2012 4290

income due to a joint project shall be calculated in accordance with the income amount to be distributed;

Income arising from a joint business shall be calculated according to the income amount to be distributed or equity. Since the partnership relationship between the plaintiff and the intervenor shall be deemed to have been terminated from July 2007 to both parties' intent, each tax disposition deemed to be a joint business operator and thus unlawful.

2012 disposition of revocation of imposition of value-added tax, etc.

Section AA

1. The radio-wave tax office; and

Intervenor joining the Defendant

KimB

July 24, 2013

September 27, 2013

1. (a) Each disposition imposing the value-added tax on the Plaintiff on January 12, 2012, 207, OOOO(including additional taxes), 1/2008, OOO(including additional taxes), 2008, 2008, OOO(including additional taxes), 1/209, 2009, OOO(including additional taxes), 2/2009, 2/2009, OOO(including additional taxes), 1/200, 209, 1/2010, OOO(including additional taxes), 2/200, 2010, and 2/2010, OOO(including additional taxes) of value-added tax;

B. On March 1, 2012, the lower court imposed each disposition on the Plaintiff on the imposition of KRW OO(including additional taxes) in excess of KRW 2007, ② global income tax OO(including additional taxes), global income tax 2008, global income tax OO(including additional taxes), global income tax OO(including additional taxes) in 2009, and global income tax OO(including additional taxes) in 2010.

Each cancellation shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-fourth of the litigation costs incurred between the Plaintiff and the Defendant shall be borne by the Plaintiff, the remainder by the Defendant, and one-fourth of the litigation costs incurred between the Plaintiff and the Intervenor, by the Plaintiff, and the remainder by the Defendant’s Intervenor, respectively.

Cheong-gu Office

① On January 12, 2012, the head of Songpa District Tax Office rendered the Plaintiff on January 12, 2006 each imposition of OOOO(including additional taxes) and OOO(including additional taxes) on the first half of 2007, which was made by the Plaintiff on January 12, 201; ② The judgment that the head of the Defendant Youngpa Tax Office revoked each imposition of OO(including additional taxes) on global income tax in March 1, 2006, which was made on March 1, 201 by the Plaintiff on March 1, 2012, and global income tax OO(including additional taxes) on global income tax in 207.

1. Details of the disposition;

(a) New construction, etc. of buildings;

"1) On December 14, 198, the Plaintiff and the Intervenor (hereinafter referred to as the “ Intervenor”) were married and married. On December 14, 1988, the Plaintiff and the Intervenor newly constructed the 1st floor underground and the 4th floorCC building (hereinafter referred to as the “instant building”). The instant building is registered as the Plaintiff on the building management ledger on December 14, 1988, and the registration of initial ownership was completed on January 20, 1993, and (2) trade name:CC, the Intervenor, the date of opening the business: the date of the instant building, the type of the instant building, the type of the business (non-residential building), the type of the instant building, and the Plaintiff and the Intervenor’s registration of initial ownership transfer on March 14, 198.

(1) On May 14, 2008, the Plaintiff filed a divorce and a lawsuit for division of property against the Intervenor with the Seoul Family Court (2008Dhap4827). On February 4, 2010, the Plaintiff and the Intervenor are divorced from the said court. At the same time, the Intervenor received payment from the Plaintiff, and at the same time, was sentenced that the Plaintiff shall implement the registration procedure for transfer of ownership on the ground of division of property as to the portion of 1/2 of the instant building and 1/2 of the instant building.

"(2) On February 1, 2011, the Seoul High Court (2010Reu828) changed the amount that the Plaintiff would pay to KRW 220,00,000 from the above judgment to KRW 220,00,000, and the Supreme Court (201Meu687) on May 26, 2011, became final and conclusive as it is (hereinafter referred to as "the divorce judgment")."

(1) On July 21, 201, the director of the tax office: (a) conducted an investigation of value-added tax on the instant building; (b) decided and notified the intervenors of value-added tax OOOO on July 21, 201; and (c) notified the intervenors of the notice of pre-assessment of value-added tax totaling KRW OOOO of value-added tax from July 19, 201 to No. 2010.

