Review 2012 Mine0174 ( April 9, 2013)

The transfer of the building of this case does not constitute the comprehensive transfer of the business.

The transaction related to the transfer of the building of this case is not a comprehensive transfer of the rights and duties concerning the real estate leasing business conducted by the plaintiff, but a separate special agreement was made as to the ancillary issues related to the transfer while the building of this case is specifically transferring the building of this case, in accordance with the transaction norms and the empirical rules.

Article 6 Supply of Goods

Gwangju District Court 2013Guhap1522 Claim for Revocation of Value-Added Tax Disposition

○ Construction Company

○○ Head of tax office

August 14, 2014

1. The plaintiff's claim is dismissed.

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

1. Basic facts

A. Status of the parties

Plaintiff (formerly: 00 Development Co., Ltd.) is the owner of the building listed in Annex 1 List 2 (hereinafter referred to as “instant building”) on the land listed in Annex 1 List 1 List 1 (hereinafter referred to as “the land in this case”) and has been engaged in real estate leasing business, etc., and Kim 0 is the land in this case.

The owner is the owner of the AA industry, and Kim 00 is the representative director of the AA industry as the wife of Kim 0.

DD Integrated Construction Co., Ltd. (hereinafter referred to as "DD Integrated Construction") are civil engineering construction business, housing

The purpose of the construction lease business is BB General Construction Company (hereinafter referred to as BB General Construction Company), BB Construction Company (hereinafter referred to as BB Construction), and DD development to the subsidiary.

Lz Co., Ltd. (formerly: CCC Gyeongng Environment Co., Ltd., hereinafter referred to as "DD Development Riz").

(1) have been established.

B. The history of the relocation of the instant land and buildings

DD Integrated Construction, BB Integrated Construction, BB Construction (hereinafter referred to as "non-party 3 company") decided on October 25, 201 to lend KRW 300 million to the Plaintiff and Kim 0 on August 31, 201. In lieu of payment of the interest, Non-party 3 agreed to use the nine and ten floors from November 1, 201 to October 31, 201, among the instant buildings owned by the Plaintiff, for free use. DD Integrated Construction loaned to the Plaintiff a total of KRW 300 million (hereinafter referred to as "loan").

On October 25, 2010, Nonparty 3 agreed to cooperate with the Plaintiff in the principal registration procedure for each of the above provisional registrations in cases where it is determined that the repayment of the above loans is uncertain, and the Plaintiff and Kim 0 agreed to cooperate in the principal registration procedure for each of the above provisional registrations in cases where it is determined that the repayment of the above loans is uncertain, and that the Marshall Industry Co., Ltd. and Kim Dok-based Co., Ltd. are jointly and severally suretyd with DoD Construction, BB Construction,B Construction, 2/10, 2/10, 2/10, 6/10, and 6/10 shares of the instant land.

Nonparty 3 prepared that the Plaintiff and Kim0 did not cooperate in the principal registration procedure based on the above provisional registration, and the instant land from the Plaintiff and Kim0 on October 25, 2010 to KRW 1,183,183,183,200, and the instant case

The building is to be purchased at KRW 4,850,00,00 in total of KRW 3,333,469,820 (excluding value-added tax of KRW 333,346,980), and the payment of the price shall be substituted by the payment of the loan of this case: ① KRW 200,000 and the intermediate payment of KRW 100,000,000,000 in total; ② The balance shall be succeeded to by the

It also prepares a real estate sales contract with the content that the obligation to return deposit amounting to KRW 2,140,000,000 and the obligation to lend to a branch of the National Agricultural Cooperative Federation, which is a creditor of the plaintiff, shall be accepted in lieu of KRW 2,582,00,000.

On December 3, 2010, Nonparty 3 cancelled each of the above provisional registrations. On December 3, 2010, the Plaintiff and Kim0 drafted a real estate sales contract for the sale of DD Development Riz and the instant land and buildings to DD Development Riz at the same price as the amount of the above sales contract executed between Nonparty 3 and the Plaintiff. DD Development Riz completed the registration of transfer of ownership on the instant land and buildings on December 3, 2010, and the Plaintiff issued a tax invoice stating the supply price of the instant building at KRW 3,333,469,820, value-added tax 33,346,980 to DD Development Riz.

