Whether it constitutes the supply of goods, in cases where donated buildings are returned;

It is alleged that the building in arrears is returned to the lessee without compensation again, but since the ownership of the building is transferred under the name of construction cost after the actual acquisition, it constitutes the supply of goods based on contractual or legal grounds.

Article 6 (1) of the Value-Added Tax Act

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's imposition of value-added tax of 26,262,040 won on September 3, 2004 against the plaintiff on September 3, 2004 shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to each entry in Gap evidence 1, 2-1, 2-2, 2-1, 3-1 through 7, 5-1, 5-2.

A. On May 15, 2001, the Plaintiff transferred 2,166 square meters of land located in Daegu ○○○-dong 273, 273-1 (hereinafter “instant land”) and 2,934.86 square meters of the 4th floor above that ground to ○○○○-gu, Daegu ○○○-dong (hereinafter “instant building”) to ○○○-gu, 273,273-1 (hereinafter “the instant building”). After having transferred 2,34,422,280 won (land 1,049,390,390,000 + building 1,295,032,280 won) as the standard market price on the 16th day of the same month, the Plaintiff filed a prior report on capital gains tax, but did not separately pay the value-added tax on the portion of the building.

B. Accordingly, the Defendant calculated the amount of value-added tax on the basis of KRW 1,210,00,00, which is the aggregate of the purchase price of the instant land and building under the sales contract attached to the prior declaration of transfer income tax. On November 8, 2001, the Defendant notified 15,619,300 won of value-added tax on KRW 594,851,208 (the Plaintiff paid the above amount and raised an objection thereto) (the Plaintiff did not raise an objection thereto). Since ○○ Commissioner of the National Tax Service did not regard the purchase price under the above sales contract as real transfer value, the value-added tax is imposed on the value of the building based on the standard market price at the time of transfer of the instant land and building, and on September 3, 2004, the Plaintiff issued a notice that value-added tax shall be imposed on the value of the building based on the standard market price at the time of transfer of the instant land and building, and additionally disposed of the value-added tax on KRW 700,181,294,208

C. On November 26, 2004, the Plaintiff appealed to the National Tax Tribunal, but was dismissed as of April 7, 2005.

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful in accordance with the relevant statutes and the grounds for the above disposition, and the plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) On April 22, 200, the Plaintiff leased the instant land and building to Kim○○, 100 million won, and monthly rent 3.9 million won. However, Kim○ concluded a donation contract with the Plaintiff to remove the existing building on the land among the land and the building and use it for eight years, and then donate the building to the Plaintiff. Since Kim○ did not pay the construction cost at once the construction contractor filed a lawsuit against the Plaintiff, the said contract was cancelled and the ownership transfer registration was completed on May 15, 2001 by transferring the instant land and the building to ○○○○ in KRW 1,210,000,000 and transferred the ownership transfer registration on the 16th of the same month. Accordingly, the transfer and transfer of the instant building to ○○○, a real owner of the instant building registered under the name of the Plaintiff in form, and the Plaintiff did not constitute a supply of goods and the instant building under the Value-Added Tax Act without any consideration.

(3) On May 7, 2001, the Plaintiff deposited KRW 1,105,440,000,000, out of the sales amount of KRW 1,210,000 under the sales contract for the instant land and building, and KRW 1,105,440,000, in each deposit account on May 19, 2001. Since the amount under the said sales contract is KRW 1,210,000,000, in the actual transaction amount of the instant land and building, the value of the instant land and building should be imposed pro rataly on this basis.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

The following facts are either disputed between the parties, or acknowledged by taking into account the whole purport of the arguments as stated in the evidence Nos. 2, 3, 4, and 5-1, 2, 6, 8, 10, 16-1, 3-3 through 6, 3-1, 5-2, 5-5, 6, 7-1, 28-1, 3-4 of the evidence Nos. 2, 2, 2, 2, 3-3 of the evidence Nos. 2, 2, 3-2, 3-2, 3-3, 3-2, 3-4, 3-1, 4-2, 4-2, 5-1, 5-2, 5-2, 1,

(1) On April 22, 200, the Plaintiff entered into a lease contract for the instant land and building with a deposit of KRW 100 million, and monthly rent of KRW 3,90,000,000, and Kim ○○ concluded a lease contract for the term of eight years, at his own expense, constructed a building of 850 square meters to be used as a wedding hall, etc. during the lease period on the instant land and transferred it to the Plaintiff free of charge, and preserve ownership in the name of the Plaintiff. Kim ○○ agreed that the transfer shall be made immediately without claiming the right to claim reimbursement of the cost incurred by the construction and maintenance of the building at the expiration of the contract period

(2) On May 16, 200, the Plaintiff obtained a construction permit for the instant building under its name. ○○○○○○○○○○○○ Construction Co., Ltd. concluded a new construction contract with 1,100,000 won for the instant building and its construction period, from May 22, 2000 to August 30, 200, the down payment amount of KRW 1,100,000 for the instant building, and KRW 140,000,000 for the construction period, and KRW 150,000,000 for the instant building, and KRW 150,000,000 for the instant construction from 10,000 to 150,000,000 for the instant building, and KRW 170,000 for 170,000,000 for the instant construction period, each of which was claimed by the Plaintiff to have been granted to ○○○○ Construction Co., Ltd.

