2013west 1395

It is reasonable to see that the period of stay in Korea is a long-term period, and there is a fact that the transfer tax is refunded as a domestic resident.

The plaintiff is a long-term period of stay in Korea, and there is also a fact that he was paid capital gains tax by claiming that he is a resident at the time of filing a request for correction of capital gains tax reverted to 06 years. Since he received financial income from a domestic financial institution and filed a comprehensive income tax return on some of them, the disposition imposed

2013Guhap21274 global income and revocation of such disposition

KimA

Head of Yeongdeungpo Tax Office

May 16, 2014

June 27, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Each disposition taken by the Defendant on February 18, 2003 against the Plaintiff on the global income tax for the year 2007, the global income tax for the year 2008, the global income tax for the year 2009, the global income tax for the year 2009, and the global income tax for the year 2011 shall be revoked.

1. Details of the disposition;

A. The Plaintiff deposited money with a domestic financial institution, and obtained a total amount of KRW 000 from 2007 to 2011. Meanwhile, the Plaintiff applied for a limited tax rate of KRW 000 by a nonresident (Canadian resident) and the domestic financial institution withheld at source by applying the limited tax rate (10%).

B. On February 18, 2013, the Defendant notified the Plaintiff of the correction and notification of the global income tax of KRW 00 (including additional tax) in 2007, global income tax of KRW 000 (including additional tax), global income tax of KRW 000 in 2008, global income tax of KRW 000 (including additional tax) in 2009, and global income tax of KRW 000 (including additional tax) in 201 (hereinafter “instant disposition”).

C. On March 20, 2013, the Plaintiff filed an appeal on March 20, 2013, but was dismissed by the Tax Tribunal on May 30, 2013.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2 (including paper numbers), Eul evidence 1 and 3 (including paper numbers), the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

(1) As to a domestic resident

① The Republic of Korea did not have a domicile in the Republic of Korea, and since 2007, Canada resided with a family member living together in Canada; the number of days of stay in Canada was more than the number of days of stay in Korea; ② the closure of domestic livestock industry around 2003; ③ the expropriation procedure of the land owned by the Korea Land Corporation was de facto terminated around the end of 2006; ③ the real estate owned in Korea was used for the residence of women, temporary use at the time of entry into Korea and for the purpose of medical care; ④ the settlement of 0 billion won out of the expropriation compensation due to the rapid increase in exchange rates was apprehended to take into account the fluctuations in exchange rates; ⑤ the remaining disposal was scheduled to take into account the changes in the exchange rates; ⑤ the number of days of stay in Korea was significantly decreased in the number of days of the spouse’s health before the year 201; and ④ the Plaintiff’s disposal of the real estate in Canada and the Canadian tax treaty based on the premise that the Canadian tax treaty and the Canadian tax treaty were unlawful.

(2) As to the period of residence

In 207 to 2009, the period of residence in Korea falls short of one year through two taxable periods. Considering the residential situation, the living place of a family member living together, and the permanent residence of a family member living together, etc., the disposition of imposition of global income tax in 2007 to 2009 is illegal.

(b) Related statutes;

Attached Form is as shown in the attached Form.

(c) Fact of recognition;

(1) Number of days of stay in Korea

(A) The number of days of stay in Korea of the Plaintiff is as follows, and the average number of days of stay from 2006 to 2011 is 197 days.

On the other hand, the number of days of the plaintiff's stay in Canada (Korean immigration control point standard) is as follows.

The number of days of stay in the Republic of Korea of KimA, the wife of the plaintiff, is as follows:

(B) The details of the Plaintiff’s domestic residence change are as follows.

(C) On October 25, 2009, KimA was diagnosed as waste cancer at the health examination, and was performed on November 5, 2009 at the subcommittee Seoul University Hospital.

(D) From December 24, 2009 to November 201, 2012, Kim A resided in Sung-nam-si, Sung-si, Sung-dong 000-Seoul 000 to 000 for navigation cancer treatment.

(2) Residence, etc. of the Plaintiff and their families

(A) The Plaintiff and KimA acquired permanent residence in Canada on July 25, 1997.

