Audit and Inspection Review 2012-0039 ( October 14, 2013)

The transfer of business rights, etc. from the executive after the refund is performed in accordance with the contract on liability for the guarantee shall constitute the transfer of the business.

It is reasonable to view that the Plaintiff comprehensively transferred the business rather than the supply of goods, which are the substantial control over the instant business, such as all rights to the instant business site, to the Korea Housing Guarantee.

Articles 6, 9 and 13 of the Value-Added Tax Act

Gwangju District Court 2013Guhap10434

Each contract for the guarantee of sale in lots was concluded.

원고는 ○○주택보증과 2007. 1. 16.□□사업장의, 2008. 10. 6.■■사업장의 각

Housing construction sites and ground buildings (hereinafter referred to as "trust real estate of this case") are as follows:

I concluded a standard contract for housing sale trust with the content of the contract.

Housing sale trust standard contract (sale type)

Article 1 (Trust Real Estate)

Trust real estate shall be a housing construction project after obtaining approval of a project plan under Article 16 of the Housing Act from the plaintiff.

Land entered in the list of real estate properties in the attached Form 2(2)(2)(3)(3)(2)(3)(3)

Land subject to payment includes land; hereinafter referred to as "land") and buildings constructed or constructed on such land;

of this title.

Article 2 (Purpose of Trust)

The purpose of this trust is housing and ancillary and welfare facilities (the plaintiff) on land in accordance with the approval of the project plan.

D) Construction of a 'Housing' and performance of a sales contract to a buyer for the sale, or Gap has made a sales contract.

If it is not possible to carry out, B/D under Article 106 (1) 1 (a) of the Enforcement Decree of the Housing Act

Korea Housing Guarantee) Trusted real estate for the purpose (referring to the performance of sale or refund) of the performance of the sale guarantee;

management, sale and disposal (including transfer of ownership of land or housing; hereinafter the same shall apply).

Article 5 (Construction and Sale of Housing in Lots)

(1) A shall construct and sell housing as a project undertaker.

(2) A shall necessarily obtain a guarantee for sale in lots from B before sale in lots under paragraph (1).

Article 6 (Succession Business, etc.)

(1) A cannot perform sales contracts due to dishonor, bankruptcy, company reorganization procedure, application for commencement of composition, etc.

(1) The successor project, such as an application for change of the project entity to a person designated by B or B, by recognizing such person as

In this case, A may not raise an objection.

(2) Any person designated by B or B shall be the trust affairs referred to in paragraph (1), and trust affairs for the performance of a guarantee for sale in lots.

The work of managing, selling, and disposing of an industrial complex shall be handled.

Article 7 (Management, Operation and Disposal of Real Estate in Trust)

(2) In cases falling under Article 6, Eul shall manage, operate and dispose of trust real estate according to the following methods:

1. Housing construction and incidental services thereto;

2. Sale or disposal of real estate in trust; and

3. To repair, preserve, or improve trust real estate by determining appropriate methods, time, scope, etc.

necessary action

4. To subscribe to the adequate value non-life insurance for buildings. In this case, borrowings and other debts as security.

A pledge or a pledge may be established on a claim for insurance money.

5. Delegation of management affairs concerning the repair, preservation, improvement, etc. of real estate in trust to a third person designated by B.

6. Trust in case the delegated person who has obtained the consent of Eul or Eul is necessary for performing the management affairs;

part of the real estate may be used free of charge.

(3) Where a refund is made by Eul, or where a sale is made to several buyers pursuant to paragraph (2), new performance shall be made.

If the trust principal and profits are made, the trust property shall be deemed reasonable and at such value as the trust property shall be disposed of.

It may be divided and the amount of disposal of trust property shall be paid in the following order:

1. Taxes, public charges, and various expenses for the performance of trust affairs;

2. Claims of Eul referred to in Article 12 (2) 3;

(4) Where any balance remains pursuant to paragraph (3), the truster and beneficiary shall be refunded: Provided, That a third party shall be refunded to the beneficiary.

The same shall not apply to seizure, provisional seizure, provisional disposition, etc.

