Determination of residents under the Income Tax Act

Whether a person is a resident under the Income Tax Act, i.e., a person who has an address in the Republic of Korea, should be determined by comprehensively taking into account the objective facts of living relationship such as whether a person has a family living together in the Republic of Korea, whether a person has an asset located in the Republic of

2015Guhap906 Global Income and Revocation of Disposition

Is 00

60 92 120 65 days

350 days 350 days 359 days 359

357 350 355 210 days

〃 00 〃 40

2) Even if the Plaintiff is a domestic resident under the former Income Tax Act, the Plaintiff’s personal income of China

A dual resident is also a resident under tax law, and "The Republic of Korea and the Chinese Peopleism" is a double resident.

In light of the standards prescribed by the Agreement between the States for the Avoidance of Double Taxation and the Prevention of Tax Evasion with Respect to Taxes on Income (hereinafter “Korea-China Tax Agreement”), although the Plaintiff is judged as a Chinese resident, the prior disposition of this case is unlawful on a different premise.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts do not conflict between the parties, or evidence A Nos. 1, 2, and 12

The evidence of 1, 2, 19-1 through 3, 23, 24-1, 2, 25-1 through 3, 26-1, 26-2, and 3 through 7 may be recognized by adding up the whole purport of the pleadings.

1) The plaintiff's domicile on the resident registration card is 00 :00 00 :00 :00, and the plaintiff's wife

From February 22, 2010 to February 22, 2010, the address of 00,000 - 000 - 000 - 000 - 0000 - 0000 - from December 30, 2011 to December 30, 201, Seoul 00 - 000 - 0000 - 0000 - 0000 - (hereinafter referred to as "the apartment of this case"), all of the plaintiff's family members have the domicile in Korea.

2) The details of the residence period of the Plaintiff and the Plaintiff’s family members before and after the period of attribution of the instant disposition are as follows.

section of this chapter.

3) During the period to which the instant disposition belongs, 00 shall work as a pharmacist at a domestic pharmacy, and 2011.

For year, 25,200,000 won, 34,476,000 won earned in 2012, and 00,000

The Republic of Korea is about elementary schools.

4) The Plaintiff substantially operates the clothing plant under the trade name of '00' from the Chinese light rain.

The money was transferred to 00 bank accounts of 00-00 bank accounts, and the sum totaling 134,600,000

In 2012, the sum of KRW 144,00,000 was remitted over 31 times.

5) On December 28, 201, the right00 purchased the instant apartment in KRW 575,000,000, and acquisition tax and acquisition tax thereon.

The registration tax was paid, and the apartment house in this case is currently owned.

6) On March 22, 2004, the Plaintiff was registered as a business operator on March 22, 2004, with the trade name, “000” in Korea.

Since the second half of 2009, almost no sales have occurred, but now the above business has been operated.

possession of body.

7) The plaintiff around 2009 building on the land owned by the plaintiff 00 :00 00 -00 -00 - around the land in 2009

New construction and payment of acquisition tax and registration tax have been made. In addition, the plaintiff acquired the franchising car (00%) on April 23, 2007 and owned until now, and the plaintiff also paid the delinquent portion of automobile tax on December 19, 201.

D. Determination as to the assertion that a resident does not constitute a "resident" under the former Income Tax Act

1) Relevant legal principles

According to Article 1-2 (1) of the former Income Tax Act, a resident under the Income Tax Act shall have a domestic address.

A person who has established or has his/her residence for at least one year. The former Enforcement Decree of the Income Tax Act (Presidential Decree No. 2685, Feb. 3,

Article 2(1), (3), and (4) of the former Income Tax Act (amended by Act No. 26067)

Address shall include the existence of any family living together in Korea and any assets located in Korea.

shall be determined on the basis of objective facts and shall normally require a continuous residence in Korea for not less than one year.

person who has an occupation, or who has a family living together in Korea, and has such occupation and property.

In light of the fact that a person is deemed to reside in Korea for not less than one year, he shall have an address in Korea.

person with an occupation which usually requires him/her to reside abroad for not less than one year;

According to this, a resident under the Income Tax Act, i.e., within the country.

Whether a person has an address is a family member living together in Korea, whether a person has a domicile in Korea

Living relationship, such as existence of assets located, occupation, whether a foreign nationality or permanent resident has been obtained;

all objective facts shall be determined in comprehensive consideration.

Furthermore, when determining the identity of an individual, the Income Tax Act provides an objective living relationship in Korea.

As a whole, the life relationship in other countries is considered as comparative factors.

Tax treaties between countries in preparation for cases where the residence of both countries is recognized;

Considering the fact that the resolution is being promoted throughout the country, it is based on the living relationship in Korea.

shall determine whether a resident is a domestic resident, and the living relationship, such as overseas activities and asset holding, shall be determined.

It should not be determined in full view (see, e.g., Supreme Court Decision 92Nu11695, May 27, 1993).

2) In the instant case:

In light of the above legal principles, we can find the case through the facts of recognition as stated earlier.

The following circumstances, i.e., ① both the Plaintiff and the Plaintiff’s family members have a resident registration address in Korea.