(B) The KimA acquired the citizenship in Canada on January 16, 2012, but the Plaintiff is a national of the Republic of Korea who did not acquire the citizenship until now.

(C) The Plaintiff’s head, South Korea, KimB, and South Korea KimC are living in Canada as follows.

(D) On September 28, 1991, the Plaintiff’s head KimD, a woman, is married on September 28, 1991, and in Daejeon, KimE, a woman, is married on August 2008 and resides in Seoul (3302).

(3) Land expropriation, etc.

(가) 원고는 1979. 1. 10.부터 2003. 10. 19.까지 XX시 XX면 XX리 산 XX-X등에서 'ㄱㄱ농장'을 운영하였다.

(B) On December 2006, Gyeonggi-do Public Notice No. 200X-Commercial Development Plan was included in the housing site development project for the 'Y-X 2 area' that is publicly announced around December 2006.

(C) On December 5, 2006, the Plaintiff made a preliminary return on the expropriation of the above land as the actual transaction price of capital gains tax, and paid KRW 000 on December 22, 2006.

(D) On January 30, 2007, the Plaintiff and KimA claimed a refund of the difference in the transfer income tax on the ground that “the head of Suwon Tax Office is a domestic resident subject to the reporting of the standard market price of transfer income tax.”

(E) On April 2007, the Plaintiff and KimA were refunded the transfer income tax of 000 won (including the transfer income tax of 000 won to GinA) according to the following review results from the head of Suwon Tax Office:

(F) From 2007 to 2012, the Plaintiff transferred USD 000 Canada ($0 billion) out of the compensation for expropriation as follows:

(4) Details of holding the property;

(A) As of the year 2013, the Plaintiff owns the following land and apartment.

(나) 원고는 QQQ클럽(취득일자: 2005. 6. 3.)과 WWW컨트리클럽(취득일자: 2006. 8. 2.)의 회원권을 보유하고 있다.

(C) On November 28, 2002, the Plaintiff purchased a house in Canada, and reported the said house to its domicile.

(5) Details of income tax returns, etc.

(A) From 2007 to 2010, the Plaintiff: (a) had income tax in Korea and Canada as follows; (b) had 000 interest income amount as follows, subject to the limited tax rate (10%) from domestic financial institutions; and (c) withheld the interest income tax at source.

(B) The Plaintiff reported the income tax in Canada in 2007 and received a foreign tax credit on the tax amount payable in Korea.

(6) The plaintiff's statement

○ At present, medical care has been reduced in Jeju-do that actually appeared while living in the field of the school, and for the last 30 years, the two-way projects have been conducted in the eternity, and now, the financial assets have been managed without any particular day on the age of the aged. It is currently being used to purchase appropriate buildings in the future, and is currently under the right of reimbursement for the rental business.

○ Marriage in 1996 with KimA, a wife of the Republic of Korea, and is almost same in Canada when in Korea or in Canada.

○○ obtained the permanent residence of Canada in 1997, and it did not have been engaged in a job or business because it did not have gone to Canada in order to operate a Canadian business. In addition, it would be possible to employ a person who is more than one year old since he was engaged in a livestock business in Korea. In addition, since he was engaged in a livestock business in Korea, he did not reach a few years in Korea. After acquiring the permanent residency in 1997, he continued to operate a chip in Korea.

There was no cost of living expenses in Canada in 1 year because of the absence of living expenses in Canada. Canada brought about about about about 10,000 dollars when they come to Canada, and Canadian received money from small children working in the Korean consulates.

○ 차남인 김C은 1997년에 이민 와서 BCLT(기술전문대)를 수료하고, XXXX. 10.부터 XXXX. 10.까지 한국영사관에서 근무하다 현재는 XXX 식품회사를 운영하고 있다. 저희 부부는 영구 귀국을심각하게 고려 중이며, 한 번도 한국인이라는 생각을 잊어 본 적이 없다. 지금까지 세금을 계속하여 납부하여 온 것을 보면 알 수 있다. 제가 캐나다인이라고 생각하면 제한세율로 적은 세금을 납부할 수 있는데, 왜 종합합산신고를 하여 많은 세금을 납부하였겠는가.

