District Court-2016-Gu Partnership-8260 ( January 17, 2017)

Cho-2015-2092 (Law No. 18, 2015.09)

Whether the instant transaction constitutes the supply of goods subject to value-added tax, not the transfer of business.

Whether the instant transaction constitutes the supply of goods subject to value-added tax, not the transfer of business.

Value-Added Tax Act

2017Nu34874 Disposition to revoke the imposition of value-added tax.

Note USOO

O Head of tax office

July 13, 2017

August 17, 2017

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of value-added tax AAAA for the first period of 2014 against the Plaintiff on April 9, 2015 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Partial citement of judgment of the first instance;

The reasoning of the judgment of this court is as follows: (a) from 1.m. to 2.m., whether the disposition is legitimate; (b) to 3.m., Plaintiff’s assertion; and (b) the relevant part of the reasoning of the judgment of the court of first instance (from 2.m. 3 to 3m. 1, 5, and 6). As such, it is cited in accordance with Article 8(2) of the Administrative Litigation Act; and (c)

2. Parts that vary from the judgment of the first instance court;

C. Determination

1) The term “transfer of business” under Article 10(8)2 of the Value-Added Tax Act and Article 23 of the Enforcement Decree of the same Act refers to a comprehensive transfer of physical and human facilities, rights, and obligations, etc. including business property by workplace to replace only the managing body while maintaining the consistency of business (see, e.g., Supreme Court Decision 2006Du17895, Dec. 24, 2008).

2) We examine the instant case.

A) Comprehensively taking account of the overall purport of each of the statements in Eul evidence Nos. 2 through 7 (including numbers; hereinafter the same shall apply) as a whole, the Plaintiff reported that the Plaintiff will take over the entire passenger transport business from AAA at the time of the instant transaction pursuant to Article 14(1) of the Passenger Transport Service Act while making the instant transaction, ② 14 of the transaction partners of AA were engaged in the transaction with the Plaintiff, ② of 19 of the 44 transaction partners of AA after the instant transaction, four of the 19 workers of AA were provided with work as the employee of the Plaintiff, ③ the Plaintiff started the business at the same place as AA Eup AA at the time of AA of AA.

B) Meanwhile, comprehensively taking account of the overall purport of arguments as to Gap evidence Nos. 4 through 17, ① the Plaintiff submitted at the time of reporting on the transfer and acquisition of passenger transport business (vehicle and transport business license) to AA on April 5, 2014, the Plaintiff stated that the Plaintiff will take over only the vehicle and transport business license from AAAA. ② The transfer and acquisition contract (including business license) signed on March 28, 2014 with respect to the instant transaction, and the Plaintiff did not mention the personal transfer of the AA facilities. Rather, the Plaintiff concluded a lease contract with the 4th (vehicle and transport business license) on April 5, 2014 with the 4th anniversary of the transfer and acquisition of the AA facilities, and concluded a lease contract with the 4th anniversary of the date of the transfer and acquisition of the AA facilities, and concluded a new lease contract with the 4th anniversary of the transfer and acquisition of the BA facilities and the 4th anniversary of the transfer and acquisition of the B facilities.

C) In light of the aforementioned circumstances, it is reasonable to deem that the instant transaction is subject to transfer and acquisition by specifying only the vehicles and passenger transport business rights owned by AA, and the instant transaction cannot be deemed as replacing only the managing body while maintaining the identity of the business by comprehensively transferring and acquiring physical, human and human facilities, rights and duties, etc., including the business property of AAA, based on the circumstances described in the foregoing paragraph (a). Therefore, the instant disposition taken on a different premise is unlawful.

3. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted, and the judgment of the court of first instance is revoked, and the disposition of this case is revoked and it is so decided as per Disposition