early 2012Gu0521 ( November 01, 2012)

The disposition that considers the transfer of the instant land and buildings as the supply of goods, not the transfer of business, and imposes value-added tax on the Plaintiff is legitimate.

Since the savings bank, a purchaser, appears to have used the building of this case as its principal office and office building from the beginning to the end, it is difficult to view that the entire building of this case is identical to the Plaintiff’s business that used the whole building of this case for leasing business, and thus it cannot be viewed as

Article 6 of the Value-Added Tax Act

2013Guhap187 Disposition to revoke the imposition of value-added tax

AA

Head of Dong Daegu Tax Office

May 29, 2013

August 9, 2013

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

On December 13, 2011, the Defendant revoked the imposition of the value-added tax of the second OOO in 2010 against the Plaintiff.

1. Circumstances of dispositions;

"가. 원고는 2006. 6. 26. OO시 OO구 OO동 2-5 대 420.8㎡， 2006. 12. 14. 같은 동 3-8 대 207.3㎡(이 하 '이 사건 토지 '라 한다)를 각 매입 한 후， 2007. 12. 28. 이 사건 토지상에 연면적 4，972.28㎡의 지하 2층，지상 10층 'BBBB빌딩' 건물(이하 '이 사건 건물'이라 한다)의 신축공사에 착공하였고，2008. 4. 7. 부동산임대업 사업자등록을 한 후 2009. 1. 8. 위 건물의 사용승인을 받고 부동산임대업을 영위하였다.",나. 원고는 2010. 7. 15. 상호금융업과 부동산임대업 등을 영위하는 과세ㆍ면세 겸업 사업자인 주식회사 CCC상호저축은행(2010. 8. 30. CCC저축은행으로 상호변경함， 이하 'C저축은행'이라 한다)과 사이에 이 사건 토지 및 건물을 00억 5천만원(토지 00억 5천만원 + 건물 00억원)에 매도하기로 하는 매매계약(이하 '이 사건 매매계약 또는 양도'라 한다)을 체결하고， 2010. 8. 9. C저축은행앞으로 소유권이전등기를 마쳐 준 후 같은 달 31. 폐업하였다.

C. The Plaintiff did not file a value-added tax return on the transfer of the instant case by regarding the transfer of business not deemed the 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; hereinafter the same shall apply).

D. However, on December 13, 2011, the Defendant issued a correction and notice to the Plaintiff on December 201, 201, on the premise that the instant transfer constitutes the supply of goods subject to value-added tax (hereinafter “instant disposition”).

E. The Plaintiff filed an appeal with the Tax Tribunal on December 27, 2011, but was dismissed on November 1, 2012.

[Grounds for Recognition] The non-contentious facts, Gap evidence 1 to 5, Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the substance of the transfer of this case is not a mere sale of real estate, but a transfer of business not deemed a supply of goods under Article 6(6)2 of the former Value-Added Tax Act, and Article 17(2) of the Enforcement Decree of the same Act, the disposition of this case, which was made before the transfer of this case constitutes the supply of goods subject to value-added tax

(b) relevant statutes;

It is as shown in the attached Table related statutes.

(c)a recognition;

1) On July 15, 2010, the Plaintiff entered into the instant sales contract with a mutual financial business and C Savings Bank, a concurrent business operator carrying on real estate rental business (Evidence A 3), and the main contents are as follows.

【Real estate sales contract

2. Details of the contract;

Article 1 (Purpose) With respect to the sale of the above real estate, the seller and the buyer shall pay the purchase price by agreement as follows:

The purchase price shall be paid and received at the time of the contract by the OOO (the land sale price, the OOO, and the OOOO won) 700 million won down payment.

잔금 OOOO원은 2010.8. 16. 지불함|

Article 2 (Transfer, etc. of Ownership) A seller shall receive the balance of the purchase price, deliver all documents necessary for the registration of transfer of ownership to a purchaser, cooperate with the registration procedures, and the delivery date of the said real estate shall be August 16, 2010.

〇특약사항

1. The seller and the buyer shall comprehensively succeed to all rights and duties accruing from the building on the land;

2. The seller confirms that the terms and conditions of the lease agreement attached to the present building are consistent with those of the lease agreement attached thereto, and if the attached table is different from those of the present situation, the seller shall be fully liable;

3. The buyer shall verify the condition of the present building in addition to the official book related to this real estate and conclude the contract.

4. Prior to the approval by the supervisory authority for the relocation of the store by the purchaser, the purchaser shall deposit 475 million won out of the contract amount to the account held in the name of the seller of the C Savings Bank, and the remainder 300 million won shall be paid to the seller and the ownership transfer claim registration shall be established by guaranteeing the payment.

