(영문) 대구고등법원 2014. 04. 04. 선고 2013누1486 판결

The disposition that considers the transfer of the instant land and buildings as the supply of goods not the transfer of business and imposes value-added tax on the Plaintiff is legitimate.

Summary

(1) The savings bank, the purchaser of which is the principal purpose of the instant sales contract, appears to use the building from the beginning to the original purpose of the instant sales contract. Therefore, it is difficult to view that the entire building of this case is identical to the Plaintiff’s business that used the lease business, and thus, it cannot be viewed as transferring the business.

Related statutes

Article 6 (6) 2 of the former Value-Added Tax Act

Cases

2013Nu1486 Revocation of Disposition of Imposition of Value-Added Tax

Plaintiff and appellant

The AA

Defendant, Appellant

Head of Dong Daegu Tax Office

Judgment of the first instance court

Daegu District Court Decision 2013Guhap187 Decided August 9, 2013

Conclusion of Pleadings

March 7, 2014

Imposition of Judgment

April 4, 2014

Text

1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The judgment of the first instance court is revoked. The defendant's imposition of value-added tax No. 200 on December 13, 2011 against the plaintiff on December 13, 2011, the remaining part of the imposition of additional tax No. 2010 on which the defendant revoked the imposition of additional tax (the plaintiff at the first instance court claimed revocation of the imposition of value-added tax No. 200 on December 13, 2010 against the plaintiff, and the court of the first instance dismissed the plaintiff's appeal. The plaintiff appealed against this, and the defendant revoked ex officio the part corresponding to additional tax No. 200 on December 9, 2013, and the defendant revoked ex officio the part corresponding to the additional tax No. 200 on which the defendant revoked ex officio among the lawsuits in this case).

Reasons

1. Details of the instant disposition

(1) On June 26, 2006, the Plaintiff: (a) purchased 20 O-dong 2-5 420.8 m2 under the former Enforcement Decree of the Value-Added Tax Act; (b) on June 23, 2006, 3-8 m207 m2 (hereinafter collectively referred to as the “instant land”); (c) the Plaintiff purchased 20 O-7 m2 m2 under the former Enforcement Decree of the Value-Added Tax Act; (d) the Plaintiff purchased 10 m20 m2 under the title of “O-7 m2; and (d) the Plaintiff acquired 10 m2 m2 m2 and 10 m2 m2 under the title of “O-7 m2 m2, 2007 m2 and 10 m2. m3 m2, 2008 m2.

(g) On December 9, 2013, when the trial was in progress, the Defendant notified the Plaintiff of the revocation of additional tax that the amount of additional tax should be revoked, thereby ex officio revoking the portion of additional tax in the initial disposition (hereinafter referred to as “instant disposition of imposition corresponding to the amount of tax that has been revoked during the initial disposition”), and as seen earlier, the Plaintiff withdrawn the lawsuit on the portion of additional tax that has been revoked ex officio during the initial disposition, and accordingly, the scope of the trial in the trial is limited to the portion of the instant disposition).” The facts that there is no dispute as to the grounds for recognition, Gap’s evidence Nos. 1 through 5, Eul’s evidence No. 1, Eul’s evidence No. 2-1 through 3, and Eul’s evidence No. 9, and the purport of the entire pleadings and arguments.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Legal principles concerning the imposition of value-added tax

The transfer of this case constitutes not a simple real estate transfer as a supply of goods subject to value-added tax, but a transfer of business that is not deemed a supply of goods under Article 6 (6) 2 of the Act and Article 17 of the Enforcement Decree thereof. Therefore, the transfer of this case is unlawful in the disposition of this case where value-added tax is imposed on the Plaintiff by deeming it as a supply of goods, even though it cannot be subject to value-added tax."

Before entering into the instant sales contract, the Do Savings Bank asked the National Tax General Counseling Center about whether the transfer of this case constitutes a transfer of business subject to value-added tax, and it received the reply from the National Tax General Counseling Center that the transfer of this case is not subject to value-added tax because it does not fall under the supply of goods.

The plaintiff also listened to the above response of the National Tax General Counseling Center from the Do Savings Bank, and trusted it, and did not receive value-added tax from the Do Savings Bank in connection with the transfer of this case. Nevertheless, the defendant's disposition of this case in violation of the above response is against the principle of trust protection.

