Whether the plaintiff constitutes joint business operators

There is no evidence that the plaintiff agreed to conduct a joint business in advance, and it does not meet the formal requirements, such as business registration and report of global income tax, and in substance, it is only a business by inserting the labor force into a family, and it is reasonable to regard it as an individual business operator as an individual business operator.

Article 43 of the Income Tax Act (Special Cases concerning Calculation of Joint Business Income)

2018Guhap6035 Global Income and Revocation of Disposition

AA

BB Director of the Tax Office

September 13, 2018

November 1, 2018

1. Of the instant lawsuit, each of the instant disposition revocation claims exceeding KRW 94,681,734, global income tax for the year 201, KRW 109,749,295, global income tax for the year 2012, KRW 114,340,52, global income tax for the year 2013, KRW 80,694,945, global income tax for the year 2014, and KRW 92,431,025, global income tax for the year 2015 (including additional tax) shall be dismissed.

2. All remaining claims of the Plaintiff are dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposing global income tax of 100,917,370 won for the year 201, global income tax of 2011, global income tax of 139,626,570 won for the year 2012, global income tax of 123,463,360 won for the year 2013, global income tax of 2014, global income tax of 87,89,590 won for the year 2014, global income tax of 2014, global income tax of 101,197,350 won for the year 2015 (including additional tax) is revoked.

1. Details of the disposition;

A. From June 1, 2011, the Plaintiff: (a) dismissed the Plaintiff from office in Jongno-gu Seoul Metropolitan Government, Jongno-gu 266, Adong******** (hereinafter referred to as the “instant place of business”); (b) closed down February 1, 2016.

B.** The head of a tax office conducted a tax investigation with respect to the Plaintiff and confirmed the omission of the Plaintiff in filing a sales return of KRW 2,978,430,719, total amount of income accrued in year 201 through year 2015, and notified the Defendant of the assessment data. On February 7, 2017, the Defendant issued a revised and notified the Plaintiff of the global income tax of KRW 100,917,370, global income tax of KRW 139,626,570, global income tax of KRW 123,463,360, global income tax of KRW 2013, global income tax of KRW 87,89,590, global income tax of KRW 101,197,350 for year 2015 (including additional tax) (hereinafter referred to as “the first disposition”).

C. The Plaintiff dissatisfied with the initial disposition and filed an objection on May 8, 2017. The Plaintiff partially accepted the objection due to the application of reduction or exemption, etc. of the global income tax for the year 201, 29,877,281 won, global income tax for the year 201, 9,122,810 won, global income tax for the year 2013, 7,204,645 won, global income tax for the year 2014, 8,76,325 won, global income tax for the year 2015 (hereinafter “the global income tax for the year 2017, 94,681,734 won, global income tax for the year 201, 109,749, 295 won, global income tax for the year 2013, 2014, 8, 2054, 205, 2054, 205.

D. The Plaintiff filed an appeal with the Tax Tribunal on the initial disposition, but was dismissed on December 29, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 2 (including paper numbers), the purport of the whole pleadings

2. The assertion and judgment

A. Ex officio determination

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2012Du18282, Dec. 13, 2012).

As the Defendant rendered a decision of rectification to revoke ex officio the respective amount exceeding KRW 94,681,734, global income tax for the year 201 and KRW 109,749,29,295, global income tax for the year 2012, global income tax for the year 2013, global income tax for the year 2013, global income tax for the year 2014, global income tax for the year 2014, global income tax for the year 2014, global income tax for the year 80,694,945, global income tax for the year 2014, global income tax for the year 2015 (including additional tax), the Defendant’s decision of revocation of the initial disposition in excess of the amount of each disposition in the instant case’s disposition as

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

1) The plaintiff's assertion

As the Plaintiff’s husband CCC is a joint business proprietor of the instant business establishment, the Plaintiff is in charge of internal business such as sales management, etc., and CCC is in charge of external business such as customer management, etc., the amount of income of the instant business establishment shall be calculated by joint business establishment. If CCC is not recognized as joint business establishment, at least the minimum wage amount is recognized as the income of CCC, and the Plaintiff should be deducted from the Plaintiff’s income. Thus, each of the instant dispositions, which took place by deeming the entire omitted amount

2) Determination

A) Article 43(1) of the Income Tax Act provides that "a business that operates jointly a business that generates business income and distributes profits and losses to a joint business with respect to the meaning of a joint business." Meanwhile, the burden of proof as to the facts requiring taxation is a taxable person, but if it is found that the facts alleged in light of the empirical rule in the course of a specific lawsuit are proven, unless the other party proves that the facts at issue were not eligible for the application of the empirical rule, it cannot be readily concluded that the pertinent taxation disposition was illegal disposition that did not meet the taxation requirements (see, e.g., Supreme Court Decision 97Nu13894, Jul. 10, 19

