Daejeon District Court 201Guhap4581 ( October 23, 2013)

The instant money is paid for the transfer of facilities and business rights.

The instant money is paid in return for the transfer of facilities and goodwill (other income) instead of the cost of using facilities (business income) for ten years, such as facilities, interior facilities, and equipment installed and installed in the instant business establishment.

2013Nu343 Revocation of Disposition of Imposing global income tax, etc.

KimA

1. Daejeon director of the tax office; and

Daejeon District Court Decision 201Guhap4581 Decided January 23, 2013

February 6, 2014

February 13, 2014

1. All appeals by the Defendants are dismissed.

2. The total costs of the lawsuit are borne by the Defendants.

3. Of the disposition of the first instance judgment, the part on the imposition of global income tax for the year 2009 by the director of the Daejeon District Tax Office against the Plaintiff on September 1, 2010, and the part on the imposition of each value-added tax by the director of the Daejeon District Tax Office against the Plaintiff on September 10, 2010, were amended as follows according to the Plaintiff’s partial reduction of the purport of the claim in the trial.

A. On September 1, 2010, the head of Daejeon District Tax Office’s disposition of imposition of global income tax for the Plaintiff on September 1, 2010 exceeding KRW OO in excess of the imposition of global income tax for the Plaintiff.

B. On September 10, 2010, the head of Seo-gu Daejeon District Tax Office’s disposition of imposition of value-added tax on the Plaintiff as specified in attached Table 1 [Attachment 2] against each disposition of imposition of value-added tax, which exceeds each tax amount indicated in the column of tax amount irrelevant to the instant money, shall revoke all the disposition of imposition

1. Purport of claim

On September 1, 2010, the head of Daejeon District Tax Office’s disposition of global income tax listed in attached Table 1 [Attachment 1] that the Plaintiff on September 1, 2010 and the Plaintiff on September 10, 2010, the part of the amount indicated in the column of key tax in the disposition of imposition of global income tax and the part of the amount indicated in the column of key tax in attached Table 1 [Attachment 2] that the head of Seogu District Tax Office rendered to the Plaintiff on September 10, 20

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Details of the disposition;

A. Conclusion of a lease contract with the Plaintiff, KimB, etc. for the CCC PP

(1) On December 13, 2006, the Plaintiff constructed OB, OE, KimF, Kim GG (hereinafter referred to as "GB, etc.") and owned it up to now and is an individual entrepreneur operating a real estate rental business; (2) The Plaintiff entered into a contract between July 13, 2005 and December 26, 2006 to lease the instant establishment (hereinafter referred to as "the instant contract"); (3) between the Plaintiff and KimB, KimB, KimE, KimF, Kim GG (hereinafter referred to as "GG, etc.") to lease the instant establishment to KimB, etc. with the following content:

Article 2 The term of lease shall be ten years from January 1, 2007, but it may be adjusted every two years for monthly rent.

Article 3 The monthly rent shall be an OOO (including monthly rent, building management expenses, and value-added tax) and shall be paid to A as at the end of each month, and if such dispute is delayed, additional dues equivalent to 10% of the rent shall be paid until the payment is made.

Article 9 Article 9 Section B shall be paid to A with the usage fees for the facilities, interior terms, office fixtures, etc. installed on the leased building, and the OOOO directors shall be paid on the date of the contract; on March 30, 2007, the OOO directors shall be paid in installments; on October 30, 2007, the OO directors shall lose the benefit of the due date, and on the balance, the full amount shall be paid without delay by adding the damages for delay at the rate of 20% per annum to the balance, and the lease agreement may be terminated.

When the lease contract has been terminated within five years due to the circumstances under Article 10 (B), the facilities specified in Article 9 (including human property and other intangible property) installed on the leased building and the B-owned goods installed for the purpose of the lease shall be transferred to A without compensation without any conditions, such as the ownership.

(4) Pursuant to the instant contract, the Plaintiff received respectively payments from KimB, etc. on December 13, 2006, OOO, OOO on March 30, 2007, and OOOO on October 30, 2007.

B. Imposition of global income tax and value-added tax on the Plaintiff by the Defendants

(1) On July 1, 2010 to July 20, 2010, the Director of the Daejeon District Tax Office issued an integrated investigation of the Plaintiff on the tax base of KRW 10,000, KRW 2,000, KRW 2,000, KRW 1,000,000, KRW 1,000,000, KRW 2,000,000, KRW 2,000,000, KRW 1,000,000, KRW 2,000,000, KRW 2,000,000, KRW 1,000,000, KRW 2,000,00, KRW 2,000,000, KRW 2,00,000, KRW 2,00,00,000, KRW 2,00,00,00,00.

