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1. On July 1, 2009, the disposition of imposition of the value-added tax of 1,358,450 won for the first term of 2006 against the Plaintiff, the value-added tax of 3,974,720 won for the second term of 2006, the value-added tax of 4,09,360 won for the first term of 2007, the value-added tax of 3,948,810 won for the second term of 2007, and the value-added tax of 1,89,950 won for the first term of 208, and the disposition of imposition of the value-added tax of 1,281,29,290 won for the first term of 208, and the disposition of imposition of the value-added tax of 3,689,210 won for the first term of 206 against the Plaintiff on July 7, 2009, both of them are revoked.

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

쇠鹬 쇠鹬 3000 쇠鹬 3000

1. Details of the disposition;

A. The Plaintiff is the owner of a 5-story 5-story building around the ground 21-ground AB-guCC 3.

B. Defendant SS Head of the tax office confirmed on April 20, 2006 that the Plaintiff leased the value-added tax for 128.92 square meters out of the 1st floor of the above building (hereinafter “the store of this case”) to KimD on April 20, 2006 without deposit, and notified Defendant 2 to the Plaintiff on March 25, 2009 of the global income tax for 200 : 20 .6 .6 .6 . 7 . 8 . 9 . 8 . 8 . 9 . 20 . 8 . 9 . 8 . 20 . 8 . 9 . 20 . 7 . 9 . 7 . 9 . 8 . 20 . 9 . 8 . 9 . 20 . 7 . 9 . 8 . 9 . 20 . 9 . . 7 16 . 20 .

D. Accordingly, on August 4, 2009, the Plaintiff filed an appeal on the instant value-added tax with the Tax Tribunal, but was dismissed on December 15, 2009. On August 5, 2009, the Plaintiff filed an appeal on the instant global income tax, but was dismissed on November 19, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, Eul evidence 6-1, 5-2, Eul evidence 1-1, 2-2, Eul evidence 2-1, Eul evidence 3, Eul evidence 4-1 through 4, Eul evidence 6-1, 6-2, and the purport of the whole pleadings

2. The legality of the instant disposition

A. The parties' assertion

1) The plaintiff's assertion

이 사건 점포에서 실질적으로 ◆◆◆◆◆ 부산국제시장점(이하 '이 사건 펀의 점'이라 한다)을 운영한 자는 원고이고, 김DD은 원고의 부탁으로 그 명의로 주식회사 ◇◇◇◇◇(이하 '◇◇◇◇◇'이라 한다)과 프랜차이즈계약을 체결하고 피고 SSS세무서장에게 사업자등록을 한 자에 불과하므로, 원고가 김DD과 체결한 임대차계약은 통정허위표시로서 무효이고, 원고가 임대료를 수수한 사실도 없다. 이 사건 화해조서는 원고가 프랜차이즈계약을 중도해지할 경우 발생할 위약금을 면제받기 위해 김DD과 허위로 제소전 화해를 한 것이다. 결국 원고가 이 사건 점포에 대하여 아무런 임대수입을 얻은 바 없음에도 정상적으로 임대거래한 것으로 보고 행하여진 이 사건 부과처분은 실질 거래가 수반되지 않은 것에 대하여 과세된 것으로서 실질과세의 원칙에 위배 되어 위법하다.

2) The defendants' assertion

First, in light of the contents of the lease contract submitted by KimD at the time of application for business registration, the instant protocol of settlement, the confirmation document of KimD, the document of withdrawal of termination and penalty even during the franchise contract on May 14, 2008, the Plaintiff’s notification of cancellation of lease contract on June 5, 2008, the value-added tax and the global income tax return on the instant store, etc., the Plaintiff’s assertion is not reliable, and thus, the instant disposition of imposition, which the Plaintiff deemed the leased store at a cost, is legitimate.

Second, even if the plaintiff is the actual operator of the store of this case and the lease contract with KimD is null and void due to a false conspiracy, it is against the principle of trust and good faith that the plaintiff makes business registration by pretending to lease the store of this case to KimD, prepares a protocol of compromise by deceiving the court for personal purposes, which is the other party to the transaction, and the plaintiff is the actual operator of the store of this case and the lease contract with KimD is null and void as a false representation, despite the fact that the contract with KimD is invalid as a false representation, it goes against the principle of trust and good faith.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) Yellow PP is the husband of the Plaintiff’s grandchildren KimY, and KimD is the external ginseng village of the Yellow PPP, and the Plaintiff and KimD are the down payment.

