Daejeon District Court 2013Guhap2350 ( July 16, 2014)

Whether the plaintiff is merely a nominal owner in the registration of business.

The necessity of proof as to the use of title is that the plaintiff bears the burden of proof as to whether the use of title meets the taxation requirements.

Article 14 of the Framework Act on National Taxes

2014Nu1135 Revocation of Disposition of Imposition of Value-Added Tax

A

Daejeon director of the tax office

Daejeon District Court Decision 2013Guhap2350 Decided July 16, 2014

November 6, 2014

November 27, 2014

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's preliminary claim corresponding to the above part shall be dismissed;

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

1. Purport of claim

The primary purport of the claim is the additions set forth in the attached Table 1, which the defendant made against the plaintiff on May 31, 2012.

The rejection of a request for correction concerning value taxes shall be confirmed to be null and void.

Preliminary claim: each addition set forth in attached Table 1, which the defendant made against the plaintiff on May 31, 2012.

The disposition rejecting a request for correction concerning value tax shall be revoked.

2. Purport of appeal

As set forth in the text.

1. Scope of the judgment of this court;

The plaintiff primarily sought confirmation of the invalidity of a claim for correction of each value-added tax stated in the separate sheet No. 1 attached to the defendant against the plaintiff, and sought revocation of the claim for correction. The court of first instance dismissed the main claim and accepted the conjunctive claim. In this regard, the plaintiff did not appeal, and only the defendant appealed as to the conjunctive claim against the defendant. Thus, the scope of the court's trial is limited to the conjunctive claim against the defendant.

2. Details of the disposition;

A. On March 26, 2009, the Plaintiff registered a human resources supplier with the trade name from Hongdodong-dong-gu Daejeon. B. On April 25, 2009, on the Plaintiff’s name, KRW 11,583,990, and KRW 40,657,240, respectively, the amount of value-added tax payable for the first period portion of the value-added tax for the year 1, 2009, which was the Defendant’s name, and KRW 11,583,90, and July 27, 2009, respectively.

C. As the Plaintiff did not pay the value-added tax as above, the Defendant notified the Plaintiff that the sum of the value-added tax for the first quarter of 2009 and the final amount of the value-added tax for the first quarter of 2009 as well as the penalty tax for insincereful payment for the said amount (attached Form 1; hereinafter referred to as “value-added tax”) was unpaid, and notified the Plaintiff of the payment.

D. On May 10, 2012, the Plaintiff filed a civil petition for grievance (hereinafter referred to as “instant civil petition for grievance”) with the purport that “the Plaintiff is merely a nominal owner and the maximum amount of 00 is a de facto business operator.” On May 31, 2012, the Defendant filed a criminal complaint with the Plaintiff on May 31, 2012, stating that “the Plaintiff was the de facto business operator, but did not present documents and witnesses proving the crime. However, in the criminal complaint case, it is insufficient to recognize 00 only by the statement of maximum 00 as a de facto representative, and it is insufficient to recognize 00 as a de facto representative only due to the fact that there was no other evidence to acknowledge it, and thus, the Plaintiff notified the result of the grievance handling that “the rejection was decided pursuant to the provisions of Article 34(1)2 of the Regulations on the Protection of Taxpayer Affairs” (hereinafter referred to as “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Central Administrative Appeals Commission on August 29, 2012, and the instant case was transferred to the Tax Tribunal on September 13, 2012. On April 19, 2013, the Tax Tribunal dismissed the Plaintiff’s claim on the claim related to the value-added tax for the first term portion of the value-added tax of the instant case on April 19, 2009 on the ground that the period for filing a request for correction expires. The part related to the claim related to the value-added tax for the first term portion of the value-added tax for the first term in 2009 was justifiable on the ground that the Defendant deemed the Plaintiff, the title holder of the report on the business

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, 7, Eul evidence 1-1, 2-2, and the purport of the whole pleadings

3. Determination on this safety defense

A. Summary of this defense

1) Since civil petitions for grievances are systems that do not recognize tax laws, even if the Plaintiff rejected the civil petitions for grievances of this case filed without legal basis, the instant disposition does not constitute a rejection disposition that is subject to appeal litigation, and thus, the instant lawsuit is unlawful.