(7) Income tax reports, etc. by the Canadian National Tax Service

(A) The Canadian National Tax Service’s income tax report provides that “if a family member is residing in Canada or owns a house, it shall be treated as a Canadian resident if he is admitted to medical insurance (except for exceptional circumstances).” In addition, the Canadian National Tax Service issued a written confirmation to the Plaintiff on April 8, 2014 that “the Plaintiff is a Canadian resident from July 25, 1997, and thus, is obliged to report all global income to the Canadian National Tax Service.”

(B) The Plaintiff has paid property tax on Canadian housing to the tax authorities of Canada, and is subscribed to Canadian medical insurance.

[Ground of recognition] Facts without dispute, Gap evidence 3 through 10, 12, 13, 17 through 20 (including paper numbers), Gap evidence 2, 3 and 4 (including paper numbers), the purport of the whole pleadings

D. Determination

(1) As to a domestic resident

(A)The Income Tax Act on Resident, Address and Residence

"resident" means an individual who has a domicile in the Republic of Korea or has a domicile in the Republic of Korea for not less than one year (amended by Act No. 9897 of Dec. 31, 2009 for global income tax in 207, 2008, and 2009)

Prior to the date of entry, Article 1 (1) 1 of the Enforcement Decree of the global income tax for 2011 (hereinafter the same shall apply). Address shall be determined by the objective facts of living returning, such as the existence of a family living together in Korea and of assets located in Korea [referring to the Decree (amended by Presidential Decree No. 2007, 2008, 2008, global income tax for 2009, before amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter the same shall apply] Article 2 (1) of the Enforcement Decree of the same Act; hereinafter the same shall apply). Where an individual living in Korea has an occupation which requires him/her to continually reside in Korea for at least one year, and where it is deemed that he/she has no temporary domicile in Korea for at least two years (Article 2 (3) of the Enforcement Decree of the same Act). Furthermore, if he/she has no residential domicile in Korea for at least one year, the period of his/her temporary domicile in Korea shall be deemed to be deemed to have an address in Korea.

(B) In light of the contents and purport of the resident judgment standard regulations, the distinction between the resident and the non-resident shall be determined by comprehensively taking into account the existence of family members living together with the resident in Korea, domestic occupation and income status, assets located in Korea, domestic economy and legal relations.

Furthermore, the Income Tax Act stipulates that when determining a domestic resident, an objective living relationship in the Republic of Korea shall be comprehensively considered, and the living relationship in the other country shall not be cited as a comparative assessment factor, and in preparation for cases where both residents of the two countries are recognized, a tax treaty between them

Considering the fact that a resolution is being promoted through resolution, it is necessary to determine whether domestic residents are residents on the basis of a living relationship in Korea (see Supreme Court Decision 92Nu11695, May 27, 1993).

(C) Application to this case

It is reasonable to view the instant case as a domestic resident during the taxable period, considering the health class, family members living together in the Republic of Korea, occupation and income status, holding assets, etc. as follows.

(i)a family member living together;

① 거주지 등: 원고는 거주 목적으로 XXXX호와 XXX호를 각 보유하고 있고, 국내에 체류하는 기간에 실제 거주한 점, 2007년경부터 국내에 계속 거소를 두고 있었던 점, 원고와 김AA은 2007년경 국내 거주자임을 주장하여 양도소득세 환급을 받은점, ② 원고의 출입국현황과 목적 등: 원고는 2006년부터 2011년까지 국내에 최소162일(2008년), 최대 284일(2006년) 체류하였고, 2006년부터 2011년까지의 평균 국내 체류일수가 197일인 점, 2과세기간을 기준으로 거주기간을 계산하면, 2006년과 2007년(합계 463일), 2009년과 2010년(합계 469일), 2010년과 2011년(합계 446일)의 경우 1년 이상인 점, ③ 김AA의 출입국현황과 목적 등: 원고의 배우자인 김AA은 국내에서 2009. 10. 25. 폐암 진단을 받고 2009. 11. 15. 폐암 수술 후, 2009. 12. 24.부터 2012.11.경까지 항암 치료 등을 받으면서 거주하였던 점, 김AA의 국내 체류일수는 2007년113일, 2008년 239일, 2009년 199일, 2010년, 2011년은 각 365일에 달하는 점, ④ 캐나다에서의 거주 현황 등: 원고의 아들인 김B, 김C은 캐나다에서, 원고의 딸인 김DD, 김EE는 국내에서 생활하고 있는데, 원고는 2008. 4.경 차녀의 거주지인 XXXX호를국내 거주지로 신고하였고, 2009. 12. 10. XXXX호의 아래층인 CCCC호를 취득한 다음2010. 9.경 3202호를 국내 거주지로 신고한 점, 즉 원고는 캐나다에서 아들의 거주지와 떨어져 독립적으로 생활한 반면, 국내에서 차녀와 공동생활을 한 것으로 보이는 점등을 고려할 때, 배우자 등 생계를 같이한 가족이 이 사건 과세기간 동안 국내에 있었다.

