National High Court Decision 2007west0815 (Law No. 29, 2007)

The legitimacy of the assertion that it is merely a working party at the construction site rather than an independent business operator;

It is reasonable to view the construction cost as the subcontractor who entered into a labor subcontract agreement as the receipt of a promissory note, and there is no data that can be viewed as an employee employed by the non-party company, such as entering into a labor contract or

The contents of the decision shall be the same as attached.

Article 2 (Taxpayer of Value-Added Tax Act)

Article 7 (Supply of Value-Added Tax Act)

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of value-added tax against the Plaintiff on January 5, 2007, of KRW 56,851,640 for the second term of 202, KRW 25,493,240 for the first term of 2003, KRW 42,192,610 for the second term of 203, KRW 46,396,950 for the first term of 2004, KRW 16,514,370 for the second term of 204, and KRW 5,963,750 for the first term of 205.

1. Details of the imposition;

A. From March 25, 2003 to April 1, 2005, the Plaintiff: (a) performed the construction of steel parts among the construction of ○○○-gu and ○○○○○○-gu ○○○○○○ apartment and shop construction (hereinafter “instant construction”); and (b) received KRW 1,343,071,264 from the non-party company as a consideration therefor.

B. The Defendant, upon receiving the instant construction from the non-party company, deemed the Plaintiff as the non-party company and registered ex officio the value-added tax on the grounds that the Plaintiff did not receive the payment for the service as above, and subsequently, on January 5, 2007, the Defendant rendered a decision and notification of the Plaintiff on February 2, 2002, value-added tax amounting to KRW 56,851,640, KRW 25,493,240, KRW 193, KRW 25,610, KRW 42,192,610, KRW 46,396,950, KRW 46,950 for the first period of January 2004, KRW 2004, KRW 16,514,370 for the second period of February 5, 2005, KRW 5,963,750 for the first period of January 5, 2005 (hereinafter the instant disposition of imposition)

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1-6, Eul evidence 1-3, Eul's whole purport of pleading

2. Whether the disposition of imposition is lawful.

A. Whether the assertion is asserted

The plaintiff, as the head of the Working Group on the Steel Construction at the construction site of this case, performed the steel work under the specific supervision and direction of the head of the field office according to the work process of the non-party company as well as other persons, and paid them to each of the persons concerned for convenience. This is obvious in light of the fact that the non-party company was dealing with the Gap's neighboring duties to the figures in the case where the non-party company filed a complaint for forgery of private documents, etc., but it is obvious in view of the ○○ and the statement made by the investigation agency by the non-party company as the representative director of the non-party company, but the defendant's disposition of this case where the plaintiff reported the plaintiff to an independent business entity under the Value-Added Tax Act is unlawful.

(b) Related statutes;

Article 2 (Taxpayer of Value-Added Tax Act)

Article 7 (Supply of Value-Added Tax Act)

(c) Fact of recognition;

1) The Plaintiff, between the non-party company and the non-party company, prepared each contract for the supply and demand of construction (Evidence 2) by setting the construction period from October 10, 2003 to December 31, 2005, the sewage wage contract amount to KRW 912,780,00, and the payment terms and conditions for the payment of the progress payment to be paid at the 25th day of each month. In fact, the Plaintiff received wages from the non-party company as cash and promissory note over several times from December 23, 2003 to April 25, 2005.

2) The Plaintiff performed the part of the steel construction for the ○ apartment Newly constructed project in Pyeongtaek District among the instant construction works. From November 25, 2002 to October 21, 2003, the Plaintiff received wages from the Nonparty Company as cash and promissory note over several times.

3) At the request of the non-party company, the Plaintiff organized and issued a copy of the identification card of the part-time employee, and submitted a statement of on-site labor cost payment (Evidence A 9) in the course of the National Tax Tribunal.

4) According to the earned income data of the non-party company by withholding agent for the year 2003 (one to 13 each of the evidence Nos. 4 and 5) by the non-party company, the plaintiff is not a worker of the non-party company.

[Ground of recognition] Facts without dispute, Gap evidence 3, Eul evidence 5-1, 2, Eul evidence 2, Eul evidence 3, Eul evidence 4 and 5-13, and the purport of the whole pleadings

D. Determination

According to the above facts, between November 25, 2002 and April 25, 2005, the Plaintiff appears to have received total of KRW 1,343,071,264 from the non-party company as cash and promissory note for the instant construction work. In light of such circumstances, it is reasonable to deem that the Plaintiff was a subcontractor who has entered into a labor contract with the non-party company at least the labor contract for the instant construction work. In light of such circumstances, it is reasonable to deem that the non-party company was a subcontractor who has entered into a labor contract with the non-party company, and paid wages after deducting the amount equivalent to the Gap's tax for each of the human parts of the instant construction work for the convenience of tax processing and calculation, or there is no evidence of evidence Nos. 4, 5-1, 2, 6, 7, 8-1 through 13, 9, 11, and 12.

Therefore, it is legitimate for the defendant to take the disposition of this case by deeming the plaintiff as "a person who independently supplies goods or services for business" under Article 2 (1) of the Value-Added Tax Act. The plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.