Incheon District Court-2017-Gu Partnership-293 (2017.08)

If the plaintiff has continuity and repetition to the extent that it can be seen as business activities under social norms, it is deemed that the plaintiff engaged in real estate sales business.

It is reasonable to view that the Plaintiff engaged in real estate sales business by making real estate transactions with continuity and repetition to the extent that it can be seen as business activities under the social norms.

Article 1 of the Enforcement Rule of the Value-Added Tax Act

Seoul High Court-2017-Nu-76212 ( March 27, 2017)

○ Oba

△△△ Director

March 6, 2018

March 27, 2018

1. The plaintiff's appeal is dismissed.

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

Cheong-gu Office

The decision of the first instance court is revoked. The defendant confirmed that each disposition of value-added tax of 30,294,370 won against the plaintiff on August 8, 2003 and 67,905,560 won on global income for the second term of 1999 is null and void.

1. Quotation of judgment of the first instance;

The reasoning for the judgment in this case is as stated in the reasoning for the judgment of the court of first instance, except for the following parts and any additional part, thereby citing it in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ The judgment of the first instance court shall be sub-consumed by '2' under the second bottom of the judgment, and it shall be sub-consumed by 'the principle of no taxation without law as it is based on the former Enforcement Rule of the Value-Added Tax Act, not by law.'

○ 제1심 판결서 5쪽 4행 '상당하다' 다음에 아래 내용을 추가한다.(원고는 인천 남동구 ∇∇동 423-15 건물의 양도는 사업의 포괄적 양도・양수에 해당하여 부가가치세 과세대상이 아니라고도 주장하나, 앞서 본 바와 같은 원고의 부동산 양수 및 양도 경위에 비추어 보면 위 건물 또한 원고가 부동산매매업을 영위하면서 거래한 대상이라고 봄이 상당하므로, 위 주장은 받아들일 수 없다)

The part of the judgment of the first instance court 5 to 6 'the first instance court 2' shall be deleted, and the following shall be added at the last sentence of the five main text:

Article 1(1) of the former Enforcement Rule of the Value-Added Tax Act (including the case of new construction and sale of a building) provides that the disposition of this case is a disposition of invalidation that violates the principle of no taxation without the law because it is based on Article 1(1) of the former Enforcement Rule of the Value-Added Tax Act [the case of selling real estate (including the case of new construction and sale of a building) or its brokerage for the purpose of business, or real estate is sold at least once during one taxable period, and at least twice, it shall be deemed to be engaged in real estate sales business]. However, Article 1(5) of the former Value-Added Tax Act (amended by Act No. 6049 of Dec. 28, 199; hereinafter the same shall apply] delegates necessary matters concerning the scope of goods and services subject to taxation to the Presidential Decree. Accordingly, Article 2(1)5 proviso of the former Enforcement Rule of the Value-Added Tax Act provides that Article 1(1)5 of the former Enforcement Rule of the Value-Added Tax Act shall not be deemed to be a case of this case 197.

○ The judgment of the first instance court will not be called ‘the last 'n' of the 6th main text.

○ The following shall be added to 7th written judgment of the first instance court (6th 11th referring).

Meanwhile, the Plaintiff asserts that the portion of global income tax in this case’s disposition should be deemed as the transfer value of real estate, and that it was estimated by applying the simple expense rate of real estate sales business, and thus, it is reasonable to be null and void in violation of the underlying taxation principle stipulated under Article 16 of the Framework Act on National Taxes and Article 80(3) of the Income Tax Act. However, there is insufficient data to acknowledge the Plaintiff’s above assertion, and it cannot be deemed that the above defect is serious and obvious

2. Conclusion

Therefore, the judgment of the first instance court is justifiable, and the plaintiff's appeal is dismissed as it is without merit.