The plaintiff is not a worker under the parent company's instruction.

Inasmuch as it is difficult to regard it as a salary that constitutes a contents of working conditions closely related to the payment of labor, the instant disposition imposing global income tax on the premise that it is an earned income under the Income Tax Act is unlawful.

Article 19 of the Income Tax Act

2013Guhap6726

KimA

Head of Sungnam Tax Office et al.1

May 15, 2014

June 19, 2014

1. On May 1, 201, the head of Sungnam Tax Office revoked the imposition of the global income tax OOO on the Plaintiff.

2. On May 1, 201, the head of Sung-nam-si branch office revoked the imposition of OOO of the local income tax on the Plaintiff.

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

Cheong-gu Office

The same as the order (OO of local income tax recorded in the head of the office shall be recognized as a clerical error of OO members).

1. Details of the disposition;

A. On June 7, 2005, the Plaintiff (the “Plaintiff”) entered into the Business Procurement Agreement (hereinafter “Business Procurement Agreement”) with the OE LAINT (hereinafter “Business Procurement Agreement”) on June 7, 2005, and (b) around July 25, 2005, the Plaintiff received KRW 00 (hereinafter “the instant lump sum payment”) in accordance with the Business Procurement Agreement, and filed a return of the comprehensive income tax for the year 2005 with the other income.

C. The Plaintiff received a total of KRW 000 (hereinafter “the instant profit distribution amount”) from October 4, 2006 to April 23, 2009 on nine occasions pursuant to the said Service Procurement Convention, and reported it as business income for each corresponding year and paid the comprehensive income tax.

D. The Seoul regional tax office conducted a tax investigation with the Plaintiff from June 28, 2010 to July 21, 2010, and notified the Plaintiff on July 29, 2010 that the instant lump-sum payment and profit distribution amount would be subject to additional taxation on global income tax (tax on global income for the year 2005 to 2009) on the ground that the instant lump-sum payment and profit distribution amount constituted earned income.

E. The Plaintiff filed a request for pre-assessment review with the Commissioner of the National Tax Service on August 31, 2010, but the Commissioner of the National Tax Service rejected the Plaintiff’s request on April 20, 201.

F. The Seoul regional tax office notified the Defendants of taxation data. On May 1, 201, the head of Sungnam District Tax Office imposed the Plaintiff the total amount of KRW 000,00,000, the total amount of global income tax and additional tax belonging to the year 2005, the total amount of global income tax and additional tax belonging to the year 2007, the total amount of global income tax and additional tax belonging to the year 2008, the total amount of KRW 00,000, the total amount of global income tax and additional tax belonging to the year 209, the total amount of KRW 66,426,950, the local income tax belonging to the year 2006, KRW 00, the local income tax belonging to the year 2007, KRW 000, the local income tax belonging to the year 2008, and KRW 00,000, the local income tax belonging to the year 209, the local income tax belonging to the year 2000.

G. On July 29, 2011, the Plaintiff appealed and filed a request for review with the Board of Audit and Inspection on July 29, 201. On February 28, 2013, the Board of Audit and Inspection rendered a decision to the effect that: (a) there is a reasonable ground to determine the instant lump-sum payment and the profit distribution amount as an earned income; (b) however, it further

H. After re-auditing the Plaintiff on April 29, 2013, the Seoul Regional Tax Office notified the Plaintiff to the effect that the instant disposition should be maintained against the Plaintiff, and the Plaintiff received the instant disposition on May 2, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 6, 7, 8, 9, Eul evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 2, 4, 2 (including branch numbers), and the purport of the whole pleadings

2. Plaintiff’s assertion and determination as to Defendant Sungnam Tax Office

A. The plaintiff's assertion

(1) On July 8, 199, the Plaintiff entered into an agency agreement with the Canadian State International Limited (hereinafter referred to as the Canadian), and according to the above contract, if the Plaintiff’s aid is designated as the project implementer of the Incheon Bridge Construction Project (hereinafter referred to as the “instant Incheon Bridge Construction Project”) connecting the city of Songdo in Incheon Metropolitan City with the Incheon International Airport, the Plaintiff would pay 2% of the development costs associated with the said project to the Plaintiff.

(2) XX was merged with the OO group, and the Plaintiff’s aid owned 51% equity interest with the OOE, on June 13, 2003, the CC Development Co., Ltd. was designated as the concessionaire of the instant Incheon Educational Construction Project, and entered into a concession agreement with the Republic of Korea.

(3) On June 7, 2005, the Plaintiff entered into a work procurement agreement with the U.S.O. (AIL). Under the above Work Procurement Convention, the Plaintiff changed the content that the U.S.O. Investment Investment Management Ld. (AIL) would pay 180,000 U.S. dollars first to the Plaintiff, and transfer shares in accordance with the share transfer agreement, and the U.S. Investment Management Ld. (AIL) would pay 10% of the profits earned by performing its duties in Korea.