Article 10 (Trust Originals)

The trust principal shall be as follows:

1. Real estate in trust and money in trust;

2. Sale price of real estate in trust;

3. Property acquired by subrogation of real estate in trust; and

4. Borrowings and obligations for repayment of deposits, etc. acquired in connection with the sale and disposal of borrowed money and trusted real estate;

5. Other assets and obligations corresponding to the subparagraphs of the preceding subparagraphs.

Article 11 (Trust Profits)

The sale price of trusted real estate, the disposal price of trusted real estate, and the management profit of money belonging to trust property; and

The amount equivalent to this shall be trust earnings.

Article 12 (Beneficiarys)

(1) The original beneficiary of this trust contract shall guarantee the performance of the sales contract for Gap and Eul.

(2) Where a beneficiary of the original referred to in paragraph (1) falls under any of the following cases, A shall benefit from the original:

The rights and the benefit of time shall be lost.

3. Where A fails to meet his/her obligations to B.

Transfer Closing Note

1. The business operator who runs the business any longer due to inevitable reasons, such as dishonor and bankruptcy;

housing construction-related Acts and subordinate statutes, terms and conditions of housing sales guarantee, or housing guarantee;

On August 29, 2006, the Plaintiff issued a letter of transfer as follows to the Korea Housing Guarantee.

Housing Guarantee (the person designated by the Korea Housing Guarantee and the joint guarantee of the same project) in accordance with the regulations and procedures;

under the condition that the buyer shall be liable to guarantee the buyer; hereinafter the same shall apply).

The following rights relating to the project shall be transferred to the Housing Guarantee:

2. In addition, the Korea Housing Guarantee shall be converted to the name of the project undertaker as a house guarantee or added to the separate housing.

The plaintiff's Dong as a matter of course even if the plaintiff's consent or permission is necessary to continue the home business.

The plaintiff shall be deemed to have received any objection, and the plaintiff shall not have any objection.

(a) The project site (referring to the land necessary for the relevant housing project, such as the site and other site for donation acceptance); and

all rights relating thereto.

(b) All buildings on the ground and underground, such as houses, apartment houses, commercial buildings, model houses, construction management offices, etc. (in the course of construction;

(including personal buildings) and all rights thereto.

(c) Possession of a seller and a third party in connection with the sale in lots, such as the right to sell lots and the right to receive the sale price;

All Rights

(d) any other rights relating to the separate projects;

(c) Execution of sales guarantee contracts;

Under each guarantee contract of this case, ○○ Housing Guarantee Co., Ltd. occurs.

에게□□사업장에 대하여는 2009. 2. 20.■■사업장에 대하여는 2009. 2. 24. 기수

On March 20, 2009, the guaranteed obligation was refunded to the Plaintiff on March 20, 2009.

It claimed reimbursement of KRW 000,000, such as the amount of action and damages for delay.

(d) Demand for correction by the Board of Audit and Inspection and correction and notification of value added tax;

Then, the Board of Audit and Inspection shall carry out the housing sale guarantee contract and state to the Commissioner of the National Tax Service.

Even though the head of the competent tax office has acquired trust real estate from the apartment seller, the head of the competent tax office

(1) In relation to the issue of whether the value-added tax is not imposed on the property, the sale report from the Korea Housing Guarantee;

As a result of a guarantee accident by a business entity which has received the certificate under the guarantee terms and conditions, the seller shall pay in advance.

Demanding the refund of defective down payment and intermediate payment, and the Korea Housing Guarantee shall be refunded to the seller of the sale contract.

of this case on the date of the guarantee accident in accordance with the trust contract and the statement of transfer

Since the right to de facto control is transferred to ○ Housing Guarantee, Article 6(1) of the Value-Added Tax Act is applied to a project proprietor.

It was demanded to correct the fact that the value-added tax is imposed and collected according to the paragraph.

The defendant, upon the request of the Board of Audit and Inspection, has the right to substantially control the buildings not yet completed 1)

A transfer to a home guarantee constitutes the supply of goods under Article 6 (1) of the Value-Added Tax Act, and the supply thereof.

