Busan District Court 2008Gahap11545 ( November 19, 2008)

Whether it constitutes real estate sales business, and whether it constitutes a blanket transfer of accommodation business in the case of a newly building and transferring a telecom

It cannot be readily concluded that the owner of a building has a facility for lodging business in a new building and is engaged in a lodging business rather than a real estate sales business; and the mere fact that the owner of a building runs a lodging business in a mother hostel to receive the transfer proceeds does not affect the business feasibility of the real estate sales businessman.

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

1.Each appeal by the plaintiff shall be dismissed.

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

The judgment of the first instance court shall be revoked. The defendant shall pay to the plaintiff the amount of KRW 342,50,090 plus the service of a duplicate of the complaint of this case from October 30, 2004 to the date of delivery of a copy of the complaint of this case, and the additional payment of the refund of the refund of the national tax in accordance with the provisions of subparagraph 1 of Article 52 of the Framework Act on National Taxes shall be paid

1.Basics

A. The Plaintiff and Gimdong, as a legal side, newly built ○○○○○○○○○-dong 2274-6 on the ground (hereinafter referred to as “this case’s telecom”) and completed registration of initial ownership of ○○○○○○○○○○○○○-dong 2274-6, and on October 29, 2002, Gimdong, registered as a lodging business on December 15, 2001. However, the Plaintiff and Gimdong, as seen above, concluded a contract on October 29, 2002, on which the registration of initial ownership was completed, to transfer all rights and obligations with respect to the said telecom and accommodation. The Plaintiff and Gimdong agreed to transfer the total assets from 1.85 billion won to 2.5 billion won, including the total assets, the total amount of KRW 4.5 billion in total, including the total amount of KRW 1.5 billion in total, KRW 1.5 billion in total, and the total amount of KRW 2.3 billion in total, including loan 2.3 billion in total.

On October 31, 2002, the Plaintiff and the Gimdong Shipping completed the registration of transfer of ownership relating to the telecom on the basis of the above transfer contract, which was concluded on October 31, 2002

C. The Plaintiff did not dispute the second value-added tax return in 2002 for the reason that it constitutes a comprehensive transfer of this case’s telecom, but entered itself as a real estate sales businessman and fulfilled the global income tax liability of the real estate sales businessman as a real estate sales businessman.

D. The head of the Gold District Tax Office, who conducted a tax investigation on the plaintiff in 2003, shall not be subject to the comprehensive transfer of the business, and shall be subject to the imposition of value-added tax on the basis that the transfer of the e-case telecom is not subject to the comprehensive transfer of the business, and the plaintiff's sale of the e-mail telecomel is subject to the imposition of taxation data on the taxable material that the plaintiff omitted the issuance of tax invoices and the return of value-added tax on the 2.5 billion won in the value of the building due to the sale of the e-mail as real estate transaction. The head of the e-mail District Tax Office notified the plaintiff to the head of the e-mail (hereinafter referred to as the "instant taxation disposition").

E. The Plaintiff paid the value-added tax as above at KRW 100,102,50,090 on January 30, 2004, and KRW 100,000 on August 27, 2004, and KRW 70,000 on September 30, 2004, and KRW 70,000 on September 27, 2004, and KRW 28.70,000 on October 27, 2004.

F. Before the transfer of the instant case telecom, the Plaintiff newly built and transferred the ○○○○○○○○○○○ 17-44 location, on May 23, 2001. On October 27, 2000, the Plaintiff reduced the ○○○○○○○ 576 location telecomto, and transferred on November 23, 2000. On March 16, 2002, the Plaintiff reduced the ○○○○○○ 731-9 location ○○○○ ○○ ○○ ○○ ○○ 30 on April 30, 202. In addition, after the transfer of the instant telecomto, the Plaintiff declared a value-added tax on the part of the buildings and non-goods. In addition, even after the transfer of the instant telecomto, the Plaintiff had engaged in a lodging operation business by constructing the ○○○ dong-dong 135-131 location ○○ ○○.

[Ground of recognition] Facts without dispute, Gap 1 to 3 evidence, Eul 1 to 4 evidence, Eul 5-1 to 3 evidence, partial testimony by the witness Kim ○ and the purport of whole pleadings

2.Judgment on the main defense

The purport of this case is that the defendant is correct in the disposition of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of unjust enrichment, which is the first step in the administrative litigation that seeks the refund of the value-added tax paid by the plaintiff, according to the disposition of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of taxation of the same country, the defendant's appeal of the defendant is without reason.

3. Determination on the merits

A. Summary of the plaintiff's main office

1) The transfer of the franchise of this case constitutes a transfer of business that is not subject to value-added tax pursuant to Article 6 (6) 2 of the former Value-Added Tax Act (amended by Act No. 6905 of May 29, 2003). Since the main tax disposition is to supply goods as a dealing, it is null and void as it is for a transaction that is not subject to tax liability, the defendant is obligated to pay the plaintiff additional refund or delay damages to the amount of tax due to the invalid taxation disposition.