2) While the Plaintiff was under consideration because the store in this case was not leased for more than two years, it would be better to find out the franchise type of business in order to induce salesroom occupants due to underdeveloped of the building, according to the opinion of the YellowPP that it would be better to find out the franchise type of business. The Plaintiff entered into a business registration and franchise contract in the name of the KimD recommended by the YellowPP as the store location of convenience store, but the KimD store management is limited to the store management and the fund management is paid a monthly salary to the YD every month while the YellowP is paying a monthly salary.

3) 이에 따라 김DD은 2006.4. 7. ◇◇◇◇◇과 사이에 ◆◆◆◆◆ 프랜차이즈 계약을 체결한 다음, 2006. 4. 21. 피고 SSS세무서장에게 이 사건 편의점에 대한 사업자등록신청을 하여 그 명의로 사업자등록을 하였는데, 원고는 2006. 4. 18. ◇◇◇◇◇이 공급하는 물품들에 대한 담보조로 원고 소유의 서울 UU구 NN동 소재 MM아파트상가 제A동 제2층 제212호에 대하여 ◇◇◇◇◇ 앞으로 채권최고액 50,000,000원의 근저당권을 설정하여 주기도 하였다(위 근저당권은 2009.6. 5. 해지되었다).

4) From April 27, 2006, the instant convenience store began to operate business. The Plaintiff: (a) calculated the monthly salary of KimL, the point of origin, in total of KRW 1,700,000, and KRW 1,700,000, in total of KRW 300,000, and KRW 1,000,00, in total of KRW 1,000,000; and (b) calculated the basic salary of KimD’s KimT, who worked from May 1, 2006, deposited the said salary into KimD and its wife’s passbook via Yellow PP; (c) the KimD settled the daily sales of convenience store and remitted it to the Gegian; and (d) reported the result to the Plaintiff at night 10,000,000 each day.

5) On April 7, 2006, the capital operation passbook of the instant convenience store was opened in the name of Kim DD at the same Dong-dong branch of the Bright Bank, Inc. located in the Plaintiff’s domicile, and the Plaintiff’s seal impression column of the head of Tong is affixed with the Plaintiff’s seal affixed thereon.

6) The Plaintiff, through KimD on February 2008, requested the termination of the franchise contract to the side of the Republic of Korea through KimD in order to avoid the profit expected in the operation of the instant convenience store. The Plaintiff heard the answer that KRW 40,000 won should be paid as a penalty for early cancellation of the franchise contract, and on May 15, 2008, the Plaintiff sent the written request for cancellation of the franchise contract and the withdrawal of the penalty to the Republic of Korea by mail.

7) The Plaintiff, among its employees, listen to the statement that the name of the building can resolve the issue of penalty by receiving a judgment on a lawsuit from an employee of the executive branch of the Republic of Korea, and that on July 17, 2008, GimD, in the Busan District Court, ordered the Plaintiff to order the store of this case until July 24, 2008, and accordingly, the protocol of conciliation in this case was prepared.

8) Meanwhile, at the time when KimD entered into a franchise contract with the Republic of Korea, it stated that the lease deposit is KRW 100 million, KRW 5,000,000, and KRW 5,000,000, in the lease contract submitted by KimD to the head of the tax office having jurisdiction over the registration of business, and the lease contract submitted by KimD to the head of the tax office in filing an application for the registration of business, is stated as KRW 30,000,000, without any separate rent, and the column for the claim for the protocol of this case is stated as the agreement that only the lease deposit is KRW 5,00,000,000 without the lease deposit.

[Ground of recognition] A without dispute, Gap evidence 2 through 5, Eul evidence 8 through 11, Eul evidence 5-1, 2, Eul evidence 7, Eul evidence 8-1, 2, Eul evidence 9, Eul evidence 12-1, 2, Eul evidence 12-2, Eul evidence 13, witness Kim D's testimony, witness Kim Ha's part of testimony, witness Hak PP's document testimony, fact-finding results against B/S Bank of B/S of stock of this court, the purport of the whole pleadings, and the purport of the whole pleadings

D. Determination

1) Whether the substance over form principle violates the principle of substantial taxation

A) Article 14(1) of the Framework Act on National Taxes provides that “If the ownership of the income, profit, property, act or transaction subject to taxation is merely nominal and there is another person to whom such ownership belongs, the person to whom such ownership belongs shall be liable to pay taxes.” Article 14(2) provides that “The provisions on the calculation of the tax base in the tax-related Acts shall apply according to the substance, regardless of the name or form of the income, profit, property, act or transaction, and specify the principle of substantial taxation.

