[1] Requirements for real estate transactions falling under real estate transactions, which are taxation requirements for value-added tax

[2] Whether it constitutes a national housing exempt from value-added tax where a building which has undergone a completion inspection as a neighborhood living facility is remodeled into a house of national housing size without permission for alteration of use (negative)

[3] In a case where a taxpayer transfers a building and voluntarily pays a transfer income tax and then recognizes it as a real estate sales businessman and imposes a value-added tax, whether it constitutes double taxation (negative)

[1] Whether a real estate transaction constitutes a real estate trading business, which is a taxation requirement of value-added tax, should be determined in light of social norms by considering whether the transaction is conducted for profit, and whether the transaction has continuity and repetition to the extent that it can be seen as a business activity in light of its size, frequency, mode, etc., and the case where a real estate transaction can be seen as a real estate trading business is merely an example, and thus, as long as the real estate transaction has continuity and repetition under the overall business purpose, it does not deny the business feasibility of the transaction during the pertinent taxable period even if the transaction was conducted, even if it does not reach the number of

[2] A national housing exempt from value-added tax under Article 74 (1) 1 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4451 of Dec. 27, 1991) shall not be deemed a national housing exempt from value-added tax under the above provision, even if its area constitutes a national housing scale, if it falls under a national housing with no permission for use alteration after obtaining a construction permit for at least the purpose of the housing in light of its purpose, etc.

[3] Since long as a taxpayer is an entrepreneur who supplies goods under Article 2 (1) of the Value-Added Tax Act, the taxpayer is obligated to pay the value-added tax separately from the income tax on the income from the transfer of the building. Thus, even if a snow agency rendered a disposition imposing the capital gains tax on the transfer of the building, it may be deemed that the disposition imposing the capital gains tax is erroneous as the capital gains tax, but the disposition imposing the value-added tax on the transfer of the building cannot be deemed unlawful as the double taxation disposition.

[1] Articles 1(1) and 2(1) of the Value-Added Tax Act, Article 2(1)5 of the Enforcement Decree of the Value-Added Tax Act, Article 1(1) of the Enforcement Decree of the Value-Added Tax Act / [2] Article 74(1)1 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4451 of Dec. 27, 191), Article 3 subparag. 1 of the Housing Construction Promotion Act / [3] Article 51 of the Framework Act on National Taxes, Article 1(1) and Article 2(1) of the Value-Added Tax Act, Article 19(1)12 of

[1] Supreme Court Decision 95Nu1170 delivered on March 3, 1995 (Gong1995Sang, 1640), Supreme Court Decision 95Nu92 delivered on November 7, 1995 (Gong1995Ha, 3941), Supreme Court Decision 95Nu10969 delivered on February 23, 1996 (Gong196Sang, 1150) / [2] Supreme Court en banc Decision 93Nu7075 delivered on August 24, 1993 (Gong193Ha, 2671), Supreme Court Decision 93Nu1367 delivered on March 8, 194 (Gong194, 1212), Supreme Court Decision 95Nu5939 delivered on December 94, 1994 (Gong194 and 1212)

Plaintiff (Law Firm Gwangju, Attorneys Kim Tae-ho et al., Counsel for the plaintiff-appellant)

Head of Seodaemun Tax Office

Seoul High Court Decision 95Gu31692 delivered on May 29, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

On the second ground for appeal

Whether the transaction of real estate constitutes a real estate trading business, which is a taxation requirement of value-added tax, shall be determined in light of social norms, considering whether the transaction is for profit, and whether the transaction is continuous and repeated to the extent that it can be seen as business activities in light of its size, frequency, mode, etc., and as such, Article 1(1) of the Enforcement Rule of the Value-Added Tax Act is merely an exceptional provision that can be seen as a real estate trading business, and so long as the real estate transaction as a whole has continuity and repetition under its business purpose, it does not deny the feasibility of the transaction during the pertinent taxable period (see, e.g., Supreme Court Decisions 94Nu1170, Mar. 3, 1995; 95Nu10969, Feb. 23, 1996).

In light of the records, even if the plaintiff's disposal of the building of this case was done with pressure on funds, in light of the fact that the building of this case was newly constructed and the whole floor of the building of this case was transferred to another person only three months, and that the plaintiff did not use the part of the building of this case, it is reasonable to view that the building of this case was newly constructed for the purpose of direct use by the plaintiff, and that it was transferred the land and the building of this case with continuity and repetition to the extent that it can be viewed as business activities under social norms, and therefore, the plaintiff is a business operator who independently supplied the goods of this case under Article 2 (1) of the Value-Added Tax Act, and there is no violation of law such as theory of lawsuit. The argument

On the first ground for appeal

National housing exempt from value-added tax under Article 74 (1) 1 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4451 of Dec. 27, 1991), in light of the purpose of the above law, etc., it constitutes at least a building constructed for a housing purpose by obtaining a building permit lawfully and completing the completion inspection after obtaining a building permit for a neighborhood living facility as in the case of this case, and in case of remodeling into a house without obtaining permission for change of purpose of use, it cannot be deemed a national housing exempt from value-added tax under the above provision, even if the area of the house constitutes a national housing scale. The judgment of the court below to the same purport is just, and there is no violation of law such as the theory of lawsuit.

On the third ground for appeal

As long as the Plaintiff is an entrepreneur who supplied goods under Article 2 (1) of the Value-Added Tax Act, it is reasonable that he is obligated to pay the value-added tax separately from the income tax on the income from the transfer of the building of this case. Thus, even if the Defendant rendered a disposition imposing the capital gains tax on the transfer of the building of this case, it may be deemed that he erred by imposing the capital gains tax on the imposition of the business income tax, but the disposition imposing the value-added tax of this case cannot be deemed unlawful

Therefore, even if the court below omitted the judgment on the argument of the lawsuit, since the above argument is not acceptable, the illegality of the judgment of the court below is not affected by the conclusion of the judgment. There is no reason for the discussion.

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

Justices Lee Yong-hun (Presiding Justice)