Incheon District Court-2015-Gu -50928 (2016.07)

Determination that a domestic resident can be seen as a resident with a domestic address should take into account various circumstances, such as the domestic living relationship.

A resident means a person who has a domicile in Korea or has a domicile in Korea for not less than one year, and in determining whether a person who has a domicile in Korea is a person who has a domicile in Korea, it should be determined by objective facts of living relations, such as the existence of a family living together in Korea and of assets located in Korea, not by the resident registration

The definitions of Article 1-2 of the Income Tax Act, Article 2 of the Enforcement Decree of the Tax Liability Act, and the determination of residence and residence, and the time when the resident or nonresident becomes a resident or nonresident

Seoul High Court-2016-Nu-58194 ( October 15, 2017)

SouthO

O Head of tax office

oly 2017.15

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

The Defendant’s disposition of imposing global income tax of KRW 1,021,108,790 (including additional tax) for the year 201 owed to the Plaintiff on April 1, 2014 that exceeds KRW 786,146,610 shall be revoked.

2. All remaining appeals by the plaintiff and the defendant are dismissed.

3. One-third of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The phrase "439,310,553 won" in paragraph (1) of this Article shall be read as "439,310,50 won", and the phrase "291,321,754 won" shall be read as "29,321,750 won", and shall be read as "291,321,750 won", respectively;

1. Partial citement of judgment of the first instance;

The reasoning of this court's decision is as follows, "1. 2. Disposition is legitimate, (a) the plaintiff's argument, (b) the relevant laws and regulations, (c) facts of recognition, (d) relevant legal principles, (2) the disposition imposing global income tax for the year 208 through 2010" from the date of the judgment of this court is as stated in the relevant part of the judgment of the court of first instance (from 6th to 11th and 16th to 21th) except for the following parts. Thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

Parts used for cutting.

○ The second and the second 15th 16th am "2,238,584,414" is "2,238,584,400 won".

○, “291,321,754 won” in column 2 of column 4 of column 2 of column 2 of the second instance judgment, shall be deemed to be “291,321,750 won”; “439,310,553 won” in column 2 of column 3 of the second instance judgment shall be deemed to be “439,310,550 won”; “1,021,108,797 won” in column 4 of column 3 of the third instance shall be deemed to be “1,021,108,790 won”; “2,238,584,414 won” in column 4 of the fourth instance judgment shall be deemed to be “2,238,584,400 won”; respectively.

○ The 8th of the first instance court's decision is divided into "leased," "Lease," and the 19th of the 19th case's "Lease," "Lease," respectively.

○ The second sentence below the 7th judgment of the first instance court is "the court of the first instance".

2. Parts that vary from the judgment of the first instance court;

(3) Determination on the imposition of global income tax for the year 201

A) Whether and when the Plaintiff is a resident under the former Income Tax Act

In full view of the following circumstances revealed by comprehensively taking account of the evidence and the purport of the entire arguments as seen earlier, it is reasonable to deem that the Plaintiff himself/herself constitutes a domestic resident under the former Income Tax Act, even in view of the fact that the domestic period of stay in 2011 is shorter than the period of stay in China as 158 days and still has a place of business in China, and thus, the Plaintiff constitutes a domestic resident under the former Income Tax Act, and the period of deeming him/her as a domestic resident is July 1, 201.

(1) In 201, the Plaintiff, the period to which this part of the disposition belongs, 158 days, 192 days, △△△△△△△, and 365 days, had been staying in Korea. The number of days during which the Plaintiff and his family members were staying in Korea sharply.

△△△△△, a person who is married and she was pregnant by the remaining △△△△△, around August 201, 201, the Plaintiff leased the Korean-style apartment in the Han River in the vicinity of the son’s domicile, and transported the households, kitchen supplies, electronic equipment, etc. in China to the Republic of Korea as personal cargo around September 30, 201. The ASEAN, which became the only family member of the Plaintiff who lives with the Plaintiff after the marriage of the remaining △△△△△△△△△△, seems to have prepared a place to return to the Republic of Korea and reside mainly at the time of entering the Republic of Korea on July 18, 2011.

⑶ 원고의 처 조□□은 2011. 11. 7. 인천 ▧▧프라자 상가 건물과 관련하여 영업신고필증을 발급받았고, 2011. 11. 10. 위 상가에서 '샤▨▨ 인천 소래점' 사업을 개시하였다.

Article 5 (1) of the former Income Tax Act (amended by Act No. 10854, Jul. 14, 201) provides that "the taxable period of income tax shall be one year from January 1 to December 31." In principle, the taxable period shall be determined on a yearly basis from January 1 to December 31, 201, but the taxable period shall be from January 1 to December 31, 2000 if a nonresident becomes a non-resident due to the transfer of his/her residence or residence abroad (hereinafter referred to as "entry")". Article 2-2 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 2313, Aug. 30, 201) provides that "the period from January 1 to December 31, 2011 shall be deemed to be the date when a non-resident becomes a resident, and it is reasonable to deem that a person who has a domestic address or was a non-resident within the same taxable period shall be deemed to have a domestic address for the same reason as the first three-month.