2) Even if the civil petition for grievance of this case constitutes a correction claim stipulated in Article 45-2 of the Framework Act on National Taxes, since the civil petition for grievance of this case pertaining to the value-added tax for the first term portion of the year 2009 was filed after three years from April 25, 2009, the statutory deadline for filing the petition for correction from April 25, 2009, which is the statutory deadline for filing the tax return of the value-added tax for the first term portion of the year 2009, it cannot be deemed a rejection disposition subject to appeal even if the Defendant, who is the tax authority, rejected the petition for correction. Therefore, the part seeking revocation of the disposition rejecting the civil petition for grievance of the first term portion of

(b) Related statutes;

Attached Form 2 shall be as stated in the relevant statutes.

C. Determination

1) Whether the instant civil petition for grievance can be deemed as a claim for correction

A) Article 25-3 of the Enforcement Decree of the Framework Act on National Taxes requires a person who intends to adopt a request for correction to submit a request stating the name and address of the requester, tax base and amount of tax before correction, tax base and amount of tax after correction, and grounds for filing a request for correction. Article 12-2 of the Enforcement Rule of the Framework Act on National Taxes provides for the form of the request, but Article 45-2 of the Framework Act on National Taxes does not provide for the rights or interests of taxpayers, and it is clear that the specific method of filing a request for correction is not provided for in the specific method of filing a request for correction. Thus, it is reasonable to view it as a request for correction under Article 45-2 of the Framework Act on National Taxes even if its title and form are different (see Supreme Court Decision 97Nu13627, Nov. 28, 1997). In light of the above legal principles, it is reasonable to view that the Plaintiff’s request for correction is not included in the “tax base and amount of tax on civil petition for correction before the date of grievance.”

Therefore, the instant disposition against the instant civil petition for grievance is subject to appeal litigation as a rejection disposition against a claim for correction.

2) Whether a civil petition for grievance related to value-added tax for the first period of 2009 exceeds the period for filing a claim for correction

A) According to Articles 48(1) and 49(1) of the Value-Added Tax Act, an entrepreneur shall report to the head of a tax office having jurisdiction over the place of tax payment the tax base and amount of tax payable or amount of tax payable for each preliminary return period, as prescribed by Presidential Decree, within 25 days after the preliminary return period (from January 1 to March 31, and from July 1 to September 30) expires during each taxable period, as prescribed by Presidential Decree. The tax base and amount of tax payable or amount of tax payable for each taxable period (from January 1 to June 30, and from July 1 to December 31, 200), shall be reported to the head of a tax office having jurisdiction over the place of tax payment, as prescribed by Presidential Decree, within 25 days after the taxable period expires: Provided, That the entrepreneur who has made the preliminary return shall not make any return on the tax base and amount of tax paid already filed.

나) 살피건대, 앞서 본 부가가치세 예정신고, 확정신고 및 경정청구에 관한 관련규정을 종합해 보면, 예정신고의 내용에 오류��탈루가 있는 경우에는 납세자로서는 확정신고를 할 때 그 내용을 함께 신고할 수 있고, 예정신고 자체에 과세표준과 세액을 확정하는 효력은 없으며, 확정신고에 의하여 예정신고에서 신고한 과세표준과 납부세액이 확정적으로 정산된다 할 것이므로 예정신고한 부가가치세의 과세표준 및 세액에 대한 경정청구

The period shall be determined on the basis of the final return date.

Therefore, the starting point of the claim for correction concerning the period of the first preliminary return in 2009 shall be July 25, 2009, which is the date of the first preliminary return. Therefore, the civil petition for grievance related to the value-added tax that was filed before the lapse of three years from that time constitutes a legitimate request for correction.

3) Therefore, the Defendant’s main defense is without merit.

4. Judgment on the merits

A. The plaintiff's assertion

1) The instant value-added tax should be imposed on 00 under the principle of substantial taxation, since the Plaintiff is the actual business owner of the maximum00, and the Plaintiff only lent the name of the business owner upon the request of the maximum 00 employee to lend the name.

2) Therefore, the instant disposition, based on the premise that the Plaintiff operated a A, ought to be revoked as it is unlawful against the principle of substantial taxation.

(b) Fact of recognition;

1) Upon receipt of a proposal from the maximum of 00 employee of the company operated by the Plaintiff, the Plaintiff was an employee of the company.

On March 26, 2009, the Daejeon Tax Office civil service center shall be registered as a business operator under the name of a, and on March 26, 2009

A copy of the lease contract that directly visits the plaintiff and the plaintiff's resident registration certificate shall be attached.