5. The balance shall be paid in lump sum after the approval of the supervisory authority, and the balance shall be paid at the time of completion when it is not made for the first floor, second floor, and tenth floor of the building until the approval.

8. In the event that the approval of the supervisory authority is not given in connection with the purchase of this building, and that the first floor, second floor, and tenth floor are not expressed by the due date for the outstanding payment, this Agreement shall automatically become void and the payment for the contract shall be promptly refunded.

2) The lease status table attached to the instant sales contract is as follows.

Each floor;

Trade Name

Rental deposit

monthly rent

General Management Expenses

Term of Lease

(Additional Tax Rate)

(Additional Tax Rate)

1--

D

2

3

OOO

OOO

June 16, 2009.-6.15

4

EE insurance

OOO

OOO

June 16, 2009.-6.15

5

FFF

OOO

OOO

6.6.1.-5.31

6

OOO

OOO

Mar. 24, 2009.-3.23, 2010

EE insurance

7

OOO

OOO

February 1, 2009 - January 31, 2010

8

GGGGG insurance

OOO

OOO

- - Of March 11, 2011

HHHH Office

OOO

OOO

OOO

9

II Internet News

OOO

OOO

OOO

January 11, 2010- January 10, 201

10

D

3) The main contents of the contract for acquisition by transfer and transfer between the Plaintiff and the newM and the CSaving Bank are as follows (Evidence A No. 4).

m. Transfer contract

With respect to the comprehensive transfer and acquisition of the business, the following sales contracts shall be concluded between the Do governor, the representatives of newM (hereinafter referred to as "A") and the C Savings Bank (hereinafter referred to as "B"):

(Purpose) (Purpose) The purpose of this Agreement is to comprehensively transfer and take over a business body "A" to "B".

Article 3 (Transfer and Acquisition Value) The value of transfer and acquisition shall be calculated in terms of the amount of real estate sale, and the changed matters shall be calculated later by "A" and "B" shall be settled. In principle, "B" shall be comprehensively taken over all rights and obligations concerning the projects determined by the date of the formation of the contract with "A" until the date of the contract with "A", and "A" shall be succeeded to all rights and obligations regarding the projects that are effective until the establishment of the contract with "A", and the principles and practices related to the continuous projects of "A" shall be respected to the maximum extent possible.

Article 5 (Payment of Price) The term "B" is, at the same time, the payment under a contract for the sale of real estate.

Article 6 (Duty to Cooperate) “A” shall comprehensively transfer the business to “B” and shall make all cooperation necessary for the implementation of the business to “B”.

Article 9 (Effect) This Agreement shall become effective on the base date of the closure of business due to the closure of business submitted by A to the competent tax office, on the documents of business transfer.

4) On July 13, 2010, prior to the conclusion of the instant contract, C Savings Bank asked the National Tax Comprehensive Counseling Center about whether the instant transfer constitutes the transfer of business (Evidence A6) and received the following replies (Evidence A6).

Inquiries shall be made.

I have the honor to use both the financial business and the real estate leasing business as it is for rent. In purchasing Busan to be used as the head office item (g), and the public part of the real estate in question is used as the duty-free businessman, and the leased part is scheduled to be used as it is for rent. In this case, I would like to

1. Comprehensive promotional water supply systems for projects;

With respect to the portion used as excessive business, the additional tax is not imposed because it is deemed as comprehensive business transfer and is planned to be used for the tax-free business, so it is possible to calculate only the value of supply for the area corresponding to the tax-free business.

2.Without the general operating capital:

The value of the building supplied shall be borne by the value of the value of the building, and an application for the refund of the value of the area used for the rental business may be filed.

Answer shall be made.

(1) The transfer of a business not considered as the supply of goods is that the transferor of a business at the time of religion transfers not only all business facilities, but also all human and sound rights and obligations in the business, and succeeds to the legal status of the transferor to the same degree as that of the transferor, and in the case of an inquiry, it is true according to the contract and the details for the transfer of the business that falls under the business that is not subject to value added tax, and if the transferor, at the time of transfer, succeeds to the legal status of the transferor to the same degree as that of the transferor by transferring the human and material rights and obligations of the business as well as all business facilities, and if the transferor adds the type of business other than the succeeded business or changes the type of business.

