It is legitimate to collect the input tax amount already deducted in the event that the contract is canceled even though the business assets are acquired comprehensively.

If the contract is cancelled after the comprehensive acquisition of office officetels, it is legitimate to impose the input tax amount deducted by the former owner.

Article 6 (Supply of Goods)

2016-Gu Partnership-64740 Revocation of the imposition of value-added tax

AA

O Head of tax office

oly 2016.17

2016.28

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The disposition taken by the Defendant against the Plaintiff on April 8, 2014 by the division of the value-added tax ○○○○, and ○○○○○○ on February 2008 shall be revoked.

1. Details of the disposition;

A. On December 20, 2007, KK received from SSS Co., Ltd. (hereinafter “SS”), ○○○○○○○○○ and 1618 (hereinafter “instant real estate”) on the parcelling-out price, and agreed as follows (hereinafter “instant parcelling-out contract”). On April 30, 2008, KK registered the real estate rental business.

B. KK paid the first down payment of KRW 42,60,000 among the sale price of the instant real estate, and paid KRW 255,600,000 in total with the second down payment of KRW 42,60,000 and the intermediate payment of KRW 255,60,000 after obtaining a loan from the foreign exchange bank (hereinafter “instant loan”).

C. On May 22, 2008, the Plaintiff acquired the status of the purchaser of the instant real estate from KK in the price of KRW 426,750,000 from KK, and entered into a real estate sale contract (hereinafter “instant contract”) with the following contents (hereinafter “instant contract”).

D. Meanwhile, on the ground that the acquisition of the instant real estate on May 30, 2008 constituted the acquisition of the fixed assets for business, KK was refunded KRW 17,040,000 as value-added tax on the said 1,20 down payment and intermediate payment (the building portion) on the grounds that it constitutes the acquisition of the fixed assets for business.

E. On the wind that the foreign exchange bank did not accept the Plaintiff’s debt acceptance, the Plaintiff was unable to pay the second down payment and intermediate payment because it was prohibited from receiving the obligation of the instant loan. Accordingly, on August 30, 2008, the Plaintiff cancelled the instant sales contract, and the SS issued the revised tax invoice deducting KRW 170,400,000 from the two supply price (the building portion) in 2008.

F. On April 8, 2014, the Defendant imposed and notified KRW 0,00,00 and KRW 0,000 (hereinafter “instant disposition”) on the Plaintiff in addition to the additional tax amount ○○○○○○○, and KRW ○○○○○○, and KRW ○○○○, in order to recover the amount of refundable tax stated.

G. On October 31, 2014, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service on October 31, 2014, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request for examination on February 16, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 3, Gap evidence 4-2, 3-3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful on the following grounds.

1) The plaintiff takes over the status of a purchaser of the real estate of this case from KK, and does not take over the "real estate leasing business". Thus, the plaintiff is not a business operator under Article 2 (1) of the former Value-Added Tax Act (amended by Act No. 9268 of Dec. 26, 2008) and is not liable to pay the value-added tax.

2) Since imposing the value-added tax on a purchaser after refunding the value-added tax to the purchaser on the grounds of termination of the contract, etc., the purchaser is presumed to have received the input tax deduction, the payer of the value-added tax is KK who is the purchaser who received the initial input tax deduction and received the value-added tax

3) Even if the Plaintiff acquired the business from KK, in order for a private person to succeed to the relationship between the public law and the public law, there must be explicit grounds, such as statutes, and obtain approval from the administrative agency. There is no provision that the status as a taxpayer is succeeded according to the transfer and acquisition of the business under the relevant provisions, such as the Value-Added Tax Act, and the Plaintiff and KK did not have obtained approval from the administrative agency for the instant contract, and there is no fact that the Plaintiff and KK did not have obtained approval from the administrative agency for the instant contract. Therefore, the instant contract, which is merely a private law contract, does not cause the effects of the public law such as succession of the public law status or the tax liability. Therefore, the Plaintiff cannot be deemed to have succeeded to the obligation to pay

In addition, the Plaintiff believed that the instant sales contract should be performed properly by receiving the succession to the obligation of the instant loan and paying the second down payment and the intermediate payment, and that the sales contract was cancelled and the value-added tax already refunded was not anticipated at all to be imposed again. It cannot be said that the Plaintiff, a bona fide transferee, succeeds to the obligation to pay value-added tax to be borne by the purchaser when the sales contract is cancelled.

4) Even if the instant contract concerns the transfer and acquisition of business, the instant contract was null and void or its validity was retroactively extinguished for the following reasons, and thus, the Plaintiff cannot be deemed to have taken over the business under the instant contract.

A) The Plaintiff entered into the instant contract under the condition that “the Plaintiff succeeds to the obligation of the instant loan” as a condition precedent, or “the obligation of the instant loan is not succeeded to by the Plaintiff.” As the Plaintiff was unable to accept the obligation of the instant loan, the instant contract becomes null and void after the non-performance of the terms and conditions of suspension becomes final and conclusive, or its effect was terminated upon the fulfillment of the condition of rescission.

B) The Plaintiff entered into the instant contract with the misleading knowledge that it would have been able to obtain the instant loan obligation from KR. The Plaintiff’s motive mistake was an important part of the juristic act, and became the content of the instant contract by marking it to KR. On March 18, 2016, the Plaintiff revoked the instant contract on the grounds of motive mistake.

C) The Plaintiff’s succession to the obligation of the instant loan is an essential part that constitutes the principal content of the instant contract. As such, the key part of the instant contract was omitted due to the Plaintiff’s failure to succeed to the obligation of the instant loan. Accordingly, the Plaintiff rescinded the instant contract on March 18, 2016 to KK on the ground that it was impossible to perform.

