Cho High 2014Gu 1198 (2014.05.09)

Since the type of business of transferor and transferee are different, it cannot be viewed as a comprehensive acquisition of business.

In view of the difference between the type of business and the type of business of the claimant who is the transferor of the building at issue and the category of business who is the transferee of the building at issue, it is difficult to regard the transfer limit of the building at issue as the supply of goods under the Value-Added Tax Act

Article 23 of the Enforcement Decree of the Value-Added Tax Act

2014Guhap21891

The two AA

BB Director of the Tax Office

April 29, 2015

June 17, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On December 10, 2013, the Defendant revoked the imposition of value-added tax ○○○○ on the first quarter of 2011 against the Plaintiff.

1. Details of the disposition;

A. On November 15, 2006, the Plaintiff purchased ○○○○○○○-dong 14-6, 14-15 (hereinafter “instant land”) and completed the registration of ownership transfer on December 15, 2006 by purchasing reinforced concrete building (SB), 5 floors, accommodation facilities of reinforced concrete building (SB), 5 floors, and facilities for accommodation of light-scale steel-frame gadle ga-ladle branch, etc. on the instant land (hereinafter “instant building”).

B. On March 18, 2011, the Plaintiff entered into a contract under which the Plaintiff would sell the instant land and buildings to ○○○○○○○○○○○ (hereinafter “instant contract”). On April 12, 2011, the Plaintiff completed the registration of ownership transfer to the MaximumCC (hereinafter “instant transfer”).

C. On May 25, 2011, the Plaintiff filed a final return on value-added tax by excluding the sales proceeds of the instant building from sales, on the premise that the transfer of the instant building to the Defendant is a transfer of business not deemed a supply of goods under Article 6(6)2 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter the same shall apply) and Article 17(2) of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013).

D. The defendant's goods subject to value-added tax, which are not the transfer of the building of this case.

On December 2, 2013, value-added tax for the first term of December 2, 2011 for the Plaintiff on the premise that it constitutes supply.

○○○○○○ (including additional tax) issued a correction notice (hereinafter referred to as “instant disposition”).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on January 13, 2014, but was dismissed on May 9, 2014.

Facts that there is no dispute for recognition, Gap evidence 1, Eul evidence 1 through 6 (including each number; hereinafter the same shall apply)

Each entry and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The issue of whether a business operator transfers real estate for business purposes or transfers the business itself by the method of comprehensive acquisition is merely the choice of the parties to the transaction. Even if a transferee, after the transaction, engaged in another type of business that is different from the transferor, the nature of the transaction does not change, and even if the transferee changes the type of business at the time of the transfer of this case, the transfer of business cannot be viewed as a transfer of business on the ground that the type of the transaction party's business was changed from the lease to the lodging business, and the difference between the Plaintiff and the LCC's operating method of the lodging business is not that of the Plaintiff, and the largestCC operated the lodging business indirectly by leasing the building of this case and directly conducted the lodging business. In light of the above, the Plaintiff's transfer of the building of this case to LCC constitutes "transfer of the business under the former Value-Added Tax Act," and thus, the disposition of this case on a different premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) 원고는 2006. 12. 18. 이 사건 건물을 사업장으로 하여 부동산임대업을 영위하다가 2011. 3. 18. 최CC과 사이에 다음과 같은 내용의 매매계약서를 작성하고, 2011. 4. 12. 이 사건 토지 및 건물에 대하여 소유권이전등기를 마쳐주면서 폐업하였다. 양DD는 2007. 9. 19. 원고로부터 이 사건 건물을 임차하여 '○○˜脾�繭遮�상호로 여관업을 영위하다가 2011. 4. 12. 폐업하였다.

2) Meanwhile, on April 4, 2011, on the other hand, on the instant building, the LCC registered the lodging business with its place of business as its place of business, and paid acquisition tax, etc. on April 12, 201 with its tax base as the sales price of the instant land and building ○○○○○○○, and operates the lodging business in the instant building.

3) The transaction value of the instant land and building under the registry of the instant land and building is registered as 2000,000,000 according to the registry of the instant land and building (list number: 201-1035). The details of the establishment registration of a mortgage on the instant land and building established before and after the instant sales contract, the changes thereof, etc. are as follows.

4) The Plaintiff’s report on business transfer (No. 12) dated May 25, 201 prepared on May 25, 201 included the following contents in relation to the instant transfer.

5) The main contents of the business transfer and takeover agreement (Evidence B No. 13) signed between the Plaintiff and the largestCC on March 18, 2011 relating to the instant transfer are as follows.

