2012west 1356

In other words, there are liability to pay value-added tax on the rental business of a building owned by one other.

Inasmuch as the Plaintiff was engaged in a leasing business concurrently or independently with the Plaintiff, the Plaintiff is obligated to pay all value-added taxes for the instant building from February 2, 2006 to February 2, 2010, irrespective of the ratio of shares of the Plaintiff and SectionB.

2012Revocation of the disposition of revocation of value-added tax

KimA

The Director of the Pacific District Office

November 22, 2013

November 22, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of the value-added tax for the second term portion of 2006 against the Plaintiff on January 12, 2012 is revoked, respectively, the imposition of the value-added tax for the second term portion of 2006, the OOOOO(including the additional tax), the value-added tax for the second term portion of 207, the OOO(including the additional tax), the value-added tax for the first term of 2008, the OOO(including the additional tax), the value-added tax for the second term of 2008, the value-added tax for the second term portion of 209, the OOOO(including the additional tax), the value-added tax for the second term portion of 209, the OOO(including the additional tax), the OOO(s) for the second term portion of 209, the 1007, and the 200OO(s) for the second term portion of 2010.

1. Details of the disposition;

"A. 1) The plaintiff and ChoB were married. On December 14, 1988, the building was newly constructed on the ground of OB 190-10 OB, 297.9 square meters (hereinafter "the building in this case") under the name of OB, OB, OB, 198. On December 14, 198, the building in this case was registered as the ownership of ChoB on the building management ledger of the building on December 14, 1988 (the contents of the building were changed to the general building ledger on December 28, 200, and were closed) and the registration of initial/2 shares was completed in the name of the plaintiff and OB on January 20, 193, and the date of July 19, 200 (hereinafter "2) on July 19, 200.

The location of the place of business shall be the OOO-dong OO-dong 190-10

2.CC Building

Seoul Family Court Decision 208Dhap4827 against the Plaintiff on May 14, 2008, 201: (a) 1/200 of the Plaintiff’s share of 1/20 of the instant building and 1/200 of the instant building and 1/200 of the Plaintiff’s share of 1/10 of the instant building and 1/2 of the property division of 1/60 of the Plaintiff’s share of 1/10 of the instant building and 1/2 of the property division of 1/60 of the Plaintiff’s share of 200, 200, 1/2000 of the Plaintiff’s share of 1/60 of the instant building and 200 of the instant property division of 1/60 of the Plaintiff’s share of 1/200 of the instant building, 1/200 of the Plaintiff’s share of 1/20 of the instant building and 1/200 of the instant property division of the Plaintiff’s shares.

"2) On August 25, 201, the Plaintiff filed a request for pre-assessment review with the Defendant, claiming that the title transfer registration for 1/2 shares of the instant building was completed under the Plaintiff’s name, but the actual owner of the instant building is ChoB, and that the Plaintiff and ChoB should be deemed to be a joint business operator, and the Defendant shall make a decision not to adopt the tax, and on January 12, 2012, the Plaintiff and ChoB included the value-added tax for 2 years (including the additional tax for 00,000,000,0000,0000,0000,0000,0000,000,000,000,0000,000,000,000,000,000,000,000,000,0000,000,0000,000,000,000.

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on March 2, 2012, but became respectively on June 28, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5 (including each number, hereinafter the same shall apply), Eul evidence 1, 2, 4, and 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) the first argument;

The Plaintiff asserted that the title trust of 1/2 of the instant building was granted by ChoB, and the instant building was owned solely by ChoB, and the rental business operator of the instant building is ChoB. This circumstance is ① entered into the building management ledger for the instant building on May 16, 192 only as the owner, and later the registration of ownership was completed under the joint names of the Plaintiff and ChoBB, ② during which ChoB was the owner of the instant building and delegated the management of the instant building to the Plaintiff. ③ Since the instant building was owned by 6B, 1/2 of the instant building was owned by 6B, 70 shares of the instant building were requested by 6B to be owned by friendly KimD, ④ the ownership of the instant building, which was the ownership of the instant building, and 5B ownership of the instant building, 700 shares of the instant building, which was the ownership of the instant building by the Plaintiff’s housing management association.