(2) The intervenor filed a request for pre-assessment review on August 22, 201. Accordingly, on January 12, 201, the plaintiff and the intervenor were jointly and severally liable for tax payment. On January 12, 2012, the plaintiff, including the value-added tax 2006 OO (including additional tax), OOO (including additional tax), 207 207 OO tax (including additional tax), 208 OO tax on global income (including additional tax), 207 O200 O20 O20 O0 200 20 200 200 200 20 20 O0 20 200 20 20 20 O0 20 20 20 20 20 O0 20 20 20 20 O0 20 20 20 O0 201 20

(1) The Plaintiff was dissatisfied with the instant disposition of value-added tax, and filed an appeal on February 2, 2012, but was dismissed by the Tax Tribunal on December 6, 2012.

(2) The Plaintiff was dissatisfied with the instant disposition of global income tax, and filed an objection on May 24, 2012. However, on June 20, 2012, the Plaintiff received a decision of dismissal from the head of the competent tax office having jurisdiction over the said disposition. The Plaintiff filed an appeal on September 13, 2012, but received a decision of dismissal from the Tax Tribunal on December 6, 2012.

[Ground of recognition] Unsatisfy, Gap evidence 7, 12, 14 (including paper numbers), Eul evidence 6, 7 (including paper numbers), Eul evidence 3 and 4 (including paper numbers), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Considering the fact that the Intervenor registered the business place of the instant building, the Intervenor entered into a lease contract, maintenance and repair of the building, management of value-added tax and global income tax, etc., the Defendants also recognized that the Intervenor is a sole entrepreneur in the course of business registration investigation, investigation into the current status at the time of business registration, acceptance of the report of value-added tax and global income tax, lease contract is concluded with the Intervenor by recognizing the Intervenor as a lessor, and the Intervenor paid the rent to the Intervenor, the Intervenor is the substantial entrepreneur of the instant building in a divorce lawsuit, and the Court argued that the rent income was attributed to the Intervenor, and the court also recognized that the rent income was attributed to the Intervenor, each disposition of the instant building, which was entirely reverted to the Intervenor, was unlawful against the principle of substantial taxation, the principle of trust and good faith, the principle of based taxation, and the fact-finding of the judgment of divorce.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Management, etc. of the instant building

(A) As to the part of the instant building, the Intervenor entered into a lease agreement with the JH and Ha on Nov. 10, 1989 (Renewald on Apr. 30, 2002), EE and E on Jun. 18, 2003, YellowF and Y on Aug. 25, 2003, Park G and Park on May 24, 2004, on Dec. 6, 2006, and on May 20, 2007, respectively.

(B) The Intervenor filed a report on the lease income on the instant building from 2001 to 2004 under his own name as global income, and filed an application for confirmation of the value-added tax base on the lease income (from January 1, 2001 to June 30, 2005) on December 11, 2012.

(C) In receiving the payment of the rent, the rent reported to the tax authority was transferred to its own account, and the remainder was received through the administrator Kim J.

(2) Disputes between the Plaintiff and the Intervenor

(A) The Plaintiff is the actual owner of the instant building to the lessee around November 2001.

In the meantime, it has been delegated and managed by the intervenors, and it has been notified that it will be paid directly in the future, and collected that it is a tea.

(B) On February 20, 2002, the Plaintiff promised on February 20, 2002 to sell the instant building to the intervenors. The Plaintiff drafted a letter to the effect that the intervenors will acquire the right of publication.

(C) On March 8, 2002, the Intervenor was solely owned by the Intervenor, and is preparing for a lawsuit claiming ownership transfer registration on the ground of termination of title trust with respect to the part that title trust was entrusted to the Plaintiff. If the lessee pays rent to the Plaintiff, the Intervenor notified that the lessee will suffer disadvantages, such as termination of the contract, the name of the building, and the double payment of rent.