[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 1, 2, 6, 9 (each number is included; hereinafter the same shall apply), Eul evidence Nos. 1 through 3, and 9 through 12, and the purport of the whole pleadings

2. Whether each of the issues of this case is legitimate

(1) While leasing the instant business establishment to KimB, etc. for ten years, the Plaintiff agreed to transfer all the instant facilities and the instant business establishment’s goodwill, etc., and received the instant money in return. In other words, the instant money is the comprehensive transfer cost for the instant business as an organic integration conducted at the instant business establishment. Accordingly, the instant money is the transfer cost of business rights under the Income Tax Act, which constitutes other income and should be excluded from value-added tax as consideration for business transfer under the Value-Added Tax Act.

(2) Nevertheless, the Defendants classified the instant amount as business income under the Income Tax Act on the erroneous premise that the instant amount was paid a ten-year rent for the instant facilities, and imposed the global income tax on the instant issue by classifying the instant amount as business income under the Income Tax Act, and imposed the disposition imposing the global income tax on the instant amount by classifying the rent revenue, which is subject to the Value-Added Tax Act, so each of the instant issues dispositions

B. Relevant statutes

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

(c) Fact of recognition;

(1) Around 2002, the Plaintiff prepared for a cover-to-land project at the instant place of business, and invested expenses for interior and outside of the OOOO in each floor. The instant facilities, etc. included a interior decoration, kitchen equipment, water storage room, water storage, snick, bet, bet, bet, bet, air, bet, ber, ber, ber, ber, ber, ber, ber, ber, ber, ber, etc., and most of the Plaintiff used from around 202.

(2) At the time of the conclusion of the instant contract, the instant plant was located in the vicinity of the area as a cover sheet with a pro rata Specialist, and the instant plant had already completed the pre-contract with a pro rata for three months.

(3) The KimB et al. prepared a written confirmation that the instant money was paid in return for the comprehensive acquisition of the operating rights and facilities of the instant workplace by the Plaintiff, and that it was not paid in terms of the facility and facility usage fees of the instant workplace, and KimB presented a statement to the same effect as the Plaintiff appeared as a witness in the instant court.

(4) Even after acquiring the instant plant from the Plaintiff, KimB et al. emphasized the discrimination between the formerCCC, and operated the land-to-land reserve project. Employees who worked in the instant plant continued to work without leaving most of them, and KimB et al. continued to work in the instant plant until March 2007. The Plaintiff’s name and contact details of the pre-contracted’s pre-contracted in the instant plant were transferred from the Plaintiff until March 2007, and (5) KimB et al. terminated the lease contract on the 4th and 6th floor around May 201, and around September 2011, another person leased and used the 4th and 6th floor at the instant plant, but did not receive some of the instant funds from the Plaintiff.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 3 through 5, 7, 8, 11 through 13, and the purport of the whole pleadings and arguments

D. Determination

(1) Whether the instant money constitutes usage fees of the instant facilities

(A) The instant contract is a building, interior, office, etc. installed in the instant business establishment.

However, the above facts alone are insufficient to deem the funds of this case to have been paid only with the usage fee or rent for the ten-year period of the facilities of this case, and there is no other evidence to acknowledge it.

(B) Rather, considering the following circumstances revealed in light of the facts of recognition and the purport of the entire pleadings under Section 2. C., the instant money is deemed to have been paid to KimB et al. for the Plaintiff’s transfer of the instant facilities and goodwill.

① The term of existence of a facility, interior term, and collection term in the instant place of business does not exceed 10 years, and the Plaintiff has already been used from around 2002. As such, it is difficult to deem that there exists a value worth being leased with a fee for ten years from the time of entering into the instant contract.

② The monthly or annual payment of rent in a lease agreement is customary practices in the transaction community, and the payment of rent for a ten-year rental fee for a facility or an object of collection at one time in the contract year during which the contract is concluded. However, there is no reasonable ground for concluding a lease agreement for the instant facility under this exceptional condition, including the Plaintiff and KimB, etc.

③ If the instant money constitutes the ten-year rental fee for the instant facility, it would accord with the common sense that the Plaintiff agreed to refund the rental fee corresponding to the period of use to KimB, etc. in the event that the instant contract is terminated before the ten-year lapse of the initial guarantee period. In addition, the instant contract does not include any such agreement, and rather, when the instant contract is terminated halfway, KimB, etc. refund the Plaintiff the ownership of the instant facility without any condition. In fact, KimB, etc. did not receive any refund from the Plaintiff while terminating the instant contract for the establishment at the time when the ten-year lapse of the date of the conclusion of the instant contract.

