Whether it is business income due to real estate trading business

The period between 12 and 13 months from the acquisition of land and the transfer of the building, and in particular, it constitutes the act of a real estate sales businessman, such as acquisition of real estate ten times from the 2000 to the 2004, and transfer it six times.

Article 1 of the Value-Added Tax Act

Article 2 of the Enforcement Decree of the Value-Added Tax Act

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the imposition of value-added tax of KRW 135,681,80 for the second period of September 1, 2002 against the plaintiff on September 1, 2004.

1. Details of the disposition;

Facts without dispute over the basis of recognition, Gap evidence 1, 6 and 7 evidence 1 through 3, 8, 9 each, 2, Eul evidence 1 through 8, 2-1, 2-1, 2-1, 2-2, 3-1, 3-1, 3-1, 3-1, 5-1, 5-1, 5-1, 5

A. On May 21, 2001, the Plaintiff, along with the head of ○○○ and head of ○○○○ (hereinafter referred to as “Plaintiff, etc.”), who is his birth, purchased 1,679 square meters of land in ○○○○-dong, ○○○○○○-dong, and divided it. On March 15, 2002, the Plaintiff newly constructed “○○○ building” (hereinafter referred to as “one building in this case”) with a total floor area of 3,139 square meters on the ground of 30-○-○ large 904 square meters above the same 300 square meters (hereinafter referred to as “1 building”) and the same 30-○-○ 775 square meters above the same 30-○ 775 square meters, with a total floor area of 2,498 square meters, and completed the registration of initial ownership transfer on the Plaintiff, etc.’s name (hereinafter referred to as “2 building in this case”).

B. On September 2, 2002, the Plaintiff et al. sold the instant building to ○○○ on July 29, 2002, and then reported to the Defendant on September 30 of the same year transfer income tax from the sale of each of the above buildings to ○○○○ on an amount of income. On September 30 of the same year, the Defendant reported to the Defendant on September 30 of the same year that the Plaintiff et al. purchased the land and continuously and repeatedly carried out business activities such as construction and sale of commercial buildings on the ground that each of the sales activities of the buildings constitutes real estate sales business under the Value-Added Tax Act. Accordingly, on September 1, 2004, the Plaintiff et al. imposed and notified the Plaintiff et al. of value-added tax amounting to 339,204,530 won for the second

C. In the case of filing an objection on November 26, 2004, the Defendant: (a) reduced or corrected value-added tax of 203,522,730 won equivalent to 60% of his/her business shares on the ground that the Defendant cannot be deemed to have run real estate sales business in light of business circumstances, etc. (hereinafter “the instant disposition”).

D. The Plaintiff again filed a request for examination with the Commissioner of the National Tax Service on March 16, 2005, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request for examination on June 8, 2005.

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is legitimate on the grounds of the above disposition grounds and related Acts and subordinate statutes. The plaintiff asserted that ① the plaintiff et al. entered into a partnership agreement with the plaintiff et al. and jointly purchased each of the building of this case and newly constructed each of the building of this case, and then sold each of the above buildings to liquidate a partnership by real estate leasing business, reduction of business revenue, and chi○○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○. In light of the above sales process and the number of transactions, each of the above sales activities is not a real estate trading business, and ② even if it constitutes a real estate trading business, the plaintiff et al. comprehensively transferred the business related to each of the building of this case to the female and high ○ ○

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

Facts without any dispute over recognition, Gap evidence 2, 3, 4, 8 through 10 respectively, 1, 2, 11-1 through 3. Eul evidence 1-1 to 8.3, part of testimony and arguments by the head of the first instance trial witness ○○, and the purport of the whole pleadings.

Exclusion of Evidence Evidence Nos. 10 and 11 2

(1) On September 10, 2001, the Plaintiff et al. invested KRW 8.6 million in the Plaintiff and the head of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, respectively, to jointly operate bathing business and real estate rental business. The operating representative shall be the Plaintiff; Plaintiff 40% of the profit and loss distribution rate of the business; Defendant 40% of the profit and loss distribution rate of the business; 30% of the profit and loss distribution rate of the business; and the period of the business operation shall be three years from the date of conclusion of the contract; and the business operation agreement was concluded with the partners so that the period may be extended or shortened upon their agreement.

(2) On September 10, 2001, the Plaintiff et al. completed joint business registration for real estate rental business with respect to the first building of this case, and made sales of KRW 59,86,000 in total as a real estate rental business until September 3, 2002. On March 1, 2002, the Plaintiff et al. completed business registration for the real estate rental business and service business for the second building of this case and made sales of KRW 74,27,00 in total until the closure of business on July 29, 2002. The operation of bath bath in the second building of this case had one staff of mechanical room and one parking source directly.

(3) The Plaintiff acquired and sold the land from around 200 to around 2004 by means of acquiring and selling the land, or constructing a new building on the ground, six times in total. In particular, during the taxable period of the instant disposition, the Plaintiff acquired and transferred the real estate twice during the instant disposition period, and thereafter transferred the real estate more than one year.

(4) In addition, the Plaintiff had registered 10 times of business and operated a business as shown in the attached Form 'Business Contents'. The Plaintiff imposed value-added tax, etc. on the ground that 5 times of real estate sales business, 5 times of real estate rental business, and 3 times of real estate sales including 00 ○○-dong ○○○-dong ○○○-dong dong ○○○○-dong dong dong ○○○ dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong Do

(5) The sales contract and the business transfer and takeover contract of the instant building submitted only at the trial (as stated in the evidence No. 10 and No. 11, No. 11, No. 2) stated that the total purchase price of the instant building was 2.2.5 million won. Among them, the land purchase price of KRW 1.35 million is 95 million, part payments are 1.37 billion, and part payments are 1.37 billion in lease deposit is replaced by the lease deposit. The transferor under the business transfer and takeover contract stated that the transfer and takeover contract only states the Plaintiff as different from the sales contract, but there is no separate list for the transfer and takeover assets due to the lack of assets separately transferred and acquired, and there is no consideration of the business rights, etc. of the said building in the contents of the above sales contract.

