Whether an exchange contract and a comprehensive transfer of business are applicable;

Although it is alleged that it constitutes an all-inclusive quantity and water supply of a project under an exchange contract, it is merely merely a simple real estate exchange for land and buildings, and it is not determined that it was the comprehensive quantity and water supply of the chain business.

Article 6 (Supply of Goods)

Article 17 of the Enforcement Decree of the Value-Added Tax Act, transfer of security business and payment of taxes in kind.

1. The plaintiffs' appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of value-added tax of KRW 216,492,050 for the second period of 203, value-added tax against the plaintiffs on January 5, 2005 and KRW 237,865,80 for the first period of 204, the sum of KRW 21,373,750 for 204.

1. Appropriateness of the judgment of the first instance court

A. On January 5, 2005, the Defendant newly constructed 51 units of officetels 56-2 above ○○○○○○○○○-dong 56-2, 81, and held that 44 units were sold in the second period of 2003, and 7 units were sold in the first period of 2004, respectively. On January 5, 2005, the Defendant issued a disposition imposing value-added tax as stated in the purport of the claim against the Plaintiffs.

B. The key issue of the instant case is whether the Plaintiffs comprehensively transferred the instant officetels to △△△△△△△△, and whether it constitutes “transfer of business which is not deemed the supply of goods” under Article 6(6)2 of the Value-Added Tax Act and Article 17(2) of the Enforcement Decree of the same Act. The first instance court rejected the Plaintiffs’ assertion on the grounds that the Plaintiffs did not comprehensively transfer the instant officetel to △△△△△△△△△△△△△△△△△△△△△△△△△△, and that it is difficult to deem that there was a transfer of business under the above Act. Accordingly, according to the result of the pleadings, the above determination by the first instance

2. Quotation of judgment of the first instance;

Therefore, this court's explanation on this case is identical to the reasons for the first instance court's decision except for adding Gap evidence Nos. 7-1, 2, 9, and 10 to evidence of the lack of evidence of No. 8 of the first instance court's judgment among evidence of the lack of evidence of No. 7-1, 2, 9, and 10. Thus, this court's explanation is acceptable as it is in accordance

3. Conclusion

Therefore, the plaintiffs' claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is justified as it is with this conclusion, and it is so decided as per Disposition by the court below.

[Maju District Court 2006Guz. 2671 (Law No. 05, 2007.05)]

1. Each of the plaintiffs' claims is dismissed.

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

The Defendant’s disposition of imposition of value-added tax amounting to KRW 237,865,80 in total, KRW 216,492,050 in the second term portion in 2003 and KRW 21,373,750 in the first term portion in 2004 shall be revoked.

1. Facts of recognition;

A. Conclusion of a first exchange contract

The plaintiffs newly built 8th floor officetels (total 51 units; hereinafter the same shall apply) on the land of ○○-dong, △△△△, which is their joint owners, and attempted to sell it through ○○, a sales agent. On June 10, 2003, the officetels and the instant △△△△△△△△△△△△△△△△ (hereinafter the instant land) were exchanged for 59 parcels (hereinafter the instant land), which are the difference between the appraised value of the instant officetel and the appraised value of the instant land, and the 10 million won was paid on the date of the contract, and the remaining 10 million won was transferred to ○○○○, a sales agent, and the Plaintiffs were entitled to acquire the right to sell the instant officetels as collateral and the right to acquire the ownership of each of the instant land from ○○○○, a sales agent by way of the agreement. The Plaintiffs received the right to acquire the remainder of 847,500,000 won and the right to acquire the ownership of each of ○○○○.

B. Conclusion of a second exchange contract

On the other hand, the instant officetel was completed on June 20, 2003 under the name of the plaintiffs. On the end of June, 2003, Seo-○ agreed to exchange ○○ and ○○○○○○○ and ○○○○○○○○○○○ and ○○○○○○ and ○○○○ and ○○○○ and ○○○ and ○○○ and ○○ and ○○ and ○○ and ○○ and ○ and ○○ and ○ and ○○ and ○ and ○○ and ○ and ○○ agreed to deliver all documents necessary for the registration of ownership transfer of the instant officetel to ○○ and ○○ and ○○ and ○○ agreed to deliver all the documents necessary for the registration of ownership transfer of the instant officetel (hereinafter referred to as “instant secondary exchange agreement”).

C. The sales process of the instant officetel

From the end of June 2003 after the above Second Exchange Agreement, LOO received loans as collateral for the instant officetel and paid the Plaintiffs KRW 410,000,000 in total as partial payment out of the balance of the First Exchange Agreement, and thereafter, the instant officetel was sold in lots by the Plaintiffs and LOOO as follows (hereinafter “the instant officetel sales in lots”).

