Seoul Administrative Court-2014-Gu Partnership-6469

As a transfer of business, it can be seen that the transfer of physical and human facilities, rights, and obligations, including the business property, was made by the comprehensive acquisition.

The status of the asset management consignment operator who entered into in the course of real estate rental business and the status of the contractor for the building and the entrusted management. It can be seen that the comprehensive transfer of physical and human facilities, rights, and obligations, including the business property, was made by transferring the business.

Article 6 (Supply of Goods)

Article 17 of the Enforcement Decree of the Value-Added Tax Act

2015Nu46521

India 00

00. Head of tax office

December 18, 2015

oly 22, 2016

1. Of the judgment of the first instance court, the part against the plaintiffs which is revoked below shall be revoked.

The Defendant’s imposition of value-added tax of KRW 000 (including additional taxes) for the year 2009 and the imposition of value-added tax of KRW 000 (including additional taxes) for the year 2009 against Plaintiff 00 on August 12, 2013, respectively, shall be revoked.

2. The plaintiffs' remaining appeals are dismissed.

3. Of the total litigation costs, 20% are assessed against the Plaintiffs, and the remainder are assessed against the Defendant.

The judgment of the first instance court is revoked. The defendant's imposition of value-added tax of KRW 000 (including additional tax) and increased additional tax of KRW 000 (including additional tax) and KRW 000 (including additional tax) for the year 2009 on August 12, 2013 and the imposition of KRW 000 for the total amount of KRW 00 (including additional tax) and increased additional tax of KRW 000 for the year 200 for the plaintiff Jeong Gyeong-soo shall be revoked, respectively.

1. Details of the disposition;

A. On January 31, 2008, the plaintiffs related to the specially related parties respectively (the plaintiff 00, the plaintiff 00, the plaintiff 100, the plaintiff 100, and the plaintiff 30% (the plaintiff 100, the plaintiff 100), who own shares of 40% (the plaintiff 100), entered into a real estate sales contract with the plaintiff 1,000 square meters of land located in the main-ro 2 located in 00,000,000 and 00,000 square meters of land located in the main-ro 2,000,000, and 3,000 square meters of the total floor area of the building of 5,000 square meters on the ground (the plaintiff 10, the plaintiff 100, the plaintiff 200, and the plaintiff 200 "the real estate of this case" was combined).

B. Since then, the instant company paid 000 won to B Co., Ltd. for down payment and intermediate payment, and did not complete the settlement of the balance, and transferred the status of the purchaser of the instant real estate to A Co., Ltd. (hereinafter “A”) on March 26, 2009 (hereinafter “transfer of this case”), and the instant company did not issue a tax invoice on the transfer of this case on the ground that the transfer of this case constitutes “transfer of business not considered as the supply of goods under the Value-Added Tax Act.”

(C) After the Defendant: (a) notified the instant company on July 1, 201 that the instant transfer constitutes the supply of goods subject to value-added tax; (b) on June 1, 201, the Defendant issued a notice of correction and payment of value-added tax 000 for the first term portion of the instant company on June 15, 2009; (c) however, the instant company closed its business on June 15, 2009 and did not pay it after the completion of liquidation; (d) on August 12, 2013, the Plaintiffs, who are investors of the instant company, were deemed to be oligopolistic shareholders, designated the Plaintiffs as secondary taxpayers and paid value-added tax (including additional tax), value-added tax amounting to KRW 00 (including additional tax), value-added tax amounting to KRW 000,000 (including additional tax), and increased additional tax amount to KRW 00 (excluding the remainder of the increased tax amount), and the Plaintiffs appealed to the Tax Tribunal on August 14, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 11 through 17, Eul evidence Nos. 1 through 7 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to whether the part demanding revocation of increased additional charges among the instant lawsuits is legitimate

Before determining the Plaintiffs’ assertion, the Plaintiffs received a payment notice of KRW 000 (Plaintiff 00) and KRW 000 (Plaintiff 100) in addition to the amount of each disposition of this case on August 12, 2013, and sought a revocation of this part of the claim. As such, this part of the claim is examined as to the legitimacy of the above claim. The additional dues or aggravated additional dues provided for by the National Tax Collection Act are naturally generated under the law without the final procedure of the taxation office unless national taxes are paid by the due date. Thus, the notification of the additional dues or increased additional dues is not deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005).Therefore, if the Defendant’s payment notice of the principal tax on the payment notice including the written evidence A (referring to each disposition of this case) after the due date expires, it cannot be deemed that the additional dues or increased additional dues are subject to a disposition of this case.

3. Determination on the legality of the disposition of imposition

A. The plaintiffs' assertion

(1) The transfer of this case is a transfer of business.

The instant company engaged in real estate leasing business, and transferred the instant real estate, which is its underlying asset, to Party A, comprehensively transferred the rights and obligations incidental to engaging in real estate leasing business, such as the status as a purchaser of the instant real estate and the status as a lessor. Therefore, the instant transfer should be deemed to be “transfer of business that does not fall under the supply of goods”.

