The legitimacy of the assertion that the remaining goods may not be deemed the supply by a person upon closure of the business

Even if a criminal act, such as fraud embezzlement, was committed by forging the name, such circumstance alone cannot be deemed a real business owner. The discontinuance of the business shall be determined by the substance regardless of registration or reporting under the law, and the transfer of the business after the closure of the business cannot be deemed a comprehensive transfer or acquisition.

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

All of the records of this case and the judgment of the court below and the grounds of appeal were examined, but it is clear that the appellant's grounds of appeal fall under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal and therefore, the appeal is dismissed under Article 5 of the Act. It is so decided as per Disposition by

[Seoul Administrative Court 2005Guhap41044, July 13, 2006]

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 shall revoke the disposition of imposition of value-added tax of KRW 308,334,820 for the second period of 201 against the plaintiff on March 8, 2003.

1. Details of the disposition;

1. The reasoning of the judgment of the court on this case is as stated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except for the following modifications and additions, thereby citing the reasoning of the judgment of the court of first instance.

(a) The grounds for the judgment of the court of first instance shall be deleted in paragraphs 2-a. (3) (Articles 10 through 16) and 2-d. (3) (Articles 9-7 through 10-7) respectively;

(b) The reasons for the judgment of the court of first instance shall be as follows: "(1)(4)" shall be as "(3)"; and "(4)" shall be as "(3)" shall be amended as "(3)".

(c) The reasoning for the judgment of the court of first instance shall be amended to "the defendant map" (No. 10 pages 21) in the part of paragraph 6 of Article 2-D. (4) to "the plaintiff map" and the following judgments shall be added to the last part of the above paragraph 2-D.

"On the other hand, the plaintiff transferred the building of this case and its business site and business permission right within a short period after its business registration was cancelled, and this is a series of processes conducted for the same purpose as the disposition or reorganization of the business. Thus, the building of this case cannot be deemed to constitute remaining goods upon closure of the business under the Value-Added Tax Act or to be supplied to the business operator. Thus, the plaintiff's cancellation of the business registration on July 6, 2001 is not for transferring the business of this case to ○○○, etc., but for preventing the continuous operation of ○○, etc., and the transfer or acquisition contract with ○, etc. was not concluded at the time of the closure of the business, and the contract was concluded with ○○, etc. on June 13, 2001 (Evidence No. 16).

(d) The reasons for the judgment of the first instance shall be as follows, Article 2-2-4 (d) (4) (5 to 19) (11 pages 5).

“(C) Even if the Plaintiff did not discontinue his business on July 6, 2001, the transfer of the instant building for the following reasons does not constitute a transfer of business that does not constitute a supply of goods under the Value-Added Tax Act.

Article 17(2) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 19169, Feb. 9, 2006) provides that the transfer of a business shall not be deemed a transfer of the goods. Article 6(6)2 of the former Enforcement Decree of the Value-Added Tax Act provides that "All rights and obligations relating to the business shall be comprehensively succeeded to by workplace (including a division which meets the requirements under Article 46 (1) of the Corporate Tax Act, but excluding a case where a general taxable person transfers a business to a simplified taxable person)," and the purport of the provision that the transfer of a business shall not be deemed a supply of the goods, and the transfer of the business shall not be deemed a supply of the value-added tax, which provides that the transfer of the business shall not be deemed an essential nature of the supply of the value-added tax which provides for individual supply of the goods, and further, it shall be deemed that the transferee is more than 200,000 input tax amount without exception and that it shall be deemed as a comprehensive transfer of the goods or property under 2000.1.

However, in the case of Park○, among those who take over the business of this case, business registration was made as a simplified taxable person on September 1, 2001, and on the other hand, the business attitude and type of business (the funeral and graveyard management) of Park○○ does not fall under the criteria for the exclusion of simplified taxation by the National Tax Service (the National Tax Service Notice No. 2001-18, No. 27). Therefore, it cannot be deemed that there was any error by the relevant tax authority regarding the receipt of business registration as a simplified taxable person upon the application of Park○○. Accordingly, the transfer and acquisition of this case from among those taken over cannot be deemed as falling under the grounds for exclusion under Article 17 (2) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 19619, Feb. 9, 2006).

In this regard, the plaintiff argues that it is unfair to deny the comprehensive business transfer transaction already completed solely on the grounds that the transferor has an unexpectedly occurred in the territory of the transferee or the tax authority after the transfer of business to a simplified taxable person at the time of the transfer of business, and that the transferee who did not register as a simplified taxable person at the time of the transfer of business is not subject to the non-taxation of the value-added tax, and that the provision of Article 17 (2) of the former Enforcement Decree of the Value-Added Tax Act is applied to the transfer of business as of the end of the taxable period of the value-added tax to which the transfer of business belongs (see Supreme Court Decision 2004Du10593, Dec. 10, 2004; Supreme Court Decision 2004Du10593, Dec. 10, 2004).

On the other hand, in the case of ○○, business registration is made as a general taxable person, but such registration is made on July 1, 2002, different from the time when the transfer or acquisition of this case belongs to the taxable period, and it is difficult to view that the Plaintiff comprehensively succeeded to the Plaintiff’s business without maintaining the continuity of the business. Thus, even based on ○○, it does not constitute a transfer of business that does not constitute a supply of goods as stipulated

2. If so, the plaintiff's claim of this case shall be dismissed without any ground. The judgment of the court of first instance shall be just and the plaintiff's appeal shall be dismissed as it is without merit. It is so decided as per Disposition.