Whether it falls under the comprehensive transfer or acquisition of the business when the transfer is made after the lease without operating the inn business.

The Plaintiff’s transfer of the instant building without directly operating it as a leisure business does not constitute a transfer of business that comprehensively transfers physical and human facilities and rights and obligations including business property and maintains the identity of the business, and the tax authorities have the authority to impose taxes at any time to rectify the tax base and tax amount within the exclusion period for taxation.

Article 6 (Supply of Goods)

Article 17 of the Enforcement Decree of the Value-Added Tax Act and Transfer of Business

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of value-added tax of KRW 25,246,160 against the Plaintiff on July 1, 2004 shall be revoked.

1. Quotation of the reasons for the judgment of the first instance;

The court's explanation on this case is identical to the reasoning of the judgment of the court of first instance in addition to the use of part of the reasoning of the judgment of the court of first instance as follows. Thus, the court's explanation on this case is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

[Supplementary Use]

(a) Article 2-2 (1)-2 (2) (main 4 through 6) of the judgment of the court of first instance;

(2) Second, the Defendant maintained non-taxable practices by deeming the transfer of the building of this case as the comprehensive transfer of business and maintaining non-taxable practices. However, it is unreasonable to reverse its previous position at the point of time when about four and a half years have passed after the transfer, thereby rendering the instant disposition on the ground that it does not constitute a transfer of business that does not constitute a supply of goods under Article 6(6) of the former Act and Article 17(2) of the former Enforcement Decree of the same Act.

(b) part of Article 2-2 (b) (2) of the judgment of the court of first instance (Articles 2-2 (2) (4) through 19, 5 and 6);

(2) Judgment on the second argument by the Plaintiff

(A) On the other hand, the Value-Added Tax Act adopts a voluntary declaration system that requires the primary determination of the tax base and amount of tax when the taxpayer files a return. Thus, the tax base and amount of value-added tax are determined by the taxpayer’s return first, but the authority for final determination of the taxpayer’s return is reserved to the government. As such, the government may determine or correct the exact tax base and amount of tax when there are no returns or there are justifiable grounds such as errors or omissions in the details of the return, and the taxpayer may immediately correct or correct them when there are errors or omissions in the tax base and amount of tax originally determined and determined and the amount of tax or the amount of tax to be paid are found (see, e.g., Supreme Court Decision 87Nu1095, Apr. 12, 1988).

In addition, in order to establish a non-taxable practice under Article 18(3) of the Framework Act on National Taxes, there must be an objective fact that has not been taxed over a considerable period of time, and a tax authority should not impose tax due to any special circumstance even though the tax authority knew that it is able to impose tax on the matter. Such public opinion or intent should be expressed explicitly or implicitly, but in order to establish an implied expression of taxation, there must be circumstances to deem that the tax authority expressed its intent not to impose tax on the state of non-taxation for a considerable period of time, unlike mere omission of taxation (see, e.g., Supreme Court Decision 2001Du7855, Sept. 5, 2003).

In addition, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under the tax law is an administrative sanction imposed as prescribed by the tax law in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, and the taxpayer’s intent or negligence is not considered. On the other hand, such a sanction is imposed as to the failure to perform tax obligations under the tax law unless there are justifiable grounds that it is unreasonable for the taxpayer to be unaware of his/her duty, or that it is unreasonable for the taxpayer to expect the fulfillment of his/her duty. (See, e.g., Supreme Court Decisions 2001Du4849, Nov. 8, 2002; 2003Du13632, Nov. 27, 2005).

(B) If so, even if the Defendant rendered the instant disposition at the expiration of four years and six months after the transfer of the instant building, it does not constitute the transfer of a business that does not regard the transfer of the instant building as the supply of goods under Article 6(6) of the former Act and Article 17(2) of the former Enforcement Decree, and as long as it is not acknowledged that the Defendant, unlike the mere omission of taxation, made an express or implied declaration that it would not impose any tax on the non-taxable ecology for a considerable period of time, the instant disposition constitutes legitimate disposition in accordance with the relevant laws and regulations.

Therefore, it cannot be deemed that the Plaintiff’s failure to report and pay the value-added tax on the transfer of the instant building solely on the ground that the Defendant, who was the tax authority, did not impose value-added tax for about four years and six months, constitutes a case where there are justifiable grounds for not paying the value-added tax. Moreover, there is no evidence to acknowledge that the Plaintiff’s obligation was not known due to the Plaintiff’s independent interpretation of tax law, and there is no circumstance to deem it legitimate, and even if the transferee lost the opportunity to refund value-added tax due to the instant disposition, the instant disposition cannot be deemed unlawful

2. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

[Supreme Court Decision 2006Du15752 ( December 07, 2006)]

1. The appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiff.

Although all of the records of this case, the judgment of the court below and the grounds of appeal were examined, the argument on the grounds of appeal by the appellant is not included in the grounds provided by each subparagraph of Article 4(1) of the Act on Special Cases Concerning the Procedure of Appeal or it is recognized that there are no grounds, so the appeal is dismissed in accordance with Article 5 of the same Act.