(D) The administrator Kim J transferred to the Plaintiff the monthly rent from April 2006 to June 2007, according to the direction of the Intervenor, the administrator Kim J transferred the monthly rent to the Plaintiff. Thereafter, the Intervenor suspended the rent transfer from July 2007 and received the entire rent.

(E) On August 2, 2007, the Intervenor rendered a provisional disposition against the Plaintiff’s 1/2 shares of the instant building on the ground that the Plaintiff’s right to claim the registration of ownership transfer under the agreement was a preserved right by the Seoul Central District Court (2007Kadan78252).

On the other hand, the intervenor did not pay the property tax imposed on the plaintiff in the future, and thus the property tax of the OOOOO was delinquent as of May 2009.The head of Songpa-gu seized the plaintiff's deposit claim on February 21, 2008 and November 24, 2008, respectively.

(F) From November 2006, the Plaintiff began to stay separately with the Intervenor, and on October 29, 2007, the Plaintiff notified the Intervenor that the actual owner of the instant building was the Plaintiff, and that on October 29, 2007, the actual owner of the instant building was the Plaintiff, and that the title trust and the management delegation with respect to 1/2 of the instant building was rescinded.

(G) On August 16, 2007, the Plaintiff filed an application with the Seoul Eastern District Court (2007Kadan8526) for the provisional disposition of suspending the payment of rent against the Intervenor. However, on September 3, 2007, the Plaintiff was dismissed on the ground that the claim for rent cannot be the preserved right.

② On September 7, 2007, the Plaintiff filed an application for provisional seizure of the claim against 1/2 out of rent with the obligor at the Seoul Eastern District Court (2007Kadan9320) and the lessee of the building of this case as the third obligor, and withdrawn the application on October 107.

③ On October 12, 2007, the Plaintiff filed an application with the Seoul Eastern District Court (2007Kahap2192) for provisional injunction against debt collection and payment with the Intervenor as the obligor, and the lessee of the building of this case as the garnishee, but was dismissed on November 1, 2007.

④ On November 22, 2007, the Plaintiff filed an application for provisional attachment against the Intervenor on the ground that the Intervenor, the lessee, and the third obligor, and the Plaintiff’s claim for the return of rent to the Intervenor as to the first half of rent, as the preserved right. However, on November 26, 2007, the Plaintiff received a decision of dismissal on the ground that there was insufficient explanatory materials as to the preserved right,” and (iii) divorce judgment, etc.

(A) On the premise that the Intervenor actually managed the instant building, the divorce judgment recognized OOOOO as the Intervenor’s obligation to return the lease deposit, and recognized each of 1/2 shares of the instant building as the active property subject to the division of property between the Plaintiff and the Intervenor according to the registry.

(B) On February 15, 2011, the Plaintiff entered into a lease contract again with a lessee and received a rent. On June 15, 2011, the Plaintiff: (a) the Plaintiff, the opening date: June 1, 2011; and (b) the location of the instant building and the type of business: Real estate lease. The Plaintiff completed the registration of ownership transfer for the Intervenor’s 1/2 portion of the instant building on July 20, 201, which is the final judgment of the Supreme Court; (b) the Plaintiff reported and paid value-added tax on the rental income of the instant building from 2011 global income tax and from 1, 2011 to 1, 2012; and (c) the lessee filed a lawsuit claiming the return of lease deposit from the Seoul Central District Court (hereinafter “Seoul District Court Decision 2017Du7790); and (c) the Plaintiff and the Intervenor filed a lawsuit claiming the return of the lease deposit from the Intervenor on the ground that the lease deposit was returned.

(4) The intervenor's filing of a lawsuit

On September 28, 2012, an intervenor filed a lawsuit against the Seoul Administrative Court (2012Guhap33065) seeking revocation of the imposition of value-added tax from February 2006 to February 2, 2010 on the ground that the actual owner of the building in this case is the plaintiff and the rental income was attributed to the plaintiff.

