Whether the agreed price for waiver of a lien is part of the proceeds from the sale of real estate

Although the medical facility acquisition price and the lien holder are paid as agreed money in form, this disposition is legitimate as real estate sale price in return for real estate sale.

Article 6 (Supply of Goods)

Article 13 (Tax Base of the former Value-Added Tax Act)

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax of KRW 153,95,230 for the second period of 2005 against the Plaintiff on January 2, 2007 is revoked.

1. Details of the disposition;

[Evidence] Each of Gap 1-1, 2, 3-1 to 9, 18-1, 2, 19-1, 2, 19-2, 1, 3, 4-1 and 2, and the purport of the whole pleadings

A. On May 2, 2003, the Plaintiff completed the registration of creation of a neighboring mortgage on three lots and the above ground hospital buildings (including new construction around April 2003; hereinafter referred to as “the instant real estate”), including the above land and hospital buildings, located in the ○○○○○○○○-7 large scale 8471m2 and three lots and three lots and three lots and three lots of land owned by Kim Chang-gun, Jeon Chang-gun, Kim Chang-gun (hereinafter referred to as “the instant real estate”).

B. However, around early 2004, the Plaintiff used the instant real estate as a leased property after receiving a successful bid in 1850 million won on June 10, 2005 and completing the registration of transfer of ownership with the completion of the compulsory auction and the voluntary auction procedure commenced by the creditors of Kim○, including the Plaintiff, and the creditors of the construction cost related to the construction of the hospital building in Kim Jong-ho occupy the hospital building with the title as the title to the hospital building and reported the lien to the executing court.

C. On December 5, 2005, the Plaintiff agreed to sell the instant real estate between the medical corporation ○○ Medical Foundation (hereinafter “○○ Medical Foundation”) and the medical corporation ○○○○○○ Foundation (hereinafter “○○ Medical Foundation”) and entered into an agreement with the lien holders to determine the sales amount as KRW 1.7 billion and the amount of credit of the lien holders is KRW 1.5 billion, limited to the principal amount of credit of 1.5 billion, and the ○ Medical Foundation pays 1.5 billion to the lien holders through the Plaintiff, thereby having the Plaintiff resolve

D. On December 8, 2005, the Plaintiff and the ○○ Medical Foundation drafted a sales contract stating the purchase price of 1.7 billion won (10 million won in contract, part payments, 60 million won in balance) based on the terms of the above agreement, and the Plaintiff completed the registration of ownership transfer in the future of the ○○ Medical Foundation immediately after receiving 1.7 billion won in the purchase price from the ○○ Medical Foundation, and attached a special agreement stating that the right to payment shall be created to the hospital building with the right to collateral security at the time of receiving 1.5 billion won in agreement with the lien holders.

E. Accordingly, the Plaintiff received 1.7 billion won from the ○○ Medical Foundation on December 13, 2005, and, at the same time, completed the registration of ownership transfer with respect to the instant real estate in the name of the ○○ Medical Foundation, at the same time, completed the registration of ownership transfer with respect to the instant real estate, and at the same time, completed the registration of creation of a neighboring mortgage whose maximum debt amount is 2.5 billion won with respect to the ○○ Medical Foundation as the debtor, but received 1.5 billion won with respect to the lien from the ○○ Medical Foundation on January 3, 2006, and cancelled the registration

F. When the Plaintiff reported the value-added tax for the second half-year period in 2005, on the premise that the sales price for the instant real estate was 1.7 billion won, the Plaintiff reported and paid the value-added tax with the proportional amount of KRW 1,453,488,89 corresponding to the portion of the relevant hospital building among the instant real estate sales price. As a result of the Plaintiff’s tax investigation into the Plaintiff, the Defendant, as a result of the investigation into the sales contract, failed to report the value-added tax on the portion of the relevant 1.5 billion won, deeming that the Plaintiff was practically included in the sales price for the instant real estate, and thus, did not report the value-added tax on the portion of the relevant 1.5 billion won and added the corresponding proportional amount of KRW 1,181,942,00 to the value-added tax base on January 8, 2007, additionally imposing 153,95,230 won (hereinafter “instant disposition”).

