Suwon District Court-2018-Gu Partnership-6303 ( October 04, 2018)

Commencement date of housing construction and sales business

In case of housing construction and sales business, the starting date of business shall be deemed the starting date of each multi-household house in this case where the supply of goods prescribed in Article 6 subparagraph 3 of the Enforcement Decree of the Value-Added Tax Act commences

Article 27-6 (6) of the Enforcement Decree of the Restriction of Special Taxation Act

Seoul High Court 2018Nu6881 Global Income and Revocation of Disposition

Gangwon ○

○ Head of tax office

Suwon District Court Decision 2018Guhap6303 Decided October 4, 2018

December 11, 2018

January 15, 2019

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance court shall be revoked. The imposition of global income tax (including additional tax) 000,000,000,000 on October 13, 2017 by Defendant ○○○○○○○○○○ on the part of October 10, 2017, and global income tax (including additional tax) 00,000,000 on October 13, 2017, imposed on Plaintiff ○○○○○○○ on October 13, 2017 by Defendant ○○○○○○○ on the part of Defendant ○○○○○ on the part of Defendant ○○○○ on the part of Plaintiff ○○○ on the part of October 10, 2017, all of the imposition of global income tax (including additional tax) 00,000,000,000 won on the part of Defendant ○○○ on the part of Defendant ○○ on the part of Plaintiff 13, 2017.

1. Quotation of judgment of the first instance;

The reasoning for the judgment of the court in this case is as stated in the reasoning for the judgment of the court of first instance except for the following parts, and thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ The head of the observational Gu (referred to as "the head of the Gu", excluding the ticket section; hereinafter the same shall apply) shall be the head of the competent Gu in two sides of the judgment of the first instance.

○ The Enforcement Decree of the former Income Tax Act (amended by Presidential Decree No. 28637, Feb. 13, 2018; hereinafter the same shall apply) shall be "Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 28637, Feb. 13, 2018; hereinafter the same shall apply)" in two to three pages of the judgment of the first instance court.

○ 7th written judgment of the first instance court (Supreme Court en banc Decision 201Du551 Decided April 16, 2015, etc.) is subject to “(see, e.g., Supreme Court Decision 2007Du4438, Feb. 15, 2008)”.

○ From the 8th bottom of the judgment of the first instance court, two places of business shall be called “business world”.

○ From 10 5 eth to 5 eth eth eth eth eth eth eth eth.

(1) The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22580, Dec. 30, 2010)

Article 143(4)1 of the former Enforcement Decree of the Income Tax Act amended by Presidential Decree No. 22580, Dec. 30, 2010; Article 143(4)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22580, Dec. 30, 2010; Presidential Decree No. 143(4)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22580, Feb. 2, 2012; Presidential Decree No. 143(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22580, Dec. 30, 2012; Presidential Decree No. 23358, Feb. 1, 2012; Presidential Decree No. 23068, Feb. 1, 201; Presidential Decree No. 220300, Jan. 1, 2012>

In addition, Article 143 (4) of the Enforcement Decree of the Income Tax Act, which applies to the portion of income for the taxable period that begins after February 13, 2018, is amended by Presidential Decree No. 28637, Jan. 1, 2019, which applies to the portion of income for the taxable period that begins after January 1, 2019, provides that if the total amount of income for the immediately preceding taxable period falls short of the standard amount, if the amount of income for the taxable period concerned falls short of the standard amount, it shall be excluded from the application of simple expense

In light of the legislative history of Article 143 (4) of the Enforcement Decree of the Income Tax Act, the simple expense system is a system to minimize the tax payment costs of small small-scale business operators who have sufficient capacity to keep records of the principal expenses required by the standard expense rate system, and the legislators seem to have gradually reduced the scope of business operators subject to the simple expense rate. Furthermore, according to the text of the supplementary clause, the legislators seem to be aware of the ‘the commencement of construction' and its subsequent ‘the commencement of construction business', and the commencement of real estate development and supply business' as separate concepts.In addition, considering these legislative intent, in the case of the housing construction and sales business that operates a business for a long period exceeding a certain scale due to the characteristics of the business, it is necessary to grasp the commencement of business of the housing subject to sale rather than the commencement date that can determine the time according to the intention of the

② The commencement of a business of the Housing Construction and Sales Business shall be substantially determined at the time when the preparation for a business is completed and the preparation for the original business is conducted or is able to be conducted (see, e.g., Supreme Court Decision 94Nu15905, Dec. 8, 1995). The initial housing construction and sales business is included in real estate sales business given its nature (see, e.g., Supreme Court Decision 2008Du21768, Jul. 22, 2010). The purpose of the business is to sell a house, and it is difficult to view that the fact that a house has been completed

③ Whether a business income falls under business income under the Income Tax Act ought to be determined according to social norms, taking into account whether business activities are continuously and repeatedly conducted in light of the business’s profit purpose and the scale, frequency, mode, etc. of business (see, e.g., Supreme Court Decision 91Nu6559, Nov. 26, 1991). However, there is no evidence suggesting that the Plaintiffs had objectively expressed their intent to engage in the housing construction and sales business for profit prior to commencing the sale of each of the instant multi-household housing. The fact that the Plaintiffs commenced or completed each of the instant multi-household housing, solely on the sole basis of the fact that the instant multi-household housing was continuously and repeatedly conducted for profit-making purposes, it is difficult to deem that the Plaintiffs had objectively

2. Conclusion

If so, the judgment of the first instance court is justifiable, and the plaintiffs' appeal is dismissed as it is without merit.