name of ○○○ Logistics around September 2009, and it can be recognized that it has been transferred to ○○○○○○○ Truck. According to the above facts, it is difficult to recognize that the above money transferred by C to the plaintiff's account on July 16, 2009 was the price for the vehicle registration number transaction of Gyeong○○○○○○○○○○○ Truck truck, and there is no other evidence to support the fact that the plaintiff received ○○○○○○○○ in return for supplying it to C on July 16, 2009. Therefore, the plaintiff's assertion on this part is justified.

F) Gyeongbuk ○○○○○○○

According to the statement in Eul evidence No. 2, the defendant deemed that the plaintiff received ○○○○○ ○○ ○ ○○ ○○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○, a corporation

In addition to the statement in Eul evidence No. 11, it is recognized that the maximum ○○, the representative of EF, transferred KRW 9 million to the Plaintiff’s bank account on August 17, 2009. However, according to the statement No. 11-5 and No. 6, it can be recognized that the vehicle registered in the name of ○○○○○○○○ was transferred to ○○○○○○○○○, around February 2009. As such, it is not persuasive that the Plaintiff transferred the automobile registration number of the vehicle transferred to the Plaintiff to I on August 17, 2009. Thus, it is insufficient to recognize that the Plaintiff transferred the automobile registration number of the vehicle in question to I on August 17, 2009 only with the deposit account No. 11 as above, and there is no evidence to acknowledge that the Plaintiff transferred the automobile registration number of the vehicle in question to I on the Plaintiff’s name (the Plaintiff’s registration number of the vehicle in question).

5) Sub-committee

Therefore, among the disposition of this case, the transaction amount on February 3, 2009 on the Gyeongbuk ○○○○○○○ among the disposition of this case (the transaction amount)

The part on the imposition of value-added tax on the transaction on August 17, 2009, which was conducted on May 4, 2009 (price ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○), on the transaction on May 26, 2009 (price ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○), is unlawful

As above, transactions for which the Plaintiff is difficult to recognize that they supplied goods (truck registration number) are related to the first taxable tax in 2009 and the second taxable tax in 2009, and thus, the reasonable amount of value-added tax in 2009 and the second taxable tax (including additional tax) in 2009, except the above transactions, are re-calculated as follows.

○ 1, 2009

Table Omission of the Table

○ Second 2009

Table Omission of the Table

Ultimately, the part exceeding ○○○○ out of the imposition of the first taxable value-added tax ○○○ in 2009 and the part exceeding ○○○○ out of the imposition of the second taxable value-added tax ○○ in 2009 should be revoked illegally.

3. Conclusion

Therefore, among the dispositions in this case, the claim for revocation of the disposition imposing value-added tax for the first and second period of 2009 among the dispositions in this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the first instance is partially different from this conclusion, the judgment of the first instance shall be partially accepted by the plaintiff's appeal, and the remaining appeal by the plaintiff shall be dismissed as it is without merit. It is so decided as per Disposition.