National High Court Decision 2012west 1021 ( November 12, 2012)

It is legitimate to impose tax on the Plaintiff on the ground that the Plaintiff actually operated the place of massage treatment in this case by itself.

In light of the fact that the Plaintiff received the operating income of the instant massage treatment center through its employees, and falsely prepared the lease contract, etc., the Plaintiff appears to be the actual businessman, and the disposition imposed on the basis of the daily account book and the daily status table is not contrary to the principle of base taxation.

Articles 14 and 16 of the Framework Act on National Taxes

2013Guhap8929 Revocation of Disposition of Imposing global income tax, etc.

Park ○

Head of Yangcheon Tax Office and one other

June 24, 2014

All of the plaintiff's claims are dismissed.

Litigation costs shall be borne by the plaintiff.

The imposition of global income tax of 360,15,41,41 on October 16, 201 (which appears to be a clerical error in October 7, 201) on the Plaintiff shall be revoked in all the imposition of global income tax of 98,85,850,85,417, global income tax of 2008, global income tax of 196,342,020, global income tax of 209, global income tax of 18,08,790, global income tax of 16, 205, 207, 207, 205, 207, 305, 207, 205, 207, 205, 207, 205, 307, 209, 205, 207, 205, 208, 207, 209, 207, 2008, 2948, 207

1. Details of the disposition;

A. On October 12, 2006, the Plaintiff acquired ○○○-dong ○○○○○-dong ○○○○-dong ○○○○○, 404.8 square meters and five-story neighborhood living facilities on the ground reinforced concrete slab roof (hereinafter “instant real estate”) through an auction procedure, and registered the type of business as a real estate leasing business.

B. As a result, the head of the regional tax office conducted a tax investigation with regard to the △△ △△ △ (hereinafter “the instant massage place”) operated in the name of knives, knives, etc. from the instant real estate, the Plaintiff, who is the actual operator of the instant massage place, omitted the amount of income KRW 4,211,40,00 in operating the instant massage place in the name of knives, knives, etc., and omitted the amount of income for KRW 3,452,82,000 in employees’ service charges, and notified the said tax data to the head of the regional tax office having jurisdiction over the place of business and to the head of the regional

Accordingly, on October 7, 201, Defendant Yangcheon Tax Office’s global income tax for the Plaintiff on October 7, 201 and for the tax year 2007.

400,576,710 won, global income tax for the year 2008 298,885,850 won, global income tax for the year 2009

196,342,020 won, global income tax of 2010 and 18,08,790 won for global income tax of 2010 (hereinafter “instant global income tax disposition”). In addition, on October 1, 201, the head of Gangnam District Tax Office issued a notice of imposition of global income tax of 19,156,600 won for value-added tax of 1,207, 124,89,380 won for value-added tax of 2,207, 119,849,520 won for value-added tax of 1,208, 208, 76, 72, 730 won for value-added tax of 2, 74,189, 900 won for global income tax of 209, 207, 305, 205, 305, 205, 205, 205, 2005.

D. On February 6, 2012, the Plaintiff appealed and filed an appeal on February 6, 2012. On November 12, 2012, the Tax Tribunal rendered a re-audit decision stating that “The assessment of global income tax in the instant case, the imposition of value-added tax in the instant case, and the disposition on imposition of business income tax in the instant place of work, such as the type of business and the process of distributing revenues, shall re-examine the substance of the instant place of work, such as the instant massage procedure, and the credibility of the original market division, thereby correcting

E. Accordingly, the director of the regional tax office shall conduct a reinvestigation to the Plaintiff on December 27, 2012 after conducting a reinvestigation.

As a result, the results of re-audit that the original disposition is legitimate and maintained, and such notification was served on the Plaintiff on December 31, 2012.

