2. The Defendant’s disposition of imposition of KRW 1,05,000 on November 3, 2014 against the Plaintiff was revoked.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

Disposition No. 2 and the Defendant’s disposition of collection of global income tax of KRW 99,272 (including additional tax) for the year 201, as of August 3, 2012, and collection of global income tax of KRW 2,11,748 (including additional tax) for the year 2013, as of August 6, 2014, respectively, shall be revoked.

가. 원고는 2011. 8. 26.경 상호를 'dd상호공사'(이후 상호가 'dd종합공사'로 변경되었다)로, 개업일을 2011. 8. 29.로, 사업장 소재지를 자신의 주민등록지인 '00 00구 00동 000 00빌라 0동 0호'로, 업종을 '건설업, 인테리어(샷시공사)'(이하 '이 사건 사업'이라 한다)로 하여 사업자등록(사업자 등록번호)을 하였다가 2014. 10. 31. 폐업신고를 하였다.

B. Around August 3, 2012, the Plaintiff filed a global income tax return for the year 201, but did not pay the global income tax. On August 3, 2012, the Defendant notified the Plaintiff of the payment of global income tax of KRW 99,272 (including additional tax) (hereinafter “instant 1 disposition”), which reached the Plaintiff on August 9, 2012.

C. On May 19, 2014, the Plaintiff filed a return on KRW 2,071,357 of the global income tax for the year 2013, but did not pay it. On August 6, 2014, the Defendant notified the Plaintiff of the payment of global income tax of KRW 2,111,748 (including additional tax) (hereinafter referred to as “instant disposition”), and this reached the Plaintiff on August 11, 2014.

D. On November 3, 2014, the Defendant imposed KRW 1,055,00 on the Plaintiff for interim prepayment of global income tax for the year 2014 (hereinafter “third disposition”).

E. The Plaintiff filed a petition for adjudication on the disposition Nos. 2 and 3 on January 19, 2015, but the Tax Tribunal dismissed the petition for adjudication on the disposition Nos. 2 and 3 on April 1, 2015 on the ground that the petition for adjudication on the disposition No. 2 and the petition for adjudication on the disposition No. 3 is not subject to an appeal litigation

Facts without any dispute arising in recognition, Gap evidence 2, Eul evidence 1 through 5, 6, 9 (including family evidence with a serial number), the purport of the whole pleadings, and the purport of the whole pleadings.

2. Determination as to whether the part concerning the revocation of the first and second dispositions among the instant lawsuit is legitimate

A. The Plaintiff is an actual business operator of the instant business, and the Plaintiff merely lent the name of business registration, and thus, the first and second dispositions are against the principle of substantial taxation and seek its revocation. Accordingly, the Defendant asserted that the part concerning the first and second dispositions in the instant lawsuit is unlawful, since the Plaintiff did not lawfully undergo the first and second trial procedures.

(b) Pursuant to Articles 56(2) and 68(1) of the Framework Act on National Taxes, any administrative litigation on any disposition of national taxes may not be instituted without lawful undergoing the procedure for a prior trial, such as a request for a trial, under the Framework Act on National Taxes, and any request for a trial shall be filed within 90 days after the relevant disposition is known or after the notice

In light of the above legal principles, there is no evidence to acknowledge that the Plaintiff had gone through a prior trial procedure on the first disposition. Furthermore, according to the above facts of recognition, the Plaintiff filed a request with the Tax Tribunal for a trial on the second disposition only on January 19, 2015 after the lapse of 90 days from August 11, 2014, which was the deadline for requesting a trial from August 11, 2014, which was notified by the Plaintiff. The Plaintiff’s request for the above disposition is unlawful because

Ultimately, the plaintiff cannot be deemed to have gone through a legitimate procedure for the first and second dispositions. Thus, the part concerning the first and second dispositions among the lawsuits in this case is illegal, and the defendant's main defense to ensure the safety is with merit.

3. Determination as to the legitimacy of the third disposition

A. Summary of the plaintiff's assertion

The Plaintiff, at the request of sss, lent the business name to ss and was registered as a business entity in the form of the instant business by lending the business name to s and did not actually engage in the instant business, and the s ands actually operated the instant business. Thus, the disposition 3 is unlawful against the principle of substantial taxation.

B. Determination

1) Article 14(1) of the Framework Act on National Taxes declares the principle of substantial taxation by stating that "if the ownership of income, profit, property, act or transaction subject to taxation is merely nominal and there is a separate person to whom it actually belongs, the person to whom it actually belongs shall be liable to pay taxes."