G. The Plaintiff dissatisfied with the instant disposition and filed an objection with the Commissioner of the National Tax Service on April 6, 2007, but dismissed on May 16, 2007, and again, on August 9, 2007, the Director of the National Tax Tribunal filed a request for national tax adjudication with the Director of the National Tax Tribunal, but was dismissed on January 11, 2008.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

○○○ Medical Foundation paid 1.5 billion won to the Plaintiff under the agreement with the lien holder, rather than as the purchase price of real estate, the first Plaintiff intended to purchase the instant real estate from the Plaintiff, but subrogated for the obligation of loans of 1.5 billion won to the Plaintiff who renounced his purchase. ○○○○○○ Real Estate: (a) 700 million won was loaned from the Plaintiff to the Plaintiff to pay for the acquisition price of medical instruments and facilities and equipment owned by Kim○ho and for the purpose of continuing to operate the hospital from the instant real estate; (b) 50 million won was paid to the Plaintiff in return for the waiver of the lien; (c) 50 million won was paid to the lien holder of the hospital building to remove the interference with the operation of the hospital; (d) 30 million won was given a loan from the Plaintiff under the name of ○○○○’s employee, and the remainder of 300 million won was paid by the Plaintiff to the Plaintiff, who was not directly related to the Plaintiff’s sale of the instant real estate, but to the Plaintiff’s real value-added Medical Foundation.

(b) Related statutes;

Article 6 (Supply of Goods)

Article 13 (Tax Base of the former Value-Added Tax Act)

Article 48 (Calculation of Tax Base)

Article 48-2 (Method of Calculating Tax Base under the former Enforcement Decree of the Value-Added Tax Act)

Article 91 (Selection, etc. of Principle of Acceptance and Principle of Interest under Civil Execution Act)

C. Determination

(1) The main sentence of Article 13(1) of the Value-Added Tax Act (amended by Act No. 7876 of Mar. 24, 2006; hereinafter the same) provides that "the tax base of value-added tax on the supply of goods or services shall be the sum of the following values," and Article 48(1) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 19215 of Dec. 30, 2005; hereinafter the same) provides that "the tax base stipulated in Article 13(1) of the former Enforcement Decree of the Value-Added Tax Act includes any monetary value, regardless of the price, charge, commission, or any other pretext received from the buyer, while selling a building for business, shall be determined whether the amount of money received from the buyer is included in the tax base of value-added tax depending on whether it is the sales of goods or the price of real estate, regardless of the pretext of the payment for the price paid."

(2) As to the instant case, the following facts can be acknowledged in full view of each of the above statements in Gap 3-1 to 9, 4-1 to 7, 6-1 to 5, 7, 8, 9-1 to 3, 10, 11, 12-1 to 9, 13-1 to 13-2, 14-1 to 2, 15-1 to 16-2, 16-1, 16-1, 2, 17, 5, 5, 6, and 7.

(A) In the auction procedure, the Plaintiff anticipated that a considerable portion of the Plaintiff’s loan claims against Kim Jong-ho could not be recovered due to the Plaintiff’s successful bid of a very low amount due to the lien exercise by the lien holder, etc., the instant real estate, the market price of which was equivalent to KRW 1850,000,000,000,000 won,

(B) After the successful bid of the instant real estate, the Plaintiff proposed to purchase the instant real estate from the former owner Kim Ho-ho, and operate the hospital continuously. Before concluding the instant real estate sales contract, the Plaintiff would accept the Plaintiff’s proposal and first agreed with the lien holders on June 2005 to remove the obstacles to hospital operation caused by the possession of the hospital building in the instant real estate, the Plaintiff agreed that the lien holders shall withdraw from the hospital building if 80 million won is paid once to the lien holders, and then, upon the consent of the relevant parties, 50 million won should be paid to the lien holders by borrowing 80 million won from the Plaintiff and remitting her loan from the Plaintiff to the employees of ○○-ho, and the remaining 300 million won was loaned to the lien holders under the name of the representative of the lien holders, and then the lien holders were withdrawn from the hospital building after receiving 80 million won.

