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(영문) 대구지방법원 2019. 05. 16. 선고 2018구합1147 판결
고정자산(부동산) 양도계약서와 별도로 임의구분하여 병원영업권 매매계약서를 작성하였다 할지라도 고정자산과 함께 양도된 영업권에 해당됨[국승]
Title

In addition to the transfer contract for fixed assets (real estate), even if the contract for hospital business license was prepared separately from the transfer contract for fixed assets, it is the business right transferred along with the fixed assets.

Summary

It is difficult to view that the Plaintiff transferred the instant fixed assets (real estate) and the instant goodwill separately due to the fact that the purchaser of the hospital business license and the instant contract for transfer of fixed assets (real estate) were different and entered into.

Related statutes

Articles 94 and 21 of the Income Tax Act

Cases

2018Guhap1147 Revocation of Disposition of Imposing capital gains tax

The transfer value of the goodwill was determined as KRW 500,000,000.

On October 00, 2015, the transfer contract of this case was concluded by embodying its contents.

The above sales contract of this case and a series of procedures, circumstances, and documents entered into by the transfer contract of this case

In full view of the use, purpose, etc., the instant goodwill is a fixed asset for business of the instant hospital.

It conforms to social norms to view that the instant real estate was transferred together with the real estate.

3) In light of Paragraph (2) of the instant special terms and conditions of the sales contract, the term “if the permission for the establishment of hospital is known

The transfer contract of this case is destroyed and entered into at the time of conclusion of the transfer contract of this case.

§ 8(4) of the "Contract for Comprehensive Transfer or Acquisition of Business Rights" prepared shall not be established by a medical institution.

The contract shall be automatically reversed, and the plaintiff shall immediately refund all the amounts received from the regularCC.

in addition, the same content of the contract of this case and the transfer contract of this case are written.

The operation of the instant hospital, which is a doctor, after the conclusion of each of the above contracts, shall be determined.

It is premised on the fact that it will be done formally.

In such circumstances, the instant real estate subject to the instant sales contract and the instant transfer contract

The instant goodwill is an asset necessary to operate the instant hospital, which is subject to the instant goodwill.

A special company that is required to separately trade the real estate of this case and the business rights of this case.

There is no finding of fact that there is no finding of the fact that there is a joint purchaser of the sales contract of this case, and the couple and the couple of JeongD.

In addition, the Plaintiff’s business right of this case together with the real estate of this case is integrated.

It shall be deemed that the transfer was made, and the purchaser of the instant sales contract and the instant transfer contract are different.

Only because a separate contract was concluded, the Plaintiff’s real estate and the instant goodwill

It is difficult to view that the transfer was made separately.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Plaintiff

AAA

Defendant

BB Director of the Tax Office

Conclusion of Pleadings

April 18, 2019

Imposition of Judgment

May 16, 2019

Text

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of capital gains tax of KRW 172,518,480 for the Plaintiff on October 0, 2017 is revoked (the date of disposition is written as " October 0, 2017, but it appears that the date of disposition is written as "O. 0.0") by the defendant of the Gu office.

Reasons

1. Details of the disposition;

A. On October 0, 2012, the Plaintiff acquired an OOOOOO-dong 595-11 large scale 658.9 square meters and its ground (hereinafter “instant real estate”) and operated an OOOO convalescent hospital (hereinafter “instant hospital”).

B. On October 0, 2015, the Plaintiff entered into a contract to sell the instant real estate and the instant parking lot site (OOOOOO-2 site 66m2) in a total of KRW 3,000,000,000 (hereinafter “instant sales contract”) with regularCC (5/100 shares) and DoD (45/100 shares) (hereinafter “instant sales contract”) and completed the registration of ownership transfer on October 0, 2015. On October 00, 2015, the Plaintiff entered into a contract to transfer all business rights, including financial resources for the operation of the instant hospital, personnel, medical equipment, and house fixtures (hereinafter “instant sales right”).

D. On October 00, 2016, the Plaintiff reported and paid KRW 137,785,615 of the transfer income tax on the instant real estate. Considering the price for the transfer of the instant goodwill as other income, the Plaintiff filed a return and paid on October 0, 2016 when filing a final return on global income tax for the year 2015.

E. On October 0, 2017 through October 0, 2017, the J commissioner of the J Regional Tax Office determined that the instant goodwill was transferred along with the instant real estate, which is a business fixed asset, pursuant to Article 94(1)4(a) of the former Income Tax Act (amended by Act No. 13558, Dec. 15, 2015; hereinafter “former Income Tax Act”), and notified the Defendant of the imposition of capital gains tax by adding the transfer value of the instant goodwill to the sales value of fixed assets for business. On October 0, 2017, the Defendant corrected and notified the Plaintiff of capital gains tax of KRW 172,518,480 (hereinafter “instant disposition”).

