Seoul High Court 2012Nu30297 (Law No. 27, 2013.09)

2010 Heavy2584

Whether the age club is an actual business operator.

The claimant who is involved in the overall business and operates the age club as the general president is the person to whom the actual income belongs, and it is reasonable to impose the tax according to the substance of the loan if the substance of the contract constitutes the loan, regardless of the contract. In addition, the specified ratio of the sales paid to the wait does not constitute the service fee excluded from the tax base due to the nature of

Article 14 of the Framework Act on National Taxes and Article 13 of the Value-Added Tax Act

2013Du22482 Revocation of Disposition of Imposing global income tax, etc.

Gangwon ○

○ Head of tax office

The second instance decision

2012Nu30297

oly 16, 2014

All appeals are dismissed.

The costs of appeal are assessed against the Plaintiff.

1. An appeal concerning additional dues and increased additional dues shall be considered to be filed;

The court of final appeal may investigate and determine only to the extent of filing an appeal based on the grounds of final appeal. As such, the grounds of final appeal should specify the grounds of final appeal and explain specific and explicit reasons as to which part of the judgment below violated the statutes (see, e.g., Supreme Court Decision 2011Du26015, Feb. 23, 2012).

However, the petition of appeal does not contain any grounds of appeal as to additional dues and increased additional dues, and the appellate brief rejected the Plaintiff’s claim on the additional dues and increased additional dues, and it does not reveal specific and explicit grounds as to what portion of the judgment below rejected the Plaintiff’s claim on the additional dues and increased additional dues. Therefore, it cannot be deemed that legitimate grounds of appeal are included. There is no other reason of illegality subject to ex officio

2. The grounds of appeal are examined as to the remainder other than additional dues and increased additional dues.

A. As to the grounds of appeal Nos. 1 and 2

원심은 그 채택증거를 종합하여, ① 원고가 2005. 12. 26. 이 사건 건물을 경락받아 안△△, 박〇〇에게 순차로 임대하였다는 내용으로 부가가치세 등을 신고・납부한 사실, ② 그러나 피고들은 세무조사결과 원고가 이 사건 건물을 임대한 것이 아니라 그곳에서 이 사건 나이트클럽을 실질적으로 운영하고도 부가가치세, 종합소득세, 소득세할 주민세 등을 탈루하였다고 보아 2010. 4. 16. 원고에게 부가가치세, 종합소득세, 소득세할 주민세 등을 부과하는 이 사건 각 부과처분을 한 사실 등을 인정한 다음, 비록 원고가 2006. 1. 18. 남▽▽에게 이 사건 나이트클럽과 영업권을 대금 000백만 원(지급기일 2008. 1. 23.)에 양도하기로 하는 계약을 체결한 사실이 인정되더라도, 원고가 2008. 2. 이전에도 이 사건 나이트클럽의 직원들로부터 '회장'이라는 직함으로 불렸을 뿐 아니라 남▽▽으로부터 정기적으로 영업상태와 자금현황에 대한 보고를 받은 점, 남▽▽은 영업사장으로서 이 사건 나이트클럽의 영업 전반을 관리하면서 매달 0백만 원의 급여를 받았을 뿐이지만, 원고는 카드대금, 휴대폰요금 등 개인적인 비용으로 매달 00백만 원 이상의 돈을 이 사건 나이트클럽의 수익금에서 지출하도록 한 점, 원고가 이 사건 나이트클럽의 주류납품업체, 영업허가 명의자 및 세무대리인의 선정을 주도한 점 등의 사정에 비추어, 원고가 2008. 2. 이전에도 이 사건 나이트클럽을 실질적으로 단독으로 운영하였다고 보아야 한다고 판단하였다.