(C) In addition, in order to take over medical instruments and facilities and equipment installed in a hospital building as separate property from the building of Kim Ho-ho Hospital, Ma○-si agreed to pay 700 million won as the price for taking over the medical instruments and equipment and the premium for taking over the hospital, but in lieu of the payment, Ma○-si agreed to take over the obligation of loans of 700 million won against the Plaintiff of Kim Jong-ho, in lieu of paying the said money. Accordingly, on October 11, 2005, Ma○-dong was the first purchaser of the instant real estate. The sum of the value of the instant real estate and related equipment is KRW 2.5 million between the Plaintiff and Ma○-ho, and the sum of the value of the instant real estate and related equipment is KRW 2.35 million, and Ma○-ho was given a loan of 700 million won from the Plaintiff and exempted the obligation of loans to the Plaintiff of Kim Ho-ho from the obligation of loans to the Plaintiff of Ma○-ho.

(D) However, since ○○○ was unable to operate a hospital due to an insolvent financial situation, around November 2005, the Plaintiff renounced the authority to purchase the instant real estate against the Plaintiff. The Plaintiff again decided to sell the instant real estate to the ○○ Medical Foundation at the end of physical coloring the buyer, and on the premise that ○○○○ purchases the instant real estate and operate the hospital prior to the conclusion of the sales contract with the ○○ Medical Foundation, prior to the conclusion of the sales contract with the ○○ Medical Foundation, agreed to pay the sum of 1.5 billion won (hereinafter “the instant 1.5 billion won”) of the acquisition price of the medical institution and facilities and equipment and the amount of 70 million won premium and the amount of 80 million won agreed on the lien with the ○○ Medical Foundation (hereinafter “the instant 1.5 billion won”). Pursuant to the agreement, the Plaintiff drafted the sales contract as of December 5, 2005 and entered in the agreement on the lien separately from the purchase price items.

(E) In addition, at the time of concluding the sale and purchase contract, the Plaintiff agreed that the ○○ Medical Foundation, such as a lien on the hospital building, shall extinguish all of its practical obstacles to acquiring the complete ownership of the instant real estate under the Plaintiff’s responsibility, and that the medical institution, facilities, and equipment taken over from Kim○-ho, as well as equipment purchased separately from leapsite.

(F) After receiving 1.7 billion won from the ○○ Medical Foundation on December 13, 2005, the Plaintiff completed the registration of ownership transfer of the instant real estate in the future of the ○○ Medical Foundation, and completed the registration of ownership transfer of the instant real estate with the payment claim of KRW 1.5 billion against the ○○ Medical Foundation as the secured claim, etc., and subsequently, on January 3, 2006, the Plaintiff additionally received 1.5 billion won on January 3, 2006, and ○○○ was appropriated for the repayment of the loan obligation of KRW 1.5 billion in total, which was financed by the Plaintiff from the ○ Medical Foundation for Kim Ho and KRW 80 million in agreement with the lien holders.

(3) According to the above facts, the Plaintiff, as a successful bidder of the instant real estate, bears the responsibility for repayment to the lien holder (see Article 91(6) of the Civil Execution Act), and thus, although the Plaintiff was awarded a successful bid with the price of 1.85 million won, the actual Plaintiff’s acquisition price is the amount calculated by adding the amount of the lien holder’s credit to the price of the said successful bid. However, the Plaintiff did not directly repay the amount of credit to the lien holder because it is not a financial business but a real estate rental business. Therefore, the Plaintiff intended not only to sell the instant real estate but also to recover the loan claim equivalent to 70 million won as well as the successful bid price by selling the instant real estate