(2) In the case of your counseling, if the transferor of the real estate has engaged in real estate leasing business and the transferee comprehensively succeeds to the lease business at the time of the transfer and acquisition of the real estate, it would be a problem that the transfer and acquisition of the business is constituted. However, if the taxable type of the transferee after the transfer and acquisition of the business falls under the tax-free business, it is known that the taxable goods can be used for the tax-free business, and that the value-added tax can be calculated due to the diversion of the tax-free business pursuant to Article 17(5) of the Value-Added Tax Act and Article 6

5) After entering into the instant sales contract, C Savings Bank applied for a location change to the Korea Federation of Savings Banks, which is a supervisory organ, on July 19, 2010, and the Korea Federation of Mutual Savings Banks approved the location change as stipulated in the above contents of the contract on July 30, 2010.

6) On August 9, 2010, C Savings Bank paid the remainder to the Plaintiff, completed the registration of ownership transfer with respect to the instant land and building, and concluded an indoor construction contract with KKK and OOOO0, and transferred its head office to the 1,2, and10 of the instant building after obtaining approval from the board of directors on August 20, 2010.

7) As above, CSavings Bank registered its primary business as financial insurance/general financing, and sub-business as service/insurance agency/real estate/rental business, and used 3 and 4 floors from March 201 as its main office in addition to the instant building, the lease contract period of which expires.

[Ground of recognition] Unsatisfy, Gap evidence 3 through 6, Eul evidence 2, 5 through 8 (including each number), and the purport of the whole pleadings

D. Determination

1) Article 6 (6) 2 of the former Value-Added Tax Act, Article 17 (2) of the former Enforcement Decree of the Value-Added Tax Act provides that transferring a business to acquire all rights and obligations with respect to the business shall not be deemed the supply of the goods, and that the transfer of the business that is not deemed the supply of the goods refers to the comprehensive transfer of physical and human facilities, rights and obligations, etc., including the business property, to replace only the management body while maintaining the identity of the business. Thus, the business must be separated from the human and physical facilities and can be socially independent, and the fact that the business is not a simple physical facility but such organic combination is not a object of the value-added tax, and the taxpayer bears the burden of proof (see, e.g., Supreme Court Decisions 97Nu12778, Jul. 10, 1998; 2004Du8422, Apr. 28, 2006; 2007Du94279, Apr. 129, 2007).

2) Examining whether the transfer of the instant land and building constitutes a transfer of business not considered as a supply of goods in accordance with such legal doctrine, and considering the following circumstances revealed by the evidence as seen earlier and the above facts, each of the entries in the evidence A and Nos. 3 through 6 alone is insufficient to deem that the transfer of the instant land and building constitutes a transfer of business, and there is no evidence to acknowledge it, and the Defendant’s disposition that deemed the transfer of the instant land and building as a supply of goods not a transfer of business and imposed value-added tax on the Plaintiff is lawful.

A) The Plaintiff and CSaving Bank agreed to automatically invalidate the instant sales contract in the event that CSaving Bank fails to obtain the approval of the relocation of its head office from the supervisory authority due to the special terms of the instant sales contract, or that the first floor, second floor, and tenth floor (the part of the plan to use the head office) of the instant building are not clarified by the payment date of the remainder, and CSaving Bank agreed to automatically invalidate the instant sales contract before the conclusion of the instant sales contract, and that in purchasing the real estate to be used as the head office office office office office to the National Tax Comprehensive Counseling Center prior to the conclusion of the instant sales contract, it would use the real estate as the tax-free business for the purpose of the transfer of the business.

B) After acquiring the ownership of the instant building, C Savings Bank used the interior interior of the said building 1,2, and 10 stories as its principal office building, and used approximately 6 to 7 months thereafter, from March 201, 3, and 4 stories for which the lease contract period has expired as well as 10 stories for its own business, and used 5 stories among the current 10 stories as its principal office building, and the machine portion also appears to be used for other than the lease business at any time as required by C Savings Bank. Therefore, it is difficult to view that the identity with the Plaintiff’s business that used the entire building of this case for leasing business is recognized.

C) Although the Plaintiff and the CSaving Bank have prepared the acquisition and transfer contract separate from the instant sales contract, the above acquisition and transfer contract merely provides that "the amount of the acquisition and transfer should be settled as the purchase price of real estate," there is no particular content, and there is no circumstance to deem that there was an assessment of assets and liabilities related to the real estate leasing business conducted by the Plaintiff, or an assessment of business rights, or transfer of confidential or managerial organization, etc. in connection with large customers and businesses.

D) Although CSaving Bank succeeded to the Plaintiff’s status as lessor against the existing lessee, it is merely a method of handling the existing lease relationship under the individual real estate sales contract.

3. Conclusion

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