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, content of the agreement between the parties concerned, the degree and scope of the nominal owner’s involvement, internal responsibility and calculation relationship

Meanwhile, in principle, the tax authority bears the burden of proving the existence and the tax base of the tax requirement. This also applies to cases 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 him/her. In such a case, the need for proof is sufficient to the extent that the judge has a reasonable doubt about the fulfillment of the tax requirement. 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 is back to the tax authority that bears the ultimate burden of proof (see Supreme Court Decision 2011Du935

2) The following facts can be acknowledged in full view of Gap evidence Nos. 5, 6, 8, 12, 13, Eul evidence Nos. 5, Eul evidence Nos. 7-3 and 4, and the purport of the whole pleadings.

① This S operated the business under the name of 0.0 d comprehensive construction work (hereinafter “existing d comprehensive construction work”) prior to the Plaintiff’s business registration of the instant project. This ss operated the existing d comprehensive construction work, and 14,267,810 won in total until April 3, 2010. The said d comprehensive construction work was paid at 0.0 on April 20, 201, but the tax amount in arrears was 4,651,850 won in arrears around August 26, 201. ② The Plaintiff had been working for 0.0 d comprehensive construction work on August 31, 198, 200 h University from March 5, 2007 to April 3, 2012, the Plaintiff had been registered at 30.0 d comprehensive construction work, d comprehensive construction work, d comprehensive construction work, d comprehensive construction work, d comprehensive construction work.

3) Examining in light of the foregoing evidence and the following circumstances in light of the aforementioned facts of recognition:

이 사건 사업을 실질적으로 운영한 사람은 이ss이고 원고는 삼촌인 이ss에게 사업자등록 명의를 빌려 주었다고 볼 여지가 충분하며, 피고가 제출한 증거들과 피고가 주장하는 사정들만으로는 원고가 실제 이 사건 사업을 영위하였다는 점을 인정하기에 부족하고 달리 이를 인정할 증거가 없다. ① 이ss는 조세심판원에서의 심판 절차에서 '이 사건 사업은 원고의 명의를 빌려 사업자등록을 한 다음 자신이 실제 운영하였고 원고와는 아무런 관련이 없다'라는 취지의 확인서를 작성하여 제출하였다. 또한 철물가공업체를 운영하는 임응빈, 강화유리설치공사업체를 운영하는 유익상, 공구・철물업체를 운영하는 임ff는 '2011. 8.9.부터 2014. 10. 31.까지 이 사건 사업에 부속 및 공구 등의 자재를 납품하였고 위 거래 당시 이ss가 위 사업의 대표자라고 알고 있었을 뿐 원고를 알지 못하였다'라는 취지의 확인서를 제출하였다. ② 이ss는 기존 dd종합공사를 운영하면서 다년간 다액의 부가가치세액을 체납하였다가 일시에 납부하였고, 원고 명의로 이 사건 사업이 등록될 무렵에도 체납세액이 잔존하는 등 기존 dd종합공사의 운영으로 인하여 자금 사정이 좋지 않았던 것으로 보인다. ③ 이 사건 사업은 당초 상호를 'dd상호공사'로 하여 사업자등록이 되었다가 이후 이ss가 운영하던 기존 dd종합공사와 동일한 'dd종합공사'로 상호가 변경되었다. ④ 이 사건 사업에 대해 최초로 등록된 사업장 소재지는 원고의 조모인 최aa가 2001. 9. 11.부터 전입하여 거주해 왔던 곳으로서 위 장소에서 샷시공사 등 건설업이 진행되기는 어려웠을 것으로 보이는 반면, 이후 이 사건 사업의 사업장 소재지는 이ss의 주민등록지로 변경되었고 이 사건 사업은 주로 이ss의 거주지에서 행해진 것으로 보인다. ⑤ 원고가 대학교에서 전공한 과목은 정보통신학이고, 이후 취득한 학사 학위도 패션디자인학에 대한 것이며, 원고가 이 사건 사업이 폐업되기도 전인 2014년 3월경 입사한 회사도 의류회사로서 원고의 전공은 이 사건 사업의 업종인 건설업이나 인테리어 공사와는 무관하다.

4) Therefore, it is difficult to view that the Plaintiff’s owner of the instant business is the Plaintiff, and thus, the instant disposition taken on the premise that the Plaintiff, a business owner, runs the instant business is unlawful against the principle of substantial taxation.

4. Conclusion

Therefore, since the part concerning the first and second dispositions of the lawsuit of this case is unlawful, all of the claims of the plaintiff are dismissed. Since the remaining claims of the plaintiff are reasonable, it is so decided as per Disposition.