(5) Details of real estate transactions between the Plaintiff and the Intervenor

(A) Around March 1975, the Plaintiff and the Intervenor respectively acquired, under the name of the Plaintiff, OO-dong OK KK Housing 31 and 406 O-dong OK Housing 31 and 406, O-dong O-dong OK Housing 1 and 204, O-dong O-dong OK Housing 1 and 204, O-dong O-dong OK Housing 204, O-dong around April 1975.

(B) Around June 197, the Plaintiff and the Intervenor sold KK loan housing units around 197, and around December 197, the Plaintiff and the Intervenor acquired 1/2 shares of the commercial buildings located in OO-dong, O-dong, and 528, 207, O-dong apartment units located in O-dong, O-dong, O-dong, O-dong, O-dong, under the name of the Plaintiff.

(C) On January 1, 1978, the Plaintiff and the Intervenor sold an OK KK loan house, and around July 1978, the Plaintiff and the Intervenor acquired the site of the instant building under the name of the Plaintiff with the support of the Plaintiff’s father.

(D) On January 1, 1982, the Plaintiff and the Intervenor purchased the O-dong O-dong O-dong LL apartment Nos. 1 and 903 under the Plaintiff’s name, and around December 1982, 3 and 301 of the same apartment units under the Intervenor’s name, and sold diving-dong apartment units around December 1982. The Plaintiff and the Intervenor purchased O-dong land under the name of the Intervenor around November 1, 1987. The land was expropriated around January 1, 1991.

(E) On September 198, the Plaintiff and the Intervenor acquired OO-dong OO-dong 519-28 and 154.9 square meters in the name of the Intervenor, and newly constructed the instant building on the instant building site under the condition that the construction cost is paid with lease deposit, etc. Around November 1997, the Plaintiff and the Intervenor newly built the building on the new building site.

(F) Around December 1997, the Plaintiff and the Intervenor sold the Plaintiff’s 1/2 shares among the lock-dong stores. Around April 1999, the Plaintiff and the Intervenor acquired the Plaintiff’s O-dong O-dong MM lending 8 102 shares under the Intervenor’s name.

(G) Around January 2001, the Plaintiff sold at will shares in the name of the Plaintiff and the Intervenor, respectively, around November 2001. On April 2002, the Plaintiff and the Intervenor acquired one-half shares in the name of the Intervenor from among the OO-Gu OO-dong 566-31 to 249.9 square meters, 566-36 square meters, and 1/2 shares in the name of the Intervenor from among the 566-36 square meters and 178.8 square meters of the same O-si O-dong O-dong O-dong O-si, and the 1/4 shares in each O-4 shares in the name of the Intervenor.

(H) The Plaintiff and the Intervenor sold the new-dong building around October 2002, and around December 2002, 9,898/35,418 shares among 0-1 forest land and 35,418 square meters in OO-si, OO-si, O-si, 224-1 and 896 square meters in O-si, O-si, O-si, O-si, around November 2004, and around May 2005, acquired 1/2 shares out of 1/2 shares in each of the land in the name of PP-si, O-si, O-si, 1652-42 park site 230.1 square meters in the name of PP.

(E) The monthly rent income of the instant building is equivalent to approximately KRW OO.

(6) Other

(가) 세무사 이QQ은 참가인의 요구로 1996. 1. 1.부터 2004. 12. 31.까지 이 사건 건물에 관한 부가가치세와 종합소득세 신고 업무를 대행하여 신고하였다 는 사실확인서를 작성하였다.

(B) The ChoN was born on October 26, 1970, and the early PP was born on September 21, 1976.

(C) From January 2006 to October 2007, the Plaintiff paid the total amount of public charges to OOO(average OO).