(6) In addition, the total purchase price of the building No. 2 in this case is 2.63 million won. Among them, the total purchase price of the land is 1.88 million won, the total purchase price of the building is 1.5 billion won, the total purchase price of the building is 1.5 million won, the intermediate payment is 1.7 billion won, and the intermediate payment is 3.20 million won in the remainder of the remainder of the remainder of the remainder of the remainder of the payment is replaced by the lessee’s deposit, and the waterproof and boiler construction company A/Ss in the boiler. The transfer and takeover contract also states that the transferor is the Plaintiff, and the transfer and takeover contract list of the transfer and takeover assets described as the “Attachment” is also written only as the Plaintiff, and there is no consideration of the detailed details of the purchase price of the building in addition to the land and the building (the purchase price of the land is 1.1 million won, 30 million won, and the purchase price of the building is 1.5 million won,00 million won,000 won,00 won.

D. Determination

(1) As to the plaintiff's first argument

(A) Whether the transaction of real estate constitutes a supply of goods subject to taxation under the Value-Added Tax Act, which are the part of real estate sales business, shall be determined in light of ordinary social norms by considering whether the transaction is for profit and whether the transaction continues to and repeated to the extent that it can be seen as business activities in light of its size, frequency, mode, etc. In addition, even if the transaction of real estate conducted a business registration under the sale of the building and conducted a temporary business registration and transferred the building, if the transfer of the building can be deemed as a real estate sales businessman’s business activity, the transaction is subject to value-added tax (see, e.g., Supreme Court Decisions 9Du6071, Dec. 26, 200; 9Du7609, Oct. 24, 200).

(B) In light of the above facts, although the Plaintiff et al. actually engaged in real estate rental business, bath business, reduction of operating revenue, aggravation of ○○○○, etc. in each of the instant buildings, the period until the Plaintiff acquired the land and subsequently sold it is about 12 to 13 months, and in particular, the period of actual operation is about 5 to 12 months, and the Plaintiff acquired and sold the land including each of the instant buildings from around 200 to 204, or sold the real estate on its ground by acquiring and selling the land including each of the instant buildings, or selling the real estate on more than 10 occasions by constructing a new building on its ground; the period of possession of the transferred real estate is less than 1 year, and the Plaintiff’s act of sale as a real estate sales businessman continues to constitute a disposition of value-added tax in light of the following: (a) the Plaintiff’s act of selling the real estate as a real estate sales businessman is reasonable to deem it to be a disposition of value-added tax.

(C) Next, the Plaintiff’s assertion that each of the above sales activities should be determined on the basis of the association itself, which is not a member of the association, is subject to the imposition of value-added tax unless there is a special provision that the sales of goods is exempted or exempt from value-added tax in case where the goods are delivered or transferred by reason of a contractual or legal reason. It is subject to taxation even if the main business is not continuously and repeatedly supplied goods, etc. with respect to the main business, but continuously or temporarily supplied goods, etc. in connection with the main business. The purpose of the supply is not to maintain and expand the business, or to liquidate the business or to adjust the business (see, e.g., Supreme Court Decisions 2003Du0299, Feb. 27, 2004; 96Nu5124, Feb. 13, 1998). Since three members of the association, such as a window, etc. enter into a partnership business agreement and registered under their name, and each of the above sales of goods and services, etc. constitute the Plaintiff association’s offering of goods and services.

(2) As to the second argument by the plaintiff

(A) The transfer of a business not deemed the supply of goods under Article 6(6) of the Value-Added Tax Act and Article 17(2) of its Enforcement Decree refers to the comprehensive transfer of physical and human facilities, rights, and duties, etc. including business property, to replace only the management body while maintaining the identity of the business. Thus, the business must be deemed as an organic combination of human and physical facilities, which can be separated from the management body and can be recognized as social independence (see, e.g., Supreme Court Decisions 2004Du8422, Apr. 28, 2006; 2002Du8800, Jan. 10, 2003).

(B) According to the facts of the recognition as to whether each of the instant sales contracts constitutes a comprehensive business transfer, and the above facts, in the case of the instant building under a special contract at the time when the Plaintiffs sold each of the instant building, the obligation to deposit for lease was settled in the case of the instant building; in the case of the instant building 2, the obligation to deposit for lease and loan are acquired by the purchaser and the amount equivalent to the amount was deducted from the purchase price; but in the case of a business transfer, the assessment of assets and liabilities and business rights (personal relationship, business secret, business organization, etc.) are an important factor. In the case of each of the instant sales contracts, the assessment of assets and liabilities or business rights related to the instant building, etc., which the Plaintiff operated, may not be seen as having transferred facts such as secrets, business management organization, and human facilities, etc. in light of the fact that there seems to have been a comprehensive transfer of real estate, each of the instant building transactions related to the sale and purchase of real estate under the premise that the Plaintiff’s comprehensive transfer of real estate, such as real estate, etc., should not be considered as a comprehensive transfer of real estate (2).

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is justified as it is with this conclusion, and it is so decided as per Disposition by the plaintiff.