④ Considering the fact that the Plaintiff started a cover-to-land project at the instant place of business, and invested expenses for interior and outside of the KRW OOO in each floor, and purchased all of the main facilities and the house fixtures, and that there is room for recognition of a considerable amount of goodwill, as the instant place of business is part of the work, in light of the fact that there is room for recognition of a considerable amount of goodwill, it may be deemed that the price for the instant facilities and goodwill was set as the KRW OO.

⑤ Considering that KimB et al. took over most of the employees, etc. of the instant workplace from the Plaintiff, used the trade name as they are, and received the list of pre-contracted customers and contact numbers, KimB et al. appears to have taken over the instant workplace from the Plaintiff.

(2) Whether the disposition imposing global income tax on the instant issue is lawful

(A) Business income and other income under the Income Tax Act refer to income generated from a certain business and become business income. Meanwhile, other income refers to income other than interest, dividend, business, labor, annual gold, retirement, and transfer under the Income Tax Act, which is stipulated in each subparagraph of Article 21(1) of the Income Tax Act, and money and valuables received in return for the transfer or lease of business licenses are other income.

In the case of business income, a taxpayer shall submit relevant evidentiary documents to the taxpayer in order to deduct necessary expenses from the total amount of income (Articles 19(2) and 21(1) of the Income Tax Act, Article 55(1) of the Enforcement Decree of the Income Tax Act), while in the case of other income, the amount equivalent to 80/100 of the amount received by the resident shall be necessary expenses, and in the case of other income, the amount in excess shall also be included in necessary expenses if necessary expenses exceed 80/100.

Even if business income and other income are global income subject to cumulative taxation under the Income Tax Act, if the whole income of a person liable for tax payment is taxed as business income, but some of them are recognized as other income, the entire disposition shall be revoked, unless the grounds for disposition are modified and the legitimate tax amount is asserted accordingly, and the court shall not revoke the disposition only to the extent that it exceeds the reasonable tax amount (see, e.g., Supreme Court Decision 96Nu8307, Nov. 14, 1997).

(B) Whether the instant money constitutes business income

2. The instant money, like the determination under paragraph (d)(1), is the price that the Plaintiff transfers the instant facilities and goodwill to KimB, etc. Therefore, the head of the Daejeon District Tax Office should have divided the instant money into the price for the instant facilities and the price for the goodwill, and classified the amount into the other income accrued in the year 2007 and imposed the income tax by classifying it as the price for the instant facilities and the price for the goodwill.

Nevertheless, the head of the Daejeon District Tax Office imposed global income tax on the instant case on the following grounds: (a) the Plaintiff received the instant amount in return for the lease to KimB, etc. of the instant facilities, in proportion to the amount of OOO won each year on the premise that it is the advance payment of the ten-year rent for the rent of the Plaintiff; and (b) the Plaintiff received the business income of each OO won in the year 2007, 2008, and 2009; and (c) thus, the disposition imposing global income tax on the instant case was unlawful.

Meanwhile, the Defendants asserted that the value of the instant business establishment’s business rights is equivalent to KRW OO of the instant business establishment at the time of the instant contract based on the evidence No. 8, and that the amount deducted from the said amount constitutes the cost for the transfer of the instant facilities. However, as can be seen by the purport of the entire pleadings, the Plaintiff purchased and installed the instant facilities and did not properly state the purchase cost or depreciation costs, etc. in the statement of financial position related to the instant business operation of the instant business establishment, in light of the fact that the Plaintiff did not enter the purchase cost or the depreciation costs, etc. in the statement of financial position related to the instant business operation of the instant business establishment, it is insufficient to recognize that the Plaintiff’s business rights of the instant business establishment and the transfer cost of the instant facilities are distinguished from the amount as alleged by the Defendants, and there is no other evidence to prove otherwise. Accordingly, the court must revoke the disposition imposing global income tax in its entirety.

(C) Whether the instant money constitutes a consideration for a comprehensive project transfer

The Plaintiff asserted that the instant money is a consideration for the transfer of business as an organic integration with respect to the instant business establishment, but the Plaintiff did not transfer the ownership of the 3 to 6th floor of the instant building, which is an important material facility of the instant business establishment, to KimB, etc., and granted only the status as a lessee of the 3 to 6th floor of the instant building without transferring the ownership of the 3 to 6th floor of the instant building, as such, it is difficult to view the instant money as a consideration for a comprehensive business transfer as an organic integration with respect to the instant business establishment.