B) However, according to the above facts, KimD is merely an operator in the name of the convenience store of this case, and its actual operator is the plaintiff. Thus, the lease contract between the plaintiff and KimD between the plaintiff and the plaintiff is invalid as a false representation that has been falsely conspired to enter into a business registration and franchise contract under the name of KimD. Therefore, the disposition of this case rendered on the premise that the plaintiff actually leased the store of this case to KimD and was paid a monthly rent violates the principle of substantial taxation.

2) Whether the assertion of the principle of substantial taxation is against the principle of good faith

A) The application of the principle of trust and good faith in tax litigation can be divided into the application of the law related to the procedure law and the substantive law, and the application of the procedure law in tax litigation cannot be specifically divided from that of the civil litigation. However, the application of the law related to the substantive law, which greatly acts as a principle of legality under the principle of no taxation without law, is restricted rather than that of the private autonomy doctrine under the principle of no taxation without law, and is subject only to the case where the need for the protection of specific trust is recognized even if the application of the law is made sacrifice of the legality.

Furthermore, in cases where a taxpayer commits an act contrary to his/her past speech and behavior against a tax authority, the deprivation of benefits, such as tax reduction and exemption under tax law, the imposition of additional taxes, such as tax in advance, and the penalty under various tax laws, etc. The tax authority exercises its right to a tax course in superior position under tax laws, such as having the right to a field investigation, and the burden of proving the legality of a tax disposition is in principle at the tax authority, the application of the principle of good faith to a taxpayer should be extremely limited and should not be expanded and interpreted. Thus, the application of the principle of good faith to a taxpayer on the ground of his/her good faith should not be permitted unless the degree of the act is extremely severe.

Therefore, even when applying the principle of good faith and the same or a single application, there is an objectively contradictory behavior, and the behavior was derived from a taxpayer’s severe act of worship, and the trust of the tax authority resulting therefrom should be protected (see, e.g., Supreme Court en banc Decision 95Nu18383, Mar. 20, 197; Supreme Court Decision 2003Du3468, May 14, 2004).

B) In the instant case, as if the Plaintiff leased the instant store to KimD, the Plaintiff prepared a lease contract, entered into a business registration and franchise contract in the name of KimD, and the court concluded a false compromise as if the lease agreement exists between the two, and made the instant protocol of compromise to be prepared, but it has already asserted that the Plaintiff did not have any tax liability on the premise that it is not a false conspiracy, unlike its other acts.

However, apart from whether the Plaintiff may be punished as a crime of fraud under the Criminal Act or subject to sanctions due to various penal provisions under tax laws, if the Plaintiff did not commit the above act for the purpose of tax avoidance, or make it impossible to exercise the right of tax proceeding by hindering the Defendants, who are the tax authorities, to exercise the right of on-site investigation, it is difficult to deem the Plaintiff to have committed a serious fiduciary act against the Defendants.

Furthermore, under the substance over form principle, taxation should be based on the substance rather than the external form of act, and as a matter of course, the Defendants, who have the authority to conduct a field investigation, have the duty to investigate and taxation the substance of the case in this case, and bear the burden of proving the legality of the taxation. However, even if the Defendants, without exercising the right to conduct a field investigation, reported only the settlement protocol in this case and trusted it, it cannot be said that there is trust worth protecting it.

C) Therefore, in the instant case where it is difficult to deem that the Plaintiff’s act of good faith falls under extremely severe cases, or that it was infringed upon the Defendants’ trust worth being protected, the Plaintiff’s denial of its tax liability by asserting the principle of substantial taxation, and thus, cannot be deemed as violating the principle of good faith by asserting the principle of substantial taxation.

3) Sub-decisions

Ultimately, the instant disposition that violates the principle of substantial taxation is unlawful.

3. Conclusion

If so, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.