Whether it falls under the supply of goods subject to taxation as part of real estate trading business.

Even if a building was transferred after being registered as a business operator after being sold in lots, if it can be seen that the transfer constitutes the business activity of a real estate sales businessman, it shall be subject to the assessment of value-added tax.

Article 1 of the Value-Added Tax Act

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

We examine the grounds of appeal.

1. Details of the disposition;

Facts that there is no dispute over recognition, Gap Nos. 1, 2, 4, and 5, Eul No. 1 to 4 (including virtual numbers), the purport of the whole pleadings.

A. On January 21, 2003, the Plaintiff acquired ○○○○○○, ○○○○-dong, 122-22 and 440 square meters (hereinafter “instant site”) from Kim○○-si, ○○○○○, and newly constructed accommodation facilities of a size of 8 stories and a total floor area of 1,639.42 square meters on the instant site (hereinafter “instant case telecomter”), and completed a real estate sales contract to sell the instant site and Maurel (hereinafter “the instant telecomter, etc.”) to 1.120 million won on August 1 of the same year, and completed the registration of ownership transfer under the name of Kim○-○, 19,000 won on the 19th of the same month.

B. The Plaintiff: (a) determined that the sales of the instant cartels, etc. is not subject to value-added tax; (b) reported the sales amount of KRW 0 of the value-added tax for the second period of value-added tax (the amount to be refunded KRW 49,372,714) in 203; (c) reported and paid only KRW 521,210 as global income for the portion

C. The defendant conducted a tax investigation on December 2004 with respect to the plaintiff on March 1, 2005 on the ground that the transfer of the franchise, etc. of this case by the plaintiff constitutes real estate sales business; (i) the second-term value-added tax for the year 2003 adjusted by adding the amount of tax to the amount of tax paid (=the amount of tax paid + KRW 38,232,299 + additional tax + KRW 19,316,579 + KRW 49,372,714 + KRW 49,372,714 + KRW 1120,0200 + KRW 8,900,000 KRW 102,000,000,000 KRW 102,305,960,000 for the year 203; and (ii) the amount of tax imposed upon each of the above tax imposed upon the plaintiff by adding the amount of tax paid to the amount of tax assessed to KRW 2528,2508,25.25.

D. On October 21, 2005, the Plaintiff filed an objection against each of the dispositions of this case with the National Tax Tribunal on October 21, 2005, but the National Tax Tribunal dismissed the said appeal on May 2, 2006.

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

A. The parties' assertion

As to the Defendant’s assertion that the instant disposition is lawful on the grounds of the above disposition’s grounds and relevant statutes, the Plaintiff asserts that the instant disposition is unlawful on the following grounds.

.

(1) The Plaintiff was registered as a business operator who intends to directly engage in a business by newly building the instant cartel, but actually operated the said cartel, but it was difficult for the Plaintiff to pay new construction costs due to the lack of additional loans from financial institutions due to reasons such as excess of the credit limit for the same person, etc., and it was inevitable to sell the instant cartel to Kim ○, a pilot Kim ○, a pilot, for the purpose of short-term gains. Therefore, the said sales do not constitute real estate sales business.

(2) The Gimman-○ comprehensively acquired all the facilities and equipment necessary for the operation of the aforesaid telecom by taking over all the accounts payable and the balance of sales of the instant land from the Plaintiff out of the new construction cost of the instant telecom, and succeeding two employees. This constitutes the transfer of a business that does not constitute a supply of goods under the Value-Added Tax Act.

(3) If the instant trading act constitutes real estate trading business, it is wrong that the Plaintiff imposed value-added tax on the business registration number of ○○○○○○○ Loan that registered its business with the real estate trading business, but it was registered as the real estate leasing business registration number of the instant franchise.

(b) Related statutes;

Attached Form shall be as stated in the relevant statutes.

(c) Fact of recognition;

Facts that there is no dispute over recognition, each entry, image, and whole purport of pleading of Gap Nos. 2,3,6,7,9 through 13,16,17,19,21, and evidence No. 1 to 9 (including paper numbers)

(1) The terms and conditions of the sales contract for the instant Maurel, etc., and its operational relationship

(A) On August 1, 2003, the Plaintiff agreed to sell the instant telecom, etc. at KRW 1.1220,000,000, and the down payment of KRW 100,000,000,000 on the day of the contract, and the balance of KRW 1.02,000,000,000,000 shall be paid to the Plaintiff on the 31st of the same month, and shall be deducted from the above remainder. The sales contract states that the unpaid land price is about KRW 40,00,00,000, and the construction price is about KRW 70,00,00

