Claim for cancellation of the portion of imposition of individual local income tax is illegal, and it is illegal to the actual businessman.

A claim for cancellation of a portion of individual local income tax imposed on a non-qualified person is illegal and illegal, and the actual business operator constitutes such person.

Article 3 of the Value-Added Tax Act

revocation of revocation of imposition of global income tax, etc. by the District Court 2019Guhap10264

○ ○

○○ Head of tax office, △△ Head of tax office

2019.05.30

oly, 2019.27

1. An individual local office listed in attached Table 1. Table 31 and 32 among the lawsuits against Defendant ○○ Tax Office;

The revocation of the disposition of acquisition tax shall be dismissed.

2. The plaintiff's claim against the head of the tax office ○○, and the remainder of the tax office △△△.

All claims are dismissed.

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

Cheong-gu Office

Division 1 to 28 of the table Nos. 1 and 28 prepared by Defendant 1’s head of the tax office on February 6, 2018 to the Plaintiff.

Category 29,30 listed in the family value tax (including additional tax) and the table 29, and 30 listed in the same table issued by the head of the △△△ District Tax Office

Each individual local income tax (including additional tax) set forth in Nos. 31 and 32, such as the Joint Income Tax (including additional tax)

Each disposition of imposition shall be revoked.

1. Details of the disposition;

A. On November 16, 2017, the chief prosecutor of the ○○ District Prosecutors’ Office requested the head of Defendant ○○ Tax Office to file an accusation against the Plaintiff on the grounds of the evasion of value-added tax.

B. The head of Defendant ○○ Tax Office conducted a tax investigation on the Plaintiff, and filed a complaint against the Plaintiff as a violation of the Punishment of Tax Evaders Act, on the ground that the Plaintiff registered the following business from March 17, 2014 to September 30, 2016 (hereinafter collectively referred to as the “instant business entity”) under his/her name and reported the purchase price of used cars in his/her name and received a refund of value-added tax more than the actual purchase price of used cars.”

Business registration number

Title holder

Places of business

Opening date of business

Closure

Trade

이▲▲

Incheon

March 17, 2014

May 11, 2015

Madern Trade

L**

Incheon

September 22, 2014

September 24, 2015

Trade

Form & & &

Incheon

October 12, 2014

August 31, 2016

◐◐무역

Maximum%

Incheon

June 15, 2014

August 31, 2016

▦▦무역

이$$

Incheon

September 23, 2014

July 31, 2016

▧▧무역

오##

Incheon

October 27, 2014

May 11, 2015

Trade

이@@

Incheon

April 1, 2015

September 30, 2016

Trade

이▲▲

Incheon

April 11, 2014

May 11, 2015

C. On February 6, 2018, the Plaintiff; Defendant ○○○○ Tax Office issued a notice of correction and correction of the total value-added tax amounting to KRW 633,948,630 (including additional tax) for the first period from 1 January to 28, 2016 in attached Table 1; Defendant ○○ Tax Office issued a notice of correction and correction of the total global income tax amounting to KRW 19,218,060 in attached Table 29,30 (including additional tax) for the first period from 19,215 in attached Table 1 to 28; and Defendant ○○ Tax Office issued a notice of correction and correction for each global income tax amounting to 2014; and Defendant ○○ Tax Office issued a notice of correction and correction to the Plaintiff on the same day including the first period from 31,32 in attached Table 1 to 2014; and each individual individual local income tax amount reverted to 2015 (including additional tax).

D. On October 12, 2018, the Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on October 12, 2018. The Tax Tribunal dismissed the Plaintiff’s appeal on December 14, 2018.

[Reasons for Recognition] The entry of Gap evidence Nos. 1 to 32, Eul evidence Nos. 1 to 6 (including each number), the purport of the whole pleadings

2. Judgment on the principal safety side of Defendant 1 △△ District Tax Office

A. Main Safety Defenses

The head of the Defendant △△ District Tax Office’s claim to revoke the imposition of individual local income tax on the instant lawsuit is unlawful on the ground that the instant lawsuit against a non-qualified person.

