Whether new construction and transfer of the telecomel constitutes real estate trading business

In the event that the fact of new construction and transfer of a series of telecoms and the fact that the plaintiff voluntarily reported the general income tax as a real estate sales businessman even before transferring the major telecoms, it is sufficient to regard it as real estate sales business with continuity and repetition for profit purposes.

Article 19 of the Income Tax Act / [Business Income]

1. The defendants' claims are dismissed.

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

From October 30, 2004 to the delivery date of a copy of the complaint of this case, the defendant shall pay to the plaintiff 342,50,090 won with the annual refund on the refund of national taxes stated in the annexed sheet under Article 52 subparagraph 1 of the Framework Act on National Taxes, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts may be acknowledged in full view of Gap evidence 1 through 3, Eul evidence 1 through 4, Eul evidence 5-1 to 5-3, and the purport of the whole pleadings in the testimony of Kim Kim-○.

A. The plaintiff and the non-party Kim ○-dong 2274-O on the plaintiff's ○○○○-dong 2274-O, and the registration of the preservation of ownership was completed on October 29, 2002, and Kim Jong-ship registered its business as a lodging business on December 15, 2001.

B. On October 29, 2002, along with the date of registration of initial ownership of the instant franchise, the Plaintiff and Kim Jong-moo entered into a contract to transfer all the rights and obligations of the instant franchise and its business between Kim Jong-moo and Ma-moo on October 29, 2002. On October 31, 2002, the Plaintiff and Kim Jong-moo completed the registration of initial ownership of the instant franchise.

C. The Plaintiff did not report the second-year value-added tax in 2002 on the ground that the transfer of the instant Moel constitutes a comprehensive transfer of business, but the Plaintiff voluntarily stated the global income tax return submitted to tax authorities as a real estate sales broker and fulfilled the liability to pay global income tax as a real estate sales broker.

D. In 2003, the head of the tax office of the Kugsan notified the Plaintiff of the taxation data that the Plaintiff omitted the issuance of tax invoices and the return of value-added tax for KRW 2,500,000 of the supply value of the building in selling the MoMoto to the head of the tax office affiliated with the Defendant. As of January 2, 2004, the head of the tax office of the Kugsan notified the Plaintiff of the value-added tax amounting to KRW 342,50,095 for the pertinent amount of value-added tax for the second year of 2002 (hereinafter “the instant taxation disposition”).

E. On October 27, 200, the Plaintiff newly constructed ○○○○ Dong 576, Busan, and transferred it on November 23 of the same year. On March 16, 2002, the Plaintiff newly constructed ○○○○ Dong 731-○○○ Dong 730, and transferred it on April 30 of the same year, and each of the above transfer was reported value-added tax.

2. Determination on the cause of the claim

A. The plaintiff's assertion

The Plaintiff asserts that the transfer of the franchise of this case constitutes the transfer of business and that this constitutes the supply of goods as real estate sales business is null and void as to the transaction without tax liability. Therefore, the Defendant asserts that the Plaintiff is liable to pay the tax payment amount of KRW 342,50,090 according to the above null and void taxation, and that the Defendant is liable to pay the additional refund of national taxes or delay damages.

B. Determination

(1) Determination as to whether the transfer of the franchise of this case is subject to taxation under the Value-Added Tax Act

(A) Whether the transaction of real estate constitutes the supply of goods subject to taxation under the Value-Added Tax Act shall be determined according to the ordinary social norms, considering whether the sale and purchase is for profit-making purposes, and whether the sale and purchase of such goods continues to have continuity and repetition to the extent that it can be seen as business activities are conducted in light of their size, frequency, mode, etc. In such a determination, the determination must take into account not only the sale and purchase of the relevant real estate, but also all the circumstances surrounding the whole real estate owned by the transferor throughout the time before and after the time during which the relevant sale and purchase was conducted (see, e.g., Supreme Court Decision

(B) According to the above facts, even before the Plaintiff newly constructed and transferred the instant cartel, it can be seen that the period from the new construction date of the instant cartel prior to the transfer date to October 2000, to the date of the transfer of the instant cartel, all of the period from the new construction date of each of the above cartels was a short-term period of time. In light of the Plaintiff’s real estate transaction frequency, size, attitudes, etc., it can be recognized that the Plaintiff engaged in the sales of real estate in the form that can be seen as business activities under social norms from the trading date of the instant cartels to the date of the instant cartels, and the date of the conclusion of the contract for new construction and transfer of the instant cartels is less than two days after the date of registration of ownership transfer, and the Plaintiff voluntarily fulfilled his global income tax liability for the gains from the transfer of the instant cartels as a real estate broker, and thus, the Plaintiff’s real estate dealer’s real estate sales business cannot be seen as continuously and repeatedly engaged in business activities for the purpose of earning profits and has no influence on the transfer date.

Therefore, it is legitimate that the director of the North Busan District Tax Office under the defendant's jurisdiction determined that the transfer of the her her her her her her her her her her her her her her her her her her her her her her her

(2) Where a tax imposition disposition is void as a matter of course;

On the other hand, even if there is a defect that misleads the facts about the taxation, if the defect is serious and objectively apparent, the taxation disposition can be revoked if it is not objectively clear (see, e.g., Supreme Court Decision 90Nu9476, Apr. 9, 191). According to the above, the head of North Busan District Tax Office, through the tax investigation of the Plaintiff, newly constructed the ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○) and then transferred the registration of preservation of ownership, and then reported the tax invoice, paid the value-added tax, and fulfilled the obligation to pay global income tax as a real estate sales businessman. Thus, even if the transfer of the ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ m.

Therefore, the plaintiff's claim is without merit.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it appears to be a part of the mother and there is no reason, and it is so decided as per Disposition.