Whether business assets are comprehensively transferred or acquired;

It is alleged that the accommodation was operated by leasing and operating the leasing business, but it cannot be deemed that the actual lease business is operated, so the transfer of accommodation facilities does not constitute an all-inclusive transfer and acquisition of the business.

Article 6 (Supply of Goods)

Article 17 of the Enforcement Decree of the Value-Added Tax Act, transfer of business and payment of taxes in kind.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 135,90,260, including the sum of KRW 6,169,910, imposed on the Plaintiff as value-added tax for the first period of January 2004, KRW 129,730,350, and KRW 6,169,910, imposed on the Plaintiff on April 15, 2005.

1. Details of the disposition;

The following facts are recognized by the parties to the dispute or by taking account of the overall purport of the arguments in each of the evidence Nos. 1, 2, 1-1, 2, and 2 of the evidence Nos. 1, 4-1, 2, and 2.

A. On May 7, 2004, the Plaintiff transferred the registration of ownership transfer to ○○○○, a Busan-dong ○○○○○○○○○○-dong, Busan-dong ○○○○○○○○○○, 704.1 square meters (hereinafter “instant land”) and seven floors of the ground reinforced concrete structure, lodging facilities and detached houses (hereinafter “the instant cartel”, and combined with the said building site).

B. The Plaintiff did not file a value-added tax return on the ground that the transfer of real estate in the instant case constitutes a transfer of business not deemed a supply of goods.

C. On the ground that the Plaintiff’s transfer of this case’s real estate does not constitute a comprehensive transfer or acquisition of business, the Defendant calculated the tax base of the instant Moel at KRW 1,00,774,181, and imposed an additional tax amount of KRW 129,730,350 (including additional tax; hereinafter the same shall apply) on the Plaintiff on April 15, 2005, and thereafter, imposed an additional tax of KRW 6,169,910 as the value-added tax on June 8, 2005 (hereinafter “instant disposition of imposition”).

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Plaintiff, while running a leasing business by leasing the instant Moel to ○○○, comprehensively transferred the rights and duties regarding the pertinent business to ○○○○, and transferred the instant real estate following such comprehensive business transfer.

(2) Therefore, the instant disposition that took place differently from the foregoing ought to be revoked as it is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts

In addition to each of the above evidence evidence evidence Nos. 5, 6, A8, 9, and 5-1,2, Eul evidence Nos. 6, Eul evidence Nos. 7 and 8, each of the evidence Nos. 1, 2, 9, 10, 11, 12, and 12, the following facts are acknowledged:

(1) On July 5, 2002, the Plaintiff purchased the instant land, and registered its business with the type of business as a real estate rental business at the location of the instant land on November 4 of the same year.

(2) After completion of the instant telecom on November 28, 2003, the Plaintiff had completed registration of preservation of ownership in its name on January 2, 2004. On January 20, 2004, the Plaintiff operated the lodging business with the trade name called “the telecom” from around that time, after changing the type of business to the lodging business on January 20, 2004.

(3) Meanwhile, on April 30, 2004, the approval seal agreement entered into between the Plaintiff and ○○○ entered into with the Plaintiff on April 30, 2004, stating that the purchase price shall be KRW 1.56 billion, but the down payment shall be paid at the time of the contract and the balance of KRW 1.360 million shall be paid on May 4 of the same year. However, another sales contract written on the same day shall be KRW 2.5 billion, and the down payment shall be paid at the time of the contract, and the down payment shall be KRW 30 million shall be paid at the time of the contract, and the remaining amount shall be paid at the time of the contract with the special agreement, and the seller shall comprehensively transfer and take over the rights and obligations of the mother with the current lessee, and the seller shall succeed the right of lease to the buyer, and the building shall be KRW 1.250 million among the purchase price shall be KRW 2.50 million and the site shall be KRW 1.250 million.5 million.

(4) On May 4, 2004, the Plaintiff filed a report on closure of the above accommodation business, and at the same time reported on February 1, 2004, the business type was corrected from the accommodation to the lease business.

(5) On May 7, 2004, the Plaintiff transferred the registration of ownership transfer on the instant real estate to ○○○○, and ○○○○, upon which the Plaintiff transferred the registration of ownership transfer, shall conduct the business as a real estate rental business on May 4, 2004 with the date of commencing the business as of May 4, 2004, and also, from around that time, the Plaintiff runs the lease business by setting the instant telecom with deposit KRW 70 million and monthly rent of KRW 4 million.

(6) On May 22, 2004, after the transfer of the instant real estate, the Plaintiff reported the accommodation tax base of KRW 15 million by attaching a lease agreement dated January 26, 2004 to ○○○, stating that the instant cartel is leased KRW 250 million, monthly rent of KRW 150,000,000, while filing the final tax return of value-added tax for the first period of January 22, 2004, which was after the transfer of the instant real estate, but the said lease income was never reported at all when the preliminary return was made.

D. Determination

(1) The term "transfer of business not deemed the supply of goods under Article 6 (6) 2 of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006; hereinafter referred to as the "Act") and Article 17 (2) of the Enforcement Decree of the Act (amended by Presidential Decree No. 1930 of Feb. 9, 2006) refers to the comprehensive transfer of physical, human, rights, and obligations, etc. including business property, to replace only the management body while maintaining the identity of the business. Thus, the business must be an organic combination of human and physical facilities so that it can be separated from the management body and can be socially independent. The fact that the object of transfer is not a simple physical facility but such organic combination is not a value-added tax, and the taxpayer bears the burden of proof as a reason for the impediment of taxation (see, e.g., Supreme Court Decision 97Nu127848, Apr. 28, 2006).

(2) The following circumstances, i.e., ○○○○○○○○○○○○○○○○ by adding up the above evidence Nos. 11, 14, and 16, i.e., the Plaintiff’s lease of the instant apartment with respect to the operation of the instant apartment. (Inasmuch as the date of opening the business and the date of closing the business was the same on February 1, 2004, it cannot be deemed that ○○○○○○○○○ was registered as its business operator.) The Plaintiff cannot be seen as having entirely related to the business, such as purchase during the pertinent business period, sales account books, etc. (the Plaintiff’s change of the type of business from ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s sales business to the foregoing ○○○○○○○○○○○○○’s sales business, based on the above evidence presented to the Plaintiff’s sales relationship.

(3) Therefore, since the Plaintiff cannot be deemed to have comprehensively transferred the real estate rental business to ○○○, the Plaintiff’s assertion based on a different premise is without merit, and the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.