Therefore, the instant disposition taken on a different premise is unlawful as it violates the principle of substantial taxation.

(ii) the second argument;

Even if the Plaintiff and ChoB constituted joint business operators, the source of revenue from the lease of the instant building is the instant land and buildings. As such, the investment ratio between the Plaintiff and ChoB should be calculated by the ratio of shares in the entire land and the instant building. Therefore, the instant disposition taken according to the ratio of shares in only the instant building is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c)a recognition;

1) Management, etc. of the instant building

A) As to the part of the instant building, the Plaintiff entered into a lease agreement with the JG on November 10, 1989 (which was renewed on April 30, 2002), with the LH on June 18, 2003, with the Yellow II on August 25, 2003, with the GJ on May 24, 2004, with the GK on December 6, 2006, and with the LL on May 20, 2007.

B) From 2001 to 2004, the Plaintiff filed a report on the lease income on the instant building in its 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 Plaintiff received the transfer of the rent reported to the tax authorities to its account, and the remainder of the rent received through the administrator KimM.

2) The dispute between the Plaintiff and SectionB

"A) On November 8, 2001, under which the Plaintiff was residing in the U.S. in order to assist the Plaintiff’s postnatal care of the KOE, the de facto owner of the instant building began to collect rent directly after notifying the lessee of the instant building of his intention to leave the building to the head of Seodaemun-gu and to provide election expenses. For this reason, the lessee of the instant building begins to receive rent directly in the future after he has discontinued the management entrusted to the Plaintiff." (B) On February 20, 2002, the Plaintiff promised to sell the instant building to ChoB around 7, 2002. The Plaintiff agreed to sell the instant building to the Plaintiff. (3) On March 8, 2002, the lessee of the instant building: (4) the Plaintiff received the instant building from the Plaintiff and the lessee of the instant building into the sole joint title name of the Plaintiff, but (6) the Plaintiff did not transfer the building to the Plaintiff.

D) On August 2, 2007, the Plaintiff received the Seoul Central District Court Decision 2007Kadan78252 on the provisional disposition of prohibiting the disposal of the instant building on the ground that the right to claim the transfer of ownership under the agreement was a preserved right under the Seoul Central District Court Decision 2007Kadan78252.

On the other hand, since the property tax imposed on ChoB was not paid, the property tax of the OOO members was delinquent as of May 2009. The head of Songpa-gu Seoul Metropolitan Government seized the instant land on February 21, 2008 and the deposit claim of the ChoB on November 24, 2008, respectively.

(E) On October 29, 2007, Article BB notified the Plaintiff of the title trust and the cancellation of management delegation with respect to 1/2 shares of the instant building. (f) On August 16, 2007, the Seoul Eastern District Court 2007Kadan8526 against the lessee of the instant building. However, on September 3, 2007, the said decision was rejected on the ground that the claim for rent deposit against the Plaintiff was rejected on September 1, 2007 on the ground that it cannot be the preserved right of the provisional disposition suspending the payment of rent, and the said decision was rejected on September 207, 197 200 the Seoul Eastern District Court 10.20Kadong District Court 207Kadan9320 on September 7, 2007, the said decision was rejected on the ground that the Plaintiff’s claim for provisional seizure was rejected on September 1, 207 as the debtor and the lessee of the instant building.

A) The Plaintiff and ChoB asserted that they are the actual owners of the instant building, and that one-half shares in the other party’s name among the instant building was in title trust in a divorce lawsuit. Meanwhile, the Plaintiff asserted that, in a divorce lawsuit, the parent parent purchased and reproduced the property, he/she purchased CC at his/her own will, and that not only the 1/2 shares in the name of ChoB, but also the instant land was in title trust with ChoB as his/her own ownership.

