2. The plaintiff's claim is dismissed.

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

The Defendant, on December 1, 2016, revoked the disposition imposing global income tax of KRW 78,70,306 for the year 2014 against the Plaintiff (the Plaintiff stated in the complaint that “the Plaintiff seeks revocation of the disposition imposing global income tax of KRW 44,436,125,” which reverts to the year 2014. However, as seen in paragraph (1) of the following part of the reasoning, the Defendant revised the global income tax amount of KRW 112,472,691, on December 1, 2016, to KRW 112,472,691, which belonged to the Plaintiff’s global income tax of KRW 112,70,306 again on August 23, 2017. Accordingly, the Plaintiff’s claim for revocation of the disposition imposing global income tax of KRW 78,208,510 from KRW 44,436,125,00.

2. Purport of appeal

The same shall apply to the order.

The following facts are not disputed between the parties, or acknowledged by the purport of Gap evidence Nos. 1, 2, 4, 5, Eul evidence Nos. 1, 2, and 4-3 and all pleadings.

A. As a professional stable player, the Plaintiff filed a final tax return on global income tax on June 1, 2015 with respect to the amount of annual salary of 73,386,644 UN (hereinafter “the instant revenue amount”) for the business year 2014 operated by the Japanese NT Sports Museum Co., Ltd. (hereinafter “instant company”) as “total income amount of KRW 614,579,841 in Korean won,” “necessary expenses of KRW 170,412,30 in Korean won,” “15,174,117 won in calculated tax amount,” “foreign tax credit of KRW 120,839,936,” and “tax amount of KRW 34,264,181 in Korean won”.

B. The director of Busan Regional Tax Office appointed the Plaintiff as “person subject to inspection of necessary expenses for book-keeping” and notified the Defendant of the data. The Defendant ordered the Plaintiff to submit necessary expenses and data on the foreign tax amount related to the return of global income tax, but did not submit them, and deemed that the Plaintiff’s global income amount was insufficient or false, and thus, the amount of global income was adjusted to KRW 112,472,691 (hereinafter “the first correction disposition”), and notified the Plaintiff of the additional payment of KRW 78,208,510 equivalent to the difference with the amount of tax paid at KRW 34,264,181 (hereinafter “the first correction disposition”). < Amended by Act No. 1430, Dec. 1, 2016>

C. On March 9, 2017, the Plaintiff filed a petition for review with the National Tax Service on the grounds that it was dissatisfied with the first corrective disposition, and the Commissioner of the National Tax Service applied 1/2 of standard expense rate on July 24, 2017 and determined that the amount of tax would be corrected by deducting KRW 152,778,486 from the amount of tax paid abroad.

D. Accordingly, according to the above determination on August 23, 2017, the Defendant adjusted the instant revenue amount to KRW 757,813,329 (the amount calculated by converting the annual salary of KRW 73,386,644 to the fiscal exchange rate under the Foreign Exchange Transactions Act), necessary expenses, by applying the amount of KRW 135,269,680, calculated tax amount of KRW 222,957,038, foreign tax credit of KRW 152,778,486, to KRW 78,70,306, and accordingly, the amount of tax to be additionally paid by the Plaintiff was reduced to KRW 44,436,125 (hereinafter referred to as “instant disposition”). < Amended by Act No. 1447, Dec. 1, 2016>

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① The Plaintiff constitutes a nonresident under the Income Tax Act and is subject to only domestic source income. The instant revenue amount is not a domestic source income, and thus, it is unlawful to impose income tax on it.

② As to the Defendant’s first correction disposition by applying simple expense rates, the Plaintiff filed a request for re-determination, and accordingly, the Defendant rendered the instant disposition in accordance with the determination that the Commissioner of the National Tax Service calculates the amount of income by applying 1/2 of standard expense rate. However, the determination that the standard expense rate is applied to the first disposition by applying simple expense rate is contrary to the principle of prohibition of disadvantageous alteration as prescribed by the Framework

③ Even if the Plaintiff falls under a resident under the Income Tax Act, whether to apply standard expense rate in determining the estimated income amount ought to be determined only on the basis of the immediately preceding domestic income amount. The instant disposition is unlawful as it applied 1/2 of standard expense rate including the Plaintiff’s overseas income amount in the immediately

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are not disputed between the parties, or acknowledged by each description of Gap evidence 2 to 6, Eul evidence of Nos. 3 and 5 to 12 (including each number), and the purport of the whole pleadings.

(1) The records of the Plaintiff’s activities as professional stable players are as follows.

In December 2011 to July 2014, 2014, Japan △△△△△△△ in 2007 to June 2008, 2008, the national representative of the 29 Vietnam-gu 2009 to December 2010 of the 2011, the 16th Blue-si, Japan △△△△△. The national representative of the 2007 Blue-gu, △△△△△△△△ in 2008, the 2015 to December 16, 2015, the △△△○○○○○○○○○○ in 2014 to June 2015, the △△△△△△△△△△△△△○ in 2015 to December 2015.

