Early High Court Decision 201J 2893 ( December 21, 2011)

Since the period of residence in Korea is one year or more over two taxable periods, the initial taxation disposition is legitimate.

In light of the fact that the period of residence in Korea falls under one year or more over two taxable periods, and since 2004, the Plaintiff has been continuously receiving the benefits while serving as the representative in the domestic company from 204 to ever, and continuously holding the officetels and land in Korea, it is obvious that the Plaintiff is a resident with a domicile in

2012Guhap1179 global income and revocation of disposition

Note AA

Head of the Office of Government

October 9, 2012

November 13, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 000 of the global income tax for the year 2007 against the Plaintiff on February 17, 201 shall be revoked.

1. Details of the disposition;

A. The Plaintiff was Canadian on July 2003, 200, 000 interest income from BB comprehensive Financial Securities Co., Ltd. in 2007, and 000 interest income and dividend income and dividend income from O bank in 2000 (hereinafter referred to as "the financial income of this case") and 000 won working income from CC, etc. in 200, and fulfilled tax liability through year-end settlement for labor income, and did not separately file a final return on global income tax for the financial income of this case.

B. On February 17, 2011, the Defendant, while the Plaintiff, was a resident of Korea, deemed that the Plaintiff did not report and pay the global income tax on the instant financial income, and imposed KRW 000 on the Plaintiff (hereinafter “instant disposition”).

C. On August 9, 201, the Plaintiff filed an objection and filed an appeal with the Tax Tribunal on August 9, 201, but the said appeal was dismissed on December 21 of the same year.

[Grounds for Recognition] The non-contentious facts, Gap evidence 1, and Eul evidence 1, and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case by the defendant should be revoked because of the following reasons.

(1) The Plaintiff cannot be deemed to be a resident who has his domicile in Korea in 2007, since he had immigration in Canada around 2003, and most of the periods in 2007, and the Plaintiff had his domicile in Canada. Therefore, the instant disposition based on the premise that the Plaintiff is a resident under the Income Tax Act is unlawful.

(2) Even if the Plaintiff’s domestic income is recognized as a resident of the Republic of Korea, the Plaintiff is a dual resident at the same time as a resident of Canada, and the Plaintiff paid 15% dividend income out of the instant financial income and 10% interest income to Canada in accordance with the Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income between the Government of the Republic of Korea and the Government of Canada, and the instant disposition for which the Plaintiff did not deduct the income tax paid to

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

(c) Fact of recognition;

(1) The plaintiff has a domicile in Yangju-si 000, and on March 19, 2002, the plaintiff reported the migration abroad, and on July 28, 2003, left Korea for the investors of Canada to cancel the resident registration, and reported the above address on September 15, 2003 as domestic residence.

(2) Since 2004, the details of the entry into and departure from Korea are as follows.

(Omission of Entry and Departure Status)

(3) The Plaintiff’s business details in Korea are as follows.CC is a corporation established by the Plaintiff’s investment of 100%, and the Plaintiff serves as a representative director.

(Omission of Details of Projects)

(4) From 2004 to 2007, the Plaintiff acquired labor income while serving as the representative of a legal entity as follows.

(Contents of Acquisition of Labor Income)

(5) Domestic real estate currently owned by the Plaintiff is as follows.

(Omission of Real Estate Details)

[Reasons for Recognition] The descriptions of evidence Nos. 2 through 5, and the purport of the whole pleading

D. Determination

(1) As to the Plaintiff’s first argument

According to the relevant Acts and subordinate statutes, such as Article 1 (1) 1 of the Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007) and Articles 2 (3) 1 and 4 (3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20516 of Dec. 31, 2007), a resident who has been living in Korea or has been living in Korea for not less than one year is liable to pay income tax, and a resident who has been living in Korea has an occupation ordinarily required to reside in Korea for not less than one year, it shall be deemed that he has a domicile in Korea for not less than one year if he had a domicile in Korea for not less than 2 years, and that the resident has no domicile in Korea for not less than 207 years under the premise that he had been living in Korea for not less than 207 years, and that the plaintiff has been living in Korea for not less than 207 years, and 2004 days and 208 days for not less than 207 days.

(2) As to the second argument of the Plaintiff

Inasmuch as a certain individual constitutes both a domestic resident and a foreign resident under the Income Tax Act, it may be imposed twice on one income if the individual constitutes a person liable for income tax, etc. under the relevant foreign law, and if it is established that the person liable for tax payment constitutes a dual resident, it shall be determined through the conclusion of a tax treaty between countries in order to prevent it, and if it is recognized that the person liable for tax payment constitutes a resident of a country in accordance with the tax treaty between the overlapping countries, the country of residence and its tax rate shall be determined in accordance with the relevant tax treaty, and the taxpayer shall bear the burden of proving that the tax treaty should be applied at the same time as the domestic resident of a foreign country (see Supreme Court Decision 2006Du3964, Dec. 11, 2008). With respect to this case, it is difficult to find that the Plaintiff constituted a resident of Canada during the taxation period of this case, and that the evidence submitted by the Plaintiff constitutes a dual resident of Canada at the same time as the Plaintiff's domestic resident of Canada and there is no evidence to find that the Plaintiff's tax payment obligation at the same time during 207 years.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.