Cho High Court Decision 2008Du2775 ( November 28, 2008)

An actual business operator who operates clothing miscellaneous points;

It is judged that it lends the name of the business operator to the bad credit relationship of the reference.

The contents of the decision shall be the same as attached.

1. On May 13, 2008, the Defendant revoked the imposition disposition of KRW 20,004,170 on global income tax for the year 2002 against the Plaintiff.

2. The litigation costs shall be borne by the defendant.

Paragraph (1) shall apply.

1. Circumstances of the disposition;

A. The plaintiff: the business registration is made from September 24, 1998 to July 21, 2005 as the representative who operates the clothing and miscellaneous retail business on the fourth floor of ○○○○-dong 970 ○○, ○○-dong, 1998, to ○○-si from July 21, 2005.

B. The defendant's taxation disposition

(1) △△ Director’s notice of taxation data

The fact that data merchants issued a tax invoice of KRW 35,278,000 in total (hereinafter referred to as the "tax invoice of this case") to the 30th day from January 1, 2002 to June 30, 202 by the data merchants without real transactions.

(2) Defendant’s correction and notification of global income tax (e.g., May 13, 2008; hereinafter the instant disposition)

Correction and Notice of global income tax amounting to 20,004,170 won (the above 35,278,000 won not to be included in necessary expenses)

[Recognition] Facts without dispute, Gap evidence 2, 7, Eul evidence 1-1, 2, 2, and 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The actual business operator at the time of the commencement of the auction is the fatherB of the Plaintiff, and the Plaintiff only lent its business registration name to the Ansan, and the instant disposition is in violation of the substance over form principle.

(2) Since the real purchase of goods by the transaction partner and the issuance of the instant tax invoice is granted, the amount equivalent to the value of the supply should be included in the necessary expenses. In addition, it is against the good faith principle to impose taxes late on the basis of five years or elapsed.

(b) Fact of recognition;

(1) The Plaintiff’s father AB had been engaged in the manufacture and sale of clothing from around 1981, and had been engaged in a large amount of debt around 197.

(2) On September 24, 1998, AB opened a business by leasing the fourth floor of the building in the Dolsan-si in the instant case, and the child-to-be retail chain was a person with bad credit standing at the time, so the business registration was made in the name of the plaintiff, who is his father.

(3) AB was in charge of all business activities, such as the management of funds for the employment of sales employees, and the child uniform wholesalers, the person in charge of business management and the person in charge of the business management of YY YU, was aware of the operator in charge of the business in the place of the

(4) 원고는 1998. 3.경부터 2001. 2. 9.까지 ☆☆대학 □□과에 다녔고, 2000. 12. 1. ■■빌 주식회사에 취직하여 2006. 7. 13.까지 ♤♤점에서 근무 하였다. 원고가 ◇◇◇산에 출근하거나 ◇◇◇산 영업에 관여한 일은 전혀 없다.

[Ground of recognition] Facts without dispute, Gap evidence 3 through 5, evidence 6-1 to 4, evidence 10-1, evidence 11-1, and the purport of the whole pleadings

C. Determination

According to the principle of substantial taxation, the determination of a taxpayer should be based on substance, not external appearance. Thus, if the ownership of the income, profit, property, act or transaction subject to taxation is merely nominal, and there is another person to whom it actually belongs, such person shall be deemed a taxpayer.

According to the above fact of recognition, the plaintiff is merely a person who lends the name of the business operator in the place of the business in which the place of the auction is held, and it is reasonable to view that the person who actually belongs to the income, profit, property, act or transaction related to the place of the auction.

Therefore, the instant disposition based on the premise that the obligor of global income tax is the Plaintiff is unlawful without examining the remainder of the Plaintiff’s assertion.

3. Conclusion

The plaintiff's claim is reasonable and acceptable.