2) Employment and current status of income

원고는 20XX년경 양계장인 'ㄱㄱ농장'을 폐업하였고, 2007년부터 2010년까지 수용보상금을 금융재산으로 관리ㆍ운용하여 금융소득을 얻고 있었으므로, 국내에서 금융소득 등을 토대로 경제활동을 하였다.

(iii)owned assets;

① 자산 유무: 원고는 국내에 토지수용으로 형성된 000억 원 상당의 금융자산, 00개의 부동산 및 골프회원권 0개를 보유하고 있는 점(캐나다에서는 주택 0채를보유), ② 자산의 보유 목적: 원고는 거주 목적으로 XXXX호를, 요양 목적으로 제주도에BBB호를 각 보유하고 있고, 일정 기간 XXX호에서 거주한 점 등을 고려할 때, 원고는국내 사회활동에 필요한 자산을 다수 보유하고 있었다.

(2) As to the period of residence

(A) Article 4(1), (2), and (3) of the Enforcement Decree of the Income Tax Act provides that "the period of domestic residence shall be from the date following the date of entry to the date of departure. When an individual who has a domestic domicile enters again after departure, and the purpose of departure is clearly deemed to be temporary in light of the residence, location of assets, etc. of his family living together with him, the period of departure shall be deemed to be the period of domestic domicile. If the period of domestic domicile is more than one year over two taxable periods, the period of departure shall be deemed to have a domestic domicile for more

(B) When calculating the period of residence based on the health zone and the two taxable periods, it is recognized that the period of residence is less than one year in the case of the year 2007 and 2008 (total 341 days), 2008 and 2009 (total 361 days). However, as seen earlier, the classification between the resident and the nonresident should be determined by comprehensively considering the existence of a family living together in the Republic of Korea, occupation and income status, owned assets, etc., and Article 2-2 (2) of the Enforcement Decree of the Income Tax Act provides that "the time when the resident becomes a non-resident shall be the day following the date when the resident leaves the Republic of Korea to move his domicile or temporary domicile to a foreign country." In light of the above, it is reasonable to deem that there is no evidence to deem that the situation to be converted to the non-resident is a domestic resident even in the year 2007, 208, and 209.

(3) As to a Canadian resident:

Article 250 (1) of the Act on the Regulation of Documentary Items 20 of the case of being considered to be a Canadian resident provides that "the temporary stay person shall also be deemed to be a resident when he stays in Canada for a total of 183 days or more during a year," and the income tax report by the Canadian National Tax Service provides that family residence, housing holding, and medical insurance shall be deemed to be a resident standard.

The health unit of this case, the plaintiff, the Canadian period of stay in 2007, 2008, and 201 exceeds 183 days, the plaintiff has family members in Canada, the plaintiff has purchased Canadian medical insurance, and the Canadian tax authorities also report the plaintiff as Canadian resident.

Considering B, the Plaintiff is also a resident of Canada.

