실제 사업자에게 과세한 경우 기납부세액을 명의자에게 환급이 가능한지 여부[국승]
Whether the already paid tax can be refunded to the nominal person when the tax is imposed on the actual business operator
In fact, in light of the fact that the business registration was made in the name of the plaintiff, who is one's agent, even though he actually operated his business, it is reasonable to view that the defendant could be mistaken for the plaintiff as a business operator, and that whether the plaintiff is a actual operator or not could have been identified as a reason to accurately investigate the facts with the defendant.Therefore, the above defect in the tax disposition imposed by the defendant cannot be seen as apparent from appearance, and therefore, the above tax disposition cannot be viewed as
Article 14 of the Framework Act on National Taxes
1. The plaintiff's claim is dismissed.
2. Litigation costs shall be borne by the Plaintiff
The defendant shall pay to the plaintiff 137,559,570 won with interest rate of 20% per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.
1. Basic facts
A. The Plaintiff is a business registration holder from November 17, 2002, which became a business proprietor from November 27, 2002, when the business of '0000 00000 000 -00 - 000 - was commenced.
B. As to the operation of 000, KRW 137,559,570, including special consumption tax, value-added tax, business income tax, etc., was paid from November 27, 2002 to March 31, 2005 in the name of the Plaintiff.
C. The plaintiff's 00, 190, 200, 200 from November 27, 2002 to March 31, 2005, actually operated 000, and the female employees arranged to engage in sexual traffic with customers who found at the above main points, and was prosecuted against the Incheon District Court on August 22, 2005 by violating the Act on the Punishment of Acts of Arranging Sexual Traffic, Etc., and was convicted at that time.
D. The Plaintiff’s father, around July 3, 2007, received a grievance report containing the purport that the Plaintiff would impose taxes on 000,000 of the real estate under the Plaintiff’s name even though 00,000, the Plaintiff, who was a mentally disabled person with mental division, had no ability to operate his business. In fact, the Plaintiff did not pay taxes on 00, but did not sell taxes on the deposit claim under the Plaintiff’s name. As such, the Defendant received a grievance report containing the purport that the Plaintiff would impose taxes on 00,000, which was imposed on 2005, the amount of value-added taxes for 2005, the business income tax (the taxable period between March 1, 2003 and January 1, 2005, the value-added tax was imposed on 00,005 to 0,0000 business income tax for 0,005 or 205,65,64,205,205.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1, 2, 5, and 8, the purport of the whole pleadings
2. The plaintiff's assertion and judgment
A. The assertion
Although the actual business operator of 000 is 000 and the plaintiff is not the nominal owner of the business registration injury, the defendant made a tax disposition on the ground that the business owner of 000 is the plaintiff. Since the above tax disposition is significant and obvious, the above tax disposition is null and void, so the defendant is obliged to return the tax amount of 137,559,570 won paid between November 27, 2002 and March 31, 2005 to the plaintiff as unjust enrichment.
B. Determination
1) In order to make a taxation null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is objectively and objectively in violation of important laws and regulations, and in determining whether the defect is significant and obvious, it is necessary to examine the purpose, meaning, function, etc. of the laws and regulations which serve as the basis for the taxation in question from a teleological perspective and to reasonably consider the specificity of the specific case itself.
A tax disposition imposed on a person who does not have any legal relation or factual basis that is subject to taxation shall be deemed to be serious in its defect. However, in a case where there are objective grounds to believe that it is subject to taxation with respect to any legal relation or factual basis that is not subject to taxation, and where it can only be clarified whether it is subject to taxation or not, if it is necessary to accurately investigate the factual basis, it cannot be deemed to be apparent even if the defect is serious, and thus, it cannot be deemed that the unlawful taxation disposition that misleads the fact subject to taxation is unreasonable (see Supreme Court Decision 2000Da24986, Jul. 10, 200).
2) According to Article 14 of the Framework Act on National Taxes, if the ownership of income, profit, property, act, or transaction subject to taxation is merely nominal, and there is another person to whom such income, profit, property, act, or transaction belongs, the person to whom such income, profit, or transaction belongs shall be the person to whom such income, value-added tax, or special consumption tax belongs, and the tax-related Act shall apply to this case. Thus, there is a defect in taxation conducted in the name
3) Furthermore, in light of the fact that: (a) it is obvious that the defect is obvious and its degree is about the invalidation of a year; and (b) as recognized earlier, it is reasonable to deem that the defendant could be identified as the defendant as the fact-finding even if there are objective circumstances that make it possible for the plaintiff to be mistaken for the business operator; and (c) it could be identified as the fact-finding that the plaintiff is the actual operator of 000.
4) Therefore, it cannot be deemed that the above defect existing in the taxation disposition imposed by the Defendant cannot be seen as apparent apparent, and the above taxation disposition cannot be deemed as null and void as a matter of course.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.