C. Debt details related to the instant land and building

Meanwhile, as of December 3, 2010, the Plaintiff and Kim0’s debt details related to the instant land and building are ① totaling KRW 315,60,00,000, ② loans for the instant loan and establishment of registration, ② KRW 2,582,00,000, ③ the balance of the deposit for lease of the instant building (total amount of KRW 226,00,000,000) (total amount of KRW 226,00,000,000), ④ public charges, ④ KRW 53,180,000, and ⑤ interest of KRW 46,70,000,000 paid by DDDts.

(d) Circumstances of imposition of value-added tax;

DD Development Rits filed an application for refund of the input tax amount of KRW 33,346,980 of value-added tax, along with the said tax invoice, at the time of filing the final return of value-added tax for the second term portion on February 2011. On April 13, 2011, the Defendant determined that the transfer or acquisition of the instant building between the Plaintiff and DDDDDDDIz constitutes the comprehensive business acquisition of the instant building between the Plaintiff and DDDDDIz, and notified DDDDDI of the amount of taxes to be imposed on the omitted sales without deducting the input tax pursuant to the said tax invoice.

DD Development Riz requested the Tax Tribunal to correct the above surcharge on August 4, 2011. On June 15, 2012, the Tax Tribunal revoked the defendant's corrective disposition on the ground that the transfer or acquisition of the building in this case does not constitute a comprehensive transfer or acquisition of the building in this case under the Tax Tribunal Ordinance No. 2011 Mine2858 on June 15, 201.

In accordance with the tax invoice, the input tax deduction for DD development interest was recognized.

Accordingly, on August 6, 2012, the Defendant: (a) KRW 33,346,980 regarding the transfer of the instant building to the Plaintiff.

Value-added tax assessment (hereinafter referred to as "instant disposition") was made.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4 through 15, Eul evidence Nos. 1, 8 through 10, the purport of the whole pleadings

2. The plaintiff's assertion and relevant statutes

A. The plaintiff's assertion

(i) is subject to exclusion from taxation as a comprehensive business transfer;

Since the transfer of the instant building constitutes a comprehensive business transfer, it is exempt from taxation pursuant to Article 6(6)2 of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter “former Value-Added Tax Act”).

In light of the fact that the defendant prepared a general real estate sales contract, not a comprehensive acquisition agreement for the transfer of the building of this case, but a general real estate sales contract for the plaintiff's employees, the transfer of the building of this case seems to have been acquired for the purpose of collecting loans and the purpose of using the house, and that most new lessees change into new tenants, it is difficult to regard it as a comprehensive business transfer and supply of goods. However, even if the parties to a transaction did not prepare a contract for the transfer of business, it does not constitute a comprehensive transfer of business where all rights and obligations concerning human and physical facilities and business are comprehensively succeeded to, and it does not mean that the succession of employment was not made, or that a new lease contract was acquired for the purpose of using the house, and it is not because the former lessee's lease term expires, and it does not constitute a reasonable reason for the defendant to conclude a new lease contract with some lessees.

The Plaintiff, other than the instant building, did not have physical facilities or business property, and DD Development Riz, at the time of acquisition, took over the loan debt and the security deposit, offsets the loan debt and the interest on arrears of Nonparty 3 by the transaction amount, succeeded to all rights and obligations of the Plaintiff’s business at the time of acquisition. As such, the transfer of the instant building constitutes a comprehensive transfer of business.

(ii) there was no stipulation for payment of value-added tax that was made by payment in kind;

The original contract for the transfer of the building of this case was concluded between the plaintiff and the non-party 3, not between the plaintiff and the non-party 3, and the cause of the contract is not the sale, but the payment agreement between the plaintiff and the non-party 3 succeeded to the DDR and the building of this case was transferred to the DDR, and thus, the contract for the transfer of the building of this case also affects the validity of the payment agreement for payment in kind even DDR. In other words, since the transfer of the building of this case was made by the method

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

3. Whether the instant disposition is lawful

A. Determination on the assertion that the business is transferred comprehensively

Article 6 (6) 2 of the former Value-Added Tax Act and Article 17 (2) of the Enforcement Decree thereof.

transfer of a business not deemed a supply means physical and human facilities, including business property; and

When only the managing body is replaced by comprehensive transfer of rights, duties, etc. to maintain the identity of the business.

