It cannot be deemed that the business was comprehensively succeeded, and it is difficult to recognize the legitimate grounds for non-issuance of electronic tax invoices.

Where a transferee uses real estate for a tax-free business, it shall not be deemed that the transferee comprehensively succeeded to the business while maintaining the identity of the business, and it shall not be deemed that there is a justifiable reason to believe that

Article 6 (Supply of Goods)

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

2015Guhap11042

A. ○

○ Head of tax office

April 7, 2016

May 12, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s rejection of a claim for correction against the Plaintiff on February 2012, 2015 (the date of the disposition stated in the written complaint seems to be erroneous) is revoked (the date of the disposition indicated in the written complaint is deemed to be erroneous). The Defendant’s imposition of the penalty tax for value-added tax on February 2015, 2015 against the Plaintiff on October 2015 is revoked.

1. Details of the disposition;

A. The Plaintiff was a company established on October 1979 for the purpose of selling and selling real estate, leasing and managing, or funeral home business, and the location of ○○○-gu ○○○○-dong was the location of ○○○-dong, ○○○-dong, and closed on October 2012.

B. The Plaintiff and ○○ Hospital owned the Plaintiff’s share 30/100, and 70/100 of ○○ Hospital’s share 32/100, and 2/100 of ○○ Hospital’s share 32/100, and 68/100 of the Plaintiff’s share 68/100 of ○○ Hospital’s share 2,000, and 2/100 of the Plaintiff’s share 2,000, 2/100 of the Plaintiff’s share 2,000, 2/100 of the Plaintiff’s share 2,00, to ○○○ Hospital’s share 2,00,000, and 2/10 of the Plaintiff’s share 2,000, to ○○ Hospital’s share 2,000, and the Plaintiff and 2/1,000 of the instant building were transferred to ○○ Hospital’s share 2,000.

D. On October 2012, the Plaintiff filed a closure report, and issued a paper tax invoice without issuing an electronic tax invoice on the transfer of the Plaintiff’s shares (transfer value ○○○○○○○○) on the instant building. On February 2012, 2012, the Plaintiff reported and paid the value-added tax ○○○○ on February 2012.

E. On the ground that the Defendant did not issue an electronic tax invoice regarding the transfer of the Plaintiff’s share in the instant building on October 2015, the Defendant imposed an additional tax on the Plaintiff on the Plaintiff pursuant to Articles 22(3) and 16(2) of the former Value-Added Tax Act (amended by Act No. 11608, Jan. 1, 2013; hereinafter “former Value-Added Tax Act”) on February 2012 due to the non-issuance of the electronic tax invoice (hereinafter “instant imposition of additional tax”).

F. The Plaintiff transferred the Plaintiff’s share on the instant building on the ground of the comprehensive transfer of business

On October 2015, the sales tax invoice for the Plaintiff was revoked, and the Defendant filed a request for correction to refund the value-added tax ○○○○○ upon the second term of value-added tax on February 2012. However, the Defendant rejected the Plaintiff’s request for correction on October 2015 (hereinafter referred to as “instant rejection disposition”), and as well as the instant disposition of imposition of additional tax, “each of the instant dispositions” was referred to as “each of the instant dispositions”).

G. The Plaintiff dissatisfied with each of the instant dispositions and filed an appeal with the Tax Tribunal on ○ on 2015, but the Tax Tribunal dismissed the said appeal on ○○ on 2015.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The Plaintiff’s transfer of the Plaintiff’s share in the instant building and the rental business to ○○ Private Teaching Institutes comprehensively constitutes a transfer of business under Article 6(6)2 of the former Value-Added Tax Act and Article 17(2) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter “former Enforcement Decree of the Value-Added Tax Act”). Since the Plaintiff’s transfer of the Plaintiff’s share in the instant building constitutes a supply of goods, each of the instant dispositions based on the premise that

The transfer of Plaintiff’s share on the instant building is subject to value added tax.