○ Housing Guarantee shall complete a refund liability to the seller and guarantee the Plaintiff.

The value is when the ○○ Housing Guarantee calls for the redemption of the performance bond, and the value is refunded to the seller.

on December 6, 2011, the value-added tax for the first time, 2009, to the Plaintiff on December 6, 201

00 won(including additional tax) was corrected and notified.

The plaintiff is dissatisfied with this request by the Board of Audit and Inspection on February 2012, and the Board of Audit and Inspection on March 19, 2013.

was dismissed by the president.

E. Ex officio revocation of the portion of penalty tax and correction and notification of penalty tax

After filing the instant lawsuit, the Defendant shall pay additional tax out of the above KRW 000 on October 16, 2013.

After ex officio revocation of the portion, 000 won of the additional tax on the value-added tax for the first year of 2009 is corrected and raised.

The imposition disposition of December 6, 201 (value-added Tax) on the remainder after cancellation of the portion of additional tax not exceeding I (value-added Tax)

Total amount of principal tax of 00 won and imposition disposition (additional tax of 000 won) of October 16, 2013

'이 사건 처분'이라 한다.(피고는 □□ 및 ■■ 사업장의 환급대상 주택대지 및 미완성건물 중 부가가치세 면세 대상인 대지를 제외하고

The supply of buildings not in completion exceeding the scale of national housing is subject to taxation, and ‘the buildings not in completion' is subject to taxation.

(d).

[Grounds for Recognition] Unsatisfy, each entry in Gap evidence 1 to 7 (including each number), before pleadings

The purpose of body

2. The plaintiff's assertion and relevant statutes

A. The plaintiff's assertion

(i) the supply of goods is not a single (selective assertion).

(a) the provision of a security that is excluded from the supply of goods;

(1) The ○○ Housing Guarantee does not acquire ownership of the instant incomplete building, and it is re-existent.

It can not be seen that there was a supply of composition.

The instant trust was established in accordance with the Plaintiff’s duty to provide collateral under the guarantee agreement, and ○○ Housing Guarantee

shall return to the Plaintiff the remaining profits from the settlement of the expenses and claims for reimbursement after the performance of the guarantee; and

Since the plaintiff bears all costs relating to movable property, the guaranteed liability of the ○○ Housing Guarantee shall be satisfied.

It is established as a security for the conduct.

goods are supplied if the substantial control of another profit trust is transferred to the beneficiary;

However, the instant trust is difficult to be deemed as a third party trust, and even if so, as a third party trust.

Also, since the right to control has not been transferred, it cannot be viewed that there was the supply of goods.

Even if the instant trust is deemed as a security for transfer, the supply of goods is made before the settlement procedure is completed.

Until now, ○○ Housing Guarantee has been implemented only with the highest credit until now and with the settlement process.

There is no enemy.

(2) As the instant trust constitutes a security trust or a security for transfer, the time the settlement of accounts is completed.

○ Housing Guarantee is supplied to the Corporation, and ○ Housing Guarantee is acquired when the ○ Housing Guarantee is discharged.

the right is not a full disposal authority, but a security interest and the right of substantial control is transferred.

Therefore, the time when the ○○ Housing Guarantee claims the refund to the Plaintiff can be deemed to be the time of supply.

shall not be effective.

The plaintiff did not receive monetary compensation from ○○ Housing Guarantee, and on ○ Housing Guarantee

Considering the fact that a claim for reimbursement is still in existence without extinguishment, the amount of the claim for reimbursement shall be paid.

Recognizing the value of supply as illegal.

B. Transfer of business

In the transfer angle, all rights related to the housing sale business shall be transferred to the ○○ Housing Guarantee.

The fact that ○○ Housing Guarantee is located, and all rights and significance of the Housing Sale Business from the plaintiff

under the premise that a third party has comprehensively succeeded to a business, the public auction against the third party shall be conducted by the method of business transfer.

In light of the fact that the ○○ Housing Guarantee was refunded to the school site charges as a new project proprietor.

