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(영문) 서울고등법원 2016. 09. 21. 선고 2016누36521 판결
(1심 판결과 같음) 재화의 소유권 및 사업 영위를 위해 필요한 시설 등을 갖추고 있지 않아 중개업에 해당함[국패]
Case Number of the immediately preceding lawsuit

Suwon District Court-2015-Gu Partnership-760 ( October 28, 2016)

Title

(as in the judgment of the court of first instance) that does not have any facilities, etc. necessary to carry on the ownership and business of goods, thereby constituting a brokerage business.

Summary

In addition, the Plaintiff’s type of transaction can be deemed as a brokerage business, in addition to the fact that the Plaintiff’s ownership of the excavated machine belongs to the Plaintiff or the Plaintiff was equipped with essential facilities, such as a garage, which appears necessary for running the construction machine sales business such as the excavated machine.

Cases

2016Nu36521 Revocation of Disposition of Imposition of Value-Added Tax

Plaintiff and appellant

○○

Defendant, Appellant

○ Head of tax office

Judgment of the first instance court

Suwon District Court Decision 2015Guhap760 Decided January 28, 2016

Conclusion of Pleadings

2016.08.24

Imposition of Judgment

2016.21

Text

1. The defendant's appeal is dismissed.

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

Purport of claim and appeal

1. Purport of claim

The Defendant’s imposition of value-added tax of KRW 13,041,740 (including additional tax) in 2007 against the Plaintiff on May 1, 2014 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

(a) ParkB is a person who has been engaged in the export business of cutting-off season on the trade name of "CCC Inbound Day";

B. From March 2007 to June 2007, ParkB deposited KRW 65,190,000 in total to the account in the name of the Plaintiff through the account in the name of ParkD, which is the name of the Plaintiff.

C. The Defendant: (a) deemed that even though the Plaintiff sold a heavy amount of KRW 63,80,000, which is a part of the deposited money to ParkB during the first taxable period of the value-added tax in 2007, the Plaintiff did not report and pay the value-added tax thereon ex officio; (b) on May 1, 2014, the Plaintiff registered the Plaintiff as a secondhand construction machinery wholesaler; and (c) on May 1, 2014, the Plaintiff determined and notified the Plaintiff of KRW 13,041,740 as the first value-added tax in 207 + the principal tax of KRW 6,38,00 + the additional tax of KRW 638,800 + the non-reported additional tax of KRW 1,277,60 + the additional tax of KRW 4,737,340 (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

In 207, the Plaintiff introduced a person intending to dispose of a high-speed soft machine to ParkB during the first half of the year 2007 to arrange the trade between ParkB and the middle-class so that the Plaintiff received a total of KRW 6,950,000 from ParkB in return for the commission of the trade between ParkB and the middle-class so that the Plaintiff was sold to ParkB. Therefore, the instant disposition of this case on a different premise is unlawful.

B. Determination

1) First, comprehensively taking account of the overall purport of the arguments in Evidence B Nos. 2, 7, and 4 and 5 as to whether the Plaintiff engaged in the intermediate construction machinery wholesale business, ParkB deposited the total amount of the purchase price for the early 2007 scrap machines other than the amount alleged to have been paid by the Plaintiff as the commission. The Plaintiff established AATR Co., Ltd. for the purpose of trading used cars and equipment and wholesale business around October 2001 and operated until June 201. However, in light of the purport of each of the statements in Evidence Nos. 2, 7, and 8, it is difficult to find that ParkB paid to the Plaintiff the total amount of the purchase price for the remaining 20% of the total amount of the sale price for the 20th half of the sale price for the 207 upper half of the 2007 upper half of the 207 upper half of the 200-mid the sales price for the 2nd anniversary of the 2nd of the 2nd of the 2nd of the 2nd of the purchase price.

2) Meanwhile, in light of the facts acknowledged earlier, even if the Plaintiff deemed to operate a brokerage business rather than a secondhand construction machinery wholesale business, insofar as the Defendant modified the grounds for disposition and did not assert and prove the reasonable amount of tax accordingly, the instant disposition should be revoked in its entirety.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just and it is dismissed as the defendant's appeal is without merit. It is so decided as per Disposition.

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