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[Case Number]

National High Court Decision 2002Na1291, 203.04.22

[Items]

Addition

[Types of Decision]

Dismissal

[Summary of Decision]

The case holding that the disposition agency is not allowed to deduct the input tax amount under the key tax accountingO from the claimant on the grounds that it is judged that only a part of the tax collected by the transferor is paid by the non-party corporation.

[Related Acts]

Article 6 of the Value-Added Tax Act / [Supply of Goods] / Provision of Security, Business Transfer and Tax Payment in Kind]

【Reference Decision】

National High Court 2001Gu 2738//Sgd.

【Disposition】

I dismiss the appeal.

【Reasoning】

1. Summary of disposition;

On April 3, 2001, 201, the claimant KimO and KimO (hereinafter referred to as the "applicants") acquired (hereinafter referred to as "occupant trading") a tax calculationO (hereinafter referred to as "point trading") for the same portion of the building from the owner of the O industry development (hereinafter referred to as "non-claim corporation") located in the same place (hereinafter referred to as "the 11th floor above the ground floor, 805.4m2 and 7,336.69m2 and hereinafter referred to as "point real estate") and filed a claim for the refund of the tax assessment (the supply price, OO,OO,O,O,O,O, andO's won) on the same day after receiving the OOOO's purchase tax amount under the Value-Added Tax Calculation, OO,O, and value-added tax amount under the above tax assessment, and the 100O's claim for the refund of the tax amount under Article 201 of the Value-Added Tax Act.

On January 2, 2002, the claimant appealed and filed an appeal on April 16, 2002.

2. Opinion of the claimant and the disposition agency;

A. The claimant's assertion

The claimants have concluded a sales contract with a non-claimed corporation on March 29, 2001 and made a sales contract on the real estate, and on April 3, 2001, the supply priceO,OO,OO, andOOO for the portion of the land, and the supply of the goods should be seen as the supply of the goods, since it is confirmed that the creditors received the tax accountingO for the portion of the building and paid the outstanding amount of purchase tax to the non-claimed corporation except for the OO,OO, andOOO, and the outstanding amount of purchase tax received from the non-claimed corporation.

The applicant filed for registration of incorporation with the real estate development business, the sale and purchase business, and the lease business of September 15, 199, and the applicant registered the business as the real estate sale and lease business of September 22, 1999. However, since the applicant registered the business as the real estate lease business, all the business status of the applicant corporation was not succeeded to the applicant. While the applicant intended to directly operate the business, the applicant did not transfer the key real estate and started the business by leasing the private house after transferring the key real estate, so the applicant is not succeeded to the applicant, and the homogeneity of the business cannot be deemed to have been maintained due to the failure to succeed to the employees of the applicant. In addition, even if the claimant paid the key purchase tax to the non-applicant corporation, it is improper to deduct the key purchase tax by imposing on the applicant the liability for follow-up management for the amount of tax underpaid by the applicant.

(b) Opinions of disposition agencies;

The KOO, the real management owner of the non-party corporation, confirmed that the real estate was newly constructed and used for the real estate leasing business, and that the claimant acquired and used the key real estate for the purpose of lease. The date of sale of the key real estate was the date when the non-party corporation leased the private house or facilities of the key real estate on April 3, 2001, and the date when the non-party corporation leased the private house or facilities of the key real estate is the date when the claimant acquired the key real estate.

Upon the acquisition of the real estate at issue, the claimant acquired the borrowed money and interest of the non-resident corporation and the debt of the non-resident corporation is confirmed to have been paid directly by the claimant between January 3, 2001 and May 7, 2001. The acquisition of the real estate at issue is confirmed to have not changed the terms and conditions of the contract to the lessee, and it is confirmed that only the lessor changed the terms and conditions of the contract to the lessee without the return of the deposit, so the business continuity should not be lost and the comprehensive transfer should be deemed to have been made.

The transfer of business under the Value-Added Tax Act is exceptionally recognized as the supply of goods only when the transferor of the DoO business issues the tax accountingO and the amount of tax collected by transaction is returned and paid by the taxpayer, even if the transfer of business falls under the supply of goods. As such, since the claim corporation did not pay the value-added tax collected by the transaction, it is justifiable to regard the transfer of the business as the non-deduction of the purchase tax

3. Hearing and determination

(a) Points in dispute;

Whether the claimant can be seen as the supply of goods rather than the comprehensive transfer of the business, not the transaction that acquired the real estate from the foreign corporation.

(b) Related statutes;

(1) Value-Added Tax Act (amended by Act No. 6539 of Dec. 19, 2001)

Article 6. Supply of Goods

No. 1)

(6) Any of the following subparagraphs shall not be deemed the supply of goods:

1.O that provides goods as security, as prescribed by the Presidential Decree; and

2. Transfer of business as prescribed by the Presidential Decree: Provided, That this shall not apply where the entrepreneur delivers any tax accountingO under Article 16; and

3. (Maternity)

(3) Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17460, Dec. 31, 2001)

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

(1) Livelihood;

(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 cases of division meeting the requirements under Article 46 (1) of the Corporate Tax Act, but excluding the cases where a general taxable person transfers the business to a simplified taxable person) by comprehensively succeeding to all rights and obligations with respect to the business at each place of business (including the cases of transfer within the same place of business in cases of division or merger after division under the Commercial Act,

1. The amount receivable;

2. A document concerning accounts payable;

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

(3) For the purpose of the proviso of Article 6 (6) 2 of the Act, the term “cases as prescribed by the Presidential Decree” means cases where the tax amount collected by the transferor of the business under Article 15 of the Act is returned and paid under Article 18 or 19 of the Act.