(1) If an applicant for parcelling-out receives an application for parcelling-out from the applicants for parcelling-out and notifies the plaintiffs of the list, the plaintiffs shall send the documents necessary for the transfer of ownership of the heading office to the ○○○○○. The ○○○○ has first received a loan through the documents and completed the repayment of the secured loan established on the instant officetel in the name of the buyers, and thereafter, shall pay the plaintiffs the balance corresponding to the payment of the first exchange contract of this case in sequential order. Accordingly, the sale in lots took place.

(2) However, even though on August 8, 2003, ○○○ notified the Plaintiffs of the list of the last nine applicants for parcelling-out and sent documents necessary for the registration of transfer of ownership, the Plaintiffs refused a request for the provision of the above documents on the ground that ○○○ sold an officetel from the end of July 2003 to pay the individual debt and did not pay the purchase price to the Plaintiffs, while having rejected the request for the provision of the above documents on August 14, 2003 regarding the above 9 rooms, the Plaintiff, the construction business operator of the instant officetel, made a provisional registration on August 14, 200, by making it possible for ○○○, which is the construction business operator of the instant officetel, to pay the construction price under the above construction.

(3) On the other hand, on July 23, 2003, three rooms among the instant officetels were sold in lots to Ga○○○○, the wife of Plaintiff Kim○○○. In addition, on the same day, the Plaintiffs arbitrarily designated two rooms among the above officetels and understood the ownership of part of the construction cost as payment in kind to Do○○○○. As above, the Plaintiffs dealt with the payment of seven units among the nine units units, the provisional registration of which was made to Do○○○, by payment in lieu of the remaining construction cost that the Plaintiffs should pay to Do○○○○.

(4) Ultimately, through the above process, the ownership of the instant officetels was transferred between the 51 units, 44 units from July 5, 2003 to December 19, 2003 (the second unit of 2003), and 7 units were transferred from January 20, 2004 to February 10, 204 (the first unit of 2004).

D. Taxation

Accordingly, on January 5, 2005, the Defendant issued a disposition imposing KRW 237,865,800 (hereinafter the instant disposition) on the ground that the transfer of ownership of each of the above officetels constitutes the supply of goods to the actual consumers by the Plaintiffs, and the amount of KRW 216,492,050 for the second period of 2003, the amount of KRW 21,373,750 for the first period of 2004, the amount of KRW 237,865,80 for the first period of 204.

E. As to this, the Plaintiffs filed a petition for review seeking revocation of the instant disposition with respect to the Commissioner of the National Tax Service. However, upon dismissal, the Plaintiffs filed the instant lawsuit.

F. Meanwhile, as agreed in the first exchange contract, no land in this case was registered for transfer of ownership to the plaintiffs, and no one had been registered for transfer of ownership to ○○○○ in relation to the building owned by ○○○○, as otherwise agreed in the second exchange contract (However, on December 2, 2005, the plaintiffs filed a lawsuit against ○○○, which filed a claim against 2 △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△ on December 2, 2005 against the plaintiffs to implement the procedure for transfer of ownership on the land in this case on June 1, 2003, but 32 of the land in this case was already owned by a third party through the auction before the above judgment was pronounced, and there was no ownership transfer registration to the plaintiffs on the remaining

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 6, Eul evidence Nos. 1, 6, 7, 8, and 12 (including each number), the witness's witness's part of testimony, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs agreed to comprehensively transfer the sales business of the instant officetels to the plaintiffs and Seo-○○. Since the contract for the second transfer of the instant officetel was concluded thereafter, the plaintiffs agreed to sell the instant officetel at the request of Seo-○○○○○, such as providing the registration documents related to the sales of the instant officetel, and eventually, the sales of the instant officetel is based on Article 6(6)2 of the Value-Added Tax Act and Article 17(2) of the Enforcement Decree of the same Act, so the instant disposition is unlawful.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

(1) The purport of the aforementioned relevant statutes is that the Value-Added Tax Act does not regard the transfer of goods or services subject to value-added tax as the supply of goods and services is non-taxation if the goods or services subject to supply cannot be seen as the goods or services due to the nature of the value-added tax, or the contents of the supply are inappropriate. The transfer of a business does not correspond to the intrinsic nature of the supply of value-added tax, which serves as the taxation requirement for the individual supply of goods, but rather, the transfer of a business does not correspond to the basic nature of the supply of value-added tax, which serves as the requirement for the individual supply of value-added tax, and the amount of the transaction amount and the amount of value-added tax related value-added tax are expected to be deducted from the input tax amount without exception, and thus, the transfer of a business that is not considered as the supply of goods is connected to the taxation or economic policy consideration that should be avoided by the transferee of the business. Accordingly, the transfer of the business refers to the replacement of only the business owner while maintaining its identity by comprehensively transferring physical and human facilities and rights for each business (see, 2000.

