early 2010 Heavy085 ( October 15, 2010)

Appropriateness of the assertion that a real business operator is not a real business operator

In a complaint filed due to embezzlement of public funds, the plaintiff is judged as a real businessman on the ground that the plaintiff takes over the place of business from all the owners and claims that he/she is operating the business.

1. All of the plaintiff's claims are dismissed.

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

On June 1, 2009, the Defendant’s value-added tax of 10,136,80 won for the second term of 2006, value-added tax for the first term of 2007, value-added tax of 9,376,830 won for the second term of 207, value-added tax of 19,14,060 won for the second term of 207, value-added tax of 2008, value-added tax of 22,369,020 won for the second term of 208, value-added tax of 9,762,380 won for the second term of 208, Class A earned income tax of 2,758,560 won for the second term of 207, Class A earned income tax of 2,78,560 won for the year 208, global income tax of 45,150,78,808,7808 won for each of the claim(7).

1. Details of the disposition;

가. 원고는 2006. 10. 16. 피고에게 상호를 AABB자동차공업사(당시 상호는 '@@@자동차정비사업소'임 이하 '이 사건 사업장'이라 한다) 사업장 소재지를 경기도 광주시 @@읍 AA리 720-6, 사업의 종류를 자동차개조 및 재생자동차판금 및 도장 등으로 하여 사업자등록을 한 사람이다.

B. On March 2009, the Defendant received a tax evasion notice from the second to second in 2006 on the instant place of business, on the following grounds: (a) the Defendant failed to file a report on the amount of income through the second in the second in 2006 and cash income from the repair of a vehicle during the taxable period; and (b) conducted a tax investigation on the instant place of business on or around March 2009.

C. As a result of the above tax investigation, the Defendant deemed that the Plaintiff omitted sales revenue from the second to the second taxable period from 2006 in 2008. On June 1, 2009, the Defendant imposed the Plaintiff the amount of value-added tax of 10,136,80 won for the second taxable period from 206, value-added tax of 9,376,830 won for the second taxable period from 207, value-added tax of 19,14,060 won for the second taxable period from 207, value-added tax of 2008, value-added tax of 22,369,020 won for the first taxable period from 208, which is value-added tax of 9,762,380 won for the unreported labor expenses and costs for the above labor expenses, and imposed the amount of additional tax of 4,685,208 won for the second taxable year from 207, 2008.

D. The Plaintiff, who was dissatisfied with each of the instant dispositions, filed an appeal with the Director of the Tax Tribunal on December 9, 2009, on August 11, 2009, but the said appeal was dismissed on March 5, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, 13, Eul evidence 1 to 8, Eul evidence 2-1 to 9, Eul evidence 4, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The actual business operator who actually operated the instant place of business is ParkCC. The Plaintiff borrowed 185.00.000 won and the business operator’s name necessary to take over the instant place of business, and merely served as an accounting employee at the instant place of business, and the Plaintiff, who is merely a formal nominal title holder, is illegal to each of the instant dispositions imposed on the Plaintiff.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) In general, the burden of proof of the facts requiring taxation in a tax lawsuit should be borne by the imposing authority. However, if the facts alleged in the facts requiring taxation in light of the empirical rule are revealed in the course of a specific lawsuit, it cannot be readily concluded that the other party is an illegal disposition that fails to meet the requirement of taxation unless the other party proves that the facts in question were not eligible for application of the empirical rule (see, e.g., Supreme Court Decision 97Nu2429, Oct. 24, 1997).

(2) The following circumstances, which are acknowledged by comprehensively considering the purport of the entire pleadings in the statement Nos. 3 through 5, Nos. 2-1, 5 through 7, Nos. 3 and 4 of the evidence Nos. 1, 5 through 7, 3 and 4 of the instant business establishment, namely, ① the Plaintiff applied for registration of the instant business establishment at the time of its business registration, and the relevant tax was paid directly by the Plaintiff; ② the lessee and the purchaser of the instant business establishment are both the Plaintiff; ③ the Plaintiff’s deposit management business registration certificate issued from the Gwangju City Mayor on Nov. 9, 2006; ③ the Plaintiff’s deposit and withdrawal account of the money deposited from the customers of the instant business establishment was opened and directly managed in the Plaintiff’s name; ③ the Plaintiff’s use of the passbook’s money deposited from the Plaintiff’s business establishment in the name of the proprietor of the instant business establishment from 200 to 200.

Therefore, notwithstanding the above circumstances, the actual business operator of the workplace of this case is ParkCC, and the plaintiff must prove the fact that only the name of the business operator was lent to the plaintiff. However, it is not sufficient to recognize the above facts only with the descriptions of Gap evidence Nos. 6 through 8, Gap evidence Nos. 9-1, 2, 10 through 12, and Gap evidence Nos. 15-1 through 9, and there is no other evidence to acknowledge it. Thus, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, each of the claims of the plaintiff in this case is dismissed as it is without merit, and it is so decided as per Disposition.