[Ground of recognition] 2 through 11, 14 through 17, 20 through 24, 26, 28, 30 (including paper numbers), Eul evidence 1, 2, 4, Eul evidence 3 through 7, 9, 17 through 21, and 25 evidence (including paper numbers), the result of the plaintiff's personal examination and the defendant's defendant's defendant's defendant's identity examination, each of the part among the plaintiff's defendant's defendant's personal examination results, and the purport of the whole pleadings

D. Determination

(1) Legal relations concerning the lease of the instant building

The plaintiff asserted that the plaintiff and the intervenor respectively belonged to the lease income from the lease of the building of this case, one-half by the plaintiff and the intervenor (the intervenor's assertion constitutes a case where the intervenor's assertion is against the intervenor's procedural acts, and thus the intervenor's procedural acts were effective only to the extent that they are not disadvantageous to the intervenor pursuant to Article 76 (2) of the

Since whether to impose a tax on the leased income accrued from the ownership of the building of this case between the plaintiff and the intervenor should be based on the legal relationship on the lease of the building of this case, it is necessary to comprehensively examine the ownership of the building, the exercise of the authority on the lease, and the use

(A) Ownership of the instant building

The Plaintiff and the Intervenor asserted that the instant building was owned by each other before the instant case, and argued that the instant building was owned by each other after each disposition of the instant case.

However, Article 830(1) of the Civil Act provides that property acquired in one’s own name during marriage shall be unique property. Thus, insofar as each one-half share is registered as co-ownership, it is recognized that property is each party’s own property, and in a divorce judgment, it is subject to division (see, e.g., Supreme Court Order 2002S36, Aug. 28, 2002). It is impossible to deny the unique property nature solely because it is subject to division of property, solely because the property was registered only in one’s own name on the building registry, and the Plaintiff registered as co-ownership at the time of registration of ownership transfer, and may be deemed to have been donated at the time of registration of ownership transfer (in light of the process of property formation, etc., the rights of the Plaintiff and the Intervenor may be deemed to have been genuine, and the submitted evidence alone is insufficient to conclude that the ownership of the Plaintiff or the Intervenor was solely owned by the Plaintiff or the Intervenor.

(b) Exercising the power to lease;

참가인은 자신의 명의로 이 사건 건물에 관한 사업자등록을 한 점(참가인은 자신도 모르게 사업자등록이 되었다 는 취지의 주장을 하나, 수년간 자신 명의로 부가가치세 및 종합소득세를 신고, 납부한 사정에 비추어 자신 명의의 사업자등록을 알고 있었고, 이를 추인하였다고 볼 수 있으므로, 사업자등록을 부인할 수 없다), 참가인은 자신의 명의로 이 사건 건물에 관한 임대차계약을 체결하고, 관리인 김JJ으로 하여금 차임을 수령하도록 한 점, 참가인은 관리인 김JJ으로 하여금 원고에게 차임을 송금하도록 하거나, 세무사 이QQ에게 부가가치세와 종합소득세의 신고를 대행하게 한 점, 참가인은 임차인들에 대한 임대차보증금반환 판결을 선고받은 점, 이혼판결은 임대보증금반환채무를 참가인의 소극재산으로 인정하여 재산분할한 점, 참가인은 본인 신문에서 원고의 임대차관여를 진술하고 있으나, 관리인 김JJ으로 하여금 차임 송금을 하지 못하게 하거나 임차인들에 대한 2002. 3. 8.자 통보 등에 비추어 원고는 임대인의 지위에 있었다고 보기 어려운 점 등을 고려할 때, 참가인은 대외적으로 이 사건 건물을 관리하고 차임을 수령하는 등 이 사건 건물 임대에 관한 권한을 전적으로 행사 하였다고 봄이 타당하다.

(C) the use of leased earnings;

(1) The portion until June 2007

From April 2006 to June 2007, the Plaintiff used the leased revenue of the building of this case for the purpose of transferring the leased revenue of the building of this case, which corresponds to 18% of the total amount of monthly rent, and the Intervenor used the leased revenue for the cost of living, child N, and early PP school expenses (the Plaintiff alleged that the Plaintiff used the leased revenue for the purpose of increasing the property of the Intervenor or his children, but it seems that a considerable portion of the leased revenue was disbursed for the cost of living in addition to the rent of the part of the public charges. However, even if the leased revenue was used for the increase of the property, the Plaintiff did not raise an objection during that period, and since it was subject to division of property, it can be seen that there was an implied consent to the use of the leased revenue until June 2007, it maintained the marital life with the Plaintiff’s explicit or implied consent.

