Whether it is a real estate sales business or a comprehensive transfer of a real estate rental business

Since the Plaintiff’s lease act was conducted as part of the real estate sale business, notwithstanding the form of registration of rental business operator, the transfer of real estate in this case is limited to the supply of specific goods as a real estate sales businessman, and it is difficult to regard it as a comprehensive

Article 19 (Business Income)

Article 6 (Supply of Goods)

1. Of the instant lawsuit, each part of the claim seeking the revocation of each disposition of imposition listed in the [Attachment 1 2 to 4] and each disposition of imposition listed in the [Attachment 2 1 to 6] shall be dismissed.

2. The part of the instant lawsuit filed by Plaintiff Cho ○, seeking the revocation of each disposition of imposition listed in [Attachment 1] Nos. 1 and 5 among the instant lawsuit, and the part seeking the revocation of the disposition of imposition listed in [Attachment 2] No. 7 among the instant lawsuit filed by Plaintiff Lee Dong-

3. The costs of lawsuit are assessed against the plaintiffs.

The disposition of imposition of each value-added tax and global income tax on October 1, 2007 by the defendant against the plaintiffs on October 1, 2007 shall be revoked.

1. Details of the disposition;

A. On April 27, 2001, the plaintiffs purchased 1/2 shares in relation to ○○○-3 site in Seongdong-gu, Sungnam-si, ○○○○○-dong, ○○-3 site (hereinafter "the site in this case"). On December 31, 2001, the plaintiffs newly constructed a commercial building (hereinafter "the building in this case"; hereinafter "the building in this case"; hereinafter "the building in this case") on the above ground, and transferred on May 29, 2003, and paid transfer income tax on June 30, 200 by scheduled return of KRW 6,445,170, respectively.

B. As a result of tax investigation with respect to the plaintiffs, the transfer of the plaintiffs' real estate in this case was conducted as part of real estate trading, and thus, it constitutes a transaction falling under the supply of goods under Article 1 (1) of the Value-Added Tax Act, and thus, the value-added tax base for the first period portion for the year 2003 following the transfer of the real estate in this case was 2,392,812,000 won, and the business income for the year 2003 was 297,231,000 won, and on October 1, 2007, the amount of business income for the year 2003 was 396,967,390 won and global income tax for 157,152,160 won and the amount of 157,875,250 won and the amount of global income tax for the plaintiff Lee ○.

C. In addition, the Defendant found the omitted amount of the Plaintiffs’ lease income from the Plaintiff’s building ○○○-1 above ○○○-dong, Sungnam-si, ○○○○-1, and on October 1, 2007, with respect to the above omitted lease income, the Defendant notified the Plaintiff ○○ of the global income tax of KRW 9,372,170 in 200, global income tax of KRW 26,81,600 in 205, global income tax of KRW 11,029,30 in 206, global income tax of KRW 2,778,980 in 204, value-added tax of KRW 8,031,360 in 205, KRW 8,973, value-added tax of KRW 490 in 205, KRW 200 in 205, KRW 167,207, KRW 2006 in 207, KRW 2005.

D. On December 21, 2007, the Plaintiffs filed a request with the National Tax Service for the imposition of KRW 396,967,390, and global income tax of KRW 157,152,160, and global income tax of KRW 155,875,250, and the disposition of imposition of KRW 155,875,250 against Plaintiff ○○ on March 17, 2008, with regard to the imposition of KRW 47,856,220 among the value-added tax for Plaintiff ○ on March 17, 2008, upon which the claim against Plaintiff ○ was accepted and the remaining claim was dismissed, the Defendant reduced the amount of KRW 47,856,220 as to Plaintiff ○ on March 26, 2008.

[Ground of recognition] Evidence No. 2-1 to 12, Evidence No. 3-2, Evidence No. 1-1 to 13, Evidence No. 2-1 to 2-4, and the purport of the whole pleadings

2. Determination on the defense prior to the merits

The defendant asserts that since the plaintiffs' imposition of value-added tax and global income tax on ○○-1 located in Sungnam-si, ○○○-dong, ○○○-1, and each disposition of imposition listed in [Attachment 1] Nos. 2 through 4, and Nos. 1 through 6, which are dispositions of imposition of value-added tax and global income tax on ○○-1 located in Sungnam-si, ○○○○-dong, and each disposition of imposition listed in [Attachment 2] Nos. 1 through 6, are unlawful since they did not go through legitimate pre-trial procedure, unlike general administrative litigation, administrative litigation seeking cancellation of national tax cannot be filed without going through an administrative appeal. Thus, the plaintiff must first file a lawsuit seeking cancellation of the above global income tax (Article 56(2) of the Framework Act on National Taxes), and all the above administrative appeal must be filed within 90 days from the date on which the plaintiff knew of the pertinent disposition (Articles 55(6), 61(1), and 68(1) of the Framework Act on National Taxes).