B. Determination

1) Article 3 of the former Local Tax Act (amended by Act No. 15292, Dec. 26, 2017; hereinafter the same shall apply) provides that "a local government that imposes and collects local taxes under this Act shall be subject to taxation of the relevant local taxes according to the classification of the items of the local government under Articles 8 and 9 of the Framework Act on Local Taxes." Article 8 of the Framework Act on Local Taxes provides that "Where a final return on tax base of global income is filed, a local tax shall be filed and paid to the head of the local government having jurisdiction over the place of tax payment, as prescribed by Presidential Decree." Article 97 (1) of the former Local Tax Act provides that "where a resident fails to file a return under Article 95, or an error or omission in the details of a return, the head of the local government having jurisdiction over the place of tax payment shall also determine or rectify the relevant tax base and amount of individual local income tax, and Article 25 (1) of the former Local Tax Act provides that "the head of the local tax office shall also determine or rectify the tax base and amount of individual local tax pursuant to Article 130 (2).

2) According to Gap evidence Nos. 31 and 32, it is recognized that the fact that the defendant ○○ Tax Office written each notice of individual local income tax sent on February 6, 2018 by the head of each individual local income tax office, stating "local tax", and "Do Governor Gyeonggi-do Mayor", and that "I will request the receipt of individual local income tax for the receiving bank at the bottom of the tax payment notice as revenue in Gyeonggi-do."

In full view of the contents of the relevant Acts and subordinate statutes and the above tax notice, local income tax is a local tax imposed and collected by the local government, and it is reasonable to deem that the head of the relevant tax office sent a tax notice of individual local income tax to the Plaintiff only pursuant to the Addenda to the former Local Tax Act. Therefore, an appeal seeking revocation of imposition of individual local income tax should be filed against the head of the relevant Si/Gun, who is the head of the competent tax office, not the head of the relevant tax office, having jurisdiction over the Plaintiff’s place for payment of individual local income tax. Therefore, the part seeking revocation of imposition of individual local income tax in the instant lawsuit against an unqualified person is unlawful (in full view of the provisions of Articles 18(1) and 20(1) of the Administrative Litigation Act, Articles 89(1), 90, and 91(1) of the Framework Act on Local Taxes, where he/she was aware of an administrative disposition under the Local Tax Act, and immediately selects the method of filing a lawsuit seeking revocation of individual local income tax within 90 days from the date of the determination of revocation.

3. Summary of the plaintiff's assertion

A. The Defendants deemed the Plaintiff as an actual business operator of the instant company and rendered the instant disposition.

However, the actual business operator of the instant company is not the Plaintiff, but only red, and the Plaintiff only lent the name of the business operator to Red. This can be confirmed by the following circumstances.

① Around July 2013, the Plaintiff received a refund of value-added tax in the case of a used vehicle export business from Hong, and thereafter lent a business registration certificate to Hong, under the name of the Plaintiff or his family members, etc., upon receiving a request for a refund of the value-added tax, the Plaintiff would be 30% out of the value-added tax for the actual used vehicle purchase and refund. ② The Plaintiff: (a) managed all the business registration certificates; (b) managed the passbook, account account, etc.; (c) reported value-added tax; (d) decided on the amount of the secondary export; and (e) received the amount of KRW 20,000 for each of the instant used vehicles after purchasing the instant used vehicle with the purchase price determined by Hong; and (c) the Plaintiff was subject to minor punishment compared to Hong, as reflected in the relevant criminal cases.

B. Therefore, the instant disposition against the Plaintiff, who is not the actual business entity of the instant company, should be revoked as it violates the principle of substantial taxation.

4. Relevant statutes;

Attached Form 2. The entry in the relevant statutes is as follows.

5. Determination on the legitimacy of the instant disposition

A. Principle of substantial taxation

Article 14 (1) of the Framework Act on National Taxes declares the principle of substantial taxation on the ground that "if the ownership of income, profit, property, act, or transaction subject to taxation is nominal, and there is another person to whom such ownership belongs, the person to whom such ownership belongs shall be liable to pay taxes, and the tax law shall apply."