B) In full view of the following circumstances recognized by evidence Nos. 1 and 3 through 5 (including various numbers) and the purport of the entire pleadings, the instant workplace is deemed to have been operated solely by the Plaintiff. In operating the instant workplace, it is difficult to view that the Plaintiff and CCC were in a joint business relationship or that the Plaintiff was employed as an employee of CCC, and the Plaintiff’s assertion is without merit.

(1) 2인 이상의 사업자가 공동사업을 하는 경우 사업자등록신청은 공동사업자중 1인을 대표자로 하여 대표자 명의로 신청하여야 한다(부가가치세법 기본통칙8-14-1). 소득세법 제43조 제2항은 거주자 간에 약정된 손익분배비율(약정된 손익분배비율이 없는 경우에는 지분비율)에 의하여 분배되었거나 분배될 소득금액을 공동사업에 대한 소득금액으로 규정하고 있고, 소득세법 시행령 제150조는 공동사업장에 대한 특례를 규정하면서 제6항에서 공동사업자가 과세표준확정신고를 하는 때에는 과세표준 확정신고서와 함께 당해공동사업장에서 발생한 소득과 그 외의 소득을 구분한 계산서를 제출하여야 하며, 이 경우 대표공동사업자는 당해 공동사업장에서 발생한 소득금액과 가산세액 및 원천징수된 세액의 각 공동사업자별 분배명세서를 제출하여야 한다고 규정하고 있다.

Nevertheless, the Plaintiff did not carry out a joint business and prepared and submitted an application for business registration, and the Plaintiff entered into a contract for the lease of the instant workplace attached at the time of application for business registration as a sole contracting party, and the Plaintiff did not meet any of the formal requirements for the joint business, such as filing and paying value-added tax and income tax under

(2) The Plaintiff asserts that CCC participated in the domestic business of this case with the Plaintiff since July 1, 2002 at the instant place of business, with the trade name of “H watch” from the original date, and the Plaintiff and CCC continued to engage in wholesale and retail business, and that it cannot concentrate on the domestic business as a result of seeking the expansion of business to China, etc., and the Plaintiff’s establishment was closed on June 7, 2011 and separately registered the instant place of business. However, unlike the initial idea, the Plaintiff asserted that CCC participated in the domestic business of this case at the instant place of business, since there are many difficulties in securing sales places in China. However, even according to the assertion, the Plaintiff was aware that it was necessary for the Plaintiff to register the business at the instant place of business with a new business with the Plaintiff as a sole business without the intention of joint business from the original point of view, while the Plaintiff and CCC engaged in joint business unlike the initial intent, it cannot find any reasonable grounds for maintaining the registration of the sole name from 2011 to 2016.

(3) There is no other evidence to verify the details of investment between the Plaintiff and CCC, the ratio of income distribution, the flow of funds, etc.

(4) The Plaintiff asserted that the Plaintiff signed the CCC in the approval column of the annual statement of transaction and copy of the tax invoice, etc. recognized in the tax proceeding, and that there was a signature of CCC in the previous trial procedure. The Plaintiff submitted a confirmation letter that the Plaintiff and CCC jointly operated the business at the time, and that the trade name claimed by CCC was HH, and that the place of business was located at the time, and that the account number was printed in the account that the Plaintiff received the price of the goods at the place of business at the time of the instant case, and that the transaction amount related to the instant place of business was deposited in the account in the name of CCC reported by CCC as the business account of HH, and that the household check that the Plaintiff received as the price of goods can be sufficiently recognized as a joint business proprietor in light of the fact that CCC was endorsed by CCC in the household check that the Plaintiff received as the price of goods. However, considering the circumstances examined in paragraphs (1) through (3) above, the Plaintiff and CCC’s business entity’s mutual assistance to the Plaintiff’s previous business entity or its customer’s deposit account in the instant business.

C) Therefore, each of the dispositions in this case rendered by deeming the Plaintiff as a sole proprietor at the instant workplace is lawful.

3. Conclusion

Therefore, the part seeking the revocation of the original disposition in excess of the amount of each disposition of this case revoked ex officio among the lawsuits of this case is unlawful, and all of them are dismissed. The plaintiff's claim seeking the revocation of each disposition of this case is without merit, and it is dismissed in all of them.