Seoul Administrative Court 2012Guhap42946, 27 September 2013)

income due to a joint project shall be calculated in accordance with the income amount to be distributed;

Income arising from a joint business shall be calculated according to the income amount to be distributed or equity. Since the partnership relationship between the plaintiff and the intervenor shall be deemed to have been terminated from July 2007 to both parties' intent, each taxation disposition deemed to be a joint business proprietor after the joint business is unlawful.

2013Nu3065 Revocation of Disposition of Imposition of Value-Added Tax, etc.

Section AA

BB Head of tax office et al.

Seoul Administrative Court Decision 2012Guhap42946 decided September 27, 2013

June 11, 2014

July 16, 2014

1. All appeals filed by the Plaintiff and the Defendants are dismissed.

2. Of the appeal costs, the part arising between the Plaintiff and the Defendants shall be borne individually by each party, and the part arising from the participation in the Defendant joining the Defendant is borne.

1. Purport of claim

The imposition of the value-added tax on January 12, 2012 by the head of the defendant BB tax office on the plaintiff on January 12, 2012, of the value-added tax (including the additional tax), OOOOO(including the additional tax), the value-added tax on January 2008, 208, OOOO(including the additional tax), the value-added tax on January 2009, OOO(including the additional tax), the value-added tax on February 2009, OOO(including the additional tax), the value-added tax on January 2010, 200, the imposition of the value-added tax on OOO(including the additional tax), the global income tax on global income (including the additional tax on global income) on the plaintiff on March 1, 2012, and the imposition of the global income tax on global income (including the additional tax on global income tax on global income) on the global income of 2006, 2000O(including the additional tax on global income tax on global income (including 200) tax on global income).

2. Purport of appeal

A. Plaintiff: The part against the Plaintiff in the judgment of the first instance is revoked. Each of the imposition of OOO(including additional duties) on the Plaintiff on January 12, 2012 by Defendant BB head of the tax office on February 2006, the imposition of OO(including additional duties) on the Plaintiff on January 12, 2007, the imposition of OOO(including additional duties), the imposition of the global income tax on the Plaintiff on March 1, 2006 by DefendantCC head of the tax office on March 1, 2012, and the imposition of OO(including additional duties) on the global income tax on the Plaintiff on March 1, 2012, shall be revoked.

B. The Defendants: The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the above revoked part is dismissed in entirety.

1. Quotation of judgment of the first instance;

The reasoning of this judgment is as follows: (a) the court’s dismissal of the parties’ arguments and addition of the judgment on the parties’ allegations in the following paragraphs is identical to the part corresponding to the reasoning of the judgment of the court of first instance; and (b) thus, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and

〇 9쪽 8째 줄 다음에 "그 후 참가인은 2013. 12. 20. 서울행정법원(2012구합33065)에서 패소 판결을 선고받고, 그즈음 위 판결이 그대로 확정되었다."를 추가한다.

〇14쪽 아래에서 8째 줄 "피고"를 "참가인"으로 고친다.

2. Additional determination

가. 앞서 본 사실관계와 이 법원에 제출된 증거들(이 법원 증인 김〇〇 증언 포함)에 의하여 알 수 있는 다음과 같은 사정, 즉 원고와 참가인이 이 사건 건물을 공유하면서 그 부지를 원고 단독으로 소유한 점, 또한 이 사건 건물에 대한 임대와 관련하여 원고와 참가인 공동으로 권한을 행사한 것으로 볼 수 있는 점, 임대수입의 사용관계, 원고와 참가인의 결혼생활과 그 파탄의 과정, 관련 소송의 진행경과와 내용, 그 밖에 제1심에서 든 여러 사정 등을 종합하여 보면, 원고와 참가인이 공동으로 출자하여 이 사건 건물의 임대사업을 영위하였고, 다만 대외적인 행위는 참가인 1인의 이름으로 활동하도록 하여 그 임대수입을 공동 사용하였다고 봄이 타당하다. 그렇다면 이러한 법률관계는 공동사업을 위한 조합재산을 가지는 민법상 조합이나, 당사자 일방이 상대방의 영업을 위해 출자하는 형태인 상법상 익명조합에 해당하지 아니하고, 내적조합에 해당한다고 할 것이다.

나. 나아가 2인 이상이 공동으로 사업을 경영하여 그 이익을 분배하기로 약정한 경우에는 편의상 외부적으로는 그 중 1인의 이름으로 활동을 하더라도 실질과세원칙과 소득세법 제43조 제2항에 따라 그 공동으로 인한 소득은 각 그 지분 또는 손익분배비율에 의하여 분배되었거나 분배될 소득금액에 따라 각 소득금액을 계산하여야 한다(대법원 1995. 11. 10. 선고 94누8884 판결 등 참조). 한편, 내적조합도 특수한 형태의 조합이므로 민법상 조합에 관한 내부관계 규정이 그대로 적용된다. 내적조합의 조합원은 민법 제716조, 제717조에 따라 조합을 탈퇴할 수 있고, 이때 조합관계는 종료된다.

In the case of this case, as seen earlier, it can be deemed that the Plaintiff and the Intervenor jointly operated a leasing business for the building of this case; the income jointly accrued therefrom is reasonable to calculate the amount of income according to the substance over form principle and Article 43(2) of the Income Tax Act; in the process of the failure of marriage of the Plaintiff and the Intervenor, the Intervenor appears to have used the entire rental income from July 2007 without remitting the leased income to the Plaintiff from July 2007; and in light of various circumstances, the Plaintiff and the Intervenor filed an application for provisional disposition or sent a notification of the rescission of delegation from August 207, 207, by asserting that the instant building was owned by themselves, from around July 2007, the joint business relationship between the Plaintiff and the Intervenor is terminated and thereafter the Intervenor independently operated the said leasing business.

On a different premise, the Plaintiff, the Defendants, and the Intervenor’s assertion cannot be accepted in entirety.

C. Defendant BB Head of the tax office asserts to the effect that the Plaintiff is jointly and severally liable to pay the value-added tax related to the lease business of the instant building regardless of whether the Plaintiff was jointly and severally engaged in rental business.

However, Article 25(1) of the Framework Act on National Taxes provides that the co-owners or co-owners are jointly and severally liable to pay the national taxes, surcharges, and expenses for disposition on default related to the jointly-owned property, joint ventures, or the property belonging to such joint ventures. Article 2(1) of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013); Article 4(1) of the same Act provides that a person who supplies goods or services independently for business purposes, and an importer of goods is liable to pay the value-added tax; Article 4(1) of the same Act provides that the value-added tax shall be reported and paid at each place of business; according to each of the above provisions, an entrepreneur of a joint business is jointly and severally liable to pay the value-added tax (see Supreme Court Decision 99Du2222, Jul. 13, 199). Even if a co-owner of a building is not a joint joint proprietor, it cannot be accepted.

3. Conclusion

Thus, the defendant's appeal is dismissed as it is without merit.