Therefore, in cases where there is a person who substantially controls and manages a taxable subject to income, profit, property, act, transaction, etc. different from the nominal owner, the nominal owner on account of form and appearance should be the person who actually controls and manages the relevant taxable subject to taxation pursuant to the principle of substantial taxation, rather than the nominal owner as the person liable for duty payment. Determination as to such a case ought to be made by comprehensively taking account of the following: (a) details of the use of name; (b) the degree and scope of the nominal owner’s involvement; (c) internal responsibility and calculation relationship; and (d) location of independent management and disposition authority regarding the subject of taxation (see, e.g., Supreme Court Decision 201Du9935, May

B. Facts of recognition

1) Details of criminal judgment against the plaintiff et al.

가) 피고 ○○세무서장은 원고 이외에도 홍, 이, 이◈◈, 함▷▷, 이(이하 통틀어 '원고 등'이라 한다)을 조세범처벌법위반으로 고발하였고, 이후 진행된 형사재판에서 원고 등을 징역형 등에 처하는 판결이 2018. 6. 28. 선고되었다[인천지방법원 2018고합**, **(병합), 이하 '이 사건 형사판결'이라 한다].

B) The criminal facts against the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (taxes) and the Punishment of Tax Evaders Act are as follows.

이, 홍은 2013. 2.경부터 현재까지, 이◈◈는 2013. 8.경부터 현재까지, 원고는 2014. 3. 17.경부터 2015. 1. 31.경까지, 함▷▷은 2014. 5. 1.경부터 현재까지, 이은 2014. 7. 14.경부터 2016. 5. 31.경까지 인천 송도유원지 물류센터 내 무역 사무실에서 무역 등 60개의 중고자동차 수출업체를 운영한 사람이다.

The plaintiff et al., applied the "0 tax rate for the value-added tax for the used cars exporters", while the input tax amount can be refunded in full according to the deduction rate for the input tax for recyclable resources (9/109). Based on the fact that there is a high amount of value-added tax to be refunded, the plaintiff et al. conspired to receive the refund of value-added tax by adding the purchase price for used cars and the export price on the export paper on the used cars sales contract for used cars and by adding the purchase price on the export paper on the sales contract for used cars.

원고 등은 부가가치세 환급금을 분산하기 위해 본인이나 가족 및 지인들 명의로 60개[이 9개, 홍 7개, 이◈◈ 5개, 원고 8개(이 사건 사업체이다), 함▷▷ 13개, 이 12개, 그 외 윤 등 6개 업체]의 중고자동차 수출업체 사업자등록을 하고, 이은 중고자동차 매입금액 결정, 중고자동차 수출, 부가가치세 신고, 각종 세금 문제 해결 등 무역 사무실 업무를 총괄하는 역할, 이◈◈는 중고자동차 매입 및 매매계약서상 매입금액을 부풀리고 조작하여 부가가치세를 신고하는 역할, 홍, 원고, 함▷▷, 이은 중고자동차를 매입하는 역할을 각각 수행하였다.

In this regard, on February 24, 2013, Hong reported the value-added tax on March 2013 on the ○○ Tax Office for the year 2013. The fact that the purchase price of the used cars actually acquired by trade is KRW 42,150,00,000, the purchase price of the used cars is KRW 102,50,500,000, and the purchase price of the value-added tax is excessively KRW 60,350,000, and the amount of value-added tax equivalent to KRW 4,983,028 is unlawfully refunded on March 11, 2013, and the Plaintiff, etc. reported the value-added tax on July 25, 2014 on trade in the ○○ Tax Office for the year 2014. The fact that the Plaintiff, etc. reported the purchase price of the used cars actually acquired by trade to KRW 13,950,00,000,000,030.

이를 비롯하여 원고 등은 공모하여 같은 방법으로 이, 홍은 2013년 내지 2016년 합계 2,893,097,064원 상당, 이◈◈는 2013. 8. 26.부터 2016. 12. 19.까지 합계 2,787,489,908원 상당, 원고는 2014. 3. 17.부터 2015. 1. 31.까지 합계 720,936,330원 상당, 함▷▷은 2014. 5. 1.부터 2016. 12. 19.까지 합계 2,468,649,633원 상당, 이은 2014. 7. 14.부터 2016. 5. 31.까지 합계 2,303,868,715원 상당의 각 부가가치세를 부정환급 받았다.