(4) The Plaintiff received the instant lump sum payment on July 25, 2005 in accordance with the Work Procurement Convention, and received the instant amount distribution from October 4, 2006 to April 23, 2009 on nine occasions.

(5) Therefore, the Plaintiff provided service to the O group pursuant to the agent contract and the Work Procurement Convention, and received the instant lump-sum payment and the distribution of profits in return, and did not receive the instant lump-sum payment and the distribution of profits in return for the provision of work under the O and the payment of the instant lump-sum payment and the distribution of profits. Thus, the instant disposition of imposition of global income tax by the head of Sung-nam Tax Office on the premise that the instant lump-sum payment and the distribution of profits are earned income is unlawful.

B. Relevant statutes

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) On July 8, 1999, the Plaintiff entered into an agent agreement with XX, and the main contents are as follows.

(2) On December 23, 1999, at a joint venture with Incheon Metropolitan City,CC Development Co., Ltd. (hereinafter referred to as "Seocheon-gu Co., Ltd. (hereinafter referred to as "Seocheon-gu Co., Ltd.") was established (the shares of XX are 51%, and the shares of Incheon Metropolitan City are 49%).

(3) On January 1, 200, the Plaintiff entered into a consulting agreement withCC Development Co., Ltd. on a monthly remuneration of USD 000. The said consulting agreement includes provisions on the business instruction ofCC Development Co., Ltd., and the Plaintiff’s restriction on competition.

"(4)" was merged with the O group and its trade name was changed to "OO P.C. on May 15, 2000." Meanwhile, around October 19, 2000, the Plaintiff and the Plaintiff entered into a consulting contract with "the Plaintiff shall represent theO in accordance with the O's instructions for the next twenty-four months, and in return, receive US$ 000 for the payment of the monthly US dollars." This agreement includes a provision that "the contract between the Plaintiff and the P.C. on July 8, 199 is valid regardless of the contract as seen above."

(6) On April 8, 2003, U.O.C. transferred the shares ofCC Development Co., Ltd. to OTR (AI).

"(7) On June 13, 2003,CC Development Co., Ltd. entered into a concession agreement with the Plaintiff on the same day designated as the concessionaire of the instant Incheon Party Construction Project, and entered into a service agreement with the Plaintiff on the same day to carry out the activities set out in the said concession agreement, and entered into an employment agreement with the Plaintiff on November 14, 2003, with the Plaintiff on June 13, 2003, and the Plaintiff provided services necessary to carry out the activities set forth in the said concession agreement with the Plaintiff on June 3, 2005.

"(9) On the other hand, on June 7, 2005, the OTRAL entered into a work procurement agreement with the plaintiff ("KIM & SAINT" as of June 7, 2005, and the main contents of the agreement are as follows: [The grounds for recognition], the fact that there is no dispute, Gap's 6, 10, 11, 12, 13, 15, 16, 17, 18, 24, 32, 33, Eul's 3 (including the number of pages), and the purport of the entire pleadings.

D. Determination

(1) In light of the above agency contract, the plaintiff entered into an agent contract with XX on July 8, 199, and according to the plaintiff's aid to enter into the contract with the plaintiff's agreement with respect to the business of the Incheon bridge construction, the plaintiff's 2% out of the development costs of the project in question shall be paid in advance and the remaining one% shall be paid in 0.25% over four years. The rest of the contract shall be paid in 0.25% through a merger with the OO group, the OO group succeeds to the contractual status under the contract with the OO group's agent contract, the OOve Management Ld. (AIL), an affiliated company of the OO group, was designated as the project implementer of the Incheon bridge construction project in question and entered into the contract with the plaintiff on June 13, 2003. According to the above facts, the plaintiff's obligation to pay the above 20% of the construction costs in question to the plaintiff's 30% of the construction costs of the construction project in question.

(2) According to the Work Procurement Convention concluded on June 7, 2005 between the OOL and the Plaintiff, an affiliated company of the OO group, paid USD 10 million to the Plaintiff at the time of the completion of the loan, and transfer shares pursuant to the share transfer agreement, and pay 10% remuneration equivalent to 10% of the profit derived from all the profits accrued in the course of performing their duties in the Republic of Korea from the end of the fiscal year during which the profit is realized. Meanwhile, the OOO group paid the Plaintiff the instant lump sum payment on June 7, 2005 to the Plaintiff on June 7, 2005 and the Plaintiff on April 23, 2009, according to the agreement between the Plaintiff and the Plaintiff on June 20, 2000, the amount of the 2000 UO group’s payment of the profit under the construction agreement between the Plaintiff and the Plaintiff and the Plaintiff on April 29, 2008, the amount of the 20000 OO’s payment of the profit under the agreement between the Plaintiff and the Plaintiff.2.