In addition, in order to transfer the business, the identity of the business should be maintained, i.e., the systematic integrity of the business, and the transferee can continue the business in the same state as the transferor, even if there is an increase or decrease in the size of the business that constitutes the business, and whether to recognize the identity of the business can have a very important meaning in the comprehensive succession of the business.

(2) In order to examine whether the sale of an officetel of this case constitutes "transfer of business" under the above related Acts and subordinate statutes, the contents of each exchange contract of this case, the circumstances and forms of subsequent sale, the degree of involvement of the plaintiffs in the sale shall be determined by considering the contents of each exchange contract of this case.

However, according to the above facts, the main contents of the first exchange contract of this case were agreed to exchange the instant officetel owned by the Plaintiffs with the instant officetel to be newly constructed. Although the Plaintiffs were included in the subject of the right to lease and sale of the instant officetel and the contract entered into between the Plaintiffs and the Du○○○○○ to transfer the right to sell the instant officetel, there was no agreement on customer relations with the instant officetel sales business, business secrets, business organizations, etc. In addition, the Plaintiffs eventually continued to engage in the instant officetel business with the Du○○○ and directly, and in particular, the Plaintiffs, after the second exchange contract of this case, notified the Plaintiffs of the list of buyers and requested the transfer of ownership, sent documents necessary for the sale to ○○○○, and ○○○○○ was entirely involved in the sale of the instant officetel after the purchase of the instant officetel, and the Plaintiffs actively participated in the sale of the instant officetel after the purchase of the instant officetel’s intent and the transfer of ownership to ○○○○○○○ by entirely paying part of the purchase price to the Plaintiffs.

Comprehensively taking account of the above facts, the sales of the instant officetels cannot be deemed to have been replaced only by the management body from the plaintiffs to ○○○, while maintaining the identity of the instant officetels according to the implementation of the First Exchange Agreement, and there is no other evidence to acknowledge it.

3. Conclusion

Therefore, the disposition of this case is legitimate since the plaintiffs' claim of this case is without merit and it is dismissed as it is so decided as per Disposition.

Related Acts and subordinate statutes

○ Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006)

Article 1 (Taxable Objects)

(1) Value-added taxes shall be imposed on the following transactions:

1. Supply of goods or services; and

Article 2 (Taxpayer)

(1) A person who independently supplies goods (referring to goods prescribed in Article 1; hereinafter the same shall apply) or services (referring to services prescribed in Article 1; hereinafter the same shall apply) (hereinafter referred to as "business operator") on a business basis, regardless of whether it is on a commercial basis or not (hereinafter referred to as "business operator")

Article 6 (Supply of Goods)

(1) The supply of goods shall be a delivery or transfer of goods pursuant to all contractual and legal grounds.

(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.

Article 9 (Transaction Time)

(1) The time of supply for goods shall be the time provided for in the following subparagraphs:

1. When the goods are delivered, in case where the moving of goods is required;

2. When the goods are made available, in case where the moving of goods is not required; and

3. When the supply of goods is decided, in case where the provisions of subparagraphs 1 and 2 are not applicable.

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

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

(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 comprehensively succeeding to all rights and obligations with respect to the business to each place of business (including the case of division meeting the requirements under 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 a general taxable person succeeds to the business without including those falling under any of the following subparagraphs among rights and obligations with respect to the business, it shall be deemed that the relevant

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.

(3) For the purpose of the proviso of Article 6 (6) 2 of the Act, the term “cases as prescribed by the Presidential Decree” means the case where the tax amount collected by the transferor of business under Article 115 of the Act is returned and paid under Article 18 or 19 of the Act.

○ Common Provisions of the Value-Added Tax Act

6-17-1 [Scope of Business Transfer]

(1) The term "transfer of business not deemed the supply of goods" in Article 6 (6) 2 of the Act means the transfer of physical and human facilities, rights (excluding rights to amounts receivable), etc., including business assets, to replace only the main body of business while maintaining the identity of the business.

[Supreme Court Decision 2008Du9546 (Law No. 21, 2008)]

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

All of the records of this case and the judgment of the court below and the grounds of appeal were examined, but it is clear that the appellant's grounds of appeal fall under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal and therefore, all of the appeals are dismissed under Article 5 of the same Act. It is so decided as per Disposition by