F. On January 16, 2013, the Plaintiff appealed to the Tax Tribunal, and filed a lawsuit in this case on March 28, 2013, which was within 90 days from the date of notification of the results of the reexamination. The Tax Tribunal rendered a decision on September 16, 201 by Defendant Yangcheon Tax Office to impose global income tax amounting to 400,576,710 won for the year 2007 on the Plaintiff (which appears to be clerical error in October 7, 201) as global income tax amounting to 66,00,000,00 won (which is salary for boom, clocks and booms) and to include the amount of tax in the necessary expenses responding to the amount of tax, and the remaining claims were dismissed. Defendant Yangcheon Tax Tribunal reduced the remaining amount of income tax for 207,000 won and the remaining amount of income tax for 40,000 won and 207.

G. Meanwhile, on July 22, 2011, the head of the regional tax office converted the personal investigation of the Plaintiff into the investigation of tax offense. As a result of the investigation of tax offense, on the ground that the Plaintiff, who was the actual owner of the instant massage place, was in the name of another person, omitted value-added tax and comprehensive income tax by intentionally omitting cash income, etc. while operating the instant massage place in the name of another person, and failed to perform his/her duty to withhold taxes without justifiable grounds when paying service fees, the head of the regional tax office imposed a disposition of notice of imposition of penalty amounting to KRW 612,636,270 on the Plaintiff on October 6, 201, and the Plaintiff implemented the said disposition on November 18, 2011.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8, Gap evidence Nos. 11, 12, 13, Eul evidence Nos. 1, 2, 3, 4, 13, 14 (including branch numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) The plaintiff was awarded a successful bid of the building of the instant massage place and invested in the business of the massage place and received the profit therefrom, and did not participate in the operation or business of the massage place, and the plaintiff did not participate in the business of the massage place.

In full view of the fact that the Plaintiff is not the sole entrepreneur of the place of massage treatment in this case even if he is the actual operator of the place of massage treatment in this case and the Plaintiff is deemed joint businessman, the Plaintiff’s disposition of this case by deeming that the income accrued from the business of the place of massage treatment in the premise that the Plaintiff is the sole real entrepreneur of the place of massage treatment in this case is the Plaintiff is unlawful.

(2) The Defendants: (a) while rendering the instant disposition, on the revenue and expenditure amount determined on the Plaintiff.

However, in calculating the amount of non-performance of withholding taxes, the instant disposition is unlawful in violation of the principle of taxation based on the ground, since the Plaintiff did not present all the data or grounds on whom much the Plaintiff did not withhold taxes, as well as the amount of non-performance of withholding taxes.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On October 12, 2006, the Plaintiff acquired the instant real estate through a voluntary auction, and registered the instant real estate as a real estate rental business. On November 10, 2010, the Plaintiff changed the type of business to the Public Notice Board. The current status of business registration of the instant real estate as its place of business is as follows.

Mutual name of the business operator, type of business and project duration;

△ △, △△, Manbbal Man, Manbal Balbal, 206 from May 23, 2006 to January 2, 2008

Before the end of February 16, 2007, Ebrypt Potablesty added to joint business operators.

The Hong-gu Do governor-dong Medical Institution in Do-dong, Hong-dong, 208 from January 1 to August 10, 2009

The red △△△ shall be in charge of dumnasium

Before the end of the period from January 1, 2008 to March 1, 2010

The Seoul Special Metropolitan City, △△△△, a place where △△△△ was operated on August 3, 2009 to March 1, 2010.

from October 12, 2006 to June 12, 2006, including the lease of real estate by the Plaintiff in △△ National University.

Monthly rent of deposits for the contract of divided contract date;

(1) KRW 20 million from February 28, 2007 to February 28, 2008 from February 28, 2007 to KRW 20 million

Joint Lessee

△△△△

Second, on December 26, 2007, KRW 20 million from January 1, 2008 to December 31, 2008

The third amount of KRW 13 million from January 1, 2009 to December 31, 2009 120 million from January 1, 2009 to December 31, 2009

(2) The Plaintiff was in charge of the revenue and expenditure of the place of massage treatment in the instant case between the Plaintiff and the Dongboo.