In light of the foregoing, the housing sales business for each place of business where the buildings not completed in this case had been relocated to the ○ Housing Guarantee

Since the entire transfer transaction is part of the transaction, it does not constitute the supply of goods under the Value-Added Tax Act.

2) Illegality of imposing additional tax

Before the disposition of this case, the Board of Audit and Inspection did not impose tax on such case.

Since the disposition of this case was made upon request, the plaintiff reported and reported the value-added tax of this case.

The imposition of additional tax should be revoked because there is a justifiable reason for the failure to pay the tax.

B. Relevant statutes

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. Legal principles on the transfer of business and the supply of goods

1) Non-taxation because the Value-Added Tax Act does not regard the transfer of business as the supply of goods

The purport of this section is that the supply of goods or services subject to value-added tax is an act of offering them.

no goods or services subject to supply shall be deemed goods or services in the nature of value-added tax.

B. If the content of the supply is inappropriate, it shall be exempted from taxation, and the quantity of the business shall be

Do The essential nature of the supply of value-added tax that serves as a taxation requirement for the individual supply of specific goods

not only inconsistent with the transaction amount, but also value-added tax on the transaction amount and further

It is anticipated that the transferee would be entitled to deduct the input tax without any exception because of a large amount of money.

It is necessary for the business transferee to collect the output tax from the transaction.

this is due to the consideration of tax or economic policy that is to be avoided by making it the subject of this section.

(See Supreme Court Decision 2004Du10593 Decided December 10, 2004).

In addition, the former Value-Added Tax Act (Amended by Act No. 9915, Jan. 1, 2010; hereinafter the same shall apply)

The main sentence of Article 6(6)2 and the Enforcement Decree of the same Act (amended by Presidential Decree No. 22043, Feb. 18, 2010)

subsection (2) of section 17 is a transfer of business not deemed to be a supply of goods.

property for each workplace, and any material and human facilities, rights, or duties, including property for business;

by transferring the business and replacing only the management entity while maintaining the identity of the business.

(1) If the employee is not transferred to another person, the business shall be

Transfer may not interfere with the recognition of transfer (see, e.g., Supreme Court Decision 2006Du446, Feb. 29, 2008)

§ 6).

2) Meanwhile, a housing sales guarantee is an obligation to supply housing under a sales contract by a person who has obtained approval of a business plan.

If the sale guarantee company is unable to carry out, the sale of the house or the buyer of the house has already been paid;

For a conditional third party who bears the responsibility to pay the refund of down payment and intermediate payment;

Contract is a contract (see Supreme Court Decision 2003Da45267, May 25, 2006). Such guarantee measures

For voluntary implementation, the sales guarantee company shall have all rights and obligations concerning the sales business from the business entity.

shall be subject to comprehensive transfer of obligations.

(b) Whether the transfer of a building, among real estate in trust, can be deemed the supply of goods;

1) Facts and evidence as seen earlier, and the purport of the entire pleadings as to Gap evidence Nos. 12 and 13

Examining the following circumstances revealed in light of the aforementioned legal principles, the Plaintiff’s ○○○

A comprehensive transfer of each business of this case, including the instant trust property, was made to the Home Guarantee.

the transfer of business under Article 6 (6) 2 of the former Value-Added Tax Act

The transfer of a building among the instant trusted real estate cannot be deemed to be a supply of goods under the Value-Added Tax Act.

(c)

(1) ○ house guarantee shall be provided from a project proprietor for sale in lots to implement the responsibility to guarantee the sale of houses.

Since all rights and obligations relating to the project have been transferred comprehensively, the project site of this case is not the project site of this case.

D. It is necessary to acquire rights to each business of this case.

A statement of transfer delivered by the Plaintiff to the ○○ Housing Guarantee shall be deemed bankrupt by the Plaintiff as the operator of the business.

Where it is no longer possible to continue the business due to unavoidable reasons, etc., ○○ Housing;

under the condition that the guarantee shall be responsible for the guarantee to the buyer, and the project site and its

All rights, all buildings on and under the ground and the underground, and all rights, sales rights, and sales proceeds;

All rights held by the seller and the third party in connection with the sale of goods, such as the right to receive, etc.;

It is written that all rights related to the business will be transferred to ○○ Housing Guarantee.

