Seoul Administrative Court 2010Guhap46067 ( October 13, 2012)

Seocho 2010west 1803 (Law No. 13, 2010)

Even if the name of the acquired income is the price for the transfer of business rights, the business income recognized as business feasibility.

(As in the judgment of the first instance court, it cannot be deemed that the educational business right was received in the comprehensive transfer of the business right. Even if the transfer price of the business right is the price, the "money and valuables received in return for the transfer or lease of the business right, etc. determined as other income" refers to only the case of temporary and incidental income other than the business income, and even if the name of the acquired income is the price for the transfer of the business right, it shall

2012Nu463. Detailed global income and revocation of disposition, etc.

XX Kim

Samsung Head of Samsung Tax Office

Seoul Administrative Court Decision 2010Guhap46067 decided January 13, 2012

May 30, 2012

July 4, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court shall be revoked. The disposition of imposition of global income tax of 000 won for the Plaintiff on March 12, 2010, additional 000 won for the global income tax of 2006, additional 000 won for the tax year of 2007, additional 000 won for the tax year of 2007, and additional 000 won for the tax year of 2008, and additional 00 won for the tax, shall be revoked. The disposition of attachment issued by the Defendant to the Plaintiff on April 28, 2010 shall be revoked.

1. The part citing the judgment of the court of first instance

The reasoning of the judgment of the court in the first instance is as follows: (a) whether the part concerning the claim for revocation of the notice of each additional charge among the lawsuits in the instant case is inappropriate or not; (b) whether each of the dispositions in the instant case is legitimate or not; (c) the relevant Acts and subordinate statutes, and (c) the facts recognized (from the second fifth to the fifth second half) are as follows. The relevant part is cited in accordance with Article 8(2) of the Administrative Litigation Act; and Article 420 of the Civil Procedure Act.

O The following shall be added to the third below 6th:

(A) The Plaintiff asserts that the imposition of additional charges is subject to an appeal, as the Plaintiff confirmed each additional charges of this case and commenced the seizure procedure. The notice of additional charges is not subject to a disposition on the ground that the tax authority commenced the seizure procedure based on additional charges

O The following shall be added to the fourth threeth place:

2) On November 2008, the Defendant notified the Plaintiff of its presumption of KRW 00 million. Around December 2008, the Commissioner of the National Tax Service sent a public notice to the effect that the Plaintiff will not be subject to business income tax. The instant tax disposition against the Plaintiff is unlawful against the principle of trust and good faith and the non-taxable practice.

O's 4th 6th '2' is changed into '3)'.

O The following shall be added to the 8th below:

6) Even after the establishment of XX, the Plaintiff was in the name of a personal business entity under the name of the Prime Economic Research Institute, and even after the establishment of the XX Economic Research Institute, the Plaintiff used the name of the head of the XX Economic Research Institute. Since 2002, the Plaintiff and the international education continued to provide the recruitment advertising for students under the name of the Prime Economic Research Institute. After converting into the company, the Plaintiff and the international education continued to have provided the recruitment advertising for students, ww ww.P.comm2 without indicating the company, and entered the Internet address “www.com2m2.m2.m2.....” The Plaintiff and the Plaintiff have been operating international education until the completion of the educational business that had been conducted with the Plaintiff in 2009. There was no difference between the Plaintiff and the Plaintiff. International education maintained the method of settlement with the Plaintiff since 2002.

The term "six (6)" is changed to "seven (7)" under the fifth (7).

I add '00 won,' which is 6th below, to the next 'the above sales', ‘not including the key income'.

"At the end of the second half below the date, each testimony of the AA and KimB by a witness of the first instance court shall be added" and the second part of the second part shall be added.

D. Determination

1) As to the first argument

In light of the above facts and the following circumstances, it is reasonable to view the key income to be the income earned by the Plaintiff while running the educational business, which is the “educational service business” under Article 19(1)13 of the Income Tax Act. XX was acquired from the Plaintiff the right to operate the educational business, and the Plaintiff was not recognized to have received the key income in return.

① If the right to receive education is the subject of education, the amount of money that international education paid to XX is the sales amount. The key issue of the Plaintiff’s income is that appropriated as the sales amount. ② If the Plaintiff acquired the right to receive education from the Plaintiff on October 27, 2005, then the right to receive education from the Plaintiff did not enter into an agreement with international education. ③ The right to receive education from the Plaintiff was not registered as the assets on the balance sheet. ④ The Plaintiff alleged that the right to receive education was stipulated as the subject of education. However, the Plaintiff did not reasonably agree with the Plaintiff on the sales amount of the Plaintiff’s right to receive education from the Plaintiff, and that the Plaintiff did not have agreed on the remainder of the sales amount of the Plaintiff’s right to receive education from the Plaintiff. The Plaintiff did not appear to have agreed on the remainder of 5% of the sales amount of the Plaintiff’s right to receive education from the Plaintiff.

Even if the Plaintiff transferred the right to receive education business to XX, international education does not have any means to conduct all transactions, such as a consignment management contract with XX. The key issue income that international education paid to the Plaintiff is only the income of the Plaintiff’s education business income pursuant to the agreement concluded in 2002. The contract between the Plaintiff and the Plaintiff for the transfer of business rights between the Plaintiff and the Plaintiff does not interfere with recognizing the key income transacted between the Plaintiff and the international education as business income.

2) As to the second argument

In order to apply the principle of trust and good faith to the tax authority's acts in tax legal relations, first, the tax authority must state the public opinion that is trusted to the taxpayer, second, the taxpayer's trust in the tax authority's statement of opinion should not be attributable to the taxpayer. Third, the taxpayer's trust in the name of opinion and in what is it should be done, and fourth, the tax authority's disposition against the name of opinion should be made to infringe on the taxpayer's interest (see Supreme Court Decision 94Nu12159, Jun. 16, 1995).

There is no evidence that the Commissioner of the National Tax Service sent to the Plaintiff a letter that no business income tax will be imposed on or around December 2008 - around January 2009.

The Plaintiff and international education have reported and paid the global income tax as other income for instructors. The Defendant reported and paid the key income as other income in 2005, not as other income, but as business income, and did not have imposed global income tax (the overall purport of the testimony and arguments in the first instance court witness 3 and 30, witness A and KimB). The fact that the income received from international education was not considered as business income, because the Plaintiff and international education reported that the income was other income.

The defendant did not express his view that the issue income is other income. The disposition of this case does not go against the principle of good faith.

In order to establish non-taxation practices under Article 18(3) of the Framework Act on National Taxes, there exists an objective fact that has not been taxed over a considerable period of time, as well as an intent that the tax authorities will not impose taxes due to any special circumstance despite being aware that the tax authorities may impose taxes. Although such public opinion or intent should be explicitly or implicitly indicated, there are circumstances that the tax authorities expressed their intent not to impose taxes on the state of non-taxation for a considerable period of time, unlike mere omission of taxation (see, e.g., Supreme Court Decisions 97Nu1065, Jan. 21, 200; 95Nu10181, Nov. 14, 1995). There is no evidence to acknowledge that the Plaintiff recognized the Plaintiff’s income generated from the Plaintiff’s direct operation of educational business as other income for a considerable period of time. It does not seem that the practice alleged by the Plaintiff was established.

3) As to the third argument

The reasons why this Court shall be used for this part of the reasons for the judgment of the court of first instance shall be from the seventh to the seventh fourth day after the seventh day. The reasons shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

3. Conclusion

The appeal is dismissed.