A. Whether the taxation requirements for value-added tax are satisfied even if the entrepreneur does not continuously and repeatedly supply goods, etc. independently and repeatedly (affirmative)

B. Whether the transfer of fixed assets for business upon closure of business constitutes a taxation transaction under the Value-Added Tax Act (negative)

A. According to the relevant provisions of the Value-Added Tax Act and the Enforcement Decree of the same Act, the subject of value-added tax is a transaction for the supply of goods or services, and the supply of goods refers to the delivery or transfer of goods on all contractual or legal grounds, and the taxpayer is a person who independently supplies goods or services on a business basis (hereinafter “business operator”) regardless of the existence of profit-making profit. Thus, in a case where a business operator delivers or transfers goods on a contractual or legal grounds, unless there is a special provision that the value-added tax is exempted or imposed, all of the taxable items that are subject to the imposition of value-added tax, and thus, the requirements for taxation are satisfied if the business operator independently and repeatedly supplies goods

B. Even if an entrepreneur supplies goods, etc., there are cases where the value-added tax is levied on the goods deemed to be the case where the entrepreneur supplies the goods, etc., and the remaining goods are deemed to be the case where the entrepreneur discontinues his/her business. However, if the remaining goods are real estate acquired before the enforcement of the Value-Added Tax Act on July 1, 197, the remaining goods shall not be levied, and if the market price is deemed to be the depreciable assets for which two years have elapsed since the date of acquisition of the goods, the market price is deemed to be zero. In this case, if the supply of the goods is not required due to the interim payment condition, the time when the goods are made available, in principle, shall be deemed to be the time of supply. If the goods are supplied under the interim payment condition, the time of receiving each portion of the price shall be deemed to be the time of supply, and if the above legal time of supply for the goods supplied before and after the closure of business arrives after the date of interim payment, it may not be applied to Article 6(4) of the Value-Added Tax Act.

(a) Article 6(a) of the Value-Added Tax Act; Articles 1 and 2(b) of the Value-Added Tax Act; Articles 6 and 9 of the said Act; Article 5 of the Addenda to the said Act; Articles 49(1) and 21(1) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 13199, Dec. 31, 190);

A.C. Supreme Court Decision 91Nu8593 delivered on July 28, 1992 (dong) b. Supreme Court Decision 89Nu7283 delivered on February 27, 1990 (Gong1990,821 delivered on April 27, 1990) 89Nu7351 delivered on April 27, 1990 (Gong190,1185) 89Nu4 delivered on July 24, 1990 (Gong190,1809)

Plaintiff

Head of Guro Tax Office

Seoul High Court Decision 90Gu7793 delivered on June 4, 1991

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

The defendant's grounds of appeal are examined.

1. According to the relevant provisions of the Value-Added Tax Act (hereinafter referred to as the "Act") and the Enforcement Decree of the same Act (hereinafter referred to as the "Decree"), the subject of the imposition of value-added tax is the supplier of goods or services (Article 1(1)1 of the Act), and the supply of goods means the delivery or transfer of goods on all contractual or legal grounds (Article 6(1) of the Act). The taxpayer is a person (hereinafter referred to as the "business operator") who independently supplies goods or services (hereinafter referred to as "goods, etc.") on a business basis regardless of the existence of profit-making purpose, regardless of whether it is for profit-making purpose (Article 2(1) of the Act), and in case where a business operator delivers or transfers goods on contractual or legal grounds, the subject of the imposition of value-added tax shall be subject to the imposition of value-added tax, unless there is a special provision that the exemption or

As can be seen, since the entrepreneur’s independent supply of goods, etc. for business meets the taxation requirements, the entrepreneur is not entitled to the value-added tax only with the continuous and repeated supply of goods, etc. Therefore, rather than continuously and repeatedly providing goods, etc. as its main business, it is subject to taxation even in cases of the supply of goods, etc., or of the supply of goods, etc., either by incidental to the main transaction or by chance or temporarily related to the main business. However, in cases of the so-called incidental transaction, other than the main transaction in which the supply of goods, etc. is itself a business, there are cases where the value-added tax is exempted or imposed on the main supply of goods, etc., including the supply of goods, etc., which is the main transaction, and thus, the incidental supply of goods, etc. is also exempted