C. Facts and determination

(1) The main sentence of Article 6 (6) 2 of the Value-Added Tax Act provides that "O which is deemed a transfer of business and prescribed by Presidential Decree shall not be deemed a supply of goods", and Article 17 (2) of the Enforcement Decree of the same Act provides that "any person prescribed by Presidential Decree as provided for in the main sentence of Article 6 (6) 2 of the Value-Added Tax Act shall comprehensively succeed to all rights and obligations with respect to the business of each workplace", and Article 6 (6) 2 of the Value-Added Tax Act provides that "the former part of Article 6 (6) 2 of the Value-Added Tax Act provides that "the latter part of Article 17 (3) of the Enforcement Decree of the same Act shall be deemed the supply of goods where a business operator delivers an accounting corporation under Article 16 of the Value-Added Tax Act and is prescribed by Presidential Decree", and "the latter part of Article 6 (6) 2 of the same Act shall refer to the case where the tax amount

(2) According to this case’s taxation record presented to the agency, the agency confirmed that the claimant filed an application for the refund of the purchase tax amount of the key real estate acquired at the first time value-added tax return in 2001, the agency newly constructed the key real estate by HanO, an actual management owner of the company other than the claim, and that the claimant acquired and used the key real estate for the purpose of lease by door-to-door, it constitutes a transfer of the business stipulated in the main sentence of Article 6(6)2 of the Value-Added Tax Act. The other party to the claim constitutes the transfer of the business under the main sentence of Article 6(6)2 of the Value-Added Tax Act. At the time of the first time value-added tax return in 200, the claimant issued the tax calculation of the key real estate to the claimant and collected the amount of the value-added tax from the OO,OO, orOO, but the main transaction was not the value-added tax reduction under Article 6(6)2 of the Value-Added Tax Act and Article 17(3) of the Enforcement Decree.

(3)First of all, the claimant asserts that the business purpose of the claimant non-party corporation for the disputed real estate is not the same as that of the claimant's real estate leasing business, which is the real estate development, sale and lease business, and that the claimant's transfer the disputed real estate to the claimant while the non-party corporation was a private company to conduct the private loan business, but the claimant's lease it to the non-party corporation without the private loan business, so it cannot be deemed that the business homogeneity has been maintained because the private loan business of the claimant corporation is not succeeded to the claimant, and therefore it does not constitute the transfer of business.

However, the purpose of the claimant's business is specified as real estate development business, sales business, and rental business on the corporate register in which the claimant's business purpose is public record, and the fact that it actually runs the real estate leasing business is confirmed by HanO, an actual business owner of the non-claim corporation, and in the case of private houses or facilities located in the disputed real estate, the date of sale and purchase of the disputed real estate appears to be leased to the lessor's status after the claimant acquired the disputed real estate at April 25, 2001. The claimant acquired the outstanding real estate at issue, and the claimant acquired the borrowed money and interest OO, OO,OO,OO, andOOO, and the other debts of the non-claim corporation are confirmed to have been directly paid by the claimant on January 3 through 2001 to May 7, 2001. In relation to the lessee, O also changed the lease contract conditions and the lease deposit without returning the lease deposit, and thus, it is determined to transfer the business under Article 6 (2) 2 of the Value-Added Tax Act.

(4) On the other hand, even if the transfer of the pertinent real estate constitutes the transfer of business under Article 6(6)2 of the Value-Added Tax Act, the claimant asserts that it is reasonable to deduct the amount of the purchase tax from the claimant, since the claimant acquired the pertinent real estate and paid the purchase tax to the non-party corporation, and the non-party corporation reported and paid the value-added tax, since it constitutes the supply of goods under Article 6(6)2 proviso of the Value-Added Tax Act and Article 17(3) of the Enforcement Decree thereof.

On March 29, 2001, after the claimant entered into a sales contract with a claim corporation on April 3, 2001, for the purchase price of the real estate at issue, OOO, OO, OO, OO, and OOO of the real estate at issue from the claim corporation on April 3, 2001, when the tax accountingO was delivered to the OO, OO,OO,OO,OO, andOOO of the building at issue, the other claim corporation filed an application for deduction of the purchase price at the first value-added tax return for the OO, OO, andOO, and the fact that the OO, O,O, some of the part of the claim at the first value-added tax return of the value-added tax return of 201 was paid to the non-claim corporation, and there is no dispute over the fact that the non-claim corporation paid the purchase price at issue at issue at the time of the first value-added tax return of 201.

(5) This case is about whether the amount of tax collected through the transfer of business can be seen as the supply of goods even in cases where only a part of the amount of tax is not paid in full, and only a part is paid in accordance with the transfer of business under Article 6(6)2 of the Value-Added Tax Act and Article 17(3) of the Enforcement Decree of the same Act. Thus, even if this case constitutes the transfer of business under the proviso of Article 6(6)2 of the Value-Added Tax Act and Article 17(3) of the Enforcement Decree of the same Act, the transferor shall be deemed to be the supply of goods only in cases where the transferor issues the tax account and the total amount collected through the transaction is returned and paid (the same purport as

Accordingly, it is judged that there is no error in the non-deduction of the input tax amount on the issues tax accountingO by theO or the disposition agency.

4. Conclusion

As a result of the hearing, the request for a trial is without merit, and it is determined as ordered under Articles 81 and 65(1)2 of the Framework Act on National Taxes.

April 22, 2003

chief judge of the National Tax Tribunal;

An associate national tax judge; An associate national tax judge;

Park Man-man

So-called No.