Facts that there is no dispute over recognition, Gap's evidence 2 through 4, Eul's evidence 7 to 20, and the purport of the whole pleadings.

D. Determination

1) Article 6(6)2 of the former Value-Added Tax Act and Article 17(2) of the former Enforcement Decree of the Value-Added Tax Act provide that a comprehensive succession of all rights and obligations with respect to the business shall not be deemed a supply of goods. The transfer of a business that does not be deemed a supply of goods refers to a comprehensive transfer of physical and human facilities, rights and obligations, etc. including business property, to replace only a management body while maintaining the identity of the business. Thus, the business must be a systematic combination of human and physical facilities so that it can be separated from the management body and can be recognized as a social independence. The fact that the object of transfer is not a simple physical facility but such organic combination is not a mere physical facility in value-added tax and the burden of proof for such transfer is the taxpayer (see, e.g., Supreme Court Decisions 97Nu1278, Jul. 10, 1998; 2004Du8422, Apr. 28, 2006; 209Du7494, Nov. 29, 207

2) Therefore, in light of the following circumstances, as to whether the transfer of the building of this case constitutes the transfer of business, it is insufficient to deem that the Plaintiff transferred the building of this case as a comprehensive business transfer to the largestCC only with the entries of evidence Nos. 2 through 4, and there is no other evidence to acknowledge it. Accordingly, the Plaintiff’s assertion is without merit, and the Defendant’s disposition of this case is lawful.

① On March 18, 2011, Article 8 and Article 9 of the Agreement on Business Transfer and Acquisition by Transfer stipulated that the Plaintiff succeeds to the Plaintiff’s lease deposit, obligation such as vehicle transport equipment and credit purchase deposit, and the existing employment relationship. On May 25, 201, the Plaintiff stated the loan KRW 00 million, lease deposit KRW 00,000, KRW 000, and other KRW 000,000, respectively.

However, unlike the above contents, at the time of the instant sales contract, the largestCC did not succeed to the Plaintiff’s existing obligation, including the obligation to return the lease deposit, the obligation to collateral security, and the relationship of employment was not succeeded.

② On May 25, 2011, the Plaintiff asserted that the Defendant submitted a final return on the instant disposition of value-added tax on the instant land and building to the Defendant on March 18, 201 and the business transfer report on May 25, 2011. However, the Defendant did not submit it at the time of the final return of value-added tax on May 25, 2011. However, there is a dispute over whether the Plaintiff submitted it at the time of the final return of value-added tax on October 30, 2013, which was prior to the instant disposition, while conducting a pre-assessment review on the notice of tax notice of the instant disposition on October 30, 2013. Therefore, it is unclear as to the date of preparation and submission of the business transfer agreement as of March 18, 201 and the date of submission of the business transfer report as of May 25, 20

③ In addition, at the time of the instant sales contract, the Plaintiff assessed the assets, liabilities, and goodwill related to real estate rental business run by the Plaintiff, or did not submit any evidence to deem that there was a transfer of large customer relationship, business secret, business organization, etc.

④ Rather, the transaction price of the instant land and building on the registry of the instant land and building (a list number: 2011-1035) is registered as ○○○○○○○○○. This is consistent with the content of the instant sales contract, and the maximumCC also filed and paid acquisition tax, etc. on the instant land and building based on the tax base of ○○○○○○○○○○, and appears to have been the transaction price of the instant land and building.

⑤ Although the instant sales contract and the instant business transfer contract on March 18, 201 stipulate that “the issue of value-added tax shall be entered into a comprehensive transfer and takeover contract,” the issue of whether it constitutes a “transfer of business” which is not deemed a supply of goods is determined depending on whether it satisfies the objective requirements, and it does not constitute a transfer of business under an agreement between the parties that is deemed a transfer of business in the event of the issue of value-added tax.

6) The Plaintiff completed the registration of real estate rental business and operated the real estate rental business using the instant building. After the instant sales contract, the LCC completed the registration of the accommodation business with the location of the instant building as the location of the instant building and conducted the accommodation business. Since the Plaintiff merely specified the instant building which was provided in the real estate rental business, it cannot be deemed that the business identity was maintained before and after the instant transfer.

7. Article 17(2) of the former Enforcement Decree of the Value-Added Tax Act provides that "the concept of transfer of a non-taxable business is amended by Presidential Decree No. 19330 on February 9, 2006, including where the transferee adds a new type of business or alters the type of business other than the succeeded business." However, this is basically based on the premise that the transfer of a business was originally comprehensive, it is assumed that there is an addition or change of a business thereafter. Therefore, if the comprehensive transfer of business itself is not recognized, the above provision

3. Conclusion

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