Whether it is business income due to real estate trading business

The period from the acquisition of land to the transfer of the building is 12 to 13 months. In particular, the transfer of real estate at issue, such as the acquisition of real estate 10 times to the 2000 to the 2004, constitutes the act of the real estate sales businessman.

Article 1 of the Value-Added Tax Act

Article 2 of the Enforcement Decree of the Value-Added Tax Act

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

1. Imposition of value-added tax;

A. On May 21, 2001, the Plaintiff purchased 1,679 square meters of land of ○○-dong ○○-26 square meters from ○○○○○○○-dong, ○○-26 square meters, one’s own living together with the head of ○○○○, a head of ○○, and divided it on the same day, and on February 19, 2002, sold 3,139 square meters of the total floor area on the same ○-26 large 904 square meters and 1,139 square meters of land (hereinafter “one building”), on March 5, 2002, the Plaintiff sold ○○-29 large 775 square meters of land to the Defendant, and sold ○○○○-dong 2,498 square meters of land under the same ○○-dong ○○-dong 298 square meters to the Defendant on February 19, 2002.

B. On September 1, 2004, the Defendant imposed and notified the Plaintiff, etc. of value-added tax of KRW 339,204,530 on September 1, 2002 on the ground that the sales of the first and second buildings constituted real estate sales business under the Value-Added Tax Act because the Plaintiff, etc. continuously and repeatedly conducted business activities such as building and selling commercial buildings on the ground after purchasing land.

C. The Plaintiff, etc., who is dissatisfied with the above disposition, filed an objection with the director of ○○○○, and the director of ○○○○, on the ground that it cannot be deemed that the Plaintiff, etc. engaged in real estate sales business in light of the business circumstances, etc., was reduced by KRW 203,52,730, value-added tax equivalent to 60% of the business shares of ○○○○ and ○○○○○○, etc. under the business agreement of the Plaintiff, etc. (hereinafter referred to as “the instant disposition of imposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 8, Eul evidence 2-1 and Eul evidence 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff et al. purchased land as a partnership that entered into a partnership business agreement and newly constructed a building, and then sold the building for the purpose of settling a partnership business relationship due to real estate rental business, reduction of sales revenue, aggravation of ○○○'s disease, etc. (whether the sale constitutes an act of a real estate broker is concerned with the tax liability under the Value-Added Tax Act, and thus, it should be determined by deeming the sale as a single transaction, and should not be determined based on the personal circumstances of each member, and if it is not interpreted, the head of ○○ and head of ○○ shall be jointly and severally liable for the value-added tax pursuant to the disposition of this case with the plaintiff, although the plaintiff et al. did not operate a real estate sales business, the disposition of this case that the plaintiff reported that the plaintiff was engaged in the

(b) Related statutes;

○ Article 1 of the Value-Added Tax Act

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

1. Supply of goods or services; and

○ Scope of services under Article 2 of the Enforcement Decree of the Value-Added Tax Act

(1) The services as prescribed in Article 1 (3) of the Act means all of the services and activities falling under each of the following subparagraphs:

6. Real estate business and leasing business: Provided, That this shall exclude the business of leasing rice paddys, paddy fields, orchards, stock farms, forest land, or salt farms;

(2) Notwithstanding paragraph (1), any business prescribed by the Ordinance of the Ministry of Finance and Economy among construction business and real estate business shall be deemed a business supplying goods.

○ Scope of business under Article 1 of the Enforcement Rule of the Value-Added Tax Act

(2) "Business prescribed by Ordinance of the Ministry of Finance and Economy" in Article 2 (2) of the Decree means a business selling or selling real estate (including cases of selling or selling real estate by self-construction or other buildings for residence or non-residential use) or a brokerage thereof, indicating its business purpose, or selling real estate at least once during one taxable period for business purpose, acquiring real estate at least twice during one taxable period for business purpose.

Article 25 of the Framework Act on National Taxes

(1) National taxes, additional dues and expenses for disposition on default related to joint-owned property, joint-owned property, or property belonging to the relevant joint-owned business shall be jointly and severally liable to pay them.