B) On the premise that the Plaintiff actually managed the instant building, the divorce judgment recognized the Plaintiff’s obligation to return the lease deposit total amount as the Plaintiff’s obligation, and recognized each of the instant building as the active property subject to division of property between the Plaintiff and ChoB according to the registry.

C) On February 1, 2011, the appellate court of the divorce case sentenced the Plaintiff to transfer 1/2 shares of the instant building to ChoB. On February 15, 2011, ChoB concluded a lease contract again with lessees and agreed to return to the Plaintiff as much as it was paid to the Plaintiff on February 21, 2011 when the Supreme Court’s subsequent decision is reversed, etc. On February 15, 201, the Plaintiff was paid a rent from around February 201. Meanwhile, even if the family divorce judgment became final, the Plaintiff became final and conclusive on March 21, 201, and even after the family divorce judgment became final and conclusive, ChoB filed a report on the transfer of ownership on the instant building’s global income from 10 years to 210 years to 210 years to 210,015, and the Plaintiff’s registration of ownership was completed on the instant building’s global income from 10 years to 210 years to 210,2115.

E) On July 27, 2011, the lessee of the instant building filed a lawsuit claiming the return of the lease deposit against the Plaintiff (Seoul Central District Court 201Gahap77790). On February 3, 2012, the said court rendered a judgment ordering the Plaintiff to return the lease deposit, deeming that the lease contract was terminated upon the agreement between the Plaintiff and the lessee following the appellate judgment rendered on February 3, 2012. The Plaintiff appealed against this judgment and appealed as Seoul High Court 2012Na71628. On August 13, 2013, the said court rendered a judgment that the lease contract between the Plaintiff and the lessee was terminated on July 20, 2011, and concluded that the lease contract between the Plaintiff and the lessee was terminated on July 20, 2011, and that the Plaintiff did not pay the lease deposit to the Plaintiff from February 2, 2011 to July 20, 2011.

(iv) filing a lawsuit by section BB;

“A) On December 18, 2012, Article BB filed a lawsuit seeking revocation of the imposition of value-added tax on the instant building from 00 to 2010, 200, with the Seoul Administrative Court 2012Guhap42946, 2007 to 2010, on the premise that the Plaintiff was the co-owner of the instant building, and thus, the imposition of value-added tax and comprehensive income tax on the premise that the lease income equivalent to the instant building reverts to the Plaintiff on the ground that it was the owner of the instant building was unlawful on the ground that it was in violation of the principle of substantial taxation, the principle of good faith, and the principle of reasonable taxation. However, it is reasonable to view that the Plaintiff’s disposition of revocation of the imposition of value-added tax on the instant building from 200 to 200, 207, which was the first 7th 7th 207, to maintain the Plaintiff’s respective right to use the instant building from 207.

A) Around March 1975, the Plaintiff and ChoB acquired NN Loan No. 31 and 406 of OO-dong NN Loan No. 31 and 406 of OO-dong O-dong at the name of O-si, around April 1975, NN Loan No. 1 and 204 of O-dong O-dong O-dong, respectively, in the name of the Plaintiff.

B) On June 197, the Plaintiff and ChoB sold NB’s house located in the above OB, and around December 1977, 1/2 shares among 218 OO-dong shopping districts located in OO-dong and 528 207 o-dong apartment units located in OO-dong in O-dong.

C) On January 1, 1978, the Plaintiff and ChoB sold NB’s NB loan housing located in the above OB, and acquired the instant land in the name of ChoB with the assistance of his father around July 1978.

D) On January 1, 1982, the Plaintiff and ChoB purchased PP apartment 1 and 903 OB located in OO-dong O-dong PP apartment 1 and 903 under the name of OB, and around December 1982, the Plaintiff sold the apartment located in the above O-dong in the name of the Plaintiff, and around December 1982, the Plaintiff and ChoB purchased the land located in O-dong in the name of the Plaintiff on November 1, 1987, and this land was expropriated on January 1, 1991.

