Suwon District Court 2010Guhap59 ( October 13, 2010)

Review Division 2009-0148 ( November 11, 2009)

Whether the rights and obligations of real estate rental business establishment have been comprehensively transferred;

Since the transferor of real estate can be deemed to have added real estate rental business to a category of business in order to lease the remaining part of the real estate used as a manufacturing business place, it is difficult to regard it as a business transfer only under the above circumstances.

The contents of the decision shall be the same as attached.

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1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Claim: on July 23, 2009, the Defendant revoked a disposition imposing value-added tax of KRW 80,294,900 on the Plaintiff on July 23, 2004.

2. Purport of appeal: It is so ordered;

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1. Details of the disposition;

A. From July 3, 2002, the Plaintiff had been engaged in real estate leasing business in two lots of land and buildings listed in the attached Table 1 list on the above 98-4 land (hereinafter referred to as “instant real estate”). On June 2, 2004, on which June 2, 2004, the Plaintiff concluded a sales contract to sell the instant real estate to the HanCC for KRW 1,000,000 (hereinafter referred to as the “instant sales contract”), and the specific terms and conditions of the special agreement are as follows, and 1. Bank loans succeed to the credit rating.

2. Succession to the printing shop tenants:

3. The balance may be settled in advance even before the balance is reached; and

4. The buyer shall cooperate in filing a return of capital gains tax.

5. Succession to the current status of the gold-day building;

B. On the other hand, the plaintiff is separate from the sales contract of this case with the KoreaCC on June 10, 2004.

"A comprehensive contract for transfer and takeover of business was entered into with a comprehensive transfer of real estate leasing business, and the transfer of real estate of this case constitutes a transfer of business not deemed a supply of goods under Article 6 (6) 2 of the Value-Added Tax Act (hereinafter "the Act"), and no related value-added tax was filed on July 23, 2009. The defendant imposed value-added tax amounting to KRW 80,294,900 on the plaintiff on January 2004 (hereinafter "the disposition of this case") by deeming that the transfer of this case does not constitute a transfer or takeover of business." [The grounds for recognition], without dispute, the facts that the transfer of real estate of this case constitutes a transfer of goods under Article 6 (6) 2 of the Value-Added Tax Act (hereinafter "the

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant real estate transfer constitutes a transfer of business that comprehensively succeeds to all rights and obligations with respect to business, and thus does not constitute a supply of goods subject to the imposition of value-added tax. Therefore, the instant disposition is unlawful.

(b) Related statutes;

Attached Form 2 shall be as stated in the relevant statutes.

C. Determination

Article 6(6)2 of the Act and Article 17(2) of the Enforcement Decree of the Act (amended by Presidential Decree No. 1930, Feb. 9, 2006; hereinafter the same) provide that the transfer of a business that is not deemed the supply of goods shall not replace only the management body while maintaining the identity of the business by comprehensively transferring physical and verbal facilities, rights, and obligations, including business property. Thus, the business must be an organic combination of human and physical facilities that can be separated from the management body and recognized social independence (see, e.g., Supreme Court Decision 2004Du8422, Apr. 28, 2006).

Considering the overall purport of Gap's statements and arguments, Gap's evidence Nos. 3, 4, 5, Eul's evidence Nos. 3 and 4 (including each number), Han-si's land No. H301-13, which is the site of the manufacturing business place it had operated, around May 25, 2004, prior to the conclusion of the contract of this case. The plaintiff registered his business around July 3, 2002 and leased the real estate of this case to Gangnam. However, at the time of the conclusion of the contract of this case, only one company (permanent industry) moved into the real estate of this case for the reason of the expiration of the lease period, etc., only one company (including the real estate of this case) moved into the real estate of this case, and Han-si moved to the lessor's status of the above Yong-si industry from the plaintiff, Han-si transferred the remaining part of the real estate of this case to another manufacturing business place (the real estate of this case was recognized as the previous real estate of this case).

The following circumstances revealed by the facts as above, CC concluded a sales contract of this case after selling its business place located in high-sea, and therefore it seems to have been trying to run its manufacturing business in the real estate of this case rather than the acquisition of the real estate of this case for real estate leasing business. Generally, in the case of transfer and takeover of business, it is common to conclude a contract for transfer and acquisition of individual assets for registration of transfer and transfer of rights after concluding a sales contract of this case with the contents of comprehensive transfer proceeds as to comprehensive business. The Plaintiff and HanCC concluded a sales contract of this case after first concluding the sales contract of this case for the real estate of this case, and there is no specific agreement for the price of transfer and acquisition of the real estate of this case. The Plaintiff cannot be viewed as a transfer of the real estate of this case's real estate rental business of this case, which was conducted by the Plaintiff, by comprehensively taking into account the circumstances such as transfer and acquisition of the real estate of this case's real estate of this case's real estate rental business of this case's business, and there is no reason to view that the existing real estate leasing business of this case's real estate rental business of this case's remainder.

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the defendant's appeal is accepted and the plaintiff's claim is dismissed. It is so decided as per Disposition.