(2) From July 2007

Since July 207, the plaintiff and the intervenor failed to transfer the rent of the building of this case to the plaintiff from July 2007, the plaintiff notified the intervenor that he cancelled the delegation of management of the building of this case on October 29, 2007. The intervenor received a provisional disposition of prohibition of disposal on the plaintiff's share of the building of this case on August 2, 2007. The plaintiff, on August 16, 2007, caused the occurrence of legal disputes, such as filing an application against the tenant for suspension of rent and provisional disposition against the intervenor, which led to the failure of nationality of the relationship between the plaintiff and the intervenor. The duty to support the plaintiff and the intervenor under Articles 974 subparagraph 1 and 975 of the Civil Act as lineal blood relatives of the adult child of this case, to maintain the plaintiff and the intervenor's livelihood from 07 years of age to 30 years of age, under the premise that the plaintiff and the intervenor's duty to support the plaintiff's life cannot be maintained by their own self-help or labor (see, 207 years of age 207).

(D) Sub-committee

The building of this case is jointly owned by the plaintiff and the intervenor, and the intervenor performed management and profit-making activities, such as entering into a lease agreement with respect to the building of this case. However, considering the fact that the plaintiff and the intervenor are simplified and engaged in some lease management, 18% of the lease income was paid to the plaintiff by June 2007, and the remainder was used for the marital life of the plaintiff and the intervenor until June 2007, it is reasonable to view that the plaintiff and the defendant invested the lease right to the building of this case for a joint business called a lease business. However, it is reasonable to view that the above legal relationship does not fall under the partnership property of the partnership for a joint business (Article 703 of the Civil Act) under the Civil Act, or constitutes an undisclosed association (Article 78 of the Commercial Act) under the Commercial Act, which is a type of investment for the other party's business (see Supreme Court Decision 2010Do5014, Nov. 24, 2011; Supreme Court Decision 2010Da684686, Apr. 6, 107

(2) Taxation on internal partnerships

(A) Where two or more persons agree to jointly operate a business and distribute profits therefrom, the substance over form principle and the income accrued from such joint business pursuant to Article 43(2) of the Income Tax Act, even in the name of one of them externally, should be calculated based on the income amount distributed or to be distributed according to their respective shares or distribution ratio (see Supreme Court Decision 94Nu884, Nov. 10, 1995). Meanwhile, internal partnership is also a special type of partnership, and the internal relationship provisions on a partnership under the Civil Act apply as it is. Members of an internal partnership may withdraw from a partnership pursuant to Articles 716 and 717 of the Civil Act, and at that time, partnership relations are terminated.

(B) Considering the fact that the instant building was owned by each other and the Plaintiff and the Intervenor did not transfer the leased income to the Plaintiff from July 2007, the Plaintiff and the Intervenor used the entire leased income, and the Plaintiff and the Intervenor filed an application for provisional disposition or sent the notification of the revocation of delegation from August 2007, it is reasonable to view that the relationship between the Plaintiff and the Intervenor and the Plaintiff was terminated from July 2007 to their mutual will.

Therefore, each disposition on imposition of value-added tax on February 2006, 2007, 1007, 2006, and 2006 among the disposition on imposition of global income tax of this case is legitimate as the taxation on joint business operators (1/2 shares) and the remainder is unlawful.

(3) Scope of revocation

(A) The value-added tax of this case

The imposition of value-added tax from February 2, 2007 to February 2, 2010 should be revoked because it is illegal on the premise that it is a joint business proprietor.

(B) The instant global income tax

In the imposition of global income tax in 2007, it is necessary to revoke the imposition of global income tax on the premise of rental income equivalent to 1/2 shares since the portion exceeding the legitimate OOO (no dispute between the parties) of the tax amount equivalent to the partial care until June 2007 and the imposition of global income tax from 2008 to 2010 are imposed on the premise of rental income equivalent to 1/2 shares.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.