The term of the contract concluded with the instant company on December 16, 2012 is set from February 1, 2012 to January 1, 2015. Article 3 of the Agreement provides that the instant company shall provide the Plaintiff and his/her family members with his/her residence for the first period, from February 1, 2012 to January 1, 2013. Article 3 of the Agreement provides that the instant company shall provide the Plaintiff and its family members with his/her residence for the first period, from February 1, 2012, from February 1, 2013, from February 1, 2013 to January 1, 2014.

Consolidatedly, the Plaintiff is unmarried, and the number of days of stay in Korea and abroad by the Plaintiff, the father, Nonparty 1, and Nonparty 2 (hereinafter “parents”) are as follows. The Plaintiff entered Korea 11 times from 2012 to 2014 in total.

The number of days of non-party 1's stay in non-party 2's Republic of Korea overseas for the year of non-party 2's stay in the main sentence, the number of days of non-party 1's stay in the non-party 2's Republic of Korea overseas for the year of his stay in the non-party 2's Republic of Korea, 257 days of 112 December 355, 2012, 2036 March 331, 2013, 205, 261 March 326, 2014, 205 March 326, 2012, 312, the average 337 days of his stay in the non-party 2's Republic of Korea, 257 days

x) The details of the Plaintiff’s global income tax return from 2012 to 2015 are as follows:

In the table (unit: 32,00,000 business income of 2012,00,000,960,960,960,960,000,000 2013, and interest income of 012,2666 23,690,59, and 367,475, and 6,160,000 2,915,00 Korean Bank's interest income of 019,395,858 2014, 00,000 2,000,000, 207, 167, 207, 167, 207, 207, 167, 479, 167, 4167, 47, 197, 168, 160, 3605, 2965, 2096, etc., 265

(v) the acquisition of the Plaintiff’s real estate is as follows. The Plaintiff is running the housing rental business on the location of Ulsan-gu ( Address 1 omitted) No. 2 of the following table from January 1, 2017.

The number in the table located in the main sentence (scale) shall be the actual transaction value (unit: 2 omitted) of Ulsan-gun, Ulsan-gun, 106 Dong 1902, and the apartment house (130.826m2, 130.826m2) acquired and traded on February 21, 201, 463,000,000 and the land and detached houses ( Address 1 omitted) of Ulsan-gu, Seoul-gu, 201, and 830,000,000 on June 10, 2016.

⑹ 원고는 위 표 순번 제1번 기재와 같이 울산 울주군 (주소 2 생략) 106동 1902호(이하 ‘이 사건 아파트’라고 한다)를 구입한 이후 2011. 2. 24. 위 아파트로 주민등록을 이전하였다. 원고의 누나들인 소외 3, 소외 4도 같은 날 위 아파트로 전입신고를 하였다가 결혼을 하면서 소외 3은 2013. 11. 6.에, 소외 4는 2015. 12. 23.에 다른 곳으로 주민등록을 이전해갔다. 원고의 부모들은 2016. 2. 2. 이 사건 아파트로 전입신고를 하였다가 2016. 12. 5. 원고의 주택임대사업장인 위 표 순번 제2번 기재 건물로 주민등록지를 변경하였다. 그런데 원고의 대리인은 1차 경정처분에 대한 국세심사위원회의 심의 과정에서 ‘원고 부모의 실제 거주지는 이 사건 아파트였다’는 취지로 진술하였다.

⑺ 국세청 자료에 의하면 원고의 아버지 소외 1은 1995. 12. 30.에, 어머니 소외 2는 1996. 9. 19.에 기존의 사업을 각 폐업하였고, 2011년 이후 원고의 부모들은 아무런 수입이 없는 것으로 확인된다.

⑻ 원고가 2011년부터 2014년까지 일본에서 국내로 송금한 내역은 아래 표 기재와 같다.

Amount of transaction in the calendar year contained in the main sentence (source) in the taxable year of 619,852,034 for the taxable year of 201 860,726,527 for the taxable year of 2012 768,627,398 383,503,885 for the taxable year of 2014

D. Determination

(1) Whether the Plaintiff constitutes “resident”

(1) As seen in the relevant Acts and subordinate statutes, the term “resident” means an individual who has a domicile in the Republic of Korea or a domicile in the Republic of Korea for at least one year (Article 1-2(1)1 of the former Income Tax Act), and the term “resident” in this context means a place where a family member living together in the Republic of Korea and a property located in the Republic of Korea are determined based on objective facts of living relationship, such as the existence of a family member living together in the Republic of Korea (Article 2(1) of the former Enforcement Decree of the Income Tax Act), and the term “place of residence” means a place where a person has resided for a long time outside

On the other hand, when an individual residing in Korea has a family living together in Korea and is deemed to live in Korea for not less than one year in view of his occupation and property status, he shall be deemed to have an address in Korea (Article 2(3)2 of the former Enforcement Decree of the Income Tax Act), and when a person living or working in a foreign country has an occupation which requires him to dwell in a foreign country for not less than one year, he shall be deemed to have no address in Korea (Article 2(4)1 of the former Enforcement Decree