(2) The Plaintiffs are not substantially shareholders of the instant company.

The plaintiffs held 40% and 30% shares in the company of this case respectively. However, the plaintiffs merely lent only the name for holding shares to the company of this case, and it does not constitute the secondary taxpayer for the company of this case.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

(1) Facts of recognition

㈎ "가"자산운용주식회사(이후 '00주식회사'로 상호가 변경되었다, 이하'소외 운용사'라 한다)는 00특별자산투자신탁(이하 '이 사건 펀드'라한다)을 설립하여 이 사건 부동산에 대하여 "나"과 이 사건 부동산에 관한 매매계약을 체결하는 특수목적법인(SPC)인 이 사건 회사의 대출채권에 투자하고, 준공 시점에 소외 운용사가 설립 예정인 부동산펀드(REF)를 통해 해당 투자신탁을 청산(상환)하여 수익자에게 원금 및 이익을 배당하는 상품을 마련하였다. 이 사건 펀드의 투자기간은 16개월이고, 후에 설립될 부동산펀드(REF) 설립운용(안)에는 부동산펀드가 위 매매계약을 승계하며, 층별 운영방안으로 유명 브랜드 업체들의 입주를 계획하고 있었고,임대료 증가율 및 보증금 운용이익율을 각 연 3.0%, 총 투자기간 48개월로 예정하고 있다.

㈏ 이 사건 회사는 2007. 12. 20. 부동산개발사업을 목적으로 상법상 유한회사로설립되었다.

㈐ 00투자증권 주식회사(이하 '00투자증권'이라 한다)는 2008. 1. 30. 소외 운용사에 이 사건 건물이 준공될 즈음 만들어질 부동산펀드의 수익증권을 모두 매수 하거나 제3자로 하여금 이를 매수하도록 할 것임을 확약하였다.

㈑ 이 사건 회사는 2008. 8.경 00코리아 주식회사(이하 '00먼'이라 한다)와 이 사건 건물 중 지하 1층에서 지상 5층까지의 상업시설에 대하여 부동산임대업무 전속대행계약을 체결하였다. 00먼은 매주 임대차 협의 진행 상황을 보고하였다.

㈒ 이 사건 회사는 2008. 10. 24. 주식회사 00은행(이하 '00은행'이라 한다)과 이 사건 건물 중 1층 101-1호 및 2층 201호에 대하여 보증금 000원, 월임차료000원, 임대차 계약기간 임대차 물건의 양도일 기준으로 3년으로 하여 임대차계약을 체결하였다.

㈓ 00구청장은 2008. 12. 16. 이 사건 건물에 대하여 준공 인가전 사용허가를 하였고,이 사건 회사는 2008. 12. 18. 이 사건 건물에 지점을 두고 사업목적에 임대업을 추가하였다.

㈔ 갑은 2009. 3. 16. 업종에 부동산임대업을 추가하였고, 2009. 3. 26.B주식회사, 이 사건 회사, 갑은 3면 계약으로 매수자지위이전합의를 하였다. 매수인의 지위를 양도한 후 임차인인 00은행, 자산관리 위탁계약을 체결한 주식회사 S, 건물 위/수탁관리계약을 체결한 S 주식회사에 매수인의 지위가 이전되었음을 통지하였다.

㈕ 2009. 3. 27. 이 사건 회사는 해산하고 이 사건 회사의 지점은 사업양도를 신고하였으며, 폐업하였다.

㈖ 갑은 2009. 4. 6.부터 2009. 7. 22.까지 이 사건 건물의 39세대 중 23세대 매매계약을 체결하였으며, 2009. 9. 28. 나머지 세대를 00투자증권에 대물변제하였다.

[Reasons for Recognition] Facts without dispute, Gap's statements, Gap's 1, 2, 4, 5, 7, 10 through 15, 21, 29, 30, Eul's statements, 3, 4, 7, and the purport of the whole pleadings

(2) Whether the transfer of this case constitutes a business transfer

㈎ 구 부가가치세법(2010. 1. 1. 법률 제9915호로 개정되기 전의 것, 이하 '법'이라 한다) 제6조 제6항 제2호 본문 및 구 부가가치세법 시행령(2010. 2. 18. 대통령령제22043호로 개정되기 전의 것, 이하 '시행령'이라 한다) 제17조 제2항에서 부가가치세가 부과되는 재화의 공급에 해당하지 아니하는 것으로 정하여진 "사업의 양도"라 함은사업장별로 사업용 재산을 비롯한 물적ㆍ인적 시설 및 권리의무 등을 포괄적으로 양도하여 사업의 동일성을 유지하면서 경영주체만을 교체시키는 것을 말하고, 여기에 해당하는 경우라면 종전의 종업원이 그대로 인수인계되지 아니하였다고 하여도 사업의 양도로 인정하는 데에 장애가 될 수 없다(대법원 2008. 12. 24. 선고 2006두17895 판결

see, e.g., Supreme Court Decision

㈏ 살피건대, 위 법리에 비추어 앞서 본 사실로부터 알 수 있는 다음 ① 내지⑧ 사정들을 종합하여 보면, 이 사건 회사는 임대업을 영위하다가 이 사건 부동산에 대한 매수인의 지위 및 임대인의 지위 등을 갑에게 양도함으로써 사업의 양도를 하였다고 봄이 타당하다.

