If it is clear whether the object of taxation is subject to an accurate examination of facts, it cannot be seen that the defect is apparent, and it does not constitute an invalidation.

The circumstances that the Plaintiff lent only the name can only be revealed only when the facts should be accurately examined. Thus, it cannot be said that the defect cannot be seen as apparently apparent, and it cannot be said that it is void.

2013Guhap2239 Disposition of revocation of the imposition of value-added tax

Ma-○

○ Head of tax office

June 12, 2014

July 10, 2014

1. The plaintiff's claim is dismissed.

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

Listening to the Listening to the Gu;

On June 15, 2004, the Defendant confirmed that the imposition of value-added tax of KRW 000 against the Plaintiff is null and void (which appears to be the due date for payment August 15, 2004 as stated in the purport of the claim).

1. Details of the disposition;

A. From May 4, 198 to December 31, 1999, the Plaintiff operated ○○ Co., Ltd., Ltd., which operated the manufacturing business of △△△, etc., and on August 16, 199, the Plaintiff registered the real estate rental business (hereinafter referred to as “the instant real estate business”) with the trade name, i.e., ○○○○-dong, ○○○○dong, ○○○-dong, ○○dong, ○○ apartment, ○○-dong, ○○○dong, ○○○-dong, ○○○○, ○○○-dong, ○○○, ○○○○,

B. On August 19, 199, the Plaintiff completed the ownership transfer registration on the instant real estate, and the Defendant received an early refund return on the value-added tax on the portion of the building due to the purchase of the instant real estate from Lee○○, who represented the Plaintiff, on September 17, 1999, and on October 9, 199, refunded KRW 00 of the value-added tax to the passbook in the name of the Plaintiff. The ○ Sports Center was reported on October 31, 199.

C. On June 15, 2004, the Defendant issued a revised and notified the Plaintiff of the value-added tax amounting to KRW 000 (including additional tax) for the second period of 1999 on the ground that the Plaintiff acquired the instant real estate and commenced the instant business on October 31, 199, but did not pay the value-added tax for the pertinent building upon closure of business on October 31, 199 (hereinafter “instant disposition”).

[Reasons for Recognition] The purport of the whole pleadings described in Gap's 2 to 4, 7, and Eul's 1 to 7 (including the relevant branch numbers)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Around July 1999, the Plaintiff received a proposal from ○○○ to acquire ○○○ corporation with the funds for the instant real estate provided as collateral and loaned. On the same day, ○○○ completed the registration of transfer of ownership on the instant real estate in the name of the Plaintiff, ○○, which allowed the instant real estate to obtain a loan to ○○○○, after establishing the right to collateral security with the mutual savings and finance company as the creditor, and then, the value-added tax was normally paid in the process

However, the Plaintiff did not have paid business registration under the trade name called ○○ Sports Center with the instant real estate as its domicile, and all that ○○○ does not have applied for or received a refund of value-added tax, without notifying the Plaintiff, using the Plaintiff’s name. Therefore, even though the actual business operator of the instant business and received a refund of value-added tax is ○○○, the instant disposition taken against the Plaintiff, who is merely a nominal owner, is unlawful against the substance over form principle, and the degree of the defect is significant and apparent and

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Around July 199, ○○ intended to purchase the instant real estate to operate the Sports Center, but it was impossible to obtain a loan from a financial institution. Therefore, he requested the Plaintiff to acquire the instant real estate under the Plaintiff’s name and receive the loan from the financial institution.

2) Around July 2, 1998, the Plaintiff entered into a contract with ○○ to transfer all the shares of ○○○ Co., Ltd. to ○○○○, and entered into a sales contract with △△△○ Co., Ltd. on July 20, 199 with respect to the instant real estate in the name of the Plaintiff, which was entrusted and managed the instant real estate under the name of ○○○○○, and registered the transfer of ownership under the name of the Plaintiff on August 19, 199. On the same day, the Plaintiff registered the establishment of the right to collateral security, which is 00, with respect to the instant real estate, with the obligor ○○ Co.,, Ltd. and the maximum debt amount, upon receiving a loan from the ○○ Mutual Savings and Finance Company, and established the registration of the right to claim the transfer of ownership

3) This ○○○ operated the sports center under the trade name called “○○ sports club” in the instant real estate, and △△ Mutual Savings and Finance Company paid a monthly amount of KRW 000 per annum to the mutual savings and finance company.

4) On September 17, 199, ○○ filed an application for the refund of value-added tax on the acquisition of the instant real estate with the power of attorney prepared in the name of the Plaintiff, the Plaintiff’s certificate of personal seal impression, and the Plaintiff’s resident registration certificate, attached. On October 9, 1999, the Defendant remitted KRW 000 of value-added tax refunded to ○○ Bank’s account under the Plaintiff’s name, and this ○○

5) The identity of the seals affixed to the Plaintiff’s name and the Plaintiff’s certificate of personal seal impression (Evidence A-7-2) submitted by ○○ upon filing an application for the above refund cannot be known. The identity of the seals affixed to the Plaintiff’s name, address, name, and resident registration number as stated in the above delegation is different from the Plaintiff’s penology.

6) The ○○○ appears in this court as a witness, and stated that the “○○○” was all documents related to the registration of business and the refund of value-added taxes from the person who was the former official business, and the △△△△△, who was in the former official business of the ○○○ Company, was present at this court as a witness, and the Plaintiff was involved in the acquisition of the instant real estate in the name of the Plaintiff, but testified that the fact that the pertinent business registration or the refund of value

[Reasons for Recognition] Evidence, Evidence No. 8, Evidence No. 8, Evidence No. 1, Evidence Appraisal Results by Expert Kim Jong-ri, the witness's testimony and the purport of the whole pleadings of the △△△△△.

D. Determination

1) Generally, a taxation disposition made on a person who does not have any factual relation, such as the legal relation, income, or act, which is subject to taxation, shall be deemed to have a significant and apparent defect. However, in a case where there are objective circumstances that could mislead him to believe that it is subject to taxation with respect to a certain legal relation or fact which is not subject to taxation, if it is possible to accurately investigate the factual relation, whether it is subject to taxation or not, if it is possible to clarify the factual relation accurately, it cannot be deemed to have been apparent even if the defect is serious, and thus, it cannot be deemed to be an unlawful taxation disposition that misleads the fact subject to taxation (see, e.g., Supreme Court Decision 200

2) According to the above facts, the actual business operator of the instant workplace and the person who acquired the value-added tax on the instant real estate can be acknowledged as ○○○. However, as seen earlier, the Plaintiff entered into a title-based agreement with the Plaintiff to acquire the instant real estate in the name of the Plaintiff, as seen earlier, and the Plaintiff reported and paid the value-added tax on the acquisition of the instant real estate in the name of the Plaintiff, and the Plaintiff, ○○○, upon filing an application for early refund of value-added tax on the instant real estate in the name of the Plaintiff, performed a legal act in the name of the Plaintiff, such as the Plaintiff’s early refund of value-added tax on the instant real estate in the name of the Plaintiff. In light of the above facts, the Defendant, who is the tax authority, can be said to have an objective circumstance that the business operator and the person who received the said value-added tax on the instant real estate, could be mistaken as the Plaintiff. Therefore, it is difficult to deem that the defect is apparent that it is invalid as a matter of course.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.