3. Judgment on the merits

A. The plaintiffs' assertion

The Plaintiffs newly constructed the instant real estate for the purpose of leasing business and registered as a real estate rental business operator, and run a real estate rental business by reporting and paying the value-added tax and comprehensive income tax on rental income. The Plaintiffs succeeded to the assignee of the instant real estate, and the assignee also constitutes a comprehensive transfer and takeover of business, and thus constitutes a comprehensive transfer and takeover of business, and thus this constitutes a supply of goods pursuant to Article 6(6) of the Value-Added Tax Act, and thus, the instant disposition that the Defendant reported the Plaintiffs

(b) Related statutes;

Article 19 (Business Income)

Article 34 (Scope of Real Estate Sale Business)

Article 1 (Taxable Objects)

Article 6 (Supply of Goods)

Article 17 (Provision of Security, Transfer of Business and Payment of Taxes in Kind)

B. Determination

(1) Whether a real estate transaction constitutes a real estate transaction, which is a taxation requirement of value-added tax, shall be determined in light of social norms by considering whether the transaction is for profit-making purposes, and whether the transaction has continuity and repetition of business activities in light of its size, frequency, mode, etc., and whether it can be seen as a real estate transaction. Article 1(2) of the Enforcement Rule of the Value-Added Tax Act is merely an exceptional provision, and so long as the real estate transaction as a whole has continuity and repetition in business purposes, it does not deny the business feasibility of the transaction during the pertinent taxable period (see Supreme Court Decision 96Nu8758, Oct. 11, 196). The issue of whether a real estate transaction constitutes a real estate transaction or a transfer income under the Income Tax Act is a real estate transaction or a real estate transaction income shall be determined by considering not only the transaction’s acquisition and possession of real estate by the transferor, the existence of the transaction, the size, frequency, mode, and other parties, etc. of business activities, but also the continuity and continuity of business activities.

(2) Comprehensively taking account of the overall purport of the arguments in the evidence No. 2-1, No. 2, No. 3-1, No. 3-2, No. 4-1, and No. 2 of the evidence No. 2-1, No. 4-2, the plaintiffs acquired real estate 13 times in total including the real estate of this case from May 31, 1881 to May 31, 2004, as shown in the separate statement No. 3, including the real estate of this case, on 13 occasions including the real estate of this case, and transferred the building after newly constructing the building, and the period from the time of transfer to the date of new construction of the building is eight to two months. In light of various circumstances, it is reasonable to deem that the plaintiffs acquired real estate continuously and repeatedly for the purpose of earning profits from the original and repeated transfer of the real estate of this case.

In addition, as long as the Plaintiff continues to sell and purchase real estate repeatedly due to business activities, even if he/she completed business registration as a lessor during the period of possession of real estate and paid the value-added tax thereon, it is difficult to view that the Plaintiff’s above act of leasing real estate affects the business feasibility as a real estate sales businessman (see, e.g., Supreme Court Decision 97Nu10192, Oct. 24, 197). However, the Plaintiff’s act of leasing real estate in this case is conducted as a part of the real estate sales business, regardless of the form of registration of rental business operator, and thus, it is merely a comprehensive transfer of real estate leasing business that excludes the imposition of value-added

(3) Therefore, the instant disposition that the Defendant, by indicating the sale and purchase of the real estate to the Plaintiffs as its business objective, deemed as a real estate dealer and engaged in real estate sales business is lawful.

4. Conclusion

Therefore, the part of the lawsuit in this case seeking the revocation of each disposition of imposition listed in the separate sheet 2 or 4 and the separate sheet 1 or 6 listed in the separate sheet 2 from the separate sheet 1 to 6 is unlawful. Thus, each of them is dismissed, and the remaining part seeking the revocation of the disposition of imposition is dismissed, and it is so decided as per Disposition by the court below.