(b) Related statutes;

It is as shown in the attached Form.

C. Facts of recognition premised on the determination

1) The main contents of the instant sales contract concluded between the Plaintiff and the DDR Bank are as follows.

[Real Estate Sales Contract]

2. Details of the contract;

[Purpose] Article 1 [Purpose] Sale of the above real estate shall be paid by agreement between the seller and the buyer as follows:

- The purchase price is KRW OO(=the purchase price of land + the purchase price of buildings + OOO won)

-OOOOOO shall pay and receive at the time of the contract.

- The remainder OOOO on August 16, 2010

Article 2 (Transfer, etc. of Ownership) The seller shall deliver all documents necessary for the transfer registration of ownership to the buyer at the same time as the balance of the purchase price is received, and cooperate with the registration procedure, and the delivery date of the said real estate shall be August 16, 2010.

O Details of the special agreement

1. The seller and the buyer shall comprehensively succeed to all rights and duties on the land and the building.

2. The seller shall confirm that the terms and conditions of the lease agreement attached to this building are consistent with those of the present status table attached to the terms and conditions of the lease agreement, and if any, the seller shall be fully liable

3. The buyer shall verify and conclude a contract on the condition of the unconstitutional building, other than the official books related to this real estate.

4. Until the approval of the supervisory authority for the relocation of the store is granted by the buyer, the buyer shall deposit the OOO in the account in the name of the seller in the D Savings Bank, and the remaining OOOOO shall be paid to the seller and the payment shall be guaranteed by the supervisory authority for the transfer of ownership shall be registered.

5. Any balance shall be paid at the time of approval by the supervisory authority for a lump sum payment after its approval and, if not, at the time of approval, by the end of the first, second and tenth floor of the building.

8. In the case of the purchase of this building, if the approval of the supervisory authority is not granted or if the first, second, and tenth floors of this building are not expressed by the due date for the outstanding payment of the balance, this contract shall be automatically null and void and the payment of the payment shall be promptly refunded.

2) At the time of the instant building being attached to the instant sales contract, the lease status is as follows:

Each floor;

Trade Name

Rental deposit

Monthly rent;

(Additional Tax Rate)

General Management Expenses

(Additional Tax Rate)

Term of Lease

Official rooms

EE Loss Insurance

OOOE

From June 16, 2009 to June 15, 2010

OOOE

From June 16, 2009 to June 15, 2010

F. F.N.R

OOOE

From June 1, 2010 to May 31, 2011

EE Loss Insurance

OOOE

From March 24, 2009 to March 23, 2010

OOOE

From February 1, 2009 to January 31, 2010

GG Life Insurance

OOOE

From March 12, 2009 to March 11, 2011

Certified Judicial ScrivenersH Office

OOOE

II Internet News

OOOE

From January 11, 2010 to January 10, 2011

Official rooms

3) The main point of the contract for acquisition by transfer and transfer is as follows between the Plaintiff and his spouse, the New J and D Savings Bank, as well as the main point of the contract.

【Transfer Agreement】

With respect to the comprehensive transfer and acquisition of the business, the sales contract shall be concluded between the transferor KK, the new JJ representative (hereinafter referred to as the "A") and the D Savings Bank (hereinafter referred to as the "B") as follows:

Section 1 (Purpose) The purpose of this Agreement is to comprehensively transfer and take over the business in operation A to B.

Article 3 [Transfer or Acquisition Value] The value of transfer or acquisition shall be settled by the real estate sale amount, and the changed matters shall later be referred to this settlement key with Gap.

Article 4 [Scope of Transfer and Acquisition] In principle, Eul shall comprehensively take over all rights and obligations concerning the projects finalized by the date of the formation of the contract with leapap, and shall be succeeded to the continuous construction work, personnel, equipment, etc., effective until the formation of the contract with leap, as they are, and the principles and practices related to Gap's continuous projects shall be respected to the maximum extent.

Article 5 (Payment of Price) is to pay the price pursuant to the contract at the same time as the contract is made.