" 마) 원고와 조BB은 1988. 9.경 OO시 OO구 OO동 519-28 대 154.9㎡를 원고 명의로 취득하였고, 이 사건 토지에 임대차보증금 등으로 공사대금을 지급하는 조건으로 이 사건 건물을 신축하였다. 원고와 조BB은 1997. 11.경 위 신사동 대지에도 건물을 신축하여 원고 명의로 사용승인을 받았다(이하 위 토지와 건물을 합하여OO동 예빌딩'이라 한다).", 바) 원고와 조BB은 1997. 12.경 위 OO동 소재 상가 중 조BB 명의의 1/2 지분을 매도하고, 1999. 4.경 원고 명의로 OO시 OO구 OO동 QQ빌라 8동 102호를 취득하였다.

G) Around January 2001, 2001, AB arbitrarily sold shares in the name of the Plaintiff and ChoB, around November 2001. Around April 2002, the Plaintiff and AB acquired the Plaintiff (1/2 shares), her 176-36 square meters, and her 178.8 square meters and her 178.8 square meters in the name of the Plaintiff (1/2 shares), her son E-E, and her ChoB (1/4 shares, respectively).

"h) The Plaintiff and ChoBB sold O-dong tugboats buildings around October 2002, and around December 2002, 98/35,418 square meters of O-si 80-1 forest land in O-si around December 2002, and around November 2004, "O-si 224-1 Simb, 896 square meters" around May 2005, 1/2 shares of 1/2 of O-dong 1652-42 park site in O-si 1652-42 park site in O-si 1, 230.1 square meters in each Plaintiff’s name, and 1/2 shares of 1/2 shares of O-si land in the name of ChoF.", i.e., the import of the instant building in this case is O.b. O.

6) Other

“A) The certified tax accountant in charge of tax affairs related to the building of this case prepared a confirmation document stating “from January 1, 1996 to December 31, 2004 at the Plaintiff’s request that the Plaintiff report value-added tax and global income tax on the building of this case on behalf of the Plaintiff.” (B) Yellow II, the lessee of the building of this case, made a request for the payment of rent to the Plaintiff as the owner of the building by means of content certification mail, at least two years before November 15, 2011. However, the Plaintiff entered into a lease contract with the Plaintiff, and sent it to the Plaintiff by threatening the Plaintiff upon the Plaintiff’s cooperation (Evidence 6-1 of the evidence No. 6-1 of the evidence No. 1 of this case),” and “No dispute was asserted,” and “No evidence No. 3, No. 5-21 of the evidence No. 3, No. 361 of the evidence No. 7 of this case, and all pleadings No. 7 of this case.

D. Determination

1) As to the first argument

In light of the following circumstances, it is reasonable to view that the Plaintiff and ChoB shared 1/2 shares of the instant building, and the Plaintiff, by entirely exercising the authority to lease the instant building, such as managing the instant building and receiving rent, etc., and that he/she carried on a lease business with or independently from ChoB. The mere evidence or assertion submitted by the Plaintiff is insufficient to reverse the recognition. Accordingly, the instant disposition is lawful.

① The Plaintiff asserted that “the Plaintiff was the actual owner of the instant building. 1/2 shares in the title B of the instant building were nominally owned by her her her her her her her her her her her her her his her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her..........

④ The Plaintiff asserted that the instant building was owned by the ChoB, and that the division of property was completed based on the same. However, as seen earlier, the divorce judgment was concluded that ChoB transferred the 1/2 share of the instant building and the entire site in its name, and that ChoB selected the method of division of property to ChoB to transfer the 1/2 share of the instant building to ChoB and to settle cash to the Plaintiff, and did not determine that the instant building was owned by ChoB. Rather, the Plaintiff and ChoB shared the instant building by recognizing the 1/2 share of each of the instant building as a positive property subject to division of property by the Plaintiff and ChoB.

