Plaintiff (Law Firm Jeong, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

The director of the tax office

June 16, 2017

1. On January 11, 2016, the Defendant confirmed that each disposition of imposition of KRW 92,681,642 on global income tax for the additional payment on global income tax for the year 2010, and KRW 67,69,79 on global income tax for the additional payment on global income tax for the year 2011 is invalid.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

On January 11, 2016, the Defendant confirmed that each disposition of imposition of the global income tax of KRW 36,844,222, additional tax on negligent tax on global income for the year 2010, additional tax on negligent tax on negligent tax on global income for additional tax years 92,681,642, additional tax on negligent tax on negligent tax on global income for the year 2011, and additional tax on negligent tax on negligent tax on negligent tax on global income for additional tax years 67,69,799 is invalid.

1. Details of the disposition;

A. The Nonparty is the actual owner of each dental hospital affiliated with the ○○○○○ Department and the network, and the Plaintiff is the head of △○○○ dental hospital (which was opened on February 19, 201 and closed down on December 201; hereinafter “instant hospital”) who received approximately 20% of the monthly sales and provided labor in accordance with an agreement with the Nonparty.

B. After completing the business registration (business registration number: omitted) of the instant hospital in its own name, the Plaintiff reported and paid to the Defendant the global income tax of KRW 255,759,660 (including penalty tax of KRW 100,207, which is the global income tax of KRW 100,207), which is the global income tax of KRW 260,227,350 (including penalty tax of KRW 36,357, additional tax of KRW 492,381), which is the global income tax of July 2, 2012 (hereinafter collectively referred to as “Plaintiff’s already paid tax”).

C. The Seoul Southern District Public Prosecutor’s Office notified the Seoul Southern District Public Prosecutor’s Office of the investigation results, such as omitting cash sales, using the Nonparty’s disguised business operator. The Seoul District Public Prosecutor’s Office, after conducting a tax investigation on the Nonparty, corrected the amount of income reflecting the omission of sales by each dental hospital affiliated with ○○○○○ and the network as the actual business income of the Nonparty, and then deducted the title business operator’s extra-paid benefits from the Plaintiff, including the Plaintiff, as necessary expenses, and notified the competent tax office

D. Accordingly, on January 11, 2016, the Defendant issued a correction and notification of the Plaintiff’s global income tax amounting to 313,746,970 (including additional tax on negligent tax returns of 36,84,222, additional tax on negligent tax returns of 92,681,642), global income tax amounting to 272,348,870 (including additional tax on negligent tax of 34,108,179, additional tax on negligent tax of 67,69,7999) for the global income tax for the year 2011 (including additional tax on negligent tax of 34,108,179, additional tax on negligent tax of 67,69,7999, respectively) as global income tax for the Plaintiff (hereinafter “Plaintiff’s delinquent tax amount”). Meanwhile, the Defendant denied all business income accrued in 2010 and appropriated the Plaintiff’s tax amount paid to the Nonparty on the ground that the Nonparty was an actual business operator.

E. On April 14, 2016, the Plaintiff appealed to the Tax Tribunal on the grounds that the Plaintiff constitutes a joint business proprietor, not an employee of the instant hospital, and thus, constitutes a joint business proprietor, and thus, the imposition of wage and salary income tax is unfair, and even if it falls under the wage and salary income, it should be partially reduced. However, the Plaintiff was dismissed on September 30, 201

F. Meanwhile, on December 7, 2016, the Plaintiff filed a lawsuit claiming return of unjust enrichment against the national tax refund accrued when the Defendant revoked the return and payment of global income tax on the Plaintiff’s business income (Seoul Central District Court Decision 2016Da5292400).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 6, purport of the whole pleadings

2. Determination on the lawfulness of the instant disposition

A. Summary of the plaintiff's assertion

For the following reasons, the Defendant’s imposition of the Plaintiff’s additional tax on the negligent tax on each global income tax for the year 2010 and the year 2011 is unlawful, and its defect is serious and clear.

① The global income subject to global income tax includes business income and wage and salary income, and even if there are wage and salary income instead of the Plaintiff’s business income, it is merely a different type of income. As long as the Plaintiff reported and paid the global income tax on business income, it cannot be deemed that the Plaintiff made a false return and payment of global income tax.

② The Nonparty, who is an actual business entity, filed a global income tax return on business income through the Plaintiff without withholding the Plaintiff’s labor income tax. There is justifiable reason that the Plaintiff failed to file a global income tax return on the earned income.

③ As long as global income tax on business income was reported and paid in the name of the Plaintiff as the business title, even if the Nonparty, who is the actual business title, paid it or borne the payment of the said amount, the legal effect of the payment can only belong to the Plaintiff, and the Nonparty cannot be deemed to have paid it. Therefore, the Defendant may impose the return and additional tax on the business income that was already reported and paid in the name of the Plaintiff after calculating the comprehensive income tax on the Plaintiff’s labor income, only for the portion that is insufficient to be appropriated as the Plaintiff’s already paid tax amount. In this case, the Plaintiff’s already paid

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the additional tax on negligent tax returns

Additional tax on negligent tax returns is an administrative sanction imposed on a taxpayer who violates the duty to report under the Act without justifiable grounds in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim.