Article 6 (Cooperation Obligations) A shall comprehensively transfer its business to B and shall make all cooperation necessary for B’s performance of its business after transferring its business to B.

§ 9 (Effectuation) To take effect on the date of closure of business due to closure documents submitted to the competent tax office A which has concluded this contract, on the date of business transfer.

4) On July 13, 2010, before entering into the instant sales contract, DDR bank asked the National Tax General Counseling Center about whether the instant transfer constitutes the acquisition or transfer of business subject to non-taxation of value-added tax, and received the following replies.

Inquiries shall be made.

In purchasing real estate to be used as the head office house, the public part of the real estate in question is used as shower for the duty-free businessman, and the leased part is scheduled to be used as it is for rent. In this case, it is doubtful as follows:

1. Comprehensive acquisition limit of the business;

With respect to the portion used as a leasing business, the additional tax is not imposed because it is considered as a comprehensive business transfer, and since the present office is a plan to use the tax-free business, it is possible to calculate the value of supply for the area corresponding to the tax-free business

2. Where the business is not taken over comprehensively:

Value-added tax shall be levied on the total value of the building supplied, and an application for refund of value-added tax may be filed on the value of supply in the area used for leasing

Answer shall be made.

(1) The transfer of a business which is not considered a supply of goods is to have succeeded to the legal status of the transferor of the business as well as all human and material rights and obligations regarding the business at the time of transfer by transferring the transferor of the business to the transferee at the time of the transfer of all business and all rights and obligations to the transferee of the business. In the case of your questioning, the fact-finding should be based on the contract and the details of the transaction where the transfer of the business is subject to no value-added tax, or if the transferor of the business succeeds to the legal status of the business to the extent that it is identical to the transferor by transferring not only the business facilities collected by the transferor but also all human and material rights and obligations concerning the business in the public room where there is no tenant as of the date of transfer, the transferor is subject

(2) In the case of your counseling, if the transferor of the real estate has engaged in real estate leasing business and the transferee comprehensively succeeds to the lease business at the time of the transfer and acquisition of the real estate, it would be a problem that the transfer and acquisition of the business would be constituted. However, if the taxable type of the transferee after the transfer and acquisition of the real estate falls under the tax-free business, the taxable goods will be used exclusively for the tax-free business, and the fact that the value-added tax can be calculated due to the diversion of the tax-free business pursuant to Article 17(5) of the Value-Added Tax Act and Article

* The answer is not effective as evidence, such as various reports and appeals, since it was written only on the basis of the data presented by the applicant and is not an authoritative interpretation (determination and judgment) with legal effect.

5) The DDR bank purchased the instant land and buildings in consideration of the moving point of business, and applied for the repair of its location to the Korea Federation of Savings Banks, which is the supervisory authority, on July 19, 2010 immediately after the conclusion of the instant sales contract. The Korea Federation of Savings Banks accepted the said application as the original design on July 30, 2010.

6) Furthermore, on August 9, 2010, D Savings Bank completed the registration of ownership transfer on the instant land and building, and entered into a construction contract with LLL Design Plus and construction cost OOs, and obtained approval from the board of directors on August 20, 2010 on the transfer of the head office located at Os. On August 29, 2010, the head office was transferred to the 1,2,10th, of the instant building on August 30, 2010.

7) After the relocation of the said head office, DDR Bank registered its primary business as a financial insurance/general financing business, secondary business as a service/insurance agent/real estate/rental business. Since March 201, 3 and 4-storys of the instant building that expired, among the instant buildings, and 3 and 4-storys were used as the head office of DDR Bank.

8) 원고는 과거 부동산임대업을 영위하면서 이 사건 건물의 관리를 위하여 직원 박MM, 백NN, 서PP, 정QQ을 고용하고 있었다. 그런데 정QQ은 이 사건 매매계약 직후 곧바로 퇴사하였다. DD저축은행은 이 사건 건물로 본점을 이전한 후 인력관리나 사고 예방, 주차시설물 관리 등의 어려움으로 인해 2010. 8. 17. 주식회사 RRR에 이 사건 건물의 관리업무 일체를 위탁하였는데, 박MM은 2010. 8. 29.자로, 백NN, 서PP은 2010. 9. 1.자로 각 주식회사 RRR에 고용되어 이 사건 건물의 관리업무에 종사하다가 백NN, 서PP은 2010. 10. 1.자로, 박MM은 2011. 8. 28.자로 각 주식회사 RRR와의 고용관계가 종료되었다.

