2013da4954 Sales Price

Yellow A

Law Firm Future, Attorney Park Young-soo

Attorney Lee Jae-chul

specified B

Attorney Nam-chul et al.

July 17, 2013

August 28, 2013

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 60,531,680 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

○ The Plaintiff is a general taxable entrepreneur who carries on real estate rental business at the entire 101, 102, 103, 104, 105, 201, and 6 and 9 floors of the Changwon-si’s window, and the Defendant leased the said 101 rental from the Plaintiff on February 1, 2012 and operated the pharmacy in the name of “B” from around that time. In the case of the Defendant, the Defendant is a taxable entrepreneur at the same time as a tax-free entrepreneur.

On November 30, 2012, the Plaintiff sold 101 and site ownership (hereinafter “the instant real estate”) to the Defendant at KRW 835 million (hereinafter “the instant contract”). On the same day, the Defendant completed the registration of transfer of ownership under its name with respect to the instant real estate. In concluding the instant contract, the Plaintiff and the Defendant stated that the instant contract shall be dealt with in the form of transfer of business in order to avoid the payment of value-added tax to be generated under the instant contract, and that “value-added tax shall be taken over comprehensively.” Under the instant special contract, the instant contract shall be entered into as “the acquisition of the value-added tax,” and Article 6(6)2 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter “former Value-Added Tax Act”) and Article 17(1)1 of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013). 201).

○ Article 6(6)2 of the former Value-Added Tax Act becomes aware that Article 6(6)2 of the former Value-Added Tax Act applies only when both parties to a transaction are taxable entities. The Plaintiff became aware of the fact that 60,531,680 won was to be paid as value-added tax on the building portion among the instant real estate, and the Plaintiff claimed payment to the Defendant, but the Defendant

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 5, 6, 8, evidence Nos. 9-1, 2, 10, 11, 12, Eul evidence Nos. 1, 2, 3, 4, 5, 6, 8, and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

In order to avoid the occurrence of value-added tax under the instant contract by mistake that the Defendant is a general taxable business entity, the instant contract was intended to be processed by means of comprehensive acquisition and transfer, but the Defendant clearly stated that it is a concurrent business entity, thereby leading to the situation where the value-added tax is to be paid. Since the purchase price under the instant contract does not include value-added tax, the Defendant is obliged to pay the amount equivalent to

B. Determination

Article 15(1) of the Value-Added Tax Act provides that when an entrepreneur supplies goods or services, an amount equivalent to the value-added tax shall be collected from the person who receives the supply of the goods or services, merely declares that an amount equivalent to the value-added tax collected by an entrepreneur will be transferred in sequence to the person who receives the supply of the goods or services and ultimately be borne by the end-consumers (see Supreme Court Decision 2002Da38828, Nov. 22, 2002). Therefore, insofar as a supplier has no right to collect the amount equivalent to the value-added tax from the person who receives the supply based on Article 15 of the Value-Added Tax Act, it cannot be readily concluded that the general transaction practice that the supplier bears the value-added tax is established if there is no separate agreement on the burden of value-added tax (see Supreme Court Decision 2005Da13288, Nov. 23, 2006

In light of the above legal principles, even if the plaintiff paid value-added tax according to the contract of this case differently from the original intention or expectation of the plaintiff and the defendant, insofar as there is no evidence to prove that there is an agreement between the plaintiff and the defendant to bear the value-added tax, even if the plaintiff paid value-added tax amounting to 60,531,680 won due to the contract of this case, it is difficult to view that the defendant is obligated to claim it to the plaintiff as a matter of course. Thus, the plaintiff's argument

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Young-gu

1) Article 15 of the former Value-Added Tax Act, effective at the time of the instant case, where an entrepreneur supplies goods or services, the tax base under Article 13.

Article 14 provides that the value-added tax calculated by applying the tax rate shall be collected from the person who receives the supply.