(3) However, when ○○○○○○ could not pay the construction cost from time to time with respect to the new construction of the instant building, ○○○○○ Construction received a provisional attachment order of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○, the claim amounting to KRW 100 million on October 6, 200 with the Plaintiff as the third party obligor. As to the instant land and buildings, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, the claim amounting to KRW 206,00 on March 30, 201, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on April 20, 2001.

(4) When the dispute relating to the construction cost of the instant building continued to exist, the Plaintiff concluded a sales contract for the instant land and building with ○○○ Co., Ltd. on May 15, 2001, and entered into a special agreement with ○○○ and the instant land and building between ○○ and Kim○, on which the sales contract for the instant land and building was concluded and the remainder payment was made, the Plaintiff entered into any lease contract entered into between ○○ and ○○ and ○○

(5) On the other hand, the sales contract (No. 3-1) regarding the above transfer includes the land and building in the subject matter of sale under the sales contract (No. 3-1), and the sales price of the instant land and building is stated as KRW 1,210,000,000, without distinguishing the respective sales price of the instant land and building.

(6) After the Plaintiff transferred the instant land and building to ○○ Co., Ltd. on May 15, 2001, the Plaintiff filed for the transfer registration of ownership in the name of ○○ Co., Ltd. on May 16, 2001. On the same day, the Plaintiff voluntarily filed for the transfer income tax on the same day. As seen earlier, the transfer value of the instant land and building was 2,344,42,280 won (land 1,049,39,390, 390, 1,295,032,280 won) and paid KRW 146,464,100.

(7) Meanwhile, according to the financial statements of the business year 2001, ○○○○, Inc. that acquired the instant land and building, the value of the instant land and building was 2,547,60,904 won (land 1,351,976,000 won, building 1,190,585,554 won) and ○○ Co., Ltd. obtained a loan from ○○○○○○ branch of the Agricultural Federation on the instant land and building as security, and completed a registration of establishment of a collateral security with a maximum debt amount of KRW 3,510,000 with respect to the instant land and building.

(8) On January 11, 2001, the Plaintiff registered a real estate rental business, but filed a report on discontinuance of business as of May 15, 2001.

D. Determination

(1) Whether the supply of goods constitutes the supply of goods

According to Article 6 (1) of the Value-Added Tax Act, the delivery or transfer of goods on all contractual or legal grounds constitutes the supply of goods and thus becomes subject to value-added tax.

According to the above facts, it is reasonable to view that Kim○ used the building in this case for eight years and thereafter the Plaintiff acquired ownership from the date immediately after the construction of the building in this case and leased the building to Kim○○ for eight years. As seen earlier, the Plaintiff stated in the above sales contract that the Plaintiff transferred all of the land and the building in this case to ○○○, a disposal document, the Plaintiff paid the transfer income tax for the transfer of the land and the building in this case, and the Plaintiff’s assertion that the value of the land and the building should be divided divided in proportion to the sale price based on the sales price of KRW 1,210,000,000, even according to the Plaintiff’s assertion. In full view of these facts, it is reasonable to view that the Plaintiff completed the registration of preservation of ownership as the owner of the building immediately after the construction of the building in this case and transferred it to ○○○, Inc. for consideration. Thus, the transfer of the building in this case constitutes the supply of goods.

(ii)the value as a basis for calculating the amount of tax;

In the instant case, since it is unclear that the actual transaction price of the instant land and building is to be divided, each value should be calculated according to the standard market price. As to whether the purchase price under the said sales contract can be recognized as the actual transaction price, as seen earlier, the Plaintiff transferred the instant land and building, and reported and paid the transfer income tax by the standard market price. The standard market price at the time of transfer is 2,344,422,280 won (land 1,049,39,390, 1,295,032,280 won) and the 1,100,00,000,000,000 or 2,000 won under the original contract price at the time of the new construction of the instant building, which is 1,60,80,000,800,0000 won or more as the actual transaction price at the time of the initial construction of the instant building, 305,005,000 won or more as the real property value of the instant building, 205,3014,505.

(3) Conclusion

Therefore, each of the above arguments by the plaintiff on the premise that the transfer of the building of this case does not fall under the supply of goods or that the actual transfer value of the building of this case is KRW 594,851,208 is without merit, and the disposition of this case by the defendant is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Thus, 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.

[Supreme Court Decision 2007Du4636 (Law No. 04.03)]

1. The appeal is dismissed.

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

It is so decided as per Disposition by the assent of all participating Justices on the bench, in accordance with Article 8 of the Administrative Litigation Act, Article 429 of the Civil Procedure Act, and Article 5 of the Act on Special Cases Concerning the Procedure for Appeal, since the petition of appeal filed by the Plaintiff does not contain any