B. Relevant statutes

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

C. Determination

1) Determination as to the argument above A. 1

In full view of the evidence No. 3, evidence No. 4-1, 3, witness witness testimony and the purport of the whole pleadings, the plaintiff and KK agreed to the seller until before the transfer of the real estate, the seller, the seller, and the purchaser, the value-added tax already paid shall be comprehensively transferred and taken over the real estate, and the witness DD, who participated in the contract of this case, later included the terms of "general transfer and acquisition of the real estate" in the contract of this case, is not obliged to return value-added tax, and it is reasonable to view that KK's employees' rights and duties on the real estate of this case were not over 00 days before the conclusion of the contract of this case, and that K's transfer and acquisition of the real estate of this case, and that K's transfer and acquisition of the real estate of this case cannot be seen as being 10 years after the conclusion of the contract of this case's transfer and acquisition of all the rights and obligations of K 20 years after the conclusion of the contract of this case's transfer and acquisition of the real estate of 40 years after the contract of this case.

2) Determination as to the argument above A. 2

As seen in the above 1. The disposition of this case, KR acquired the real estate of this case as fixed assets for business use for the purpose of running the real estate leasing business, and received a refund of value-added tax after deducting the relevant input tax amount. The Plaintiff imposed value-added tax on the Plaintiff in order to recover the above input tax amount as the grounds for deducting the input tax amount and the grounds for refunding the value-added tax are extinguished after the transfer of the real estate from KR after the transfer of the real estate leasing business. As the Plaintiff succeeded to the sales contract of this case from KR and then acquired the business from KR, the value-added tax should also be imposed on the Plaintiff as the grounds for deducting the input tax amount and the grounds for refunding the value-added tax should be imposed on the Plaintiff as the acquisition of fixed assets for business use after the cancellation of the sales contract of this case and the status as the purchaser of the business remains as it remains. The Plaintiff's above assertion is without merit.

3) Determination as to the argument above A. 3

In addition to the above 1. The defendant did not take the disposition of this case on the ground that the plaintiff succeeded to the obligation to pay the value-added tax when the contract of this case was cancelled through the contract of this case, but on the ground that the plaintiff's comprehensive transfer of real estate leasing business from KR became an owner of real estate after the contract of this case was cancelled and the reason for deducting the value-added tax on fixed assets for business ceases to exist. Thus, the defendant cannot be deemed to have taken the disposition of this case on the premise that 'the plaintiff succeeded to a specific public legal status or liability to pay taxes in itself by taking over the business of this case. Further, the plaintiff comprehensively acquired the status of the owner of the real estate of this case by taking over the business of this case, and the disposition of this case is not based on the premise that 'the status of the purchaser' separately from 'the status of the business owner' in this case' in this case. The plaintiff's assertion on other premise is without merit.

4) Determination as to the argument above A. 4

A) Determination as to the argument of the above A. 4)

Inasmuch as the parties to a juristic act simultaneously with the said juristic act by declaration of intent and the content of the juristic act that limits the validity of the said juristic act, the specific factual relations may be deemed as belonging to the interpretation of the declaration of intent. However, the issue of fact-finding whether certain conditions attached to a juristic act are attached to the said juristic act is whether it constitutes the fulfillment of the conditions attached to a certain juristic act, and the person who asserts the existence of the conditions must prove it (see, e.g., Supreme Court Decision 2006Da35766, Nov. 24, 2006).

In this case, it is not sufficient to recognize that the Plaintiff entered into the instant contract under the condition that the Plaintiff would take over the obligation of the instant loan, or under the condition that the obligation of the instant case was not taken over, solely on the basis of the statement in the health account, Gap evidence No. 4-1 through 3, and Gap evidence No. 5. The Plaintiff’s assertion on this part is without merit.

B) Determination as to the assertion as to the above A. 4 B

Even if the Plaintiff caused a mistake as alleged above and entered into the instant contract, it is not sufficient to recognize that the motive of the mistake constitutes an error in the important part of the content of the juristic act, and thus, it is necessary to indicate the motive as the content of the pertinent declaration of intent to the other party and make it the content of the juristic act as the interpretation of the expression of intent (see, e.g., Supreme Court Decision 2009Da97864, Apr. 29, 2010). The evidence submitted by the Plaintiff alone stated that “the motive to enter into the instant contract” should be deemed as the content of the instant contract with the knowledge that the Plaintiff would be able to take over the obligation from KR, or that the motive was the content of the instant contract, and there is no other evidence to support this part of the Plaintiff’s assertion.

C) Determination as to the argument on the above A. 4 C

In order to cancel a sales contract on the ground of nonperformance, the obligation in question must be deemed to have not been concluded on the ground that it was unnecessary to achieve the purpose of the sales contract, and the purpose of the sales contract was not fulfilled (see, e.g., Supreme Court Order 97Ma575, Apr. 7, 1997; Supreme Court Order 2003Da69195, Oct. 15, 2004). The evidence submitted by the Plaintiff alone provided by the Plaintiff that KK under the contract in this case bears the obligation to enable the Plaintiff to succeed to the obligation of the loan in this case, or that the said obligation is deemed to have not been executed on the ground that it was unnecessary to achieve the purpose of the contract in this case, and it was not sufficient to recognize that it was the principal obligation to the extent that it did not have been executed on the ground that it did not fulfill the purpose of the contract in this case, and there is no other evidence to acknowledge it otherwise. The Plaintiff may not assert this portion of the contract in this case on the ground that it did not perform the obligation to succeed to the obligation in this case.

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.