Cho High Court Decision 201Do3175 (No. 12, 2012)

Since the homogeneity of the business (real estate rental business) cannot be considered to have been maintained, it does not constitute a transfer of business.

Considering the fact that the existing lease contract entered into by the Plaintiff was not succeeded to the transferee of the instant commercial building, and that the transferee acquired the instant commercial building to directly operate a veterinary hospital, etc., the transfer of the instant commercial building does not constitute the transfer of business not deemed the supply of goods.

Article 6 of the Value-Added Tax Act and Article 17 of the Enforcement Decree thereof.

2012Guhap8472 Revocation of Disposition of Imposition of Value-Added Tax

Gangwon A

The Director of the Pacific District Office

October 16, 2012

November 22, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax of KRW 000 on April 1, 2010 against the Plaintiff on April 1, 201 is revoked.

1. Details of the disposition;

A. On March 25, 2005, the Plaintiff: (a) acquired an OO-dong 000 DDR 000 Do 0000 Do 000 (hereinafter “instant shopping mall”); (b) entered into a sales contract to sell the said shopping mall to the largest EE on May 31, 2010; and (c) completed the registration of ownership transfer for the said shopping mall in the name of the largest EE on June 30, 2010 (hereinafter “instant transfer”).

B. The Plaintiff shall report the transfer of the instant case to the E without regard to the supply of goods under Article 6(2) of the Value-Added Tax Act and Article 17(2) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 22578, Dec. 30, 2010); and shall prepare a sales tax invoice to the E.

was not given.

C. However, on April 11, 2011, the Defendant corrected and notified the Plaintiff of KRW 000 of the value-added tax (hereinafter “instant disposition”) on the premise that the instant transfer constitutes the supply of goods subject to value-added tax.

D. On August 30, 201, the Plaintiff dissatisfied with the instant disposition and filed an appeal with the Intellectual Property Tribunal on August 30, 201, but received a decision of dismissal on January 12, 2012, and filed the instant lawsuit on March 9, 2012.

[Standard for Recognition] The facts without dispute, Gap 1, 2, 3, and 5, and Eul 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the substance of the transfer of this case is not a mere sale of real estate, but a transfer of business not deemed a supply of goods under the Value-Added Tax Act and the Enforcement Decree of the same Act, the disposition of this case based on the premise that the transfer of this case constitutes the supply of goods subject to value-added tax

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On March 25, 2005, the Plaintiff purchased the instant commercial building from FF Construction, registered as a real estate leasing business, and leased the said commercial building to a third party as follows.

2) On May 31, 2010, the Plaintiff entered into a sales contract for the instant commercial building (hereinafter “instant contract”) with the E, and the main contents thereof are as follows.

(Major Contents Omitted)

3) On June 30, 2010, the Maximum EE pays the remainder of 000 won to the Plaintiff under the instant contract, and completed the registration of ownership transfer for the instant commercial buildings.

4) 최EE는 2010. 6. 16. 이 사건 상가를 사업장소재지로 사업자등록(업태 : 소매업， 종목 : 애견용품)을 마치고 같은 달 30.일부터 'GGG 애견˜脾�繭遮�상호로 애견용품 판매업을 하다가 2010. 9. 1. 업태에 보건업을， 종목에 동물병원을 추가하는 내용으로 사업자등록을 정정하고， 'GGG 동물병원'이라는 상호로 동물병원 영업을 시작하였다.

5) Among the contract of this case, as an individual dynasium under the contract of this case, ChH was in the state of suspending restaurant business from around 3 to 47 days before the contract date of this case, and ChH was in the state of suspending restaurant business. Therefore, it was not intended that the contract of this case should succeed to the existing lease contract of this case, and ChH was leased to a new person by the buyer (E) at the existing lessee and the new lessee. Accordingly, when the existing lease contract of this case is settled, E voluntarily registered its business, and was in the operation of a veterinary hospital from the commercial building of this case, and the plaintiff was also aware of such circumstances, and the plaintiff was also aware of the fact that it was a comprehensive transfer and acquisition of the contract of this case.

[Recognition of Facts] The facts without dispute, Gap 1, 2, and 4 (if available, including the number number), the witness's testimony, and the whole purport of the pleading

D. Determination

1) Article 6(6)2 of the Value-Added Tax Act and Article 17(2) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 22578, Dec. 30, 2010) stipulate that transferring a business, which comprehensively succeeds to all rights and obligations relating to the business, shall not be deemed the supply of goods. The quantity of the business referred to in this context refers to transferring physical, human, rights and obligations, etc., including business property, to replace only a management body while maintaining the unity of the business by comprehensively transferring physical, human, rights and obligations, etc., and the business must be deemed as a organic combination of human and physical facilities so that its social independence can be recognized (see, e.g., Supreme Court Decisions 97Nu1278, Jul. 10, 1998; 2004Du8422, Apr. 28, 2006).

2) The following circumstances, which are recognized by comprehensively considering the facts of this case and the overall purport of the above facts and arguments, are as follows, i.e., in order to see that the Plaintiff’s business is a real estate rental business, the real estate lease contract related to the pertinent real estate should be maintained. In this case, the Plaintiff’s existing lease contract is not succeeded to the least EE, and 2E also acquired the instant commercial building for the purpose of transferring the Plaintiff’s existing real estate rental business comprehensively, and 3E does not seem to have concluded the instant contract for the purpose of comprehensively transferring the Plaintiff’s existing real estate rental business, and 3E even after the termination of the existing lease contract, did not rent the commercial building in this case to the new lessee after the termination of the existing lease contract, and it was registered as a business operator and directly operating the retail and health service store and veterinary hospital directly after the date of the contract in this case, and it cannot be seen that the Plaintiff’s assertion that the Plaintiff and the largest E has agreed to treat it as the transfer and acquisition of the business in this case and made an additional entry.

3. Conclusion

The plaintiff's claim is groundless, and thus dismissed.