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

Cheong-gu Office

The same shall apply to the order.

A. From March 27, 2007 to May 2, 2011, the Plaintiff was registered as a business entity of “△△△dong station” (the location of business place: 00-00, hereinafter “the instant gas station”).

B. As a result of conducting a tax investigation on the gas station of this case, the Defendant: (a) from September 5, 2009, the Plaintiff would be the actual business operator of the gas station of this case; (b) from March 27, 2007 to September 4, 2009, Nonparty B, the owner of the gas station of this case, deemed Nonparty B as the actual business operator of the gas station of this case; and (c) imposed value-added tax on this B from January 25, 201 to February 2009 (hereinafter “previous disposition”).

C. In response to the objection filed by BB, it is difficult to readily conclude that BB was an actual business operator of the instant gas station during the instant taxable period on June 24, 201. Accordingly, the disposition imposing value-added tax on B was revoked, and the Defendant imposed upon the Plaintiff the value-added tax amounting to KRW 000 for the first period of September 15, 201 and KRW 000 for the second period of September 19, 201, and KRW 00 for the second period of value-added tax for the second period of 2008 (hereinafter referred to as the “instant disposition”; and hereinafter referred to as the “instant taxable period”).

D. The Plaintiff appealed and filed an appeal, but was dismissed on April 3, 2014.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The actual business operator of the gas station of this case accepted the unilateral claim of this BB, and the defendant revoked the disposition of value-added tax and imposes it on the plaintiff again. The disposition of this case must be revoked in an unlawful manner.

B. Determination

1) Relevant legal principles

Article 14(1) of the former Framework Act on National Taxes (amended by Act No. 911 of Jan. 1, 2010) provides that "If the ownership of income, profit, property, act or transaction subject to taxation is merely nominal and a person to whom such income, profit, act or transaction belongs is separate, the person to whom such income, profit, act or transaction belongs shall be liable for tax payment and the tax law shall be applied."

Therefore, in cases where there is a person who substantially controls and manages a taxable subject to income, profit, property, act, transaction, etc. different from the nominal owner, the nominal owner on account of form and appearance should be the person who actually controls and manages the taxable subject to taxation in accordance with the substance over form principle, instead of the nominal owner as the person liable for duty payment. Furthermore, whether such a case is a case should be determined by comprehensively taking into account various circumstances such as the details of the use of name, the content of the agreement between the parties concerned, the degree and scope of the nominal owner’s involvement, internal responsibility and calculation

Meanwhile, in principle, the tax authority bears the burden of proving the existence and the tax base of the facts requiring taxation. This also applies to a case where the tax authority contests that the nominal owner of the transaction, etc. and the actual owner of the transaction, etc. are different, barring special circumstances, such as a separate legal provision converting the burden of proof. However, as long as the tax authority imposed tax on the nominal owner as the nominal owner, it is necessary for the business owner to assert and prove that the nominal owner of the transaction, etc. is different from the nominal owner of the transaction, etc. so long as the tax was imposed on the nominal owner. In such a case, the need for proof is sufficient to the extent that the judge has a reasonable doubt as to whether the transaction requirements were satisfied. As a result, it is unclear whether the substance of the transaction, etc. belongs to the nominal owner, and if it becomes impossible to obtain conviction by the judge, then the disadvantage therefrom remains back to the tax authority bearing the ultimate burden of proof (see Supreme Court Decision 2011Du9

2) In the instant case:

In light of the above legal principles, in light of the following circumstances acknowledged as a whole based on the health team, Gap evidence Nos. 3-1, 2, 3, and Gap evidence Nos. 5-8, 9, Gap evidence Nos. 6-3 through 9, Eul evidence Nos. 5, and Eul evidence Nos. 7, the testimony of the witness E, there is considerable doubt about the fact that the actual business operator of the gas station of this case is the plaintiff during the taxable period of this case, and rather, the actual business operator of the gas station of this case seems to fall under BB as determined in the previous disposition. Accordingly, the defendant's disposition of this case as seen otherwise should be revoked as unlawful.

Unless there are special circumstances, the facts recognized in the final and conclusive judgment on the private and criminal cases related to ○○ is a flexible evidence (see, e.g., Supreme Court Decision 97Da24276, Sept. 30, 1997). The Plaintiff was determined to the effect that “In the relevant civil judgment (Seoul Southern District Court Decision 2010Da3500, Sept. 29, 2010)” is not only a person who lends the title of the instant gas station upon the request of NonpartyCC in the relationship with B but also the said gas station operator is B” (this is deemed that BB is a means to resolve the dynamic relationship with the twoCC).

The non-party, who was working as a staff member of the gas station of this case, testified to the effect that the non-party, who was present as a witness of the above civil case, is the president of the place of residence, and the actual business operator who brought about the income of the gas station of this case, is B.

○ Although the instant judgment was rendered on the sales of pseudo Petroleum after the instant taxable period (from November 2, 2009 to April 26, 2010), the Plaintiff was acquitted on the grounds that “a business operator was given a fee from B in the relevant criminal case (Supreme Court Decision 2013Do1343 Decided December 26, 2013).” However, the Plaintiff was acquitted on the grounds that “a business operator was given a fee from B and was not involved in the operation of the instant gas station.”

○B had a record of operating several gas stations in a way that “the president of the gas station of this case,” in addition to the gas station of this case, and Non-Party EE, who served as the complaint of the gas station of this case, was present at this court as a witness and made a false statement at the time of the tax investigation, that the actual business operator of the gas station of this case was the Plaintiff. However, at the time of the tax investigation, the Plaintiff received the rent of KRW 200-3 million monthly from the witness (EE) and the witness (EE) received the payment from the Plaintiff’s account, but this was because the witness (EEE) managed the Plaintiff’s business account under the direction of thisB, which is eventually because the witness (EEE) was employed and paid the Plaintiff’s business account, and the non-party E, who is the wife of this case, was also in charge of Nonparty 2’s tax invoice, settlement of tax invoice of this case, settlement of accounts, and receipt of profits.

○ The Defendant claimed that the monthly payment of certain amount was made to the account under the name of B, and that this was made to the Plaintiff as the actual business operator of the instant gas station, but there is sufficient room to regard that the said amount was withdrawn from the business account under the name of the Plaintiff in order to pay the loan interest, etc. on the instant gas station by the Southern EE in receipt of the direction of BB.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.