⑤ The Plaintiff, in its own name, registered its business as to the instant building, and reported and paid the value-added tax and general income tax for several years. In addition, the Plaintiff concluded a lease agreement on the instant building under its own name, had KimM receive a rent, transferred a part of the rent, or suspended transfer to ChoB, and had RR file a report on value-added tax and global income tax on behalf of the Plaintiff. In addition, the judgment was issued to the effect that the instant lessee would return the lease deposit to the lessee in the lease deposit return case (Seoul Central District Court 201Gahap7790) filed against the Plaintiff. In the divorce case, the Plaintiff’s obligation to return the lease deposit against the instant lessee was recognized as the Plaintiff’s passive property.

⑥ 원고는 이 사건 건물의 월 임대수입 OOOO원 중 OOOO원 내지 OOOO원을 조BB이 사용하였고, 나머지 돈은 딸들에 대한 유학비, 생활비 등 조BB이 부양해야 할 가족들을 위하여 사용되었으므로, 임대수입의 처분이 조BB의 의사에 따라 이루어졌다고 주장한다. 그러나 ㉠ 부모가 성년의 자녀에 대하여 직계혈족으로서 민법 제974조 제1호, 제975조에 따라 부담하는 부양의무는 부양의무자가 자기의 사회적 지위에 상응하는 생활을 하면서 생활에 여유가 있음을 전제로 하여 부양을 받을 자가 자력 또는 근로에 의하여 생활을 유지할 수 없는 경우에 한하여 그의 생활을 지원하는 것을 내용으로 하는 제2차 부양의무인데(대법원 2012. 12. 27. 선고 2011다96932판결 참조), 2006년 당시 조EE는 36세, 조FF은 30세로 성년이었고, 이들이 자력 또는 근로에 의하여 생활을 유지할 수 없는 상황이었다고 볼 수 없는 점, ㉡ 원고가 2006. 4.부터 2007. 6.까지는 이 사건 건물의 월 임대수입 약 OOOO원 중 OOOO원을 조BB에게 송금하였으나, 2007. 7.경부터는 송금하지 아니한 채 전부 사용한 점, ㉢ 원고는 늦어도 2007. 12.경부터는 조BB과 별거하였으므로, 최소한 그 이후부터는 조BB이 임대수입 사용에 전혀 관여할 수 없었을 것으로 보이는 점, ㉣ 조BB 뿐만 아니라 원고도 부모로서 딸들에 대하여 부양의무를 부담하는 점(민법 제974조 참조), ㉤ 원고는 1980년 무렵부터 OO예술고등학교 국어교사로 약 5년, OO대학교 등의 강사로 15년 이상 각 근무하였고, OOO발레연구소를 운영하기도 하였으며, 2002년 이후에는 주식회사 OOO텔레콤 대표이사를 역임하거나, OOO빌딩(원고가 운영하는 임대, 공연장을 사업종목으로 하는 사업체의 명칭이다), OOO장기요양센터 등을 운영 하였으므로, 상당한 소득이 있었을 것으로 보여 조BB만이 생활비를 부담할 책임이 있다거나 가족에 대한 부양의무를 부담한다고 할 수 없는 점 등에 비추어 보면, 이 사건 건물의 임대수입이 딸들에 대한 유학비 생활비 등으로 사용되었다는 사정만으로 임대수입의 처분이 조BB의 의사에 따라 이루어졌다고 볼 수 없다.

2) As to the second argument

Article 2(1) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) provides that a person who independently supplies goods or services for a business purpose regardless of whether it is for profit, i.e., a business entity is liable to pay value-added tax. Article 4(1) of the same Act provides that value-added tax must be reported and paid at each business establishment. Article 25(1) of the Framework Act on National Taxes provides that a joint owner or a joint business entity is jointly liable to pay national taxes, additional dues, and expenses for disposition on default related to a joint and several property or a joint business establishment. Comprehensively considering each of the above provisions, a joint business entity is jointly and severally liable to pay all value-added taxes regardless of its equity ratio (see Supreme Court Decision 99Du2222, Jul. 13, 199). As seen earlier, so long as the Plaintiff concurrently or independently engaged in rental business with the Plaintiff, then the Plaintiff’s assertion that the value-added tax should be paid for two years through 20.

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.