Cho High Court Decision 2008Da2755 ( October 31, 2008)

Actual operator of a gas station

According to relevant evidence, the entrepreneur operating gas stations is confirmed to be the plaintiff.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax of KRW 15,950,840 on January 14, 2008 against the Plaintiff on January 14, 2008 is revoked.

1. Details of the instant disposition

The following facts are recognized in each of the statements in Gap evidence 1, Eul evidence 1, Eul 2, and 3, or the whole purport of the arguments.

A. On May 2007, the head of the Geumcheon-gu Tax Office: (a) as a result of the investigation intoCC petroleum located in Busan-gu, Busan-do, on May 1, 2007, the head of the tax office deemed that the Plaintiff actually operated the gas station in this case, and notified the Defendant of the data for taxation, despite the fact that the name of the business operator was the △△△△△△△△, located in the first half of the year 2005 for the taxable period of the value-added tax for the first half of the year 2005 (i.e., January 1, 2005; - June 27, 2005) ***** the gas station (hereinafter referred to as the “instant gas station”).

B. The Defendant decided and revoked the value-added tax for the first period of January 2005, which was initially imposed on △△△△△△ based on the foregoing taxation data, and notified the Plaintiff of January 14, 2008 of the rectification of the value-added tax amounting to KRW 150,950,840.

C. On August 1, 2008, the Plaintiff appealed to the Tax Tribunal on April 1, 2008, but was dismissed on October 31, 2008.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The gist of the plaintiff's assertion is that the plaintiff supplied oil to the gas station of this case as the representative director of Cheonggu Energy Co., Ltd. operating the oil wholesale business. Since he paid the oil price from October 2004 to the gas station of this case, he supplied the oil to the gas station of this case in the form of supply 1 unit after payment a day after he paid the oil price. However, as the oil station of this case becomes the object of auction and the date of sale is fixed, it is only the fact that the oil supply for the gas station of this case has been suspended, and even though there was no fact that the gas station of this case was actually operated, the disposition of this case should be revoked because it is unlawful since the disposition of this case should be deemed otherwise.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are recognized by the parties to each testimony of Gap's evidence 1, 2, and Eul's evidence 2 to 6, witness ChoV, and leB by integrating the overall purport of the arguments.

(1) The KimE originally owned the gas station in this case. The gas station in this case was registered in the name of the gas station in the name of the △△△△△ on May 25, 2003 and operated the gas station in this case until September 2004 after registered the business in the name of the △△△△△△△ on May 25, 2003.

(2) In order to secure the claim against KimE, ChoA created a right to collateral security on the gas station of this case from KimE. On the other hand, ChoA agreed to directly operate the gas station of this case in the event KimE does not perform its obligation.

(3) As KimE did not perform its obligation, it operated the instant gas station from September 15, 2004 to December 20, 2004 in accordance with the agreement under the foregoing paragraph (2), and at the time, it continued to employ a leB who reported a general business on oil supply, employee management, etc. of the gas station.

(4) Meanwhile, on September 2, 2004, the Plaintiff was the seat of ChoV, which is the omission of the above ChoA, and supplied oil to the gas station, such as the oil station in this case, by establishing the △ Energy Co., Ltd. operating the oil wholesale business (hereinafter referred to as the "Mari Energy"). Around that time, the Plaintiff had a claim for KRW 140 million including the oil payment claim against Cho and ChoV (hereinafter referred to as the "Ma, etc.").

(5) Around December 204, 2004, he applied for voluntary auction of the gas station of this case based on the right to collateral security under the above (2).

(6) The Plaintiff had operated the instant gas station from January 2005 to March 25, 2005, with the formula that the Plaintiff directly operated the gas station in this case, thereby raising its collateral value, thereby securing its own property. Meanwhile, with the operating profit of the gas station, the Plaintiff agreed to be reimbursed for the obligations of ChoA et al. with the operating profit of the gas station. The Plaintiff operated the gas station in this case from January 2005 to March 25, 2005.

(7) At the time of the operation of the gas station of this case under Paragraph (6) above, ChoB was not involved in the operation of the gas station of this case, including the settlement of accounts of sales revenue of the gas station of this case, and the leB, who retired from office due to the suspension of operation of the gas station of this case, was in charge of the general administration of the gas station of this case again according to the Plaintiff’s operation of the gas station of this case, and the payment of the leB was made by the

(8) On June 27, 2005, the gas station of this case closed its business.

D. Determination

(1) Article 14(1) of the Framework Act on National Taxes provides for the principle of substantial taxation that when the ownership of income, profit, property, act, or transaction subject to taxation is merely nominal, and there is a separate person to whom such income, profit, act, or transaction belongs, the person to whom such income, etc.

(2) In light of the facts of recognition of Paragraph (c) above and the principle of substantial taxation, the entrepreneur operating the gas station of this case from January 2005 to March 25, 2005, which was the taxable period of value-added tax for the first term of the year 2005, can be seen as the Plaintiff. Since each of the evidence No. 3-1 to 11, A4, 5, and 6 cannot be viewed differently, it is reasonable to view that the Plaintiff supplied goods independently for business purposes in the gas station of this case during the above period and constitutes a taxpayer under the Value-Added Tax Act.

(3) Therefore, the instant disposition is lawful, and the Plaintiff’s assertion disputing this is not acceptable.

3. Conclusion

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