(B) Around December 2002, 2002, the Plaintiff newly constructed and operated the instant ○○○○○○○dong with a new construction of ○○○○ 1,2, and accordingly, the construction cost was planned to obtain loans from financial institutions as collateral for the completed ○○ ○○ dong. However, the Plaintiff’s existing loans to the ○ ○ ○ Bank, etc. amounting to approximately KRW 2.8 billion, making it impossible to obtain loans for the instant ○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

(C) On April 3, 2003, prior to the completion of the instant franchise, the Plaintiff registered the business of porting the type of ○○○○○○, business type as a drinking room business, real estate rental business, etc. On August 8 of the same year, the Plaintiff began to conduct business from the next day after obtaining approval for use of the said franchise. On the 19th day of the same month, the registration of preservation of ownership of the instant franchise was completed at the same time as the registration of ownership was completed at the time of the purchase and sale before Kim○, the buyer, and thereafter, Kim○ operated the said franchise from around that time.

(2) Plaintiff’s real estate transaction, etc.

(A) ○○○○ Moelel

① On February 27, 2002, the Plaintiff acquired ○○○○○○○○○, prior to the combination of 143-5 square meters and 218.5 square meters, and completed registration of ownership transfer on July 23, 200, by combining 143-14 square meters and 163 square meters on the same site, and newly building a five-story entertainment tavern and accommodation facility on the same site, and completed registration of ownership transfer on July 10 of the same year. The Plaintiff sold each of the above real estate to ○○○○ on the 16th of the same month and completed registration of ownership transfer on the 23th of the same month.

② The Plaintiff registered his/her business on July 23, 2002, which was the date of the registration of ownership transfer, with his/her trade name as ○○○○○ Amcom, the type of business, the real estate leasing business, and the opening date of the business, and immediately thereafter he/she acquired the registration. On the other hand, with respect to each of the above real estate, the registration of creation of a collateral security worth 1.4 billion won in the name of ○○ Agricultural Cooperative was completed, and Park○ acquired the collateral security obligation from September 14, 2002 to the Plaintiff.

(B) ○○○○ Fund

① On August 29, 2002, the Plaintiff acquired ○○○○, ○○, ○○○, ○○○○, ○○○○, ○○○, 292 large 478 square meters on the 30th of the same month, and combined with 292-1 large 232 square meters on the 30th of the same month, and newly constructed a multi-unit house of 4 stories on the above site, completed registration of ownership preservation on January 16, 2003. On March 3, 2003, the Plaintiff sold the above multi-unit house No. 101 to ○○○, ○○, ○○, ○○, ○○, ○○, ○○○, ○○

② On April 1, 2002, the Plaintiff registered a real estate sales business with its trade name as ○○○ (a loan, a type of business, added a real estate rental business), and the opening date of the business, and reported a comprehensive income tax for the portion belonging to the real estate sales business for 2003 in relation to the sale of the said apartment house (the return on 102 out of 4 bonds was omitted), and on July 2004, the Plaintiff additionally sold 1 bonds of the said apartment house and filed a comprehensive income tax for the period of 204.

(C) ○○ Moel1,2

① On April 30, 2002, the Plaintiff acquired ○○○○○-dong, ○○○○-dong, 932-5 and 785.2 square meters on July 22 of the same year from the land above 932-18 to 392.7 square meters on the same year. After the subdivision, the Plaintiff newly constructed seven-story accommodation facilities on the land above 932-5 of the same year, and completed registration of the preservation of ownership on December 11 of the same year. The Plaintiff registered the business on May 22 of the same year with its trade name as ○○-si, ○○○-dong, ○○-dong, ○○○-dong, ○○-dong, ○○-dong, ○○○-dong, ○○-dong, and 785 square meters.

② The Plaintiff, even on the site of the same 932-18 392-18 392.7 square meters after the said subdivision, newly constructed seven-story accommodation facilities, and completed the registration of ownership preservation on December 11 of the same year. The Plaintiff registered his/her business on May 22 of the same year with his/her trade name as 00, 000, 000, 000, 0000, and then is operating the said 000 square meters.

(D) The Plaintiff’s other real estate transactions

① On July 19, 1997, the Plaintiff acquired the first floor No. 109 of ○○○○○○○○○○○○-gu ○○○○○○○ 399, ○○○○○○○○○○ 399, but sold the said commercial building to ○○○○ on June 25, 2003, and completed the registration of ownership transfer on the 26th of the same month.

