공사수익의 사실상 귀속자를 누구로 볼 것인지 여부[국승]
Whether or not the person who actually belongs to the proceeds of construction is the person.
Even if a person alleged as a real business operator supervises the construction work and executes the construction work, as long as economic benefits accrued directly or indirectly to a nominal person, it shall not be readily concluded that he/she merely lends the name.
Article 14 of the Framework Act on National Taxes
The appeal is dismissed.
The costs of appeal are assessed against the Plaintiff.
Although all of the records of this case and the judgment of the court below and the grounds of appeal were examined, it is clear that the argument on the grounds of appeal falls under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal and therefore, the appeal is dismissed under Article 5 of the above Act. It is so decided as per Disposition
[Seoul High Court Decision 2007Nu22094, October 13, 2008]
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The disposition of imposition of KRW 44,291,740 on February 2, 2005 by the defendant against the plaintiff for the business year of 2003 and value-added tax of KRW 44,291,740 on January 2003 shall be revoked.
1. Quotation of judgment of the first instance;
The court's explanation on the instant case is identical to the reasoning of the judgment of the first instance, and thus, citing it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
2. Conclusion
Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.
[Insuwon District Court 2006Guhap2566 (No. 18, 2007)]
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Defendant’s disposition of imposition of KRW 95,068,780, and value-added tax of KRW 44.291.740 on February 2, 2005 against the Plaintiff on February 2, 2005 (the date of the disposition written in the Plaintiff’s complaint’s complaint’s complaint’s complaint’s claim for disposition is obvious that it is a clerical error on February 2, 2005).
1. Details of the disposition;
A. The Plaintiff Company was a general construction company established on April 6, 2001. The trade name before the change on June 3, 2003 was '○○ comprehensive construction company'.
B. ○○○○○○○-dong, ○○○○○○-○, under which the construction of a new building was completed on May 30, 2003 (hereinafter “instant construction”). In this regard, the Plaintiff entered into a contract for construction work with the Plaintiff, setting the construction cost of KRW 1,298,000,000 on September 18, 2002, and the contract was concluded to increase the construction cost of KRW 1.383.847.00 on April 30, 2003.
C. After that, the Defendant confirmed that the Plaintiff failed to sell the proceeds equivalent to KRW 326,846,00 in relation to the instant construction project in the course of the tax investigation, and on February 2, 2005, the Defendant issued the instant disposition that determined and notified the Plaintiff of the corporate tax of KRW 95,068,780 that reverts to the business year of 2003 and value-added tax of KRW 44,291,740 that accrue to the Plaintiff for the first year of 2003 (including additional tax).
[Ground of Recognition] A without dispute; Gap evidence 1-2; Eul evidence 8-9; Eul evidence 1-3; Eul evidence 2; Eul evidence 3-1 through 11; Eul evidence 4-1 and 2; Eul evidence 4-1; Eul evidence 4-2; witness Na○○'s testimony; the purport of the whole pleadings
2. Whether the disposition is lawful;
A. Summary of the plaintiff's assertion
The construction of this case is Kim ○○. The Plaintiff, instead of issuing tax invoices in the name of the Plaintiff in connection with the construction of this case, lent only the name of the construction contract to Kim ○○ on the condition that the Plaintiff would receive value-added tax and 2% profit equivalent to 10% of the construction cost in return, and did not actually perform the construction of this case. Thus, the instant disposition is unlawful as it violates the principle of substantial taxation.
(b) Related statutes;
【National Tax Basic Act
Article 14 (Real Taxation)
(1) If the title to the income, profit, property, act or transaction subject to taxation is merely nominal, and there is another person to whom such title belongs, the tax-related Acts shall apply to such person to whom such title belongs as a taxpayer.
C. Determination
According to the substance over form principle, if the ownership of the income, profit, property, act or transaction which is the object of taxation is nominal and there is another person to whom it actually belongs, the person to whom it actually belongs shall be the taxpayer. However, in applying the substance over form principle under Article 14 (1) of the Framework Act on National Taxes, only the title of the transaction which is the object of taxation is nominal and the other person to whom the transaction actually belongs exists,
(4) In full view of the purport of the argument as to Gap evidence 1-1, 2-1, 5-1, 2-1, 3-1, 3-1, 4-1, 5-2, and 4-1, 5-2, 6-2, 5-2, 8-2, and 8-2, and each of the testimony of 1-2, 4-2, 5-2, and 6-2, 1-2, 2-2, 30-1, 30-2, 40-2, 30-1, 30-6, 40-1, 30-6, 30-1, 40-6, 30-7, 200-7, 30-1, 40-6, 300-7, 200-7, 300-7, 200-7, 300-7, 2003.
According to the above facts of recognition, even if Kim○-○ executed construction work in the supervision of the instant construction, it is reasonable to view that the economic benefits therefrom directly or indirectly belonged to the Plaintiff through Kim○-○, and otherwise, it is difficult to conclude that the instant construction work belongs exclusively to Kim○-○ and the Plaintiff is merely a mere nominal name holder. Thus, the Plaintiff’s assertion is without merit, and the Defendant’s disposition is legitimate.
5. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.