B) Whether the Plaintiff constitutes a resident under the Chinese Tax Convention

(1) If a taxpayer is deemed to be a resident of a foreign country at the same time as a domestic resident under the Income Tax Act and is liable to pay income tax under the foreign law, it may be imposed twice on the same income. To prevent such double resident, a separate provision is established through the conclusion of a tax treaty between countries. If a taxpayer is deemed to be a resident of a foreign country, the determination of the resident country and the tax rate pursuant to the relevant tax treaty shall meet the requirements for taxation. However, as to the fact that a taxpayer who is a domestic resident is deemed to be a resident of a foreign country at the same time, the taxpayer bears the burden of proving that the tax treaty should apply (see, e.g., Supreme Court Decision 2006Du3964, Dec. 11, 2008). According to Article 4(2) of the Tax Convention between the Republic of Korea and China, where an individual becomes a resident of both countries, and Article 4(2) of the same Convention between Korea and China provides that the individual’s residential and economic relationship shall be determined in the order of the country.

As to whether the Plaintiff is a resident under the Chinese tax law, according to Article 1(1) of the Chinese Private Income Tax Act, and Article 2 and Article 3 of the Chinese Private Income Tax Ordinance, a resident under the Chinese Private Income Tax Act refers to an individual who has his/her domicile within the border even if he/she has or does not have his/her domicile within the border of China. In this case, a "individual who has his/her domicile within the border of China" refers to an individual who has damply resided within the border of China due to family register, home, economic interest, and a "individual who has resided within the border of China for one year" refers to an individual who has resided within the border of China for 365 days during the tax payment year, and a resident who has resided within the border of China for 30 days each time during the period of his/her temporary departure from Korea or for which several accumulated amounts for 90 days does not fall within the number of days of his/her residence within the boundary of 10 days in China.

⑶ 설령 원고가 중국 개인소득세법실시조례 제6조에 의하여 중국에서 거주한지 5년이 초과한 개인으로서 6년째 연도부터 주민납세의무자로 의제되어 중국세법상 거주자에 해당한다고 하더라도, 앞서 살핀 바와 같은 이유로 국내 거주자로도 볼 수 있는 원고로서는 한중조세협약 제4조 제2호에서 정한 바와 같이 2011. 7. 1.부터 2011.12. 31.까지를 기준으로 그 항구적 주거지가 중국이라는 점을 증명하거나, 원고의 항구적 주거지도 불분명한 경우라면 인적 및 경제적 관계가 가장 밀접한 국가(중대한 이해 관계의 중심지)가 중국이라는 점을 증명하여야만 피고의 원고에 대한 2011. 7. 1.부터 2011. 12. 31.까지의 기간 귀속 종합소득세 부과처분이 위법하게 된다고 할 것이다. 그런데 앞서 인정한 사실과 앞서 든 증거에다가 변론 전체의 취지를 종합하여 인정할 수 있는 다음과 같은 사정들, 즉, ① 한중조세협약에서 말하는 '항구적 주거'란 그 문언의 의미상 단기 체류 목적이 아니라 항구적으로 사용하기 위한 의도로 개인이 언제든지 계속 사용될 수 있는 주거의 형태를 갖춘 곳으로 생계를 같이 하는 가족이 있는 경우라면 그 가족이 생활을 형성하고 있는 근거지를 의미한다고 할 것인데, 2011.7. 1.부터 2011. 12. 31.까지의 기간을 기준으로 원고의 처는 국내에 새로운 거처를 마련하고 2011. 9. 30.경 중국 내에서 원고와 함께 생활하며 사용하였을 것으로 보이는 가구, 주방용품, 전자제품 등을 개인화물로 운송하여 국내 주소지로 반입한 점, ② 또한, 원고와 원고의 처는 모두 국적이 한국이고 2011. 7. 1.부터 2011. 12. 31.까지의 기간을 기준으로 홍콩법인으로부터 송금받은 금액을 국내 금융자산으로 보유하면서 그에 대한 금융소득을 얻고 있음과 아울러, 원고의 처는 2011. 11. 7. 인천 ▧▧프라자 상가 건물과 관련하여 영업신고필증을 발급받았고, 2011. 11. 10. 위 상가에서 '샤▨▨ 인천소래점'사업을 시작함으로써 국내에서 적극적으로 경제활동을 개시한 점, 기타 원고부부의 거주형태, 원고 부부의 2011년 전후의 국내 재산 소유와 그 취득관계, 원고 부부의 경제적 활동 등 제반사정들을 종합하여 볼 때, 원고가 제출한 증거들만으로는 한중조세협약이 정한 원고의 '항구적 주소지' 내지 '중대한 이해관계의 중심지'가 대한민국이 아니라 중국이라고 인정하기에 부족하고, 달리 이를 인정할 증거가 없으며, 오히려 원고에게 있어 '항구적 주소지' 내지 '인적・경제적으로 가장 밀접한 국가' 역시 대한민국으로 봄이 상당하다. 따라서 원고는 한중조세협약에 의하더라도 구 소득세법상 국내 거주자로서 종합소득세의 과세대상자라 할 것이므로, 이러한 점에서도 원고의 이 부분 주장은 이유 없다

3. Conclusion

Therefore, from the disposition of this case, the part exceeding KRW 786,146,610 out of the global income tax of KRW 1,021,108,790 in the year 201 exceeds KRW 786,146,610 shall be revoked. Since the part of the judgment of the first instance that ruled against the plaintiff falling under the above revoked part is unfair, the part that was partially accepted by the plaintiff's appeal shall be revoked, and the remaining appeal of the plaintiff and the defendant shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench. While all of the records of this case and the judgment of the court below are examined, the argument on the grounds of appeal by the appellant falls under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal, and it is without merit, and