Article 7 (Supply of Value-Added Tax Act)

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

A. From August 1, 2004 to September 25, 2005, the Plaintiff: (a) performed ○○ Development Co., Ltd. (hereinafter only referred to as “○○ Development”) among the structural frame construction in Namyang-ju Co., Ltd. contracted from ○○○ Construction; and (b) received KRW 271,194,250 in total from ○○ Development.

B. On November 6, 2006, the Defendant deemed the Plaintiff as the non-registered business operator and made business registration ex officio on the ground that the Plaintiff had not received the price for the provision of services after receiving a subcontract for the instant construction from ○○ Development, and did not report and pay the value-added tax (hereinafter “the instant disposition”). On November 6, 2006, the Defendant determined and notified the Plaintiff of KRW 12,186,530 for the second term value-added tax for the second term in 2004, value-added tax for the first term in 2005, value-added tax for 12,186,530 for the second term in 205 (hereinafter “the instant disposition”).

C. On January 29, 2007, the Plaintiff filed an appeal seeking revocation of the instant disposition with the National Tax Tribunal, but the National Tax Tribunal dismissed the Plaintiff’s claim on August 28, 2007.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 7-1 through 9, Eul evidence 1-1 through 3, Eul evidence 3, the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff, as the head of the working group at the field of the field of the field project of ○○ Development, performed the field work with other people in accordance with the specific vision and supervision of the field work of ○○ Development, which is the head of the field work of ○○ Development. When ○○ Development receives construction expenses from ○○○ Construction, the principal contractor, each month, calculated the number of daily workers and the number of days of attendance, and pays wages to the plaintiff in a lump sum to the plaintiff, then the plaintiff was paid to the worker again. The plaintiff was not a person who performs the above field work after receiving a subcontract from ○○ Development, and is not a person who performs the above field work independently, and thus, it is unlawful for the defendant to impose value-added tax on the plaintiff as an independent business operator.

(b) Related statutes;

Article 2 (Taxpayer of Value-Added Tax Act)

Article 7 (Supply of Value-Added Tax Act)

(c) Fact of recognition;

(1) The Plaintiff, between ○○ Development and the Plaintiff, determined the contract amount as KRW 270,00,000 with respect to the check work of this case, and received the payment in the manner of receiving the amount calculated by deducting the on-site meals from the beginning of the visit work nine times as a whole in the course of conducting the check work by mobilization of the human parts between August 1, 2004 and September 25, 2005.

(2) The Plaintiff paid a direct wage according to the number of days of labor and unit price to the daily workers mobilized to the instant check work. According to the statement on the statement of the daily work cost prepared by the Plaintiff, the Plaintiff did not pay the daily workers the original amount of the Class A earned income tax, and the Plaintiff paid the daily workers the wage for March, April, and September, 2005, which had not been paid the wage from ○○ Development.

(3) On the other hand, ○○○ Development’s chief director was punished for criminal facts, such as: (a) preparing a statement of labor cost by overappropriating labor cost at each construction site of ○○ Development as if the labor cost was actually paid, and then making up a statement of labor cost by making up labor cost in excess of the actual amount; and (b) making up a statement of labor cost by making up the labor cost in excess of the labor cost from ○○○ Group; (c) in order to disguise the payment of wages excessively appropriated in the course of overappropriating the labor cost as above, ○○ was calculated and paid by adding Class A labor income tax to daily workers in accordance with the above statement of labor cost; (d) however, there was no direct material that can be known that the Plaintiff paid Class A labor income in relation to the construction cost received from ○○ Development.

[Ground of Recognition] Facts without dispute, Gap evidence 2, Gap evidence 4-1, 2, 5-2 through 8, Gap evidence 6-6, Gap evidence 7-1 through 9, Gap, 9, 10, 11, Gap evidence 12-2 through 6, Gap evidence 13-1 through 7, the purport of the whole pleadings, and the purport of the whole pleadings

D. Determination

Article 2 (1) and Article 7 (1) and (3) of the Value-Added Tax Act provides that a person who supplies goods or services independently for business (hereinafter referred to as an "business operator") is liable to pay value-added tax, and the supply of services is either the supply of services or the use of goods, facilities or rights for all contractual or legal grounds, but the provision of labor under an employment relationship does not constitute the supply of services. Therefore, the issue is whether the plaintiff is the case where the plaintiff supplies services independently for the check construction of this case for business

The plaintiff, with ○○ Development, mobilized daily workers after setting the contract amount of KRW 270,00,00 in connection with the execution of the check work in this case. The plaintiff received KRW 271,194,250 (257,570,650 for the amount actually received by deducting the meals of the father in a lump sum) from ○○ Development, and the plaintiff paid each wage according to the number of working days and unit prices under his responsibility to the daily workers mobilized to the check work, and even paid the wages to the daily workers even during the month in which the price for the work was not paid from ○○ Development;

Considering the circumstances such as the construction cost received by the Plaintiff and the wage paid by the Plaintiff to daily workers at source, and there is no evidence to support that the Plaintiff had concluded a labor contract with ○○ Development, the Plaintiff is deemed to constitute a subcontractor who entered into a subcontract with ○○ Development for the instant check work and provided services independently to the head of the working group for the check construction project, not the independent business operator himself/herself, but the head of the working group for the check construction project. However, the Plaintiff asserted that the Plaintiff was merely a subcontractor who entered into a subcontract with ○○ Development for the instant check construction work, but it is not sufficient to recognize it solely on the basis of the written evidence No. 5-1, No. 11, and No. 12-1).

3. Conclusion

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