(4) Status of dual residents

(A) Details and burden of proof of the Korea-Canadian Tax Treaty

한ㆍ캐나다 조세조약 제4조 제1항은 조세조약의 적용대상에 해당하는 '어느한쪽 체약국의 거주자'를 "동 체약국의 법에 따라 주소・거소・본점이나 주사무소, 관리장소 또는 그 밖의 유사한 기준에 따라 납세의무가 있는 인(人) 그리고 동 체약국 및그 정치적 하부조직 또는 지방 자치단체 또는 그러한 동 체약국, 정치적 하부조직 또는 지방 자치단체의 기관을 포함한다."고 규정하고 있다. 그리고 제4조 제2항에 의하면, 개인이 국내 거주자 및 캐나다 거주자에 해당하는 경우 ① 항구적 주거(permanenthome), ② 중대한 이해관계의 중심지(centre of vital interests), ③ 일상적 거소(resident only of the State in which the individual has an habitual abode), ④ 국적(resident only of the State of which the individual is a national), ⑤ 상호합의(the competent authorities of the Contracting States shall settle the question by mutual agreement)를 순차로 고려하여 거주지국을 판정한다.

On the other hand, whether an individual has a domicile or residence in Korea should be determined in light of the living relationship, such as the family relationship or assets in Korea. It is not the case where an individual has a domicile or residence in Korea.

In such cases, even if a taxpayer is a taxpayer under the law because he/she falls under the case where he/she becomes a taxpayer in a foreign country or becomes a taxpayer in income tax, etc. under other laws of the foreign country, and in such a case, it may be imposed twice on one income. Thus, a separate provision is established through the conclusion of each tax agreement between the countries to exclude this. If it is acknowledged that a taxpayer is a taxpayer in a foreign country who is a domestic resident at the same time, if it is recognized that the taxpayer is a taxpayer in a foreign country who is a resident at the same time, it would be caused by the overlapping country to determine whether the taxpayer becomes a taxpayer in a foreign country as prescribed by the tax agreement between the country (see Supreme Court Decision 92Nu1695 delivered on May 27, 1993). In such case, as to whether a taxpayer who is a domestic resident at the same time constitutes a resident of a foreign country, the taxpayer bears the burden of proving that the tax treaty should apply (see Supreme Court Decision 2006Du3964 delivered on December 11, 2008).

In addition, as the increase in international trade has increased in the case of establishing a company on the document in the tax haven place that is not superior to the actual transaction for the purpose of tax avoidance through changes in the specific use of tax treaties and avoiding taxes on capital transaction income, such as interest, dividend, and stock transfer margin, through the form of transaction, the OECD has sought various regulatory measures for the act of tax avoidance using the tax haven through the international discussion of the OECD Preferred Tax Forum that began in 1999. Accordingly, the OECD Model Convention, which is the basis for interpretation of each tax treaty, provides a basis for preventing the act of tax avoidance widely dealing with the types and methods of preventing the act of tax avoidance, the interpretation of the treaty, and the interpretation of the treaty. Meanwhile, the OECD Model Convention is not a treaty concluded and promulgated pursuant to Article 6(1) of the Constitution, but is not a treaty that is generally recognized international law, and thus it cannot be seen as a standard for interpretation of the treaty between the member countries of the OECD and other relevant international laws.

(b) Permanent residence;

Article 4: Note 12 to 13 of the OECD Model Convention is a place where an individual owns or owns a house (home). Here, a house is permanently used by an individual, i.e., a place where the house is prepared and maintained for the permanent use, and on the contrary, a specific place where the house remains under the specific condition that the individual is intended to sleep. This is not a house at any time.

적으로 사용할 수 있도록 집을 마련한 것으로, 체류이유 그 자체의 성질상 단기체류일 수밖에 없는 체류(관광여행, 사업여행, 교육여행, 학교과정 참석 등)를 위하여 마련된것이 아니다."라고 설명하고 있다[12. Subparagraph a) means, therefore, that in the application of the Convention (that is, where there is a conflict between the laws of the two States) it is considered that the residence is that place where the individual owns or possesses a home; this home must be permanent, that is to say, the individual must have arranged and retained it for his permanent use as opposed to staying at a particular place under such conditions that it is evident that the stay is intended to be of short duration. 13. As regards the concept of home, it should be observed that any form of home may be taken into account (house or apartment belonging to or rented by the individual, rented furnished room). But the permanence of the home is essential; this means that the individual has arranged to have the dwelling available to him at all times continuously, and not occasionally for the purpose of a stay which, owing to the reasons for it, is necessarily of short duration (travel for pleasure, business travel, educational travel, attending a course at a school, etc.)]. 따라서 항구적 주거란, 주관적으로는 단기체류 목적이 아니라 항구적으로 사용하기 위한 의도로 마련한 것이고, 객관적으로는 개인이 언제든지 계속 사용될 수 있는 주거의 형태를 갖춘 곳으로서, 가족이 있는 경우 가족이 생활을 형성하고 있는 근거지를 의미한다고 봄이 타당하다.