② On July 6, 2001, the Plaintiff purchased ○○○-gu ○○○-gu ○○○○-gu 31-31 river 372 square meters and completed the registration of ownership transfer. On September 27, 2002, the Plaintiff completed the registration of ownership transfer by being awarded a bid of 932 square meters in ○○-do 160 square meters in ○○-gun ○○○-gun ○○○-gun, ○○-gun, ○○○-gun, ○○, ○○-do 160 square meters in ○○-do, and completed the registration of ownership transfer by being awarded a bid of 932 square meters in ○○-ri 695 square meters in ○○

(3) New establishment, etc. of an inn by the Plaintiff’s husband Kim ○, a husband.

(A) On January 21, 2003, ○○○○○-dong, 122-21 and 321.8 square meters on the above site, Kim○-dong, ○○○-si, ○○○-si, 122-21, and newly constructed an accommodation facility of eight stories on the above site. The registration of preservation of ownership was completed on September 9 of the same year. The trade name was registered on January 11, 2003 as ○○ ○○ MoMo-dong, ○○○○-dong, ○○○○

(B) On January 21, 2003, Kim○-○ acquired a 122-26 large scale of 179.8 square meters on the same site, and newly built a 10-story accommodation facility on the same site, and completed the preservation of ownership on October 20 of the same year, and completed the registration of ownership transfer on October 20 of the same year. The trade name is ○○ MoMoel and its opening date as of April 17, 2003, and until now the date of the registration of the business.

D. Determination

(1) As to the plaintiff's first argument

(A) Whether the transaction of real estate was made as a part of real estate sales and constitutes the supply of goods subject to taxation under the Value-Added Tax Act 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 a business activity in light of its size, frequency, mode, etc. In light of social norms, even if the transaction was made after having registered the business after having sold the building in lots and having transferred the building temporarily, it shall be subject to the imposition of value-added tax if it can be deemed that the

In particular, if an entrepreneur delivers or transfers goods due to contractual or legal grounds, it is subject to the imposition of value-added tax, unless there is a special provision that the value-added tax is exempted or imposed, and it is subject to the imposition of tax, regardless of whether the entrepreneur’s main business is not continuously and repeatedly supplying goods, etc., but continuously or temporarily supplied goods, etc. related to the main business.

(B) In the instant case, the Plaintiff’s sale of real estate constitutes a real estate sales business. 1) Even if the Plaintiff’s sale of real estate was unable to obtain sufficient loans as security due to the existing loan, the Plaintiff purchased the instant land and subsequently concluded a sales contract with Kim ○○, and completed the registration of ownership transfer over about 10 days after obtaining approval for use, the Plaintiff’s sale of real estate was very short period of time for the Plaintiff’s sale of real estate for less than 10 years, based on the following circumstances. 3) The Plaintiff’s sale of real estate for a short period of 0 years, including the date of conclusion of the sales contract, trading circumstances, and relationship with the buyer. 3) The Plaintiff’s sale of real estate for less than 10 million won, and the Plaintiff’s sale of real estate for less than 20 years, which was newly constructed and sold at 20 million won at 3).

(2) As to the plaintiff's second argument

(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 the Enforcement Decree of the same Act refers to the comprehensive transfer of physical and human facilities, rights, and obligations, 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 and can be recognized as a social independence by separating it from the management body (see, e.g., Supreme Court Decisions 2004Du8422, Apr. 28, 2006; 2002Du8800, Jan. 10, 2003).

(B) Public health is as to whether the Plaintiff’s act of selling and selling the instant telecom corresponds to the comprehensive transfer of business. The Plaintiff’s act of selling and selling the instant telecom, stating that Kim○ shall deduct the unpaid construction cost and the remaining land from the purchase price and that the Plaintiff comprehensively transfer and acquire all the above telecomto, as stipulated in the sales contract, is identical to the foregoing. However, in the case of a transfer of business, the appraisal of assets and liabilities and the goodwill (business secret, management organization, etc.) are very important factors. However, in the instant sales contract, it is difficult for the Plaintiff to view that there was an appraisal of assets and liabilities or business rights related to the instant telecomtory business operated by the Plaintiff to view that there was no 10 million won in the instant telecomtory, or that there was no other comprehensive transfer of facts, such as confidential, organization, and human resources of the instant telecomtory business conducted by the Plaintiff, while maintaining the approval for use of the telecomtory, the Plaintiff cannot be deemed to have established only 170 million won in the instant case’s pre-use and transfer of the instant land.

