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(영문) 쟁점금액을 청구인의 사업소득으로 보아 과세한 처분의 당부(경정)
조세심판원 조세심판 | 2011-05-20 | 조심2010중1173 | 소득
[Case Number]

Early High Court Decision 2010J 1173 (Law No. 105, 2011)

[Items]

Global Income

[Types of Decision]

Correction

[Summary of Decision]

If the issue is merely a mere seller, it is reasonable to confirm and impose the transaction details of the ○ Bank, etc., by asserting that the issue amount was actually paid to other sales partners.

【Disposition】

The assessment of global income tax amounting to KRW 12,982,950 on November 5, 2009 by the head of the OOCO on the applicant on November 5, 2009 shall be reviewed as to whether the applicant is a real business entity of the OOScar branch or a personal service provider that sells the right to use containers to the OScar, and the tax base and tax amount shall be corrected according to the results.

【Reasoning】

1. Summary of disposition

(a) In 2008, the petitioner filed a return on the aggregate of KRW 112,383,460, and other income (6,00,000) received as business income from the OOOOO OO-dong 1401, which is engaged in condominium construction business (hereinafter referred to as “OOOS car”) and received as business income from the OOS car building (hereinafter referred to as “OS car building”) and received a refund of KRW 248,90,00.

(b)The disposal authority, on November 5, 2009, has reported the applicant as a simplified expense rate at the time of filing global income tax return, which was the applicant subject to the standard expense rate, corrected and notified the applicant of KRW 12,982,950 in global income tax for the year 2008;

C. On December 22, 2009, the claimant appealed and filed an appeal on March 18, 2010.

2. Opinions of the requester and disposition agency;

A. Appellant's assertion

In 208, the claimant provided personal services that sell contact vouchers through door-to-door seller and telephone counselor at the office of the office of the office of the OScar branch (hereinafter referred to as the "O branch") located in the OOOOO 197-13 (hereinafter referred to as the "O branch"), and the OScar group provided 12,383,460 won in the aggregate of 104,43,460 won in sales commission and office management expenses to be paid to other sales personnel (hereinafter referred to as "index") and 112,383,460 won in the amount of sales commission and office management expenses to be paid to the person in charge of the accounting branch of the O branch of the office of the claimant and withheld all of 112,383,460 won in the amount of 112,460 won in the account of the claimant's business income, the disposition agency should exclude the issues from the amount of the claimant's business income and correct the comprehensive income tax accrued in 2008.

(b)Opinion of the Administration;

The first disposition that the disposition agency corrected and notified the general income tax to the applicant is justifiable on the ground that it is difficult to view the key amount to be the sales allowance and office management expenses of other sales employees because the applicant did not submit the personal information of other sales employees and office management expenses, because the applicant did not pay the key amount to the OScar Fund account in the name of the applicant and withheld the key amount to the OScar Fund account in the name of the applicant.

3. Hearing and determination

(a)a dispute;

The propriety of the disposition imposing the issue amount on the claimant's business income;

(b)the relevant legislation;

(1) Framework Act on National Taxes (Amended by Act No. 9911, Jan. 1, 2010)

Article 14(2)(1) If the ownership of income, profit, property, act or transaction subject to taxation is merely nominal and there is another person to whom it actually belongs, the person to whom it actually belongs shall be the person to whom it actually belongs as a taxpayer and the tax

(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall apply according to the substance, notwithstanding the name or form of the income, profit, property, act or transaction.

(3) Where it is recognized that benefits under this Act or other tax-related Acts are obtained unfairly by means of indirect means via a third party, or through two or more acts or transactions, this Act or other tax-related Acts shall apply, deeming that the relevant party has made a direct transaction or has engaged in an act or transaction consecutively in accordance with the economic substance thereof.

(2) Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008)

Article 19(2)(1) Business income shall be the following income generated during the relevant year:

1. and 14. (Aids)

15. Incomes accruing from service business related to entertainment, culture and sports, and other public, repair and private service business;

16. (Maternity)

(2) The business income shall be the amount obtained by deducting the necessary expenses required therefor from the gross income amount in the current year.