① The instant company was established to purchase the instant real estate by the initial operator. Moreover, it appears that the real estate fund (REF) that was scheduled to be established at the completion of the instant building would have planned the instant real estate purchase company to engage in the leasing business from the instant company or the instant company, including the instant company or the instant company’s planning on the increased rate of rent, etc. In short, it appears that the instant company only intended to purchase the instant real estate, but did not perform any business until the completion of the instant building, rather than planned to succeed to the sales contract, it was planned that the instant company engaged in the leasing business for the instant real estate fund to be established at the same time, and that it was planned to transfer the buyer’s status and the lessor’s status. The instant company also supported the dissolution after transferring the buyer’s status and the lessor’s status to the instant real estate.

② In fact, the instant company registered the leasing business with a branch office in the instant building, and entered into an exclusive real estate rental business contract with a 00 human resources. The 00 human resources reported the situation concerning the conclusion of a lease contract for each week, and carried out business so that the lease may be carried out.

③ In addition, the instant company entered into a lease agreement with 00 bank as part of the real estate rental business. The instant company did not enter into a lease agreement on other parts of the instant building except 00 bank, but appears to have failed to enter into an additional lease agreement due to the Human Resource situation in 2008, and the instant company also requested an extension of the exclusive agency contract for real estate rental business on the ground of such circumstance (see, e.g., evidence 27).

④ Furthermore, the instant company did not have real estate purchased or sold in addition to the instant real estate, and considering the above circumstances, it is reasonable to view that the instant real estate was purchased from B Co., Ltd. with respect to the instant fund rather than for the purpose of real estate purchase and sale, and the instant fund was established for the purpose of transferring the lessor’s status while engaging in real estate rental business in the process of leading to the instant fund

⑤ Although the instant company registered lease business for approximately one year after its incorporation, it is difficult to readily conclude that the purpose of this case’s temporary use of the instant building was not to engage in the lease business, since the instant company established a branch office and registered lease business within two days after obtaining a temporary use permit of the instant building.

(6) The instant company appropriated the instant real estate as tangible assets, and also appropriated the disposal profit as tangible assets disposal profit. If it intended to engage in real estate sales business, there is a high possibility that it would have been appropriated as inventory assets.

7) The instant company transferred the status of purchaser of the instant real estate, which can be called business assets, to Gap, and comprehensively transferred rights and obligations such as lessors' rights and obligations without any change in the terms and conditions. The instant company did not employ a separate employee as a special purpose corporation (SPC). The instant company also transferred the status of the asset management entrustment contractor entered into while carrying out a real estate rental business, the status of the building and the status of the contractor for the entrusted management, etc.

(8) Although it is difficult to view that Party A was engaged in real estate leasing business in the case of acquiring the buyer status of the instant real estate from the instant company, considering that Article 17(2) of the Enforcement Decree provides that “A shall not engage in real estate leasing business, including where a transferee adds a new type of business or changes the type of business in addition to the succeeded business,” it is difficult to view that Party A’s business transfer is denied on the ground that it was not a real estate leasing

Furthermore, in accordance with the original plan of the Nonparty Company, the instant real estate fund was established, and the instant company continued to engage in, or could have engaged in, the instant leasing business. However, it is unreasonable to view that the instant real estate is not a transfer of business, on the ground that it is difficult to see that the instant real estate was not a transfer of business, on the ground that the instant real estate was converted from 00 investment securities to purchase the instant real estate through the purchase of the instant real estate from 00 investment securities to acquire the total amount of beneficiary certificates at the time of the establishment of the real estate fund in the future (see evidence 31).

(3) Sub-decisions

Therefore, the transfer of this case does not constitute the supply of goods subject to taxation under the Value-Added Tax Act, and thus, the company of this case is not subject to the main liability for tax payment because it is not subject to value-added tax, and thus, it is unlawful for the defendant to take each disposition of this case

4. Conclusion

Therefore, the part of the plaintiffs' claim for revocation of increased additional charges among the lawsuits in this case is unlawful, and the remaining claims of the plaintiffs are accepted with merit, and since the judgment of the court of first instance is inappropriate with some different conclusions, the part concerning each of the dispositions in this case in the judgment of the court of first instance which partially accepted the plaintiffs' appeal and revoked each of the dispositions in this case, and the remaining appeals of the plaintiffs are dismissed without merit. It is so decided as per Disposition.