(c) Fact of recognition;

(1) On September 10, 2001, the Plaintiff et al. invested in each of the parties and jointly operated bathing business and real estate rental business at ○○-26, ○○-29, ○○-dong, ○○○-dong, ○○-29, a place of business, and the representative of the business execution shall be the Plaintiff; the profit and loss distribution rate of the company; 30% of the profit and loss distribution rate of the company; 30% of the profit and loss distribution rate of the company; and the period of the business operation shall be three years from the date of conclusion of the contract; however, the business operation agreement was concluded so that the business operation period may be extended or shortened

(2) On September 10, 2001, the Plaintiff et al. completed joint business registration for the first building on real estate rental business, and completed the sale of KRW 59,86,000 in total as a real estate rental business until September 3, 2002. From March 1, 2002, the Plaintiff et al. completed business registration for the real estate rental business and service business for the second building from March 1, 2002 and made sales of KRW 74,27,00 in total until the closure of business on July 29, 2002.

(3) The Plaintiff acquired and sold the land from around 2000 to around 2004, or sold it together with a new building on the ground, six times in total. In particular, during the taxable period of the instant disposition, the Plaintiff acquired and transferred the real estate twice during the instant disposition, and the ownership period of the transferred real estate was less than one year.

(4) Around October 2001, the Plaintiff was imposed value-added tax, etc. on the ground that three real estate sales activities including ○○○○○○○dong ○○○ apartment store land and ground buildings constituted the act of a real estate sales businessman under the Value-Added Tax Act.

[Ground of recognition] Facts without dispute, Gap evidence 2, Gap evidence 3, Eul evidence 3, Eul evidence 3, Eul evidence 3, Eul evidence 3, the witness ○○'s testimony, and the purport of the whole pleadings

D. Determination

(1) Where a number of persons engaged in real estate rental business, etc. using a building jointly owned by them after completion of the registration of joint business and the transfer of the building together, whether the transfer of the building constitutes a single transaction shall be determined depending on the individual circumstances of each joint business operator. [Therefore, the imposition of value-added tax on all shares of a person who is recognized as a real estate broker and who is not recognized as a real estate broker shall be illegal only on the part of shares of a person who is not recognized as a real estate broker (see Supreme Court Decision 90Nu1311, May 22, 1990). The imposition of value-added tax on this case is revoked, and only the imposition of value-added tax corresponding to the shares of the plaintiff by ○○○ and ○○○○○'s business was imposed on the part of the person who is not recognized as a real estate broker, and thus, it shall not be jointly and severally liable to pay the amount of value-added tax on the jointly owned property, joint business or property belonging to the joint business.]

(2) Meanwhile, whether the transaction of real estate constitutes a real estate trading business, which is a taxation requirement of value-added tax, must be determined in light of social norms by taking into account whether the transaction was conducted for profit and whether the transaction was conducted on the basis of continuity and repetition of business activities in light of its size, frequency, mode, etc. (see, e.g., Supreme Court Decision 96Nu8758, Oct. 11, 1996). In making such judgment, not only the relevant transferred real estate, but also all the circumstances surrounding the time when the transfer took place on the part of the transferor’s real estate over the whole real estate (see, e.g., Supreme Court Decision 9Du5412, Apr. 24, 201). It cannot be said that the transaction of real estate affects business feasibility as a real estate sales businessman on the ground that it operated or leased a newly constructed building during the period of possession of real estate for business purposes (see, e., Supreme Court Decision 9Du7609, Oct. 24, 2000).

(3) The facts of recognition are as follows: even if the plaintiff et al. sold the first and second buildings due to the closure of real estate leasing business, the reduction of operating revenue, the aggravation of the ○○○○ branch's disease, etc. in the first and second buildings, even though the plaintiff et al. was actually engaged in real estate leasing business, and the sales of the first and second buildings due to the closure of the business operation contract, the period until the time of the transfer of the first and second buildings after the acquisition of the land by the plaintiff et al. is 12 to 13 months; in particular, the period of the first and second buildings after the completion of the business registration concerning the real estate leasing business and the actual operation of the real estate leasing business is about 5 to 12 months; the plaintiff acquired the land including the first and second buildings from around 200 to the 204, or sold them together with the building on the ground; in particular, since the real estate acquired two times during the taxation period of this case and transferred the above real estate twice, the plaintiff's act of sale of the real estate is not accepted.

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim of this case seeking revocation is dismissed as it is without merit.