In addition, even if an entrepreneur supplies goods, etc., there are cases where value-added taxes are imposed on the goods deemed as if they were supplied. In such cases, the remaining goods are immediately deemed to be supplied to him/her when the entrepreneur discontinues his/her business (Article 6 (4) and (2) (3) of the Act): Provided, That in cases where the remaining goods are real estate acquired before the Act enters into force on July 1, 197, no tax shall be imposed (Article 5 of the Addenda of the Act No. 2934, Dec. 2, 1976); in cases of depreciable assets for which two years have elapsed from the date of their acquisition, the market price is deemed to be zero (0); in cases of such depreciable assets for which two years have passed after their acquisition (Article 49 (1) 5 of the Decree before and after the amendment by Presidential Decree No. 13199, Dec. 31, 190); in cases where the goods require the movement of such goods, the remaining part of the goods are deemed to be supplied at the time of supply.

2. The court below acknowledged that the plaintiff, from July 31, 1986, operated a real estate rental business only with the building of this case which he owned from around 31, 1986, entered into a contract to sell the building of this case to the non-party Seoul Central Machinery & Parts Cooperatives for the amount of KRW 685,00,000,00, and completed a registration of ownership transfer on April 14, 198, the plaintiff, a real estate rental business operator, sold the building of this case which is the object of service supply, sold the building of this case, which is the object of the service supply, and transferred the building of this case to the owner of the building, at that time. Thus, since the plaintiff's transfer of the building of this case cannot be deemed as a supply of the remaining goods after the business closure under Article 6 (4) of the Act, the transfer of the building of this case can not be deemed as a ground for temporary sale of the building of this case to the extent that the plaintiff's status as a rental business operator becomes extinct, and therefore, it cannot be deemed as a ground for sale of the plaintiff's temporary sale.

3. According to evidence such as evidence evidence No. 2, the contract deposit between the above union and the intermediate payment on April 6, 1989, and the remaining payment on April 11, 198, concluded a sales contract on the building of this case with the delivery of documents necessary for the registration of transfer of ownership on April 15, 198, and redemption of the object of sale and purchase (it appears that the contract was entered into on April 10, 198). On April 14, 1989, in the name of the above union as of April 10, 1989, the registration of ownership transfer was made on the ground of the sale and purchase as of April 6, 1989. According to the above legal principle, it cannot be viewed that the supply of the building of this case was completed until April 14, 1989 or until April 15, 1989, and it cannot be viewed that the Plaintiff’s remaining supply of the building of this case after the sale of the building of this case can not be viewed after the sale of the building of this case.

4. However, as clearly based on the facts established by the court below, if the Plaintiff transferred the instant building, which the Plaintiff had offered for its own business, as a business operator, falls under the case where goods are delivered or transferred due to contractual causes, it is clear that the Plaintiff is the supply of goods subject to value-added tax, regardless of whether for profit or not the transfer of the building is continuously and repeatedly conducted.

Nevertheless, the court below held that the transfer of the building in this case is not subject to value-added tax because it is not a supply of business-related goods. Thus, the court below erred in the misapprehension of legal principles as to the subject of value-added tax or the time of supply for goods, etc., and it is clear that such illegality has affected the conclusion of the judgment. Thus, there is a reason to point this out.

5. Therefore, the judgment of the court below is reversed, and the plaintiff's transfer of the building of this case constitutes "transfer of business" under Article 6 (6) of the Act as alleged by the plaintiff, or since the plaintiff transferred the building of this case after the plaintiff discontinued a cruel business, it is not subject to Article 49 (1) 5 of the Decree prior to the amendment by Presidential Decree No. 13199 of December 31, 190, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)