(a) The case holding that a limited partnership company Gap's transfer of the first-class electrical construction business license of the company Gap and the construction sections, etc. incidental to the electrical construction business is not included in the transfer value of the license itself whose market price is formed, but constitutes a wrongful calculation;

B. Whether the transfer of Class 1 electrical construction business license is subject to value-added tax (negative)

(a) The case holding that where the limited partnership company A, in fact, transferred the first-class electrical construction business license of the company A and the tools, etc. incidental to the electrical construction business to the same company B, the value of the license itself whose market price is formed in the transfer value shall not be included in the separate evaluation, but it shall be deemed that the report was made by only the book value of the above tools, etc., and it constitutes

B. The first class electrical construction business license is an intangible property right, which does not correspond to a service or a tangible property under Article 1 of the Value-Added Tax Act, and can be seen as an intangible property having property value. However, according to the delegation by the law, it does not correspond to a "natural power to manage" under Article 1 (2) of the Enforcement Decree of the Value-Added Tax Act, which provides for the scope of intangible property subject to value-added tax. Thus, the first class electrical construction business license cannot be included in intangible property under the above provision, and therefore cannot be subject

(a) Article 20 of the Corporate Tax Act, Article 46(1)3 and 46(2)4(b) of the Enforcement Decree of the same Act, Article 1(2) of the Additional Tax Act, Article 1(2) of the Enforcement Decree of the same Act;

Attorney Park Young-chul, Counsel for the defendant-appellant of the limited partnership

Daejeon director of the tax office

Seoul High Court Decision 89Gu8097 delivered on November 29, 1990

All appeals are dismissed.

The costs of appeal shall be assessed against each party.

We examine the grounds of appeal.

As to the Plaintiff’s ground of appeal:

The plaintiff's grounds of appeal Nos. 1 and 2 are examined together.

According to the judgment of the court below, the court below affirmed the judgment below that the plaintiff company and the non-party company reported the price of the first electrical construction business license held by the plaintiff company on October 2, 1986 to the non-party company (hereinafter "non-party company") on the ground that the transfer price of the second electrical construction business license and the section, vehicle, and house attached to the electrical construction business, and the above license itself does not include the value of the above license itself separately evaluated and include the transfer price, and reported corporate tax, defense tax, etc. with the amount of 46,46,865 won, which is the book value of the above section, vehicle, house, house, etc., and it is presumed that the non-party company denied the above license and the non-party company paid corporate tax, defense tax, etc. to the non-party company's representative company and the non-party company had a special relationship falling under Article 46 (1) 3 of the Enforcement Decree of the Corporate Tax Act, even if the transfer price of the first electrical construction business license was formed.

In addition, the court below recognized that the actual value of tools, vehicles, and house fixtures, other than the license rights that the plaintiff company transferred to the non-party company is not 22,847,249 won, and that the amount of 46,446,865 won on the above book value, which is the transfer value, reflects the actual value of the goods, and such fact-finding of the court below is justified. Thus, if it is true, the rejection of the above wrongful act by the defendant does not constitute an abuse of the provisions of Article 20 of the Corporate Tax Act. This case's electrical construction business license constitutes other intangible fixed assets under subparagraph 9 of Article 36 of the Corporate Accounting Standards (Evidence No. 11) rather than the business license under subparagraph 1 of Article 36 of the Corporate Accounting Standards (Evidence No. 11). If there is a market price formed in the transfer, and if it was transferred without any other consideration, it shall be deemed as lacking economic rationality and it shall not be viewed as falling under Article 46 (2) 4 of the Enforcement Decree of the above. Therefore

As to the Defendant’s ground of appeal

The Value-Added Tax Act (hereinafter referred to as the "Act") stipulates that the taxable object of value-added tax shall be the supply of goods or services and the importation of goods (paragraph (1)), and that the goods referred to in paragraph (1) mean all tangible goods and intangible goods which have property value (Paragraph (2) and paragraph (1) shall be determined by the President.

In this case, the first class electrical construction business license in question is an intangible property right, which does not correspond to a service or a tangible property under Article 1 of the Act, and can be seen as an intangible property having property value. However, according to the delegation by the law, Article 1 (2) of the Enforcement Decree of the Value-Added Tax Act (the Enforcement Decree) provides that "the intangible property stipulated in Article 1 (2) of the Act includes all substances other than a tangible property having property value as a power, heat, or other natural power which can be managed and can be managed." Thus, the first class electrical construction business license in this case which does not fall under the natural power can not be included in the intangible property stipulated in Article 1 (2) of the Enforcement Decree, and therefore cannot be subject to the imposition value tax.

The power, heat, and other natural power that can be managed by law should be deemed to refer to natural power that can be exclusively controlled by law, but a license that can conduct electrical construction business is an intangible article with property value, but it cannot be said to be a natural power that can be exclusively controlled by law.

The Supreme Court Decision 85Nu411 delivered on December 10, 1985) states that the scope of the taxable object of value-added tax is not determined, and that the court below stated that the increase in the license for the electrical construction business of this case does not constitute a transaction subject to value-added tax because it cannot be deemed that the increase in the license for the electrical construction business of this case is due to the creation of a value-added value-added tax, so whether this decision is legitimate or not does not affect the outcome of this case, and even though the license for the electrical construction business of this case is not natural power that can be managed, it is a fact that the defendant did not assert that it is subject to value-added tax because it constitutes the supply

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-chul (Presiding Justice)