9) Meanwhile, at the time of the initial purchase and sale contract of this case, the Plaintiff and DDR bank agreed to pay the OOO members of the value-added tax on the price of the building of this case separately, and accordingly, the Plaintiff was paid OO members from DDR bank separately as value-added tax.

10) In such a case, even if a refund is made through the deduction of input tax amount, the DDR bank is limited to real estate rental business, which is a taxable type of business, and only the amount of OOO(s) may be refunded. However, as a result of considering the view that the transfer of the instant case is not subject to value-added tax if the transfer of the instant business is the transfer of the business, it was discussed with the Plaintiff.

11) After inquiring a tax accountant, etc., the Plaintiff also determined that the transfer of this case constitutes a transfer of business that is exempt from value-added tax by consenting to the inquiry results and legal opinions of the D Savings Bank, the Plaintiff returned OO members received as value-added tax to the D Savings Bank.

Facts that there is no dispute over the basis of recognition, Gap's evidence 3 through 9, 11, 12 (including each relevant branch number), Eul's evidence 5 through 8, the testimony of a witness of the trial court and the purport of the whole pleadings.

D. Determination

1) As to the assertion that they are not subject to value-added tax

a)the relevant legal principles;

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 comprehensive succession of all rights and obligations with respect to the business shall be deemed the supply of goods. The "transfer of business not deemed the supply of goods" in this context refers to the comprehensive transfer of human, physical, rights and obligations, etc. including business property, and the replacement of only the management body while maintaining the identity of the business. Thus, the business shall be an organic combination of human and physical facilities, which can be separated from the management body and can be recognized as social independence. The fact that the object of transfer is not a simple physical facility, not a value-added tax, shall bear the burden of proving the existence of the tax disability (see, e.g., Supreme Court Decisions 97Nu1278, Jul. 10, 1998; 2004Du8422, Apr. 28, 2006; 2007Du1749, Apr. 29, 2007).

(1) In full view of the facts as seen earlier and the purport of the entire pleadings, the following circumstances are revealed.

① In the event that DDR Bank fails to obtain approval from the supervisory authority for relocation of its head office in the course of concluding the instant sales contract, or that the first, second, and tenth (the part of the plan to use the head office) of the instant building is not ordered until the outstanding payment date, the Korea National Tax Counseling Center established a provision to automatically invalidate the instant sales contract. In purchasing the real estate to be used as the head office before the instant sales contract is concluded, it is intended to use the portion of the real estate for the tax-free business entity, and the remaining portion of the real estate is to be used for the purpose of the instant sales contract on the premise that the acquisition of the relevant real estate is scheduled to be leased, and it is difficult to view the building as the main purpose of the instant sales contract as the acquisition of the relevant real estate for the purpose of using it as the head office house for the purpose of the instant sales contract. ② Since DDR bank concluded the instant building ownership for the instant building, it is difficult to use it as the main purpose of the instant building for the purpose of the Plaintiff’s business and the remaining portion of the building to be used as the rental house for 1 to 30-6.

③ Although the Plaintiff and DDR banks separately prepare the acquisition or transfer contract of this case from the sales contract of this case, the above acquisition or transfer contract of this case only has a clause to the extent that the above acquisition or transfer price will be settled as real estate sales price, and there is no specific content. Although the elements such as the structure of business, trade secrets, customer relations, etc. are less relevant than those of general business due to the characteristics of the real estate leasing business, there is no reason to see that the transfer price of business or the appraisal of assets and liabilities or business rights related to the real estate leasing business carried on by the Plaintiff, or there is no reason to see the transfer of important matters, employment relationship, business structure, etc. to be taken effect on the date of business closure due to the transfer of the Plaintiff's business, rather than on the original meaning of the contract of business transfer, the above transfer or transfer price of the land and building of this case is not a contract to emphasize or supplement the aspect of business transfer in acquiring the real estate of this case, the Plaintiff did not entrust the management of the building of this case to the entrusted company.