(3) As to the plaintiff's third assertion

The Defendant’s imposition of the value-added tax is illegal to the Plaintiff’s business registration number of the instant franchise. The Plaintiff’s imposition of the value-added tax is legitimate for the Plaintiff’s sales business of the instant franchise, and the Plaintiff’s business registration was made for the instant franchise business establishment, respectively. The Defendant issued the instant disposition on the ground that the Plaintiff’s substance of the sales business, such as the instant franchise, constitutes real estate sales business. As seen earlier, the value-added tax should be reported and paid for each business establishment (Article 4(1) of the Value-Added Tax Act), and the act of trading the instant franchise, etc. is not entirely related to the sales business of the instant franchise, etc., and thus, it is legitimate for the Defendant to impose value-added tax on the Plaintiff’s sales business of the instant franchise, etc. based on the sales business of the Plaintiff’

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is so decided as per Disposition.

1. Statement of tax amount;

(unit: Won and value of supply)

Classification

Original

Correction

Increase or decrease

Sales Schedule

40,100,000

916,291,030

876,191,030

output tax amount(a)

4,009,999

91,629,103

87,619,104

Purchase Schedule

533,968,293

533,968,293

0

An input tax amount (b)

53,396,804

53,393,804

0

Amount of tax payable (c=a-b)

△△△△,386,805

38,232,299

87,619,104

Additional Tax (d)

14,091

19,316,579

19,302,488

Amount of tax credit

△△△△,372,714

△△△△,372,714

0

Amount of payable tax (c+d-e)

0

106,921,592

106,921,592

2. Statement of tax amount;

(unit: Won)

Classification

Original

Correction

Increase or decrease

Total Amount of revenue

52,056,426

1,761,056,426

1,209,000,000

global income (a)

10,777,127

261,874,792

251,097,665

income deduction (b)

5,100,000

5,100,000

0

Tax Base (c=a-b)

5,677,127

256,774,792

251,097,665

Tax rate (d)

9%

36%

calculated tax amount (e=XD)

510,941

80,738,925

80,227,984

Mutual aid reduction or exemption (f)

0

0

Amount of final tax

510,941

80,738,925

80,227,984

Additional Tax (h)

10,269

22,088,252

22,077,983

Total determined tax amount (i=g+h)

521,210

102,827,177

102,305,967

Tax amount already paid (j)

0

Original notified tax amount(k)

521,210

521,210

Additional Notice Tax Amount (i-j-K)

102,305,967

102,305,967

* The total revenue amount of ○○○○ 102 Emb loan 89,000,000 won omitted

3. Related Acts;

○ Value-Added Tax Act

Article 1 (Taxable Objects) (1) Value-added tax shall be imposed on the following transactions:

1. Supply of goods or services; and

2. Import of goods.

(2) The term "goods" in paragraph (1) means all tangible goods and intangible goods which have property value.

(3) The term "services" in paragraph (1) means all services and acts other than goods, which have property value.

Article 4 (Report and Place of Tax Payment) (1) Value-added tax shall be reported and paid at each workplace.

Article 6 (Supply of Goods) (6) Any of the following subparagraphs shall not be deemed the supply of goods:

2. Transfer of business as prescribed by the Presidential Decree: Provided, That this shall not apply in case where an entrepreneur delivers a tax invoice under Article 16, and as prescribed by the Presidential Decree.

○ The former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 1930 of Feb. 9, 2006)

Article 2 (Scope of Services) (1) Services under Article 1 (3) of the Act shall be all services and activities falling under any of the following subparagraphs:

1. Construction business;

2. Lodging and restaurant business;

6. Real estate business and leasing business: Provided, That this shall exclude rice paddy, field, rice paddy, field, stock farm site, forest land or salt farm lease business;

(2) Notwithstanding paragraph (1), any business prescribed by the Ordinance of the Ministry of Finance and Economy among construction business and real estate business shall be deemed a business supplying goods.

(2) For the purpose of the main sentence of Article 6 (6) 2 of the Act, the term “those as prescribed by the Presidential Decree” means the comprehensive succession of all rights and obligations with respect to the business to each place of business (including the case of division meeting the requirements of Article 46 (1) of the Corporate Tax Act, but excluding the case where a general taxable person transfers the business to a simplified taxable person). In this case, even if the business is succeeded without including those falling under any of the following subparagraphs among the rights and obligations with respect to the business, it shall be deemed that the relevant business has been comprehensively succeeded:

1. The amount receivable;

2. A document concerning accounts payable;

3. Land, buildings, etc. not directly related to the relevant business as prescribed by the Ordinance of the Ministry of Finance and Economy.

○ Enforcement Rule of the Value-Added Tax Act

Article 1 (Scope of Business) (2) The term "business prescribed by the Ordinance of the Ministry of Finance and Economy" in Article 2 (2) of the Decree means the business of selling or selling real estate (including the case of selling or selling real estate by self-construction or other buildings for residence or non-residential use or non-residential use or non-residential use or building), or the business of acquiring and selling real estate more than once during one taxable period for the purpose of business at least