② ○○ Housing Guarantee shall comprehensively succeed to all rights and obligations relating to the business from the Plaintiff.

Under the premise that the public auction procedure had been carried out, ○ house guarantee business for the purchaser at the place of business for refund.

Business transfer angle submitted at the time of issuance of a housing sale guarantee from the subject (or a housing sale trust standard contract)

u)provide a service and cooperate with the project owner’s change, and comply with an order of removal of an unauthorized building by an administrative authority;

Liability for removal (including the burden of removal expenses, such as non-performance charges, penalties, etc.) and reduction of the object of sale following removal;

Damage due to the purchase shall be borne by the purchaser, and the damages shall be borne by the purchaser at the △△ workplace.

여는 △△건설 주식회사가 2010. 1. 26. 광주 광산구청장으로부터, ■■ 사업장에 대하

여는 합자회사 ▲▲주택이 2011. 7. 29. 광주 서구청장으로부터 각 사업주체 변경 승인

was received.

③ Meanwhile, the ○○ Housing Guarantee did not succeed to the Plaintiff’s personal facilities, including the Plaintiff’s employees;

Each project of this case requires human facilities, etc. as a new project to build and sell apartments.

Since a contract is made to the contractor, human facilities are core components of each project of this case.

It does not appear.

(4) If a guarantee accident occurs, the buyer shall be notified of the buyer to choose performance methods to the buyer.

If not less than 2/3 of the Act selects a refund, the liability for the refund shall be implemented and in accordance with the transfer note.

○ Housing Guarantee is sold in lots before the method of implementing the ○ Housing Guarantee is selected if an accident occurs.

All rights related to the business under the condition that the obligation to guarantee is fulfilled or repaid;

(2) if the sale is selected, the existing contractual relationship, business plan, etc. shall be maintained in all.

Inasmuch as it is reasonable to deem that the business was transferred at the time of the guarantee accident, it is ex post facto.

It is difficult to see that the business transfer is denied because the method of repayment is selected.

5. The ○○ Housing Guarantee is the school site charges paid by the Plaintiff as the implementer of each of the instant projects.

□□사업장에 대하여는 2013. 12. 2. 광주 00구청장으로부터, ■■ 사업장에 대하여

on November 9, 2013, the Plaintiff was entitled to the refund from the head of Gwangju 00 head, which is the Plaintiff’s ○ Housing Guarantee.

It can be seen as an act based on the premise that he succeeded to the status as a project proprietor.

2) Accordingly, the instant disposition premised on the Plaintiff’s supply of goods to ○○ Housing Guarantee

Since it is illegal, it must be cancelled.

4. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and it is so ordered as per Disposition.

shall be ruled.

○ Construction Corporation

○ Head of tax office

2014.05.15

2014.06.19

1. The Defendant’s imposition of the principal value-added tax on the Plaintiff on December 6, 201 and the imposition of the additional tax on the value-added tax on the first half of October 16, 201 and the imposition of the additional tax on the value-added tax on the first half of 2009, respectively, shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff's status

원고는 토목건축공사업 등을 목적으로 설립되어 주택건설 및 분양공급업 등을 하는 회사로서, ○○시 ○○구 ○○동 ○○-1 외 80필지(이하 '□□ 사업장'이라 한다) 및 ○○시 ○○구 ○○택지개발지구 내 8-2블록(이하 '■■ 사업장'이라 한다)에 각 주택 및 부대시설을 신축・분양하는 사업(이하 '이 사건 각 사업'이라 한다)의 시행자이다.

(b) Conclusion of a housing sale guarantee contract and a standard housing sale trust contract, and issuance of a written statement of transfer;

원고는 ○○주택보증 주식회사(이하 '○○주택보증'이라 한다)와 2007. 1. 24. □□ 사업장에 대하여, 2007. 5. 22.■■사업장에 대하여 각 주택분양보증계약(이하 '이