The plaintiff's wife and children together lived at the above resident registration address; and

In case of returning home from China, the plaintiff had resided with his family in the above domicile, and 3.

During the period of retention of the disposition, the period during which the plaintiff himself/herself has been staying in Korea is about 212 days in total, and

The remaining families, other than Gohap, have been staying in Korea for most annual periods, 4 plaintiffs

of 00 the title 00 bank account which finds a part (or a substantial part) of the income earned in China.

The money was remitted, and this money was used by the right00 for the use of living expenses or for the acquisition of other assets.

5. The plaintiff's family members appear to be in Korea during the period of attribution of the disposition of this case.

The claim that he had temporarily resided, but the right 00 is the period to which the disposition of this case belongs.

The apartment was acquired and resided with his children, and 6 The plaintiff himself was a domestic nonresident.

around 2009, the fact that a building was newly built in Korea and acquired its ownership, etc.

B. In full view of the foregoing, even if the Plaintiff’s business activities in China and stays in China more than in Korea.

Considering the fact that the period is long, the Plaintiff is prescribed in Article 1-2 (1) of the former Income Tax Act.

It is reasonable to view that the Plaintiff constitutes a “resident”. Therefore, the Plaintiff is a domestic resident.

The plaintiff's assertion of this part is without merit.

E. Determination as to the assertion that it should be viewed as a Chinese resident in accordance with the Korea-China Tax Convention

1) Relevant legal principles

An individual is both a domestic resident and a foreign resident under the Income Tax Act; and

If a taxpayer is subject to income tax, etc. under the law, a double division of income tax;

To prevent this, a separate treaty can be entered into between countries.

(2) If the taxpayer is deemed to be a dual resident, the taxpayer shall be deemed to be a dual resident.

be regarded as a resident of any country in accordance with the provisions of the tax treaty concluded with that country.

Determination of whether or not to issue a tax treaty, and determination of the resident country and its tax rate under the tax treaty shall be made.

However, a taxpayer who is a domestic resident has the burden of proving that the tax treaty ought to apply simultaneously to a domestic resident (see, e.g., Supreme Court Decision 2006Du3964, Dec. 11, 2008).

Furthermore, according to Article 4 subparagraph 2 of the Korea-China Tax Convention, a person becomes a resident of both countries.

(1) States with permanent residence, 2 States with most closely related human and economic relations;

(p) The order of a State with heavy interests, 3. Ordinary residence, 4. The order of a State of a citizen.

shall be determined by each other, but if it is not possible to determine a country of residence in accordance with any standard, a mutual agreement shall be reached.

The country of residence for which tax liability is responsible is to be determined.

2) In the instant case:

The plaintiff had a permanent domicile in both Korea and China, even if the plaintiff had a permanent domicile 1

During the period of attribution of the instant disposition, all of the Plaintiff’s family members were residing in Korea, and 2 won

qu) transfers part (or substantial part) of the revenues derived from the operation of a business entity in China to Korea.

(3) The right to receive money from the plaintiff shall be deemed to have been transferred to the plaintiff's property for living expenses or assets owned in Korea.

The apartment of this case is likely to have been used as the financial resources of the company, and on December 28, 201, the apartment of this case is likely to be acquired.

In full view of the circumstances mentioned above, including that, at least, the Plaintiff has a significant interest.

It is reasonable to see that it is a domestic place, and in accordance with the Korean Tax Convention, the Plaintiff is liable to pay taxes.

As a country of residence, the plaintiff is the subject of domestic income tax as the country of residence.

On a different premise from that of the former, the latter’s assertion on this part is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as there is no ground.

000 director of the tax office

May 17, 2016

July 12, 2016

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of global income tax of KRW 86,387,040, and global income tax of KRW 175,127,320, and global income tax of KRW 175,127,320, belonging to the year 2011, imposed on the Plaintiff on December 11, 2014 by the former Cheong-gu Defendant shall be revoked.

1. Details of the disposition;

A. The Plaintiff was engaged in the manufacturing business of clothing, etc. in China since 2008.

B. From May 27, 2014 to August 12, 2014, the Defendant: (a) deemed the Plaintiff as a domestic resident under the former Income Tax Act (amended by Act No. 12852, Dec. 23, 2014; hereinafter “former Income Tax Act”); (b) the Plaintiff, who was a corporation located in Hong Kong from 201 to 201, was 505,570,000, and (c) was 445,360,000 won in total, and did not receive KRW 950,940,000, and did not file a global income tax return; (d) on December 11, 2014, the Plaintiff rejected the Plaintiff’s appeal for adjudication on global income for 2011, 86, 387, 204, 205, and 2015.

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

1) In full view of the fact that the Plaintiff’s wife and children are residing in China from August 2013, when running a business in China and paying taxes and public charges in China, the period of stay in China exceeds 183 days per annum, and that the Plaintiff’s wife and children are also residing in China, the Plaintiff does not constitute “domestic resident” under the former Income Tax Act. Accordingly, the instant disposition on a different premise is unlawful. Accordingly, the instant disposition on a different premise is classified as unlawful in December 2012, 2013.