Whether it constitutes a comprehensive transfer of business

In addition to the food service room part, the beauty service room part, and the restaurant part have been operated as a single food service place, and the actual operator only has lent his/her name and registered his/her business, and therefore it is reasonable to deem that he/she transferred his/her identity, physical facilities, and rights and duties to the buyer.

Article 6 (Supply of Goods)

1. Revocation of a judgment of the first instance;

2. The defendant shall revoke the disposition of imposition of value-added tax of 238,993,545 won for the first period of 2003 against the plaintiff on January 17, 2004.

3. All costs of the lawsuit shall be borne by the defendant.

We examine the grounds of appeal.

1. Basic facts

A. The Plaintiff owned a building of 580.2 square meters in ○○-dong ○○○○○-dong ○○○○-dong ○○○○-dong ○○○-dong ○○○○-dong 1,783.5 square meters in ○○-dong ○○-dong ○○○-dong 1,783.5 square meters in ○○-dong ○○-dong ○○-dong 787.4 square meters in ○-dong ○○-dong 787.4 square meters in ○ and 5 stories in ○-dong ○○-dong 197

B. On December 29, 2002, the Plaintiff entered into a contract for business transfer/acquisition with the content that ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s business and total amount of its assets and liabilities, that guarantees the continuous work of employees prior to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s business transfer/acquisition with the content that a separate contract shall be based on a separate contract. On December 30, 202, the Plaintiff entered into a contract for the acquisition of real estate transfer/management with the content that the Plaintiff used the instant land and buildings (the instant building as a wedding place as seen below, including the parts used as a wedding place), and that the Plaintiff used the instant building as a restaurant and beauty room.

C. At the time of the instant contract for the transfer of business, the part of the instant building, which is used as a wedding place, was registered as the Plaintiff with the trade name of the Plaintiff; the part used as a beauty art room, as the trade name of the Plaintiff; the part used as a beauty art room, as the business registration with the business operator ○○; the part used as a restaurant, as the business registration with the business operator ○○; and the trade name of the part used as the restaurant, as the business operator ○○.

D. In accordance with the instant contract for business transfer, the Plaintiff closed his business on January 10, 2003 (the same day, ○○○○ Office, and ○○ Pondo, respectively). On the same day, ○○○○ succeeded to the employment of nine workers among 11 employees working at the ○ P on the instant place.

E. On January 17, 2004, the Defendant issued a disposition to impose and notify the Plaintiff of KRW 427,557,210 as the value-added tax for the first period of 2003 on the ground that the Plaintiff transferred the instant building and the facilities and fixtures installed in the instant building to yellow○, as described in the foregoing paragraph B.

F. On March 31, 2004, the Plaintiff filed an appeal with the National Tax Tribunal on the above disposition. On July 5, 2005, the National Tax Tribunal rendered a decision that the Plaintiff excluded the area used as a wedding among the buildings of this case from taxable items on the ground that the area used as a wedding and its facilities and equipment fall under the “transfer of business” under Article 6(6) of the Value-Added Tax Act, and determined that the taxable amount and the tax amount should be corrected and the remaining claims should be dismissed. Accordingly, on July 20, 2005, the Defendant calculated only the parts used as a beauty room and restaurant among the buildings of this case and the facilities and parts installed therein (hereinafter referred to as the “taxable goods of this case”) as the subject of the imposition value assessment and deducted the value-added tax stated in the above paragraph from 238,93,545 won (hereinafter referred to as the “disposition disposition of this case”).

In addition to the grounds for recognition, Gap evidence 1 through 4, evidence 5-1 through 4, evidence 6 through 14, evidence 24-6 through 14, evidence 1, Eul evidence 2-2, evidence 6, evidence 7-2, evidence 7-3, Eul evidence 9-3, the whole purport of argument

2. Whether the instant disposition is lawful

A. The parties' assertion

During that period, the plaintiff has operated a wedding room as well as a wedding room, beauty room, and restaurant as well as all of these parts in the building of this case. They are not divided into two parts, and they are placed only in the plaintiff's business registration for convenience, so the transfer of goods subject to taxation of this case constitutes "transfer of business" under Article 6 (6) of the Value-Added Tax Act and "supply of goods" cannot be viewed as "transfer of goods" under Article 6 (6) of the Value-Added Tax Act, so the defendant asserted that the disposition of this case is unlawful. As the plaintiff has leased the taxable building of this case to ○○○ and ○○○○, respectively, and ○○, operated "○○, ○○, ○○," and therefore, the plaintiff's transfer of goods subject to taxation of this case to ○○○, not "transfer of business."

B. Determination

(1) According to Article 6(6) of the Value-Added Tax Act, where the transfer of the business falls under the “transfer of the business” (Article 6(6) of the same Act, the sale of the goods shall not be deemed the “transfer of the business.” As long as the transfer of the goods subject to taxation of this case falls under

(2) The plaintiff asserts that he engaged in the wedding business including the beauty room part and the restaurant part in the building of this case. Thus, the following facts can be acknowledged in full view of the whole purport of the argument of this case in relation to the witness Gap's testimony of this case, Gap's 6, 7, 8, 10, 11, 13, Gap's 9-1 through 3, Gap's 12-1 through 10, Gap's 14-1 through 14, Gap's 24-1, Gap's 25-2, Eul's 26-2, Eul's 26-6, Eul's 3-2, Eul's 4-2, Eul's 4-2, Eul's 4-2, and witness's testimony of this case.