2) Even if a senior sales businessman sold the case cartel, the plaintiff only sold the 1/2 share of the Bamo building, and the 1/2 share of the Bamoto 1/2 share is transferred to the Mamo-Bamo-Ba, Mamo-Ba, and Mamo-Ba. Since Mamo-Ba does not correspond to the supply of goods, the Mamo-Ba's transfer act is not limited to the supply of goods, but is not a legitimate and effective taxation disposition is not notified to the Mamo-Ba, so the disposition imposing value-added tax on the plaintiff in relation to the 1/2 share of the Mamo-Ba's ownership should be null and void every year within the scope of the above disposition. The defendant is obligated to pay additional refund of national tax or losses for delay or losses to the plaintiff, which corresponds to the 1/2 of the above amount of tax paid.

b)Judgment on whether the transfer of the telecom is subject to taxation in accordance with the Value-Added Tax Act;

1) Whether the transaction of real estate constitutes the supply of goods subject to taxation under the Value-Added Tax Act shall be determined based on ordinary social norms, considering whether the sale and purchase is for profit-making purposes, and whether the sale and purchase is continuance and repetition of the degree that it can be seen as business activities in light of the scale, frequency, mode, etc. of the transaction. In making such determination, not only the sale and purchase of real estate, but also the sale and purchase of real estate owned by the transferor, but also all circumstances surrounding the whole real estate held by the transferor during the period before and after the time when the sale and purchase was conducted (see, e.g., Supreme Court Decision 97Nu10192, Oct. 24,

2) The facts of this case are as follows: (a) the Plaintiff entered into a new construction and transfer contract with the new construction and transfer of the telecomel; (b) the Plaintiff entered into a new construction and transfer contract with the new construction and transfer of the telecomel; (c) on October 5, 1993, the previous construction and operation of the supercom terminal; (d) on May 23, 2001, the period from the new construction date to the transfer date of the new construction date of the supercom terminal; (c) on the first hand, the acquisition date of the new construction and transfer of the real estate for the purpose of the new construction and transfer of the new construction of the supercom terminal; and (d) on the first hand, the acquisition date of the new construction and transfer of the real estate for the purpose of the new construction and sale of the real estate for the purpose of the new construction and sale of the real estate for the purpose of the new construction and sale of the real estate for the purpose of the new construction and sale of the real estate for the purpose of the new construction and sale of the real estate for the new construction and sale of the new construction.

Therefore, since the disposition of taxation of this case that the head of the tax office rendered the transfer of the apartment building to the head of the tax office on the defendant's Haakbuk ○○ is considered to be a supply of goods, the disposition of taxation of this case is deemed to be justifiable, the plaintiff's principal who made the transfer of the apartment building to be a comprehensive transfer of the business is without reason.

C. Determination as to whether the disposition of double taxation on the transfer of Kim ○'s shares was lawful

(1) Article 25(1) of the former Framework Act on National Taxes (amended by Act No. 7329, Jan. 5, 2005) provides that "national taxes, additional dues and expenses for disposition on default relating to property belonging to a joint project or joint project shall be jointly and severally liable for payment." Thus, the legal nature of the joint and several tax liability is not fundamentally different from that of joint and several liability under the Civil Act, and each joint and several tax obligor has a joint and several liability to pay the whole national taxes related to a joint project without its own tax liability. Thus, in imposing national taxes, each joint and several tax obligor may individually notify the relevant tax payment to each joint and several owner or joint business proprietor of the defect of taxation on the one opinion of the joint and several tax obligor, so it has a relative effect only, so it shall not be effective for other joint and several owners at the time of establishment of the 2000,000,000 won or more from the time of establishment, 200,000,0000 won or more of the new and several owners of the aggregate building."

On the other hand, inasmuch as the Plaintiff and Gimchi Line bear the joint tax liability as a joint entrepreneur, it cannot be said that there is any problem to the Plaintiff in the disposition of taxation in the case where the total amount of value-added tax, which is the transfer of the case telecom, was carried out by the Plaintiff as the amount of tax payment. Even if the Plaintiff did not have a proper and effective taxation disposition (Notice of Tax Payment and Notice of Collection), it cannot be said that there is an impact on the effect of the disposition of taxation in the case on the Plaintiff. Therefore, there is no reason for the part of the Plaintiff.

D. Determination as to whether the instant taxation disposition is void as a matter of course

1) Even if there is a misunderstanding of the factual relation of the taxation disposition, if it is not objectively apparent in the external form, the taxation disposition cannot be deemed to be an excessive and reasonable invalidation (see, e.g., Supreme Court Decision 90Nu9476, Apr. 9, 191).

2) On the other hand, in accordance with the above part of the main text, the head of the tax office on the defendant's Haba, through the tax audit of the plaintiff, shall make a registration of preservation of ownership by newly building the plaintiff's prior to the plaintiff and then issuing the tax invoice after transfer of the tax invoice and then filing a return of value-added tax, and it may be ancillary to the fact that the plaintiff confirmed that the plaintiff fulfilled the obligation to pay global income tax on the real estate sales businessman as the global income tax on the part of the real estate sales businessman. Therefore, even if the transfer of the former part of the tax invoice, such as the head of the tax office on the part of the head of the tax office on the ground that the transfer of the former part of the case constitutes a transfer of the latter part of the business and it is important to impose value-added tax on the subject of the disposition of taxation on the other part of the case, it shall not be deemed that the latter part of the taxation disposition

Therefore, there is no reason for the plaintiff to be dismissed in part.

4. Conclusion

Therefore, the plaintiff's claim for objection should be dismissed without reason. The judgment of the court of first instance is identical to that of the court of first instance, so that the plaintiff's appeal is dismissed without reason.