Suwon District Court 201Guhap3963, 2012 04.17

Early High Court Decision 2011Du1146 (No. 29, 2011)

After taxation, it cannot be viewed as a violation of the good faith principle on the ground that it is not an actual business operator.

The mere fact that the Plaintiff asserted that the instant disposition was not an actual business operator after the Plaintiff’s transfer of business name does not constitute an act of good faith to the extent of violating the principle of good faith, and even if the Defendant imposed tax on the Plaintiff’s act in trust, it cannot be said that it is worth protecting the Plaintiff’s act.

Article 15 of the Framework Act on National Taxes

2012Nu12763 Revocation of Disposition of Imposition of Value-Added Tax

XX

Head of the High Tax Office

District Court Decision 2011Guhap3963 Decided April 17, 2012

August 31, 2012

October 12, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Pursuant to the claim and the purport of appeal

1. Purport of claim

The Defendant’s imposition of value-added tax of KRW 000 on December 1, 2010 against the Plaintiff on December 1, 201 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons for this decision are as follows: Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act are as follows:

2. The addition;

A. The defendant's assertion

The plaintiff argued that only the name of the business operator was lent by the husband's request of KimA, the husband of his husband's husband, and that it is not the actual business owner of the workplace of this case. However, by delegating KimA with all rights and obligations on the application and receipt of civil petition documents, the plaintiff could sufficiently expect that KimA will report the value-added tax and submit related tax data in the name of the plaintiff, etc., so it can be seen that KimA confirmed the act of reporting to the tax authorities, etc., and the amount equivalent to the disposition of this case was impossible due to the act of the plaintiff's name lending, which led to the National Treasury loss, and KimA committed fraud in relation to the business of the workplace of this case. In light of the fact that KimA had a name lending business outside of the workplace of this case, and that the act of the plaintiff's name lending is extremely high enough to continue such act, the plaintiff's act of the name lending shall not be deemed to violate the principle of trust and good faith or the principle of no permission.

B. Determination

1) The application of the principle of trust and good faith to the tax law that strongly acts on the basis of the principle of legality under the principle of no taxation without law is only applicable to cases where it is deemed necessary to protect specific trust even if the person liable for tax payment has made a sacrifice of the principle of trust and good faith. In particular, in cases where the person liable for tax payment commits an act against his past speech and behavior against the taxation authority, the person liable for tax payment shall be subject to a disadvantageous disposition, such as deprivation of benefits such as tax reduction and exemption under tax law, various additional taxes, and separate rules under tax law, etc., the tax authority shall have the superior status to the taxpayer, and the burden of proving the legality of the disposition of tax is against the tax authority in principle, the application of the principle of trust and good faith to the taxpayer shall be extremely limited, and shall not be expanded and interpreted, and there is an objectively contradictory behavior in order to apply the principle of trust and good faith to the taxpayer, and the behavior has the value to be protected by the tax authority arising therefrom (see, e.g., Supreme Court Decision 2007Du2087).

2) We examine the instant case based on the aforementioned legal principles.

As can be seen through the above facts, the Plaintiff only lent the business name to KimA and did not participate in the business of the instant workplace, and otherwise, in light of the fact that there is no particular evidence to acknowledge that the Plaintiff committed any act related to the business after lending the business name, the Plaintiff cannot be deemed to have committed a serious act of good faith to the extent of violating the principle of good faith merely because the Plaintiff asserted that the instant disposition after lending the business name was not an actual business operator (the Plaintiff’s act constitutes a serious act of good faith, and the Defendant’s act constitutes an act of good faith, and it cannot be deemed that all of the above circumstances cited by the Plaintiff’s grounds are related to KimA, and the Plaintiff’s act constitutes a serious act of good faith to the extent of violating the principle of good faith). Even if the Defendant trusted and taxed the Plaintiff’s act as above, it cannot be deemed as a trust worthy of protection.

Therefore, the defendant's above assertion cannot be accepted.

3. Conclusion

If so, the plaintiff's claim of this case should be accepted for the reasons, and the judgment of the court of first instance is justified with this conclusion, and the defendant's appeal is dismissed as it is without merit.