Since it means that the project refers to an organic combination of human and physical facilities, it should be separated from the main body of management and be recognized as a social independence (see Supreme Court Decision 2004Du8422, Apr. 28, 2006).

Further to the whole purport of the pleading, the facts and evidence acknowledged earlier, as well as the evidence Nos. 6 and 11

In light of the following facts and circumstances, it is insufficient to recognize that the transfer of the building of this case is a comprehensive business transfer, and there is no evidence to acknowledge otherwise.

(1) Where a business is transferred, the evaluation of assets and liabilities, customer relationship, and confidential business information;

The evaluation of goodwill, such as a management organization, etc. is a very important factor, and the land and case in this case

In the case of water transfer, the sale price shall be based on the appraisal of the value of the rental business operated by the Plaintiff.

the loan of this case and the debt acquisition amount, etc. are calculated by adding the loan of this case and the debt acquisition amount.

As asserted, the cause is not trade but due to the accord and satisfaction agreement.

② Rather, the Plaintiff and Nonparty 3, constituting the basis of a sales contract between the Plaintiff and DD Development Riz.

In light of the special terms and conditions entered in a sales contract between the parties, Article 5 shall apply to real estate for sale.

The buyer guarantees the absence of any real estate-related defect other than those of the obligation and rights-related limitations on the purchase price. The taxes, public charges, and other related charges on the sale and purchase real estate under Article 9 are agreed to be borne by the seller on the basis of the date of registration of ownership transfer. Article 11 stipulates that the buyer does not take over the human resources such as the building manager at the time of transfer transfer transfer, but the human resources the buyer considers necessary can be employed through an interview. Thus, the transaction related to the transfer of the building of this case is not a comprehensive transfer of the rights and duties on the real estate leasing business conducted by the plaintiff, but rather a specific transfer of the building of this case and its ancillary problems related to the transfer are incidental to the

As to the conclusion that a separate special agreement was made, it conforms to trade norms and empirical rules.

③ From the perspective of the identity of the business, even if DDRs settled the price by acquiring the obligation to return the deposit under the lease agreement entered into by the Plaintiff, but the lessee of the loan entered into a lease agreement with the new lessee after the expiration of the lease term. The content of the lease business operated by DDRs after taking over the building of this case differs from that of the lease business operated by the Plaintiff.

④ DD DDR’s acquisition of loan obligations and security deposits at the time of acquisition of the instant building, and trading the instant loan from the transaction price. However, deeming the payment method as above conforms to trade norms or empirical rules.

Therefore, since the transfer of the building of this case cannot be seen as a comprehensive business transfer, the plaintiff in this part is not a plaintiff.

The argument is without merit.

B. The assertion that no value-added tax payment agreement was made by accord and satisfaction

The judgment value-added tax on goods shall be imposed on the supply of goods or services, and on the import of goods (Article 1(1) of the former Value-Added Tax Act); Article 6(1) of the former Value-Added Tax Act provides that the supply of goods shall be delivered or transferred on all contractual or legal grounds; and Article 6(6) of the former Value-Added Tax Act provides that exceptional cases where the supply of goods shall not be deemed the supply of goods, prescribed by Presidential Decree, transfer of business prescribed by Presidential Decree, and payment in kind, in accordance with Acts

However, payment in kind does not constitute the offer of goods as security or the transfer of business, or the payment in kind of tax pursuant to the law. Thus, even if the transfer of the building in this case was made by the method of payment in kind, the value-added tax is exempted only

It is difficult to deem that it falls under.

In addition, if there is a supply of goods, the value-added tax does not affect the supplier's liability to pay the value-added tax.

Therefore, this part of the plaintiff's assertion is without merit.

4. Conclusion

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