Cho Jae-2012-China-3646 (Law No. 18, 2013)

If the property business is judged with no double resident and the property business is comprehensively determined, it shall be a domestic resident.

Considering the fact that a person's identity is determined to be determined by comprehensively considering the domestic objective living relations, and that the living relations in other countries are not cited as comparative factors, and that if both countries' residence is recognized, the resolution through tax treaties, etc. is being promoted, it is necessary to determine whether a person is a domestic resident on the basis of domestic living relations.

Article 2 of the Enforcement Decree of Income Tax Act

2013Guhap6184 Global Income and Revocation of Disposition

IsaA

AA Head of the Tax Office

March 30, 2014

April 3, 2014

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of global income tax of KRW 50,838,530, which was imposed on the Plaintiff on May 1, 2012 by the Plaintiff on May 1, 2012, KRW 676,413,030, in total, KRW 2006, KRW 212,782,010, KRW 2007, KRW 215,063,180, KRW 2009, KRW 215,063, and KRW 2009, KRW 2009, KRW 530, KRW 530,00, KRW 676,

The cancellation shall be revoked.

1. Details of the disposition;

A. The Commissioner of the National Tax Service: (a) deemed the Plaintiff as a resident under the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter “former Income Tax Act”); and (b) determined that the Plaintiff’s return was omitted as the amount of income and notified the Defendant thereof.

B. Accordingly, the Defendant’s total global income tax on May 1, 2012 to the Plaintiff as follows:

676,413,030 won was decided and notified (A evidence 2-1).

C. On July 31, 2012, the Plaintiff appealed and filed an appeal with the Tax Tribunal. The Tax Tribunal from April 18, 2013 to 2008 against the Plaintiff cannot be deemed a resident from 2006 to 2008, and from 2009 to 2008, it revoked the disposition imposing global income tax on the Plaintiff during the disposition and decided to dismiss the Plaintiff’s claim regarding the disposition imposing global income tax on the Plaintiff for the imposition of global income tax for the year 2009 (B) (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 2-1, 2-2, Gap evidence 3-1, 2-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In light of the following: (a) from April 1995, the Plaintiff operated a “AAD Corporation” in China; and (b) the period of the Plaintiff’s stay in Korea in 2009 is only 21 days, the Plaintiff is not a “resident” under the former Income Tax Act; (b) however, the instant disposition made on a different premise is unlawful.

2) Even if the Plaintiff is a resident under the former Income Tax Act, the Plaintiff has the status of dual resident as the Plaintiff is also a resident of China and has more important interests in China. Thus, the instant disposition made on a different premise is unlawful even though it ought to be considered as a Chinese resident according to the Agreement between the Republic of Korea and the People's Republic of China for the Avoidance of Double Taxation and the Prevention of Tax Evasion with Respect to Income.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

(c) Fact of recognition;

1) The plaintiff's place of residence in Korea

On December 17, 1992, the Plaintiff is married with KimA on December 17, 1992, and his wife together with his wife A Dong 000-00

A. From November 10, 2004 to January 4, 2009, from January 5, 2009, 200 AAA-dong A-A-A-A-B-B-B-B-B-B00 each residing in B-B-B-B-2, 000 from January 5, 2009. The details of the Plaintiff’s resident registration are as follows.

2) Domestic residence period of the Plaintiff and the Plaintiff’s family members

The domestic residence status of the plaintiff and his family members are as follows:

3) Current status of domestic property and economic activities of the Plaintiff and its wife

The status of domestic real estate acquired from around 2002 by the Plaintiff and his wife up to the present date is as follows:

The same shall apply.

The current status of financial assets, such as securities and deposits, of the Plaintiff and its wife, and the amount of credit cards used are as follows:

The Plaintiff and KimA purchased a national health insurance policy on October 18, 2004 and paid the national health insurance premium every month until then. From 2006 to 2010, the Plaintiff and KimA concluded each insurance contract with the △ Life Insurance Co., Ltd., the △ Policy Co., Ltd., the △△ Policy Co., Ltd., the △ Policy Co., Ltd., the △ Policy Co., Ltd., the △ Policy Co.

4) Economic activities, etc. of the Plaintiff and its wife in China

On April 19, 1995, the Plaintiff established and operated a company called "AAA Limited Liability Company" (the business permission period up to April 18, 2019).

On May 28, 2004, KimD established and operated a company "B Limited Liability Corporation" in China (the business permission period up to May 28, 2024). Meanwhile, this BB was from August 19, 2002 to June 29, 2008, and thisCC was working for each international school located in China from August 18, 2003 to November 10, 2008.