F. The Plaintiff filed an objection against the instant disposition, but the said objection was dismissed on October 0, 2017. The Plaintiff filed a request with the Commissioner of the National Tax Service for the examination on October 0, 2018, but was dismissed on October 0, 2018.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2 through 6, 12 (including each number; hereinafter the same shall apply), Eul evidence 1, 2, and 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant sales contract and the instant transfer contract are different from the purchaser, and the Plaintiff transferred the instant sales right separately from the instant real estate, which is the fixed assets for business, through a separate contract. Thus, the instant sales right does not constitute the “business right transferred along with the fixed assets for business” under Article 94(1)4(a) of the former Income Tax Act.

Therefore, the instant disposition taken on the premise that the instant goodwill falls under Article 94 (1) 4 (a) of the former Income Tax Act shall be revoked as it is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

In full view of the above evidence and evidence No. 1-1, No. 3-4, and the overall purport of the arguments, the following facts can be acknowledged.

1) On July 17, 2015, the Plaintiff entered into a contract to sell the instant real estate in KRW 3.2 billion with DozD, and on the same day, concluded a contract to transfer the instant business rights with HaCC.

2) On October 0, 2015, the Plaintiff concluded the instant sales contract with regularCC and DoD to invalidate the sales contract as of October 00, 2015, and to sell the instant real estate, etc. to regularCC and DozD for KRW 3 billion. Paragraph (2) of the said special terms and conditions of the sales contract state that “if the permission for the establishment of a hospital was known only on the day when the permission for the establishment of a hospital was granted, the contract shall be reversed and all amounts shall be refunded.”

3) On October 0, 2015, the date of the conclusion of the instant sales contract, the Plaintiff prepared an additional contract for transfer and acquisition with the content that sets forth the amount of transfer of business rights of this case as KRW 500 million in the attached Form of the contract for transfer and acquisition of business rights of this case as of October 00, 2015. Paragraph (5) of the said contract for transfer and acquisition stated that “if the hospital is not established under the name of the assignee, all the amount the Plaintiff received shall be returned and the contract shall be reversed.”

4) On October 0, 2015, the Plaintiff entered into the instant transfer agreement with the FixedCC, and prepared a comprehensive transfer/acquisition agreement with the Plaintiff, and the main contents of the said agreement are as follows.

"A" and "B" agree to transfer all hospital business rights, including financial resources, personnel, medical equipment, and office fixtures, to B with respect to the operation of the OOO convalescent hospital operated by A, and conclude this Agreement.

1) All business rights in the OO care hospital operated by A, 595-11 located in the OO care hospital operated by A

2) Succession to patients of an OO convalescent hospital hospitalized or treated as of the date of this contract

3) Succession to the employee working in an OO convalescent hospital: Provided, That employees who do not succeed by agreement between A and B shall be excluded.

(d) All of the assets necessary for the operation of the hospital, including medical equipment and office fixtures in the OO convalescent hospital;

5) The date of transfer of all tangible and intangible assets and rights necessary for the operation of a hospital, the ownership of which is owned by an OO convalescent, shall be October 0, 2015, and as of this date, shall conduct business registration so that B may obtain a certificate of establishment of a medical institution and make it possible for B to register its business. (Postm)

Article 5 (Transfer and Acquisition Price and Method of Payment)

1) Prices for all goodwills are KRW 500,000,000,000,000.

2)The down payment shall be KRW 200,000 (200,000) and shall be paid simultaneously with the contract.

3) Of the remainder, daily billion (100,000,000) out of the remainder shall be paid upon the completion date of the business registration by Eul with the completion date of its establishment.

4) The final remainder of this billion won (200,000,000) shall be paid after Gap fully repaid all the obligations arising from the operation of the hospital.

Article 8 (Other Matters)

4) If it is impossible to establish a medical institution of Eul, this contract shall be automatically reversed and promptly refunded all amounts received from Eul. 5) This contract shall confirm that the contract is null and void if it is written prior to the re-preparation under the agreement between Gap and Eul.

In full view of the following circumstances revealed by the above facts and the purport of the entire argument, it is reasonable to view that the Plaintiff transferred the instant goodwill along with the instant real estate, which is fixed assets for business. Therefore, the instant disposition taken on the premise that the instant goodwill falls under Article 94(1)4(a) of the former Income Tax Act is lawful.

1) Article 94(1)4(a) of the former Income Tax Act provides that "income generated from the transfer of business rights transferred along with fixed assets for business shall be capital gains, and does not separately evaluate the above business rights, but includes "business rights recognized as transferred along with assets included in social norms". In addition, Article 41(3) of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 26982, Feb. 17, 2016) provides that "business rights transferred along with fixed assets for business under Article 94(1)1 and 2 of the Act shall not be included in the business rights under Article 21(1)7 of the Act, which are subject to other income.

2) On October 0, 2015, the Plaintiff entered into a contract to sell the instant real estate, which is a business fixed asset of the instant hospital, with the Defendant’s wife, and entered into a contract to transfer the instant business right with the Defendant on the same day. On October 0, 2015, the Plaintiff entered into the instant sales contract by changing the instant real estate purchaser into CategoryD and SCC to CategoryD and SCC, and on the same day, the instant sales contract was concluded on the same day.

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