② As seen in the above facts, the Plaintiff owned the instant apartment in Korea and managed most of the overseas revenues from the instant apartment in several hundred million won each year, and the Plaintiff acquired detached houses and registered the housing rental business at the place of business. In addition, the Plaintiff is unmarried, from 2012 to 2014, the father Nonparty 1 was smaller than 53 days, and the mother Nonparty 2 lived with the Plaintiff for a period of not less than 3 months on an average of 112 days. In addition, the Plaintiff’s parent appears to have lived in Korea during the period of not less than 130§³, and the Plaintiff’s parent appears to have resided in the instant apartment in Korea and depend on the Plaintiff’s revenues while living in the instant apartment owned by the Plaintiff, and the Plaintiff appears to have resided in the instant apartment until a marriage between 2012 and 2014. The Plaintiff also appears to have resided in Korea.

Comprehensively taking account of these circumstances, the Plaintiff is an individual who is a domestic resident and has a family living together in Korea and is recognized as having been residing in Korea for not less than one year in view of its property status. Therefore, there is room to determine that the Plaintiff has an address in Korea pursuant to Article 2(3)2 of the Enforcement Decree

③ However, the Plaintiff, from around 2012 to around 3 years, worked as a professional stable player in Japan, and the instant company provided a residence for the Plaintiff and his family members during the said contract period (in case of an agreement entered into between the Plaintiff and the instant company, the period between February 1, 2012 and January 1, 2015 is divided into three sections, and the contract period between the Plaintiff and the instant company is divided into three sections, and it does not include the period from January 2 to January 31, 201, but it does not seem that the relationship between the Plaintiff and the instant company was completely cut off during that period, or that the Plaintiff or its family members could not stay in the residence provided by the said company).

The plaintiff can be seen as having no address in Korea under Article 2 (4) 1 of the Income Tax Act, since the plaintiff is a person residing or working in a foreign country who has been in need of continuous residing in a foreign country for not less than one year.

④ As such, the Plaintiff may be a resident of both Korea and Japan under the Income Tax Act, and in such a case, the Korea-Japan Tax Treaty stipulates that such case shall be deemed as a resident of a Contracting State having a permanent residence, as seen in the relevant Acts and subordinate statutes.

However, while the plaintiff owns the apartment house of this case in Korea and has its place as the resident registration place, Japan only has a residence provided by the company of this case during the contract period, and it cannot be deemed as a permanent residence since it cannot be viewed as a permanent residence, it is reasonable to see that the plaintiff is a resident of Korea.

⑤ Therefore, the Plaintiff’s assertion that it constitutes a nonresident under the Income Tax Act is without merit.

Dor whether the prohibition of disadvantageous alteration violates the principle

Article 79(2) of the Framework Act on National Taxes provides that when making a decision on a request for a trial that is dissatisfied with a taxation disposition, the claimant shall not be affected by a decision that is more unfavorable than that made by the request for a trial. The above provision also applies mutatis mutandis to a decision on the request for a review under the Framework Act on National Taxes. Such prohibition of disadvantageous changes applies to cases where the contents of the order for a review are more unfavorable than those of the taxation disposition subject to the request for a review (see Supreme Court Decision 2005Du106

On the other hand, a reinvestigation decision which is conducted in practice as a form of a decision on a request for a reexamination, etc. is a modified decision that leads to the disposition authority's re-examination of the matters pointed out in the decision of the ruling authority and takes the contents of the subsequent disposition as part of the decision on the request for a trial, etc. Accordingly, it becomes effective as a decision by supplementing the contents of the subsequent disposition in accordance with the disposition of the disposition authority. Thus, if a subsequent disposition in accordance with the purport of the reinvestigation decision is more unfavorable to the claimant than the original disposition, it violates the principle of prohibition against disadvantageous change under Article 79 (2) of the Framework Act on National Taxes, and thus, the part which exceeds the amount of the initial disposition is unlawful (see Supreme Court Decision 2016Du39382,

However, the Commissioner of the National Tax Service, upon the Plaintiff’s request for review, applied 1/2 of standard expense rate to calculate the amount of income, and applied 152,778,486 won to deduct the amount of tax paid overseas, and accordingly, decided to rectify the amount of tax. Accordingly, the Defendant issued the instant disposition to reduce the amount of 44,436,125 won, rather than the first revised disposition, such disposition cannot be deemed to violate the principle

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

Article 12(1)1 of the Act shall apply to the standard cost rate

In accordance with Article 3(1) of the former Income Tax Act, all income under the Income Tax Act shall be imposed on a resident. However, as seen above, as long as the Plaintiff falls under a resident under the Income Tax Act, all income generated domestically and abroad shall be included in the income amount, the standard expense rate shall be determined on the basis of all income generated domestically and abroad in the estimation

Therefore, the plaintiff's assertion that the plaintiff is not subject to 1/2 standard expense rate based on domestic income in the immediately preceding taxable year is without merit without any need to further examine the remaining points.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the defendant's appeal is accepted, and the plaintiff's claim is revoked and dismissed.

[Attachment]

Judges Kim Jong-cheon (Presiding Judge)