(A) The instant building is used as a wedding hall with a total of 1319.05 square meters of the first and second floors, and the remainder of 1,2 and 3, and 40 square meters of the total of 4593.73 square meters for restaurant, etc.

(B) At the time of the transfer of the instant business, ○○○○○○○○○○○○○, ○○○○○○○○○, and ○○○○○○○○○○, as seen above, closed the business on September 10, 200, 1997, ○○○○○○○○○○○○○○○○○○ 2, as the representative of the Plaintiff’s 2, which was the 1st 0th 2nd 1st 1st 6th 1st 2nd 1st 2nd 1st 2nd 1st 2nd 1st 2nd 1st 2nd 1st 3st 2nd 1st 200, and 1st 2nd 1st 2nd 1st 3th 2nd 1st 200, the Plaintiff’s 1st 2nd 1st 1st 3rd 195th 1st 1st 200.

(C) Each sales amount reported in 2002 by the above business establishment is 453,086,609 won, 396,879,090 won, and 23,500,000 won.

(D) The head of ○○ Arts hall: (a) the user of the wedding hall smokes from the wedding hall to the wedding hall; (b) at the rate of 50% of the wedding expenses when marked a wabing photo; and (c) all wedding equipment, beauty art expenses, photographic expenses, and food expenses were calculated in a lump sum and received the payment; and (d) the Plaintiff paid KRW 112,110,000 for the food material expenses purchased from the wedding hall (cafeteria portion) from October 2002 to December 2002 to the bill and check issued by himself.

(E) According to each real estate lease agreement reported to the Defendant tax office under the name of ○○○ and ○○○○○○, the terms and conditions of the ○○unused room did not amount to KRW 50,000,000,000,000,000,000 won.

(F) On the other hand, the wedding hall generally raises a lot of profits by using food strawls, shoes equipment, dice rental fee, and photographic tape instead of the wedding hall rental and service cost.

(3) According to the above facts and the above facts, all of the business titles having a place of business in the building of this case are the plaintiff's relatives or zines, the business operator's change is frequent, the business period is short, the terms and conditions of use of ○○○○ and ○○ pon are the small amount in light of the amount of the transfer price of the business of this case, the area of each business part in the building of this case's business, the size of sales reported in 2002, etc. The contents of the business transfer contract of this case's business transfer contract of this case's business transfer contract of this case's ○○ and ○○○○○ and ○○○ are deemed to have not raised any objection to the contract of this case's transfer of business, and the part of the business of this case's 00 and 5 ○○ and ○○ are deemed to have not been able to be able to be recognized as having been separately paid to the user of this case's business, and the part of the business of this case's 4 e-type and etype.

Therefore, the goods subject to taxation of this case are part of the Plaintiff’s business property operated by the Plaintiff, and on the other hand, the Plaintiff’s transfer of personal, physical, and rights and duties, including the goods subject to taxation of this case, to ○○○○○ upon entering into the business transfer contract of this case, is identical to the facts found in the above basic facts. Thus, the transfer of the goods subject to taxation of this case constitutes the transfer of business under Article 6(6) of the Value-Added Tax Act.

(4) The Defendant: (a) prepared a false lease contract and made a business registration; and (b) in particular, when the Defendant visiting the Plaintiff’s workplace to investigate whether the Plaintiff’s false name was false, the Plaintiff made an investigating official believe it by preparing and presenting a receipt, etc.; (b) asserted that denying the lease of this case, which is subject to the instant disposition, is not permissible as violating the principle of good faith.

In addition, in order to apply the principle of good faith to taxpayers, there is an objectively contradictory behavior, the behavior was derived from the taxpayer's severe acts of worship, and the trust of the tax authority resulting therefrom should be worth being protected. Thus, the application of the principle of good faith to the tax entity law that has a strong legal nature under the principle of no taxation without law shall be allowed only when it is recognized that the protection of specific trust is necessary, even if it sacrifices the legality (see Supreme Court Decision 2005Du6300, Jan. 26, 2006).

Although the plaintiff made a false business registration under the name of ○○ and ○○○○, and the defendant submitted a letter, receipt, etc. in investigating whether the plaintiff's false business registration under the name of ○○○ and ○○○○○, it is difficult in fact to separately lease only the part of the restaurant in the wedding place and separately lease it to another person, in light of the following: (a) high ○○○ is the plaintiff's dynamics of the plaintiff; (b) the terms and conditions on the lease agreement submitted by the plaintiff are too small compared to the size of the restaurant in the ○○○○○○○○○○○○○○, and (c) the terms and conditions on the lease agreement submitted by the plaintiff were too small compared to the size of the restaurant in the wedding place; and (d) it is difficult to say that the defendant with the right

C. Sub-decision

Therefore, the instant disposition based on the premise that the transfer of taxable goods falls under the supply of goods is unlawful.

3. Conclusion

Therefore, the claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance which has different conclusions is unfair, and it is so decided as per Disposition by the assent of all participating Justices.