On August 15, 2009, a's business registration was made, but a report on business closure was made around August 15, 2009.

2) Meanwhile, on June 3, 2009, the Plaintiff is in the new Dong-dong, Chungcheongnam-gu, Seoul Special Metropolitan City on the maximum of 00 proposal.

In-house directors and representative directors of 00comn Co., Ltd. (hereinafter referred to as “00comn”) shall take office.

On June 8, 2009, business registration was corrected as the representative of 00comer, and the above 00comerdo.

December 7, 2009 was closed on the ground of business depression.

3) The maximum 00 won per time within 2.5 million won to the Plaintiff from August 2009 to June 2010.

1.80,000 won has been remitted, and among them, 50,000 won has been transmitted under the name of the name lending expenses, in addition to the benefits.

This includes a set of particulars.

4) With the Plaintiff’s consent, the maximum00 delegated the Plaintiff’s seal to the tax accountant and delegated the tax affairs such as the preliminary return of value-added tax.

5) The maximum 00 won will be repaid to the Plaintiff by December 31, 2009, in the amount of KRW 50,000,000,000 around December 16, 2009.

a loan certificate to the effect that the loan is made and the loan is 65 million won until March 30, 201, as of December 11, 2010.

I prepared a loan certificate to the effect that he will repay in full.

6) The Plaintiff’s “minimum 00” operated the Plaintiff as a broker, a human resources dispatch business.

According to the proposal, the plaintiff shall be in charge of internal affairs, settle accounts in each quarter of profits, and distribute profits to five to five.

In such case, 1.5 million won to 2 million won per month shall be brought on each of the monthly living expenses of such profits.

under the condition that the maximum of 00 persons have made oral arrangements on the operations, but the maximum of 00 persons have

In collusion with Kim 00, the sales proceeds (solicitation agency) in A is embezzled for business purposes, and the instant case

In relation to the report of the payment of value-added tax, the crime of forging private documents and uttering of falsified documents was committed.

U.S. Supreme Court Decision 200Do1448 decided August 31, 2011; Decision 200Do145 decided May 1, 201

None of the dispositions was taken (St. 201 type No. 21517 of Daejeon District Prosecutors' Office), the maximum 00Do 16 February 16, 2012

was subject to a disposition that was suspected of having been imposed on the ground of the part of the Daejeon District Prosecutors' Office (Seoul District Prosecutors' Office 201 type No. 43669).

On the other hand, in the course of the investigation related to the above accusation case, the plaintiff and the maximum 00 persons engaged in the same trade

Ga, asserting that the evidence was operated, the evidence was not submitted, and the maximum 00

The Department Kim 00 operates a maximum of 00 in the name of the plaintiff who is a business operator only and whose business operator is a member.

A monthly wage of 1.2 million won to KRW 1.4 million to KRW 500,000,000 to KRW 500 per month to the Plaintiff.

In addition, the plaintiff has been engaged in internal management, employment classification, interview, and accounting as an employee.

In addition, the witness's leapment is well known that the maximum of 00 persons directly operate a A.

The plaintiff was an employee of A and made a statement consistent with the most recent of 00 arguments.

7) The trade name that the Plaintiff was solicited from the maximum 00 to report the human resources supply business.

of this title, the applicant asserts that he/she had registered his/her business and operated his/her human resources supplier, and that he/she was the maximum of 00 wife.

the Seoul Western District Court (Seoul Western District Court)

201. The plaintiff filed a suit 161536, and Kim 00 in the suit above was "the name of the business operator" in the name of the employee.

It is a borrower, but the value-added tax imposed in the name of the plaintiff due to the aggravation of the financial standing of the maximum 00

The plaintiff's claim was dismissed because the above defense was accepted.

The plaintiff appealed against this (Seoul Western District Court 2012Na9366) but the appeal is dismissed.

On May 14, 2013, the above judgment became final and conclusive as it is.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 8 to 11, 2, Gap evidence No. 12, Eul evidence No. 1 and 2

Each entry of No. 1, 2, and No. 5, and the purport of the whole pleadings

C. Determination

1) The principle of substantial taxation under Article 14(1) of the Framework Act on National Taxes is income, profit, property, and transaction.