Therefore, when the Plaintiff entered into a sales contract with the future ○○○○, which promised to purchase the instant real estate, the Plaintiff would be liable for the full ownership transfer by resolving the portion of the lien as the seller. However, the Plaintiff would have incurred expenses that the Plaintiff would have to repay the amount of credit of the lien holders, including the said expenses in the purchase price, so that the amount of credit of the lien holders would be repaid as part of the purchase price that the Plaintiff would have to pay to the Plaintiff in the future, instead of receiving the payment from the lien, and instead of paying the purchase price, the Plaintiff would have lent ○○ to the ○○○○○, 80 million won loan to the said lien holders. As such, the Plaintiff agreed to regard the loan obligation of ○○○○, which was borne by the ○○○○, as part of the purchase price of the instant real estate that was paid by agreement with the lien holders, as part of the purchase price of the instant real estate that was paid to the Plaintiff in the future.

In addition, although Kim Ho-ho owned medical appliances, facilities, and equipment installed in the hospital building, other than the instant real estate, the medical facilities were practically owned by the person who acquired the instant real estate, but it was difficult to realize them separately from the instant real estate except for the method of transferring the instant real estate along with the instant real estate to the person who acquired the instant real estate, but the Plaintiff had no real value of collateral because it was difficult to realize the instant real estate separately from the instant real estate. From the previous date, the Plaintiff, who had been operating the instant hospital, solicits ○○ to purchase the instant real estate and continuously operate the hospital to purchase the instant real estate on the premise of the purchase of the instant real estate, and demanded ○○ to purchase the said medical facilities on the premise of the purchase of the instant real estate. In addition, instead of paying 70 million won to Kim Ho-ho, the Plaintiff collected the obligation of loans equivalent to 700 million won to Kimho-ho-ho, by having the Plaintiff repay the loan amount of 700 million won to the Plaintiff, which would have been paid as part of the purchase price of the instant real estate.

However, as ○○○○ was unable to purchase the instant real estate, the Plaintiff and ○○○ rescinded the legal relationship formed in the meantime, and accordingly, 1.5 billion won was retroactively extinguished as a payment obligation of the future purchase price, which was borne by ○○○ on the premise of the purchase of the instant real estate, and thus, the Plaintiff could not recover 1.5 billion won from ○○○. As a result, 1.5 billion won that the Plaintiff loaned to ○○○○○ was remaining at the expense paid by the Plaintiff with respect to the instant real estate.

Therefore, the Plaintiff should recover from the ○○ Medical Foundation, which will acquire full ownership of the instant real estate in a state where the right of retention is resolved, 80 million won in the cost spent by the Plaintiff as a result of resolving the lien. As a result, from the ○ Medical Foundation that purchased medical instruments and facilities and equipment installed in the hospital building, the Plaintiff should recover 700 million won in the cost that the Plaintiff purchased from Kim○-ho to sell to the ○○ Medical Foundation. As such, the Plaintiff could not include 1.5 billion won in the sum in determining the purchase price between the ○ Medical Foundation and the ○○ Medical Foundation. However, the instant 1.5 billion won received from the ○○ Medical Foundation, which was formally appropriated for the remainder of loans obligations on the Plaintiff’s loan account, only was treated by means of covering 1.5 billion won in the Plaintiff’s loan account.

Therefore, the instant 1.5 billion won, which the Plaintiff received from the ○○ Medical Foundation, is divided into the amount of medical facility takeover and the amount of agreement against the lien holders, and is treated as being appropriated for the loan obligations against the Plaintiff at ○○○ Medical Foundation in lieu of the payment for the ○○○○ Medical Foundation, but in substance, it is reasonable to view that the instant disposition is in an economic relationship with the sale of the instant real estate as the consideration for the sale of the instant real estate in return for the Plaintiff’s real estate sale. Therefore, from

3. Conclusion

Therefore, the plaintiff's claim is dismissed as there is no reasonable ground.