However, according to Articles 70(1), 73(1), and 73(4) of the former Income Tax Act (amended by Act No. 11146, Jan. 1, 2012), in cases where a person liable to withhold income tax from an earned income fails to withhold income tax, a final return on the tax base of global income shall be filed from May 1 to May 31 of the following year in the taxable period even for a resident having only earned income. Therefore, in cases where the non-party fails to withhold the Plaintiff’s earned income, the Plaintiff is liable to file a final return on the tax base of global income tax on the earned income, and it is legitimate to impose additional tax on the Plaintiff who neglected

On the other hand, the Plaintiff’s final return on the global income tax base on business income is not merely an erroneous evaluation of the type of income, but it is merely a report on the global income tax base on business income to be reverted to another taxpayer at the same time by pretending that he/she is a business operator and at the same time as he/she is a business operator, and thus, the tax authority’s act of significantly impeding the Plaintiff’s exercise of taxation right by identifying the Plaintiff’s wage and salary income and realizing the

In addition, the Nonparty’s failure to withhold the Plaintiff’s income tax on the Plaintiff’s earned income, and the Plaintiff’s failure to file a final return of global income tax base on the earned income is merely the Nonparty’s business income and the Plaintiff’s earned income in collusion with the Nonparty, and it is difficult to view that the Plaintiff’s failure to file a final return of global income

Therefore, we cannot accept this part of the plaintiff's assertion.

2) As to the additional payment for arrears

Under Article 51(2) and (3) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201), an additional tax for unfaithful payment is an administrative sanction against a violation of the obligation to pay taxes, deeming that a person liable for tax payment has received financial benefits for the amount unpaid by the due date of tax payment, leading the person liable for tax payment to faithfully pay the amount of tax, as well as for the payment of the amount unpaid by the due date of tax payment. In addition, considering the fact that in the case of erroneous or erroneous payment, Article 51(2) and (3) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201) recognizes the retroactive extinction of tax liability

In addition, even if the actual business operator committed a direct payment under the name of the business title holder, or shared the payment, the legal effect of the payment belongs to the business title holder, who is the other party to the taxation disposition, and it cannot be said that the actual business operator has the effect of paying the tax in the legal relationship between the actual business operator and the tax authority (Supreme Court Decision 2013Da212639 Decided August 27, 2015).

In light of the above legal principles, it is reasonable to see that imposing an additional tax on the plaintiff, when comprehensively considering the following circumstances known by the facts acknowledged earlier and the purport of the entire pleadings, is significant and objective, and thus, it is reasonable to see that such defect is null and void. Therefore, the plaintiff's assertion

① The legal effect of the Plaintiff’s already paid tax amount is only vested in the Plaintiff, and it cannot be viewed otherwise even if the Nonparty, the actual businessman, was either directly paid in the name of the Plaintiff or paid the said amount.

② As long as the tax amount paid by the Plaintiff exceeds the amount of delinquent taxes paid by the Plaintiff, it cannot be deemed that there is a financial profit accrued due to the Plaintiff’s neglect of liability for payment. The Defendant already secured the amount of tax equivalent to the already paid tax amount, and can be appropriated for the amount of delinquent taxes at any time, it is reasonable to deem that the Plaintiff

③ On the other hand, it is unreasonable to impose the Plaintiff’s additional tax on global income tax on the Plaintiff’s earned income, the Nonparty’s exercise of the right to impose tax on the Nonparty’s business income and the realization of a tax claim due to the Plaintiff’s fictitious act, and impose sanctions on the Nonparty by imposing the Nonparty’s additional tax on global income tax and the additional tax on unfaithful due to the Nonparty’s business income.

④ As long as the Defendant revoked the Plaintiff’s tax return and payment, this constitutes a national tax refund and the remainder after appropriating the Plaintiff’s tax amount in arrears should be refunded to the Plaintiff, deeming the Plaintiff’s already paid tax amount as the Nonparty’s already paid tax amount and appropriated it to the Nonparty’s unpaid tax amount pursuant to the general interpretation guidelines of the Framework Act on National Taxes without legal basis. Therefore, the Plaintiff’s already paid tax amount cannot be denied solely on

⑤ Therefore, it is reasonable to view that the Defendant’s imposition of the Plaintiff for an additional payment on the Plaintiff’s delinquent tax amount is objectively apparent in light of the Plaintiff’s disposition on a person without obligation for payment, and the defect in light of the relevant statutes and the intent of

3) Sub-decisions

For the same reason, each disposition taken by the Defendant against the Plaintiff on January 11, 2016 on global income tax of KRW 92,681,642, and KRW 67,69,79 on global income tax of year 2011 is invalid.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-Un (Presiding Judge)