다) 위 형사재판에서 이, 홍은 이◈◈, 함▷▷, 이, 원고(이하 '이◈◈ 등'이라 한다) 등 다른 피고인들이 영위한 중고자동차수출업과 관련된 부가가치세 부정환급 범행에 공모ㆍ가담하지 않았다는 취지로 주장하였으나, 아래와 같은 사정에 비추어 이, 홍이 이◈◈ 등과 공모하여 위 나) 범죄사실 기재와 같이 범죄를 실행하였다고 인정할 수 있다는 이유로 위 주장은 받아들여 지지 않았다.

① 홍, 이은, 홍이 사업자 명의 및 중고차 매입대금을 제공하고 이이 부가가치세 부정환급 방법을 전수하면서 사업을 시작하였고, 그 후 각자 역할을 분담하면서 수익을 분배하였다. ② 이◈◈ 등은 이, 홍로부터 부가가치세를 부정환급 받는 것을 주된 수익원으로 하여 중고차 수출을 한다는 사정을 듣고서 그러한 사업에 가담하여 중고차 매입 등의 업무를 하게 되었다. ③ 홍, 이은 원고, 함▷▷, 이이 매입할 중고차의 매입가격을 결정하고, 이◈◈ 등이 매입하는 중고차의 매입대금을 지급하기도 하였다. 또한 홍, 이은 이◈◈에게 허위의 매매계약서를 작성하여 부가가치세를 신고하는 방법을 가르쳐 주고, 어느 정도로 차량 취득금액을 부풀릴지 통지하였다. 이은 나머지 원고 등이 매입한 중고차를 해외에수출하면서 이◈◈ 등과 특별한 상의 없이 그 수출금액을 전적으로 결정하였고, 매수인으로부터 수출대금을 수령하였다. ④ 이◈◈ 등이 명의를 빌려온 사업자의 은행 계좌는 대부분 이, 홍이 관리하였고, 이◈◈ 등이 관리하는 일부 은행 계좌의 경우에도 그 계좌로 부가가치세 환급금이 입금되면 이◈◈ 등은 전액을 이에게 송금하였다. 즉, 이은 이 사건 범행에 이용된 사업자 명의로 환급받은 부가가치세와 수출대금 전액을 관리하면서, 이◈◈ 등과 사이에 정해진 각자의 분배비율에 따라 수익금을 정산해 주었다. 이은 나머지 원고 등이 등록한 사업자에 세무조사 등 문제가 발생하는 경우 그에 대한 소명자료를 제출하거나 추가로 부과 세금을 납부하기도 하였다

D) According to the instant criminal judgment, the Plaintiff purchased, exported, and received value-added tax, and invested KRW 30-40,000,000 in the name of the deposit for the purchase of the second class of the second class of the second class of the high class of the high class of the high class of the high class of the high class of the high class of the high class of the high class of the high class of the high class of the high class of the tax, after having received a proposal that “The Plaintiff would be paid 30-40,000,000 won of the value-added tax,” and began the second class of the export business on March 17, 2014. In addition, the Plaintiff notified this Hong of vehicle information before purchasing the second class of the high class of the tax, notified this Hong of vehicle information, purchased the second class of the high class of the high class of

E) In the instant criminal judgment, two years of imprisonment with prison labor, three years of suspended execution, and three years of fine, three years of imprisonment with prison labor, and 2.8 billion won for Hong, and three years of imprisonment with prison labor and a fine of 2.8 billion won for Hong, respectively. Of the instant criminal judgment, the part against the Plaintiff in the instant criminal judgment became final and conclusive as is without appeal by both the prosecutor and the Plaintiff, and the part against the remaining Defendants, such as this and red, was final and conclusive as is through the appellate court (Seoul High Court 2018No****) and the final appeal (Supreme Court 2018Do*****).

(ii) Other circumstances.

A) The Plaintiff stated that, at the time of being examined by the prosecution, the bank account was opened to refund value-added tax, and the head of the Tong, the seal, and the physical card, etc. was sent to this affiliated party, and that the account holder sent KRW 500,000 per month in return.

