Seoul High Court Decision 201Da2335

If there is another person to whom it belongs, the person to whom it belongs shall be the person to whom it belongs and be imposed.

If the plaintiff has proved a certain portion of the fact that there is another person to whom it actually belongs, the tax authority shall prove that the substance of the transaction belongs to the nominal person, and if there is another person to whom it actually belongs, the person to whom it actually belongs shall be the

Article 14 of the Framework Act on National Taxes

2014Guhap2707 Disposition to revoke the imposition of value-added tax

AA

○ Head of tax office

October 30, 2015

December 4, 2015

1. The Defendant’s disposition of correction and notification of value-added tax of KRW 00,000,000 (including additional tax of KRW 0,000,000) for the Plaintiff on October 00, 200 shall be revoked.

2. The costs of lawsuit are assessed against the defendant

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

가. 원고는 '○○○○'라는 상호로 기계부품 제조업을 영위하는 사람으로서, 0000. 0. 00. □□□□(대표자 BBB)과 사이에 납품대금 000,000,000원(부가가치세 별도)의 ㅇㅇㅇ선반머신을 공급하기로 하는 내용의 물품매매계약서(이하 '이 사건 매매계약서'라 한다)를 작성하고, 0000. 0. 00. □□□□로부터 000,000,000원(이하 '이 사건 쟁점금액'이라 한다)을 송금받았으나 이를 매출금액으로 신고하지 아니하였다.

B. On October 00, 2000, the Defendant issued a correction and notification of KRW 00,000,000 (including additional tax of KRW 0,000,000) for the second period of value-added tax in 2012 on the ground of the omission of sales of the key amount of the instant case to the Plaintiff (hereinafter “instant disposition”).

C. The plaintiff appealed and filed an appeal with the Tax Tribunal, but was dismissed on October 00, 00.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff permitted CCC to lend the name of ○○○○ operated by the Plaintiff on condition that the Plaintiff has transacted each time upon request by CCC, which is engaged in the same industry. Upon request by CCC to sell machinery and make a transaction under the name of ○○○○○○, the Plaintiff allowed CCC to confirm the details of the transaction, and paid taxes, such as value-added tax, from CCC.

However, the sales contract of this case drawn up between the Plaintiff and △△ was prepared by CCC at will without the Plaintiff’s consent or permission, and the Plaintiff was not aware of the above contract prior to the disposition of this case. On October 00, 000, when deposit of KRW 000,000 from CCC to the Plaintiff’s passbook, the Plaintiff merely did so upon request from the Plaintiff to transfer it to the account under his own name. It is irrelevant to the above transaction.

(b) Fact of recognition;

1) When CCC is unable to operate a company under its own name on the grounds of tax delinquency, etc., it is possible for CCC to engage in a mechanical sales business, etc., and it continued to engage in the same business by borrowing only the Plaintiff’s name whenever the transaction occurred. If CCC is able to do so, the Plaintiff was engaged in the installation and repair of machinery, etc. and then traded in a way that the CCC received settlement of personnel expenses and relevant taxes from CCC.

2) CCC은 0000. 0. 00. □□□□로부터 ㅇㅇㅇ선반머신에 관한 납품계약을 수주(이하 '이 사건 거래'라 한다)하고 원고 명의를 사용하여 이 사건 매매계약서를 작성하였다.

3) Pursuant to the above contract on October 0, 000, △△△ transferred KRW 00,000,000 to the Plaintiff’s account under the name of the Plaintiff. The Plaintiff transferred this to the account in the name of the wife of the CCC by the following day according to the CCC’s instruction.

4) 이후 CCC은 이 사건 거래를 규모가 영세한 ○○○○에서 진행하는 데에 무리가 있다고 판단하고 위 거래를 주식회사 ◎◎◎◎(이하 '◎◎◎◎'라 한다)로 이관하여 진행하기로 하여, 2013. 1. 28. 원고, □□□□ 및 주식회사 ◎◎◎◎의 3자간에 물품매매계약서를 새로 작성하였다.

5) Meanwhile, around October 000, the Plaintiff filed a criminal complaint against CCC on the grounds that “CCC abused the name of the Plaintiff and forged the instant sales contract by stealing the Plaintiff.” However, on October 00, 000, the Plaintiff was subject to a disposition not to have been suspected of suspicion (Evidence of Evidence) and the appeal against it on October 0, 00 was dismissed.

C. Determination

Article 14 (1) of the Framework Act on National Taxes declares the principle of substantial taxation by stating 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 the subject of taxation such as income, profit, property, act or transaction, etc. different from the nominal owner, the nominal owner should be the person who actually controls and manages the subject of taxation in accordance with the substance over form and appearance principle instead of the nominal owner as the person liable for tax payment. Furthermore, whether such a case is applicable should be determined by comprehensively taking into account 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) the location of independent management and disposition authority over the subject of taxation. Meanwhile, in principle, the tax authority bears the burden of proving the existence and tax base of the subject of taxation, unless there are special circumstances, such as a separate provision under which the burden of proof is changed, even in cases where the tax authority contests that the nominal owner of business is the actual business owner; (d) as long as the ownership and substance of the transaction are deemed the person subject to taxation, it is necessary for the person who is subject to taxation to assert and prove that the need to prove.

그런데 위 인정사실에 의하면, 원고와 CCC은 이익을 분배하는 동업관계가 아니라, CCC이 원고에게 하청을 주면 원고가 작업을 하는 관계라고 봄이 타당한데, 이 사건 거래의 경우에도 그 실제 계약체결자 및 납품대금의 수령자, 납품으로 인한 수익의 귀속자, ◎◎◎◎와 새로운 계약체결 경위 등으로 보아 원고는 단지 CCC에게 사업자 명의만을 빌려주었을 뿐이고, CCC이 위 거래 및 수익 등을 실질적으로 지배・관리한 것이므로 거래의 귀속 명의와 실질이 다르다는 점은 원고가 충분히 증명하였다고 볼 수 있다. 그렇다면 거래의 실질이 명의자인 원고에게 귀속되었다는 점에 관하여 피고가 증명하여야 할 것이나 피고가 제출한 증거만으로는 이 사건 거래의 실질이 원고에게 귀속된다고 인정하기에 부족하고 달리 이를 인정할 증거가 없다.

Therefore, the instant disposition based on the premise that the instant transaction actually reverts to the Plaintiff is unlawful as it violates the principle of substantial taxation.

3. Conclusion

If so, the plaintiff's claim is justified.