(3) Meanwhile, in around 199, the Defendant entered into a consulting agreement with the CC Development Co., Ltd. holding 51% of the shares. There are provisions stipulating the right to direct duties of the CC Development Co., Ltd. and regulations restricting competition. On June 13, 2003, the Plaintiff entered into an employment contract with the CC Development Co., Ltd., and on June 7, 2005, entered into an employment contract with the OTRD Co., Ltd. (AI), and on June 7, 2005, entered into an employment contract with the 100% subsidiary of the OTRD Co., Ltd. (AI), and on the same day, the OTRD Co., Ltd. entered into an employment contract with the 10% subsidiary of the 100% shares and received the instant lump-sum payment and profit distribution, and accordingly, the Plaintiff asserted from around 3000 and 1930 U.S.’s employment contract and profit distribution.

The determination of whether a worker is a worker under the Labor Standards Act is a contract for employment or a contract for work, and the determination of whether a worker has a subordinate relationship with an employer for the purpose of wages at a business or workplace is based on whether the employer provided work. Whether a subordinate relationship is determined by the employer and the employer is subject to the rules of employment or employment regulations, etc., and whether the employer is subject to considerable direction and supervision in the course of performing work, whether the employer is bound by the employer, whether the employer is able to operate his/her business on his/her own account, such as possessing equipment, raw materials, work tools, etc. or having a third party employ and act on behalf of the employer, whether the employer has a risk, such as the creation of profit and loss through the provision of labor, etc., nature of the work itself, whether the basic wage or fixed wage was determined, whether the wage was determined, whether the relationship with the provision of labor, the existence and degree of the exclusive affiliation to the employer, and whether the social security system is recognized as an employee, etc. (see Supreme Court Decision 2012Da610601, Dec. 2012.

Therefore, the determination of whether a taxpayer constitutes an earned income should be based on ordinary social norms by taking into account the details of the relevant taxpayer’s vocational activities, the period, frequency, mode, other party, etc. of the relevant contract, rather than based on the form, name, and appearance of the contract entered into between the parties (see Supreme Court Decision 2007Du4506, Jun. 12, 2008).

However, wage and salary income includes not only the economic benefits of a body in the nature of the provision of labor and a quid pro quo relationship, regardless of the form or title of payment, but also the benefits that constitute the contents of the working conditions closely related on the premise of labor, in addition to the direct remuneration for labor (see, e.g., Supreme Court Decisions 2007Du1934, Oct. 25, 2007; 2006Du4967, Dec. 24, 2008).

(2) The Plaintiff entered into an employment consulting agreement with the Plaintiff on July 8, 199 to 200, and the Plaintiff entered into an employment consulting agreement with the Plaintiff on January 1, 201 with the 20-party 2, and the 3rd party 6th party 7th party : (a) the Plaintiff entered into an employment consulting agreement with the Plaintiff on July 19, 200; (b) the 3rd party 2nd party 6th party 2nd party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 6th party 200. party 3rd party.

(4) Therefore, the instant lump-sum payment and profit distribution amount, on June 13, 2003, prior to the Plaintiff’s employment in the OO group, was partially reduced under the Business Procurement Convention on June 7, 2005, because the remuneration already incurred upon meeting the requirements set forth in the agent contract, was partially reduced under the Business Procurement Agreement on June 7, 2005. Thus, it is difficult to view it as a salary that constitutes a closely related working condition under the premise of the payment for labor provision or the labor work, and thus, the instant disposition imposing global income tax on the premise that it is an earned income under the Income Tax

3. The plaintiff's assertion and judgment as to the head of the branch office in Seongbuk-si, Sungnam-si

The Plaintiff asserts to the effect that the imposition of the instant global income tax by the head of Sungnam Tax Office is unlawful, and thus, the imposition of the instant local income tax is unlawful.

The head of Seongbuk-gu District Tax Office imposed the local income tax of this case on the Plaintiff, but Article 93(5) of the former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014; hereinafter referred to as the "former Local Tax Act") provides that "where the head of the tax office receives a return of income tax or imposes a notice of imposition pursuant to Article 93(1) and (2), the head of the local government shall be deemed to have received a report or imposed a notice of imposition, and thus, the head of the local government shall be deemed to have imposed the local income tax of this case on the Plaintiff."

2) However, the local income tax is imposed on a person liable to pay income tax (see Article 85(1) and (3) and Article 86(1) of the former Local Tax Act) on the portion of income (see Article 85(1) of the former Local Tax Act). As seen earlier, the imposition disposition of the local income tax of this case is unlawful as a matter of course.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is with merit, and it is so decided as per Disposition with the assent of all.