거주형태·직업·자산보유현황·경제활동 등 생활관계를 종합적으로 고려하면 원고는 소득세법상 국내에 주소를 둔 거주자임[국승]
Seoul Administrative Court 2015Guhap52586 ( August 28, 2015)
Considering the living relationship such as residential type, occupation, current status of assets, and economic activities, the plaintiff is a resident with his/her domicile in Korea.
(1) The Plaintiff is a resident of the Republic of Korea under the Income Tax Act, and even according to the Korea-Japan Tax Treaty, the Plaintiff is a resident of the Republic of Korea with a close personal and economic relationship between the Plaintiff and the two countries. The instant provision does not violate the principle of clarity of taxation requirements because it is difficult to expect the instant provision from the taxpayer or it is difficult to view that arbitrary application by
Article 2 of the Enforcement Decree of the Income Tax Act and Determination of Residence
2015Nu5814 global income and revocation of disposition
LAA
Head of Sungbuk Tax Office
Seoul Administrative Court Decision 2015Guhap52586 decided August 28, 2015
April 20, 2016
May 11, 2016
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The defendant's disposition of imposition of the global income tax on February 3, 2014 against the plaintiff on February 3, 2014 shall be revoked.
1. Quotation of judgment of the first instance;
The reasoning of this court's judgment is as follows: (a) the court of first instance has dismissed the following matters among the judgments of the court of first instance; and (b) the reasoning for the judgment of the court of first instance is identical to that of the court of first instance, and thus, (c) Article 8 (2) of
○ 11. 7. Korea's "Korea" shall be considered as "Korea".
○ 12. 6. The following shall be added to a "determined point" of the 6th page:
④ The Plaintiff contributed not only to profit-making activities in Korea, but also to non-profit activities, such as contributing not only to social welfare organizations, such as the Federation of BB,CC Infant Care Center, 2006, OO only in 2007, O00, 2008, and O00 in 2009.
2. Additional determination
A. The plaintiff asserts that Article 2 (3) 2 of the former Enforcement Decree of the Income Tax Act (hereinafter referred to as the "Enforcement Decree of this case") is invalid since it violates the principle of no taxation without law, and thus, the disposition of this case based thereon is unlawful.
B. The principle of no taxation without the law adopted by Articles 38 and 59 of the Constitution requires that the National Assembly, a representative body of the people, should prescribe the requirements and procedures for the exercise of tax rights, such as taxation requirements and collection procedures, by the law enacted by the National Assembly. However, it is not possible to delegate matters concerning taxation requirements and collection procedures to subordinate laws and regulations, and specific and individual delegation is allowed in cases where the matters are delegated to subordinate laws and regulations, and the provisions of orders and regulations based on delegation must be one-time and clear. Therefore, whether a taxpayer violates the principle of no taxation requirement clarification or not is likely to be subject to taxation because a certain act from a taxpayer's standpoint constitutes the pertinent phrase, which is a taxation requirement, and whether the uncertainty of the pertinent phrase can be expected to apply the law in a arbitrary and discriminatory manner from the standpoint of an administrative agency, and if it is difficult to distinguish various elements of taxation requirements from the laws and regulations as a general and abstract interpretation, it is difficult to see that the general and abstract provision of taxation can be clearly defined through the general and abstract interpretation of the law.
In light of the purport that a resident is liable for income tax in light of his/her occupation and property status, the term "family living together with a domestic address in the Republic of Korea" refers to cases closely related to a domestic place of business, such as where it seems that the workplace or work relationship is maintained to the extent that he/she needs to reside in the Republic of Korea for more than one year, or that he/she has to manage and dispose of assets in the Republic of Korea for more than one year. Thus, it is difficult to say that the provision of the Enforcement Decree of the instant case is likely to have no predictability from a taxpayer's standpoint, or that the tax authority's arbitrary application of the law is possible, and furthermore, it is difficult to expect that the choice of more conclusive phrases would not be easily expected from a legislative perspective (see, e.g., Supreme Court Decision 2013Du16876, Nov. 27, 2014).
C. Therefore, the Defendant’s above assertion cannot be accepted on a different premise.
3. Conclusion
The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.