The Plaintiff’s issuance of an electronic tax invoice is inevitable because it is impossible to issue an electronic tax invoice without issuing an electronic tax invoice because it is impossible to issue an electronic certificate with the wind closed on October 2012, 2012 after the issuance of the instant building. As such, the instant disposition imposing an additional tax is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the transfer of Plaintiff’s share in the instant building constitutes the transfer of business

Article 6 (6) 2 of the former Value-Added Tax Act and Article 17 (2) of the former Enforcement Decree of the Value-Added Tax Act provide that the transfer of business is a comprehensive succession of all rights and obligations related to the business by place of business shall not be considered as the supply of goods subject to value

The term "transfer of business not considered as the supply of goods" refers to the comprehensive transfer of physical, human, and rights and duties, including business property, to replace only the management body while maintaining the identity of the business. The business must be separated from the management body as an organic combination of human and physical facilities so that it can be recognized as a social independence. The fact that the object of transfer is not a simple physical facility but an organic combination is not a real facility. The burden of proof as a reason for taxation disability is the taxpayer in value-added tax (see, e.g., Supreme Court Decision 97Nu12778, Jul. 10, 1998).

We examine whether the transfer of Plaintiff’s share in the instant building constitutes the transfer of business not deemed the supply of goods.

The Plaintiff asserts to the effect that the second floor of the instant building constitutes the transfer of business, inasmuch as the Plaintiff’s share on the instant building is continuously provided to the ○○ Bank with the second floor of the instant building, and the Plaintiff’s share on the instant building constitutes the transfer of business that does not constitute the supply of goods. The Plaintiff asserted to the effect that the transfer of the Plaintiff’s share on the instant building constitutes the transfer of business that does not regard the supply of goods.

In full view of the overall purport of pleadings, evidence No. 4, No. 4, No. 5, 7, and No. 9 were examined. ① The ○○ Bank leased 367.25 square meters of the second floor of the instant building from the Plaintiff, but it was confirmed that the Plaintiff closed the business on ○○○, prior to the date of the transfer of the instant real estate, and the registration of the establishment of a right to collateral security (which was established as to the instant building) was cancelled on 0.0.00.0.00. ② The ○○ 2nd floor of the instant building was not leased 12 square meters of the instant building from the Plaintiff to the ○○ 200,000,000,000 won, and the Plaintiff did not comprehensively leased the instant building to the ○○ 200,000,000,000 won, on 200,0000,000 won, which was recognized otherwise.

Furthermore, comprehensively taking account of the written evidence evidence Nos. 8 and 10, ○○ Private Teaching Institute, a transferee, uses the second floor of the instant building as a hospital. Moreover, ○○ Private Teaching Institute, on the ground that it uses the second floor of the instant building for a tax-free business (a hospital) upon filing a value-added tax return for the second quarter of February, 2012, treats the value-added tax on the acquisition of Plaintiff’s shares in the instant building as an input tax deduction. The instant case transferred the real estate used for the leased business by the Plaintiff, a rental business entity, to ○ Private Teaching Institute, a business entity both taxable and exempt from taxes, and the transferee uses the real estate for the hospital, a duty-free business entity, cannot be deemed as comprehensively

Therefore, this part of the plaintiff's assertion is without merit.

2) Whether the issuance of electronic tax invoices is justified

Under the tax law, where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, a taxpayer’s intent or negligence is not considered as administrative sanctions imposed as prescribed by the individual tax law: Provided, That where a taxpayer is not unaware of his/her duty or it is unreasonable for him/her to expect the fulfillment of his/her duty, etc., and there is a justifiable reason to believe that it is unreasonable for him/her to do so (see, e.g., Supreme Court Decision 95Nu14602, May 16, 1997).

B. On the other hand, the Plaintiff continued to issue electronic tax invoices as a person subject to the duty to issue electronic tax invoices.

The facts that were issued do not conflict between the parties, and it is difficult to recognize that there is a justifiable reason that could not cause the failure to issue an electronic tax invoice on the sole basis of the Plaintiff’s assertion. There is no circumstance to deem it difficult to expect that the Plaintiff would issue an electronic tax invoice at the time of transfer of Plaintiff’s shares on the instant building.

Therefore, it cannot be deemed that there was any error in the imposition of the penalty tax in this case, and the plaintiff's allegation on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.