(2) If there is a person to whom the income tax belongs otherwise than the name of the person;

of the title holder on account of form or appearance shall not be a taxpayer, but substantially ar

Since a person who belongs to the property is to be a taxpayer, the person to whom the property belongs shall control and manage it.

A person who has no ability and substantially controls and manages it through control, etc. over the nominal owner;

otherwise, if such a disparity between name and substance arises from the purpose of tax avoidance,

Income on the property shall be deemed reverted to a person who actually controls and manages the property.

The taxpayer should be the person liable for tax payment, but if there is no discrepancy between such name and substance, income.

Income shall be deemed reverted to the nominal holder of the property (Supreme Court Order July 10, 2014).

2012du1666) Whether there exists a disparity between such name and substance, the reason why the name was used.

and determination by comprehensively taking into account various circumstances, such as the content of the agreement between the parties, the degree and scope of the nominal involvement, the relationship between internal responsibilities and calculations, and the location of independent management and disposition authority over the subject of taxation.

in principle, the tax authority's proof of the existence and tax base of the requirement of taxation.

(1) The title of transaction, etc. and the subject of actual attribution are different.

There are no special circumstances, such as there is a separate legal provision converting the burden of proof.

tax authority imposed tax on a person who is a business title as a real business owner.

It is true that the name and substance of the tax disposition are different from that of the original owner, the business owner who received the tax disposition can assert and prove.

In this case, the need for certification has been made by the judge that the requirements for taxation have been satisfied.

to the extent that the actual owner of a transaction, etc. has a reasonable doubt as to such transaction. As a result, the nominal owner of the transaction, etc.

If it is unclear whether or not it has been reverted to the judge, and if it is impossible to have the judge's conviction, then it is so impossible.

The disadvantage is back to the tax authority that bears ultimate burden of proof (Supreme Court on May 16, 2014).

[See Supreme Court Decision 2011Du9935]

2) In light of the aforementioned legal principles, the purport of the entire pleadings on the instant case and the evidence duly admitted

In addition, the following circumstances, i.e., the Plaintiff’s public service center on March 26, 2009:

The lease contract of the workplace of this case and the plaintiff's resident who directly visits the plaintiff as the tenant.

A’s trade name accompanied by a certified copy of registration certificate, and ② The Plaintiff applies for business registration.

8. It appears that from around June 201 to around June 2010, the Plaintiff received the money from the maximum of 00;

A Until the end of May 2009, the closure of August 15, 2009

Since a report of business operation was filed (Evidence A No. 8-2) the Plaintiff received transfers from the maximum 00 as above.

the corporation shall register as the representative director of 00comn and shall register as the business operator.

(3) The plaintiff made a business registration under the name of the plaintiff.

Some of the money as salary from March 26, 2009 to August 2009, a reported for the closure of business;

b. However, the maximum 00 shall also receive some of the money under the name of salary around that time.

Since the Plaintiff appears to have been paid some of the money in the name of salary, the Plaintiff alone.

It is difficult to conclude that the employee was a mere employee who received only benefits without any involvement in the operation;

(4) The plaintiff is a maximum of 00 proposal to be an employee of the company operated by the plaintiff's omission.

After business registration is made in the name of the applicant, the applicant shall be responsible for the internal affairs, and the maximum 00

The grievance of this case to the effect that he entered into a verbal contract to take charge of the business and participated in the business of this case

5 The plaintiff filed a criminal complaint with the maximum of 00

The plaintiff argued that he was in the jurisdiction of the workplace of this case, and even after being investigated by the prosecution, the telephone fee, public section

The plaintiff shall bear the expenses of gold, office maintenance, and the actual work, and the plaintiff shall also be Kim 00

argument that the corporation had operated the largest of 00 and A as a partnership while filing a civil action against B.

(7) The Plaintiff was a person employed by the largest 00 person.

the plaintiff is a maximum of 00 employee, such as an employment contract drawn up between the plaintiff and the maximum of 00

In full view of the fact that objective evidence has not been submitted, only the evidence submitted by the Plaintiff is produced.

a The substantial operator of a is the maximum of 00 and the Plaintiff did not participate in the operation of a.

The recognition is insufficient, and there is no other evidence to prove it.

Therefore, the disposition of this case based on the premise that the plaintiff operated a A is legitimate.

his argument is without merit.

2. Conclusion

Therefore, the plaintiff's conjunctive claim is dismissed due to the lack of reason. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's conjunctive claim corresponding to the above revoked part is dismissed,