In the case of this case, it is reasonable to view that the plaintiff had a permanent residence in both countries, since he had a house for the purpose of long-term residence in Korea and Canada respectively, had actually resided for a long time, and had a family residing in the vicinity.

(c)the center of significant interests (the closeness of human and economic relations);

OECD 모델협약 주석서 제4조 주석 15문단은 "'중대한 이해관계의 중심지'(center of vital interest)란, 개인적 또는 경제적 관계의 중심이 되는 곳을 의미하는데, 가족 및 사회적 관계, 직업, 정치적・문화적 기타 활동, 재산의 관리장소 등을 종합적으로 고려하여야 한다."고 설명하고 있다[15. If the individual has a permanent home in both Contracting States, it is necessary to look at the facts in order to ascertain with which of the two States his personal and economic relations are closer. Thus, regard will be had to his family and social relations, his occupations, his political, cultural or other activities, his place of business, the place from which he administers his property, etc. The circumstances must be examined as a whole, but it is nevertheless obvious that considerations based on the personal acts of the individual must receive special attention. If a person who has a home in one State sets up a second in the other State while retaining the first, the fact that he retains the first in the environment where he has always lived, where he has worked, and where he has his family and possessions, can, together with other elements, go to demonstrate that he has retained his centre of vital interests in the first State.].

Considering the health stand and the following circumstances, it is reasonable to see that the instant case is based on the Plaintiff’s personal and economic relationship in Korea.

① The number of days of stay, etc.: From 2006 to 2011, the Plaintiff stayed in Korea for a total of 1,270 days, and total of 893 days in Canada. The Plaintiff’s wife staying 1,557 days from 2007 to 2012. Accordingly, the number of days of stay in Korea of the Plaintiff is more than the number of days of stay in Canada.

② 주된 거주지: 원고는 2008. 4.경 차녀의 거주지인 XXX호(2004. 4. 10. 취득)를 국내 거주지로 신고하였고, 2009. 12. 10. XXXX호의 아래층인XXXX호를 취득한다음 2010. 9.경 3202호를 국내 거주지로 신고하였다. 즉 원고는 캐나다에서 아들의

On the other hand, while living independently from the place of residence, it can be deemed that a woman and a community life were conducted in Korea. Therefore, it is reasonable to view the Plaintiff’s principal place of residence in Korea.

③ The current status of income: From 2007 to 2010, the Plaintiff acquired financial income by managing and operating the expropriation compensation as financial property. However, as the Plaintiff remitted only approximately KRW 0 billion, which is 12% of the amount of the expropriation compensation, to Canada, most of the financial income accrued in Korea. Moreover, the Plaintiff is 00 years old, and there is no occupation operated in Canada. Therefore, it is reasonable to view that the Plaintiff’s business place or financial asset management place is domestically.

④ Property status: The Plaintiff owns 00 billion won of financial assets, 00 real estate, and 0 golf membership, which are domestically formed through the expropriation of land. On the contrary, Canada possesses only 0 housing bonds. Therefore, it is reasonable to see that the Plaintiff’s asset management place and leisure activity place are also domestically.

⑤ Other: The Plaintiff asserted that he is a domestic resident during the 2th class year period, and did not obtain the Canadian citizenship. Moreover, while the Plaintiff is affiliated with the Canadian Medical Insurance Act, it is reasonable to see that the treatment place for an important disease is Korea in light of the circumstances where the wife KimA was treated in Korea.

(5) Sub-committee

Therefore, the Plaintiff constitutes a domestic resident under the Korea-Canadian Tax Treaty, and the instant disposition is lawful.

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.