(3) Whether the imposition of value-added tax on the issue of this case is legitimate

(A) Relevant legal principles

1) The value-added tax is levied on a transaction corresponding to the supply of goods or services by an entrepreneur (Article 4 of the Value-Added Tax Act). The supply of goods means the delivery or transfer of goods on all contractual or legal grounds (Article 9 of the Value-Added Tax Act); the time of supply for goods; and Article 15(1)2 of the Value-Added Tax Act means the time when the goods are made available if the transfer of goods is not required on all contractual or legal grounds (Article 15(1) of the Value-Added Tax Act). Meanwhile, the supply of services means either the provision of services or allowing the use of goods, such as facilities, rights, and rights (Article 11 of the Value-Added Tax Act). The time of supply for services is the time when the facilities, rights, and the goods are used (Article 16(1)2 of the Value-Added Tax Act): Provided, That where the transfer of the business is a comprehensive succession to all rights and obligations related to the

2) Under Article 6(6) of the Value-Added Tax Act and Article 17(2) of the Enforcement Decree of the same Act, a comprehensive succession of business means that the transferor succeeds to the legal status of the transferor to the extent that the transferor is identical to the transferor by transferring not only all business facilities, but also all personal and material rights and obligations, such as goodwill and claims and obligations pertaining to the business (see Supreme Court Decision 88Nu3581, Apr. 11, 1989). The fact that the transferor is not a simple physical facility but a organic combination is not a value-added tax (see Supreme Court Decision 95Nu290, Nov. 10, 195).

3) In principle, the identity of the disposition in tax litigation is divided into taxable units. Whether the income or income is attributed to a business year or taxable year, such as corporate tax, income tax, and value-added tax, is directly linked to the time of taxation, and the legislation applicable to the modification of the provisions of tax law differs, and thus, the disposition that misleads the time of attribution is unlawful (see Supreme Court Decision 94Nu21583, Apr. 11, 1995).

(B) Whether the instant money is subject to value added tax

It is difficult to view that the price for the supply of goods called the instant facilities and the price for the supply of services as the transfer of business rights in the instant place of business. Since it is difficult to view that KimB, etc. transferred the business (transfer of business) in the instant place of business, etc., the Plaintiff should be deemed to have supplied KimB, etc. the instant facilities (goods) and the instant place of business to KimB, etc. during the first period of 2007, commencing the business in the instant place of business. Therefore, the head of Seogu Daejeon District Tax Office should have imposed value-added tax by including the instant money received by the Plaintiff in return for the supply of business rights to the instant facilities and the instant place of business in the base for value-added tax for the first period of 2

Nevertheless, the head of Seo-gu Daejeon District Tax Office imposed the value-added tax of this case on the premise that the amount of this case was paid in advance by the Plaintiff to KimB, etc. for ten (10) years in return for the lease of the facility of this case by the Plaintiff. Accordingly, the part of the disposition imposing the value-added tax of this case, which corresponds to the amount of this case from 2, 2007 to 2, 2009 among the disposition imposing the value-added tax of this case, is unlawful since the part corresponding to the amount of this case in the disposition imposing the value-added tax of this case, which corresponds to the amount of the first imposition of the value-added tax of this case in 207, is erroneous in the grounds for disposition, and since the head of Seo-gu Daejeon District Tax Office changed the grounds for disposition and deducted the input tax amount of this case, the court may not determine the excess amount and revoke it (see Supreme Court Decision 2007Nu1984, Jan. 19, 2007).

(4) The theory of lawsuit

Therefore, among each disposition of this case, each disposition of this case, [Attachment 1], [Attachment 2], and [Attachment 2], each disposition of this case in the item column of tax amount should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiff's claim is justified. The part of the claim for cancellation of the global income tax for the year 2007 and the global income tax for the year 2008 of September 1, 2010 of the judgment of the court of Daejeon among the judgment of the court of first instance is just, and the part of the claim for cancellation of the global income tax for the year 2009 of September 1, 2010 of the judgment of the court of first instance as well as the part of the claim for cancellation of the value-added tax for each of the value-added tax stated in attached Table 1 [Attachment 2] of the judgment of the court of Second Daejeon is just by the request reduction at the court of first instance, and the defendants' appeal is dismissed in its entirety as it is without merit. Since the part of the judgment of the court of first instance concerning the global income tax for the year 209 of September 1, 2010 and the part concerning the claim for cancellation of the value-added tax for each of the value-added tax stated in attached Table 3 of the judgment of Daejeon.