⑤ Although Do Savings Bank succeeded to the status of the Plaintiff against the existing lessee, some of the lease relationship was adjusted, and there was no further conclusion of the lease contract. Moreover, it is merely limited to extending the lease contract to a short period even with the existing lessee, and there was no adjustment of the contents of the lease contract as a new lessor, and there was no details of ordinary business activities as a real estate leasing business entity, such as additional contracts related thereto or data or grounds for concluding a separate contract in the future. Accordingly, the succession of the status of the lessor seems to be a method of treating the existing lease relationship ordinarily in the individual real estate sales contract.

(6) In light of the fact that the value-added tax on the building of this case was separately determined at the time of the conclusion of the sales contract of this case between the Plaintiff and the Korea Exchange Bank was aware that the sale and purchase of the building of this case constitutes the transfer of real estate in which the value-added tax is levied. However, as the Plaintiff becomes aware of the fact that the sale and purchase of the building of this case constitutes the transfer of real estate in which the value-added tax is levied, the sale and purchase of the building of this case is subject to non-taxation. The original intention of the contracting party is not the transfer of real estate rental business, but the Plaintiff as the Plaintiff, the Korea Exchange, the Korea Exchange, the head office of which was the real estate for the purpose of transfer, namely, the acquisition of real estate for the purpose

(2) Ultimately, in light of the legal principles as seen earlier, it is difficult to view that the Plaintiff’s real estate rental business in the instant building is a case where only the Plaintiff changed the business entity by comprehensively transferring the real estate rental business, including its human resources, physical facilities, rights, and duties, etc., and it is insufficient to recognize that the transfer of the instant land and the instant building constitutes a transfer of business as a non-taxable object of value-added tax solely with the evidence submitted by the Plaintiff and the testimony of ES witness. There is no other evidence to acknowledge otherwise

Therefore, the disposition of this case that the Defendant deemed the transfer of the land and the building of this case as the supply of goods, not the transfer of business, and included the supply value of the building of this case in the tax base is legitimate, and the disposition of this case was corrected and notified as value-added tax is without merit. The Plaintiff

2) As to the assertion of violation of the principle of trust protection

a)the relevant legal principles;

In general, in administrative legal relations, in order to apply the principle of protecting trust to the acts of an administrative agency, first, the administrative agency should name the public opinion that is the subject of trust to the individual, second, that the public opinion statement of the administrative agency is justifiable and trusted, there is no cause attributable to the individual, third, that individual should have trusted and trusted the opinion statement of the administrative agency, third, that administrative agency should have done any act in violation of the above opinion statement. Fourth, the administrative agency should have made a disposition contrary to the above opinion statement, thereby infringing on the interests of the individual who trusted the opinion statement. If any administrative disposition satisfies these requirements, it is unlawful (see, e.g., Supreme Court Decisions 206Du10931, Jan. 17, 2008; 2006Du10931, Jan. 17, 2008).

B) Review of the case

In light of the above legal principles, it is merely a receipt of a reply from the National Tax General Counseling Center to the effect that the acquisition of real estate in question is a matter of fact-finding based on the contract and transaction details, and it is nothing more than a receipt of a reply from the National Tax General Counseling Center to the effect that the acquisition of real estate in question is a matter of fact-finding based on the contract and transaction details where the real estate is subject to no value-added tax in the purchase of real estate to be used as the headquarters for the purpose of tax-free business in the purchase of real estate to the National Tax General Counseling Center prior to the conclusion of the contract of this case, and that it is difficult to view that the tax office directly expressed its view as to whether the Plaintiff is liable to pay value-added tax due to the transfer of the real estate for the purpose of tax-free business. Furthermore, in light of the direction of "No legal effect as evidence such as a report, appeal, etc.", it is hard to see that the Plaintiff's disposal of real estate in question was made based only on the evidence presented by the applicant.

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

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

심급 사건

-대구지방법원 2013.08.09.선고 2013구합187

대구고등법원 2014.04.04.선고 2013누1486

-대법원 2014.07.17.선고 2014두7657

참조조문

참조판례

-대구지방법원 2013. 08. 09. 선고 2013구합187 판결

-대법원 1998. 7. 10. 선고 97누12778 판결