3. (Bast of Birth)

(1) A person (including a corporation, and a person who acts on behalf of, or entrusts or entrusts the payment of an amount of income pursuant to Article 127 (6) or a tax association under Article 150) who pays any of the following amounts in Korea to an individual liable to pay income tax pursuant to Article 1 (1) shall submit a payment record (referring to the last day of February of the following month in which the relevant amount of income or income is the last day of February of the year following the year in which the relevant amount of income or income falls (referring to the last day of February of the year following the month in which the date of suspension or closure falls, where the business is suspended or closed; hereafter the same shall apply in this paragraph) to the head of the competent district tax office, the head of the regional tax office, or the head of the regional tax office having jurisdiction over withholding, or the head of the local tax office, or the head of the tax office, in accordance with Article 164: Provided, That the earned income of a daily employed worker prescribed in subparagraph 4 shall be submitted by the last day of the month following the quarter in which falls:

1. Interest income;

2. Dividend income;

3. Business income amount as prescribed by the Presidential Decree;

4. Labor or retirement income;

4-2. Pension income;

5. Other incomes (excluding income from service fee referred to in subparagraph 7).

6. Deleted;

7. Service fee income amount determined by the Presidential Decree.

8. Gains from long-term savings insurance prescribed by Presidential Decree.

②~⑪ (생 략)

(c)fact-finding relations and judgments;

(1) According to the applicant’s integrated computer network (TIS) and the written resolution of correction of global income tax, the applicant filed a return on May 31, 2009, along with other income (six million won) by including the amount of issues in the applicant’s business income, and applying the simple expense rate. The disposition agency stated that the applicant applied the standard expense rate not to the applicant’s business income in the previous year, but to the applicant’s income subject to the simplified expense rate of 28.8 million won.

(2) The claimant asserts that the officer in charge of the accounting of the OO branch lent the O bank account in the name of the claimant to the person in charge of the accounting, and that the person in charge of accounting received various expenses from the OOOScar set and appropriated the sales commission to pay the sales commission to the members and the expenses for the management of the office. From September 12, 2008 to December 31, 2008, 2000 to 26,5940,000 won was deposited from the OO set and paid to the 78 persons other than OO set forth above, and the claimant asserts that 5,168,000 won deposited from the account to the other account (OO) of the claimant was paid for the office management expenses.

(3) Examining the deposit receipt submitted by the petitioner as evidentiary data on the office expenses of the office office, the person who received the deposit amount of 5.6 million won from October 27, 2008 to December 31, 2008 is O Capital Capital Co., Ltd., the contractor, and the OOEex is a corporation (hereinafter “OEex”) and the claimant, a corporation that had worked in the past for the claimant, has paid the car owned by OEex in lieu of capital in the course of performing its duties, and the claimant did not submit evidentiary data on the office expenses except for the amount of the deposit.

(4) According to the reply, etc. to this case’s request for adjudgment, it is stated that the claimant used it for the purpose of business (the office management expenses, etc.) and for personal use, and that the amount is KRW 5,243,000,000 in total credit card payment, KRW 6,7111,000 in total, and KRW 7,030,000 in total from September 1, 2008 to January 30, 2009 to another account, and that the amount deposited from this account to OO account as the spouse of the claimant from January 9, 2008 to January 6, 2009 is KRW 7,950,000 in total, and the claimant claims that the amount is the actual business income of the claimant in 2008.

(5)청구인이 제출한 청구인 통장(OO은행 547801-04-03XXXX 및 OO은행 1002-230-53XXXX) 출금내역에 의하면, 방문판매원 및 전화상담원 중 기(旣)원천징수된 고OO 외 33명에게 지급된 1억4,682만원, 강OO 외 36명에게 지급된 판매수당임에도 청구인의 사업소득으로 보아 신고되었다고 청구인이 주장하는 9,232만원(강OO 외 36명에게 지급되었다고 함), 그 밖에 사무실관리비용 5,168만원 및 기타 경비 2,680만원 합계 3억1,763만원의 내역이 기재되어 있으나, 동 금액은 청구인 명의의 OO은행 및 OO은행의 출금액과 차이가 있으며 차이가 발생한 이유는 동 금액은 청구인의 은행계좌 외에 청구인이 직접수집한 각종 자료를 통해 계산하였기 때문이라고 주장하고 있다.

(6) The petitioner is registered as a business entity of an O branch through the statement of opinion under Article 58 of the Framework Act on National Taxes and Article 47 of the Enforcement Decree of the same Act (see, e.g., May 3, 2011), and all kinds of expenses, such as the O branch’s sales staff’s allowance, office management expenses, etc., are deposited and paid through a passbook in the name of the claimant. However, the claimant made a statement that he/she is

(7)In conclusion, the agency rendered a tax assessment on the issue amount by deeming that the OScar T is included in the amount of business income that the claimant provided for the personal service that sells the container use right, and that the amount of the issue amount is included in the amount of the claimant's business income. However, as seen above, the claimant asserted that the amount of the issue amount was the business income of the OScar T T T T T-B and O T-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-D-B-B-B-B-B-B-B-D-B-B-B-D-B-B-B-B-B-D-

Therefore, it is reasonable to re-examine the facts about the issue amount of the income belonging to the claimant's business income and determine the tax base and tax amount according to the results.

4.In conclusion

According to Articles 81 and 65 (1) 3 of the Framework Act on National Taxes as a result of the review of the request for a trial, it shall be decided as ordered.

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