B) When being examined in the prosecution, Hong stated that the Plaintiff invested KRW 30 million in return for the purchase price of the vehicle to Hong, and that the Plaintiff and Hong, purchased and exported by the Plaintiff, divided the profit of the vehicle and the refund of value-added tax in proportion to 4:6.

C) Red deposited a total of KRW 522 billion with the Plaintiff’s account from May 9, 2014 to May 8, 2015.

[Reasons for Recognition] Evidence Nos. 33, Evidence Nos. 6 and 7, and the purport of the whole pleadings

C. Whether the Plaintiff is the actual business operator of the instant company

In light of the following circumstances, the Plaintiff may be deemed an actual business entity of the instant company in light of the overall purport of the aforementioned facts and the evidence duly admitted, and thus, the Plaintiff’s assertion is difficult to accept on a different premise.

1) The Plaintiff received a proposal from Hong to suggest that he will receive 30-40% of the value-added tax paid for the secondhand export profit and the refund of the value-added tax, and carried out the business of the secondhand purchase by investing the secondhand purchase method, etc., and then creating a bank account for the refund of value-added tax, and providing it to this, etc., and paying for the account use to the account holder. As such, the Plaintiff did not simply provide the name of the business operator, but actively participated in the used car sales business.

2) Red stated that the Plaintiff would divide the profit and value-added tax refund amount of vehicles purchased and exported by the Plaintiff into the Plaintiff. From May 9, 2014 to May 8, 2015, Hong deposited money exceeding KRW 500 million with the Plaintiff’s deposit account. Comprehensively taking account of these circumstances, it can be known that the Plaintiff was not simply paid for the loan of the Plaintiff’s name, but received the distribution of the profit from red, etc.

3) According to the instant criminal judgment, Hong appears to play an active role in the instant business entity, such as managing its business registration certificate and its bank account, and reporting of value-added tax, and determining and receiving the heavy export price. However, as seen earlier, it is reasonable to view that the Plaintiff was actually operating the instant business entity as well as its actual operation, in light of the fact that the Plaintiff invested in, and participated in, the instant business and received profits from, the instant business, as seen earlier.

4) With respect to the illegal refund of value-added tax on the instant company, the mere fact that Hong is recognized as having a competitive relation with the Plaintiff in light of their role or participation does not deny the Plaintiff’s responsibility. Moreover, the fact that Hong was punished more severe than the Plaintiff’s dynamics, etc., including the Plaintiff, is the fact that the degree of participation in the crime was significant, and that Hong was recognized as having borrowed the name of the business entity, such as the instant business entity, including the instant business entity, and the fact that it was recognized as having borrowed the name of the business entity, such as the instant business entity, in relation to the instant business entity. Therefore, it cannot be deemed that the Plaintiff was not an actual business entity of the instant company solely on the ground that Hong was punished in relation to the instant business entity, or that the Plaintiff was punished for minor punishment about this case’s publicity.

5) Even if not bound by the fact-finding in a criminal trial in the administrative trial, the facts established as the reason for the criminal judgment that became final and conclusive on the same factual basis are significant evidence. Thus, barring any special circumstance where it is difficult to adopt the fact-finding in the criminal trial in light of other evidence submitted in the administrative trial, the facts opposed to the fact-finding in the criminal trial cannot be recognized (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012). In the instant criminal trial, the Plaintiff was found to have been aware of the fact-finding in the instant criminal trial under the premise that the Plaintiff directly operated the instant business from March 17, 2014 to January 31, 2015, based on the fact that the Plaintiff was unlawfully granted value-added tax equivalent to KRW 720,936,330, total purchase price for used cars during the instant period without submitting any other evidence that can be seen otherwise.

6. Conclusion

Therefore, the part of the Plaintiff’s claim for revocation of imposition of individual income tax listed in [Attachment 1] 31 and 32 among the lawsuits against Defendant 1 △△ District Tax Office is unlawful, and thus, it is dismissed. The remainder of the claim against Defendant 2 and the claim against Defendant 2 is dismissed as it is without merit. It is so decided as per Disposition.