Seoul Administrative Court 2016Guhap2506 (2016.09)

Even if a business report is not made, if it is confirmed that the actual business was conducted, it can be called a business operator.

Article 2 of the Value-Added Tax Act provides that "the person who supplies goods or services independently for business regardless of whether the business purpose is profit-making or non-profit-making," so if it is confirmed that the actual business is not reported even if the business purpose is not reported."

Article 2 of the Value-Added Tax Act

2016Nu1020 Revocation of Disposition of Imposition of Value-Added Tax

HongA

BB Director of the Tax Office

2016.09.09

2017.07.06

8.17

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's disposition of 0,000 won for the plaintiff on October 0, 000, 0000, 0,0000 won for the first time in 0,000, and 0,000,0000 won for the first time in 0,000,0000, 0000,0000,0000 for the first time in 0,000,000,0000, 0,0000,000 for the year in 0,000,000, 000,000,000 won for each of 0,000,000 won for the first time in 0,000,000 won for global income, 00,0000 won for the first time in 0,0000,000 won for each of 0,0000 won.

1. Details of the disposition;

This Court's explanation is the same as the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, since the reasons for this part are the same as the corresponding part of the judgment of the court of first instance (Articles 11 through 17 of the second one).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the fact that there is no value-added tax on the rent for the store of this case from DoD and KimE, a business operator under the Food Sanitation Act means a person who has obtained a business license, who has reported the business, or who has registered the business, and therefore, the person who reported the business of the store of this case was the Plaintiff. Therefore, DoD and KimE is merely an employee of the said Dam, and the rent specified in the Damp contract concluded with KimE is a KRW 0 million, which is not less than half of the monthly rent paid by the lessee of the present store of this case. Considering that it is not a rent but a operating profit, it is reasonable to regard the Damp Management contract of this case as an entrusted operation contract of the above Damp.

(b) Fact of recognition;

1) On September 19, 2008, the Plaintiff entered into a multi-facel operation contract with the following content, with respect to the instant store owned by the Plaintiff as lessor, and with respect to KimE as lessee:

Deposit: Daily deposit 50 million won

Monthly tax: 2.9 million won

Section 1:In leasing the above multiples on a monthly basis with electricity, each of the following shall enter into a contract under mutual agreement:

§ 2. The lessee has paid to the lessor in lump sum on September 19, 2008, the deposit amount of KRW 50 million, simultaneously with the contract.

ARTICLE 3:The monthly rent shall be paid by the lessee to the lessor at the end of each month (at least two months shall not be in arrears).

Article 4. The period of multilateral lease: It shall be two years from the date of the contract, but may be extended and operated under mutual agreement after the expiration of the period.

Article 5: Value-added taxes, taxes, public charges and all other public charges shall be liable to the lessee.

Article 6:Lessee may not claim the lessor for all expenses incurred by alteration, etc. of the number of pieces at will, in civil or criminal cases, and the lessee shall enter into an agreement to restore the area to its original state.

Article 7:Lessee may not arbitrarily transfer, transfer or sublease his right to the third party.

2) As seen earlier, the Plaintiff reported the value-added tax and the income tax on the leased portion of the instant store, including the multiple revenues of the instant store operated by DD and KimE, but the income tax and the value-added tax on the leased portion of the said store were borne by the Plaintiff, and the Plaintiff received and paid the income tax and the value-added tax on the multiple operation from D and KimE. This D and KimE directly managed and disposed of the multiple revenue, excluding the rents and taxes paid to the Plaintiff.

3) On June 2010, the Plaintiff donated to five children, including the Intervenor, the building to which the instant store belongs, one-five shares, and completed the registration of ownership transfer to the said five children.

4) On September 28, 2010, the Intervenor reported the instant store’s business at the place of business to “CC,” and subsequently completed the resting restaurant business report and business registration in the name of “ZZ” on April 22, 201, where the instant store is located at the place of business.

5) The rent for the remainder of the instant premises, excluding the instant stores, is as follows.

Trade Name (Name)

Date of commencement;

Area of a place of business (land size)

Deposit for lease on a deposit basis (per won)

Monthly rent (per 00 won)

00 hall (00)

000.00.00.00

00.00

0,000

00

00 (00)

000.00.00.00

00.00

0,000

00

[Ground of recognition] Gap evidence Nos. 1, 4, 9, Eul evidence Nos. 2 through 4, the purport of the whole pleadings

C. Determination

In light of the following circumstances that can be seen by the above evidence in addition to the purport of the oral argument, i.e., the Multilateral Operation Contract of this case only 1,00,000,000,000,000 won, and 6,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00.

3. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.