이 부분 상고이유의 주장은, 2008. 2. 이전에는 남▽▽이 단독으로 이 사건 나이트클럽을 운영하였음에도 이와 달리 본 원심의 사실인정과 판단에 잘못이 있을 뿐만 아니라, 소득세법상 공동사업자는 거주자별로 그 지분 또는 손익분배비율에 의하여 분배되었거나 분배될 소득금액에 따라 납세의무를 지는 것이므로 원심이 '원고가 2008. 2. 이전에도 이 사건 나이트클럽을 실질적으로 단독으로 운영하였거나 적어도 남▽▽과 함께 공동으로 운영하였다'고 보았음에도 이 사건 소득금액 전부에 대하여 원고에게만 종합소득세 등을 부과한 이 사건 각 부과처분이 적법하다고 판단한 것은 소득세법상 공동사업자의 납세의무에 관한 법리를 오해한 잘못이 있다는 것이다.

The part of the judgment of the court below disputing a person who actually operated the instant age club as the plaintiff before February 2008 is merely an error in the selection of evidence or fact-finding which belongs to the exclusive jurisdiction of the court below, which is a fact-finding court, and thus cannot be a legitimate ground for appeal. Furthermore, even after examining the reasoning of the judgment below in light of the records, there is no violation of the law of logic and experience and free evaluation of evidence, as otherwise alleged in the ground for appeal, and there is no violation of law of violation of the law of logic and experience and violation of the principle of free evaluation of evidence. Furthermore, the part of the judgment of the court below that "the plaintiff, at least before February 2008, operated the instant age club jointly with the South-North Luxembourg, is merely a assumary and additional judgment, and its propriety

B. Ground of appeal No. 3

The reasoning of a written judgment is sufficient to indicate the judgment on the party’s assertion and other means of offence and defense to the extent that it can be recognized that the text is fair, and there is no need to determine all allegations by the parties or methods of offence and defense (Article 8(2) of the Administrative Litigation Act, and Article 208 of the Civil Procedure Act). Therefore, even if a specific and direct judgment on the matters alleged by the parties is not indicated in the judgment of the court, if it is possible to find out that the allegations have been quoted or rejected in light of the overall purport of the reasoning of the judgment even though the specific and direct judgment on the matters alleged by the parties was not indicated, it cannot be deemed an omission of judgment, and even if it is obvious that the assertion is rejected even if it was not actually determined, it does not affect the conclusion of the judgment, and it does not constitute an omission of judgment (see, e.g., Supreme Court Decision 2013Du24020, Mar. 13, 2014).

Examining the reasoning of the lower judgment in light of the records, the lower court seems to have indirectly rejected the Plaintiff’s assertion that, on the premise that the Plaintiff’s proof of expenses incurred in relation to omitted income is insufficient, the amount of KRW 000,000,000 should be included in the Plaintiff’s income from the credit card sales, and that the amount paid to theware of the instant age club should be deducted as the expense. Even if the lower court’s determination was omitted, it is evident that the Plaintiff’s assertion as to the omission of the judgment was unacceptable in light of the records, and thus, it cannot be deemed that the omission of the

C. As to the grounds of appeal Nos. 4 and 5

The argument in the grounds of appeal on this part is that the judgment of the court below that held otherwise is unlawful, although it is reflected in the calculation of the necessary expenses for the portion for the year 2008 to December 2008, since the plaintiff operated the instant nart club from February 2008 to the damage grade and the same business, it shall be deducted from the plaintiff's income amount as the share of the damaged class. Since it was omitted from the calculation of the necessary expenses for the portion for the year 2008 to the employees who worked in the instant nart club, the amount of KRW 00,000,000, out of the actual paid benefits was reflected, it is nothing more than an error in the selection of evidence or fact-finding which belongs to the exclusive authority of the court below, which is the fact-finding court, and it cannot be a legitimate ground of appeal. Furthermore, even after examining the reasoning of the judgment below in light of the records

D. Regarding ground of appeal No. 6

Among the dispositions of this case, the tax base of the resident tax to be imposed on the portion of the tax is unlawful, or the tax amount is calculated exceeding 10% of the standard tax rate for resident tax to be imposed on the resident tax to be imposed in 2007. Thus, the ground of appeal on this part of the ground of appeal that this part of the grounds of appeal is unlawful is only asserted in the final appeal,

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.