D. Determination on the first argument

1) Article 1 (1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) refers to a person who has a domicile in the Republic of Korea or has a domicile in the Republic of Korea for at least one year. According to Article 2 (1), (3) and (4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010), an address under the former Income Tax Act shall be determined based on objective facts of his/her living relationship, such as the existence of a family living together in Korea and a property located in Korea, and shall be determined based on the objective facts of his/her living relationship, such as the existence of a family living together in Korea and a property located in Korea, and shall be deemed to have a domicile in Korea, and when deemed to have a family living in Korea continuously for at least one year in view of his/her occupation and property status, it shall be deemed that he/she has no domicile in Korea and has no domicile in Korea.

According to the Income Tax Act, whether a person who left Korea from a foreign country is a resident, that is, a person who has a domicile in the Republic of Korea should be determined by considering 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 Korea, the purpose of departure, occupation and whether

Furthermore, the Income Tax Act stipulates that the objective living relationship in the Republic of Korea shall be comprehensively considered when determining the identity of an individual, and considering the fact that the living relationship in the other country is not cited as a comparative assessment factor, and that the country is seeking resolution through a tax treaty, etc. in preparation for the case where the identity of both countries is recognized, it is necessary to determine whether a domestic resident is a resident based on the domestic living relationship (see Supreme Court Decision 92Nu1695, May 27, 1993).

2) The following circumstances revealed through the above facts are as follows: ① the Plaintiff’s wife did not stay outside Korea for 21 days in 2009, the period to which the instant disposition belongs, but the Plaintiff’s wife was 341 days, the Plaintiff’s wife was 125 days, and 356 days, respectively, and the remainder of the Plaintiff’s wife, other than the Plaintiff, were staying in Korea since 2009; ② from 202 to 2009, the Plaintiff acquired 5 real estate, including woodland, etc., the Plaintiff’s wife acquired 9 real estate, including apartment and forest land, etc., and owned a large number of real estate in Korea; ③ the Plaintiff’s domestic credit card use amount of approximately 18,00,000 won, approximately 238,000,000 won, and the Plaintiff’s domestic credit card use amount of the Plaintiff’s wife’s domestic consumption insurance contract concluded with the Plaintiff, and ④ the Plaintiff’s domestic consumption insurance activities, including several domestic consumption insurance policies.

The plaintiff's domestic period of stay in 2009 is limited to 21 days, and it is reasonable to view that the plaintiff's domestic period of stay in 2009 is a "resident" under Article 1 (1) of the former Income Tax Act, even considering that the plaintiff's domestic place of business is still in China. Therefore,

E. Judgment on the second argument

1) If an individual is both a domestic resident and a foreign resident under the Income Tax Act, and thus, falls under a person liable to pay income tax, etc. under the relevant foreign law, it may be imposed twice on the same income. To prevent this, a separate provision is established through the conclusion of a tax treaty among countries. If a person liable to pay tax is recognized as a dual resident, the determination of which country shall be deemed a resident under the provisions of the tax treaty entered into with the relevant country, and the resident country and the determination of the said tax rate shall meet the taxation requirements: Provided, That as regards the fact that the taxpayer who is a domestic resident is also a resident of a foreign country, the taxpayer bears the burden of proving that the tax treaty should be applied (see, e.g., Supreme Court Decision 2006Du3964, Dec. 1

According to Article 4 (2) of the Agreement between the Government of the Republic of Korea and the Government of the People's Republic of China for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, signed on March 28, 1994 and entered into force on September 28, 1994, where an individual becomes a resident of both countries, (1) a country having a permanent residence, (2) a country having a temporary domicile, (3) a country having a temporary domicile, (4) a country having a temporary domicile, and (4) a country having a temporary domicile, and (2) a country having a citizen's residence, but if it is impossible to determine the residing country according to any of the criteria, it shall be subject to mutual agreement.

2) The evidence submitted by the Plaintiff alone is insufficient to acknowledge the fact that the Plaintiff is a Chinese resident, and there is no other evidence to acknowledge it.

Even if the plaintiff is a resident in China, in full view of all the circumstances as seen earlier, such as the property relationship between the plaintiff's husband and wife in Korea, the family's residential status, and the fact that the plaintiff's business operated in China is an entrusted processing business for a domestic corporation, the plaintiff can be deemed to have a permanent domicile in Korea. Accordingly, the plaintiff can be deemed to have a human and economic domicile in Korea, and even if based on the Korea-China Tax Convention, the plaintiff is deemed to be a resident in Korea, and therefore, the plaintiff's assertion is groundless.

3. Conclusion

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