The reason behind the closure of the instant massage treatment place, the Plaintiff filed a complaint with the National Tax Service by asserting that he/she had all income arising from the operation of the massage treatment place, which was the actual business operator of the instant massage treatment place. He/she submitted to the National Tax Service a tax evasion report (in addition to the daily status table as of the last day of each month, three copies of the document prepared by aggregating the daily status table), nine books of daily account, and the amount of sales and expenditure prepared by Bright, etc.

(3) The Plaintiff was subject to the instant tax investigation, and the Plaintiff’s instant real estate appears to be Bright of Bright.

The following contents of lease contract was presented by asserting that it was a substitute.

(4) With respect to payment of KRW 120 million as the lease deposit for the lease agreement alleged by the Plaintiff:

원고의 또다른 동서인 곽▼▼은 2007. 2. 14. ◉◉중앙신협에서 1억 2,000만 원을 대출받아 같은 날 원고의 동서인 박●●에게 1억 2,000만 원을 송금하였고, 박●●은 같은 날 원고에게 1억 2,000만 원을 송금하였으며, 원고는 그 다음날인 2007. 2. 15. 곽▼▼에게 1억 2,000원을 지급하였고, 곽▼▼은 같은 날 위 1억 2,000만 원을 상환하였다.

또한 위 임차보증금의 상환과 관련하여, 원고의 후배의 처인 유♤♤가 2010. 2. 19. 원고의 처남인 전♧♧에게 1억 원을 송금하였고, 전♧♧은 같은 날 원고에게 1억 원을 송금하였으며, 원고는 2010. 2. 22. 박●●에게 1억 원을 송금하였고, 그 후 원고의 운전사인 정◁◁이 같은 날 위 1억 원을 현금으로 출금하여 유♤♤에게 무통장 입금하였다.

(5) The plaintiff, as the father and wife of the first degree disability, acquires the real estate of this case at auction.

In the course of the tax investigation conducted on March 16, 201 and August 17, 201, 201, scambreum and Hong △△△, who had been lending the name to the president of the instant place of massage treatment, stated to the effect that “The actual business owner is the Plaintiff, and he was only lent his name to the Plaintiff, and that he was paid 19,500 won for each customer. In introducing the right to be boom, the Plaintiff stated to the effect that “The Plaintiff would operate the place of massage treatment in this case as his agent, thereby making all of what the Plaintiff would be said to be boome and boom.”

(6) In the course of the tax investigation on July 12, 201, △△△△ made a statement to the effect that “I” lent the name of the representative of the instant massage treatment establishment as the introduction by Hong△△△△, that was to employ a massage club and provide massage services at the instant massage treatment establishment, and that 1.5 million and KRW 1.5 million was paid in cash from 1 million per month from 1 million 1st century. The instant massage treatment establishment was closed around February 2010, and that “I did not pay the Plaintiff any comprehensive income tax on the income in January and February 2010.”

(7) 박●●은 2011. 7. 1. 및 2011. 8. 18. 세무조사 과정에서 '자신은 원고의 손윗동서인데 원고가 2007. 1.경 자신에게 강남의 안마시술소 건물을 경락받았는데 운영을 도와 달라고 부탁하였다. 이 사건 안마시술소의 실제 운영은 김▽▽ 전무가 책임자로 있었고, 아가씨 관리는 실장이라고 불리는 마담이 관리하였으며, 자신은 수입 및 지출관리 등의 일을 담당하였고, 모든 일의 최종 결정은 원고가 하였다. 자신은 이 사건 안마시술소의 수입과 지출을 관리하며 일일현황표를 작성하였으며, 매주 화요일과 금요일에 원고를 대리하여 원고가 운영하는 주식회사 ▲▲▲▲의 경리부장 허★★가 이 사건 안마시술소를 방문하여 일일현황표를 근거로 지출을 정산하고, 수입금액을 현찰로 가지고 갔다.'는 취지로 진술하였고, 이 법정에 증인으로 출석하여 위와 같은 취지의 증언을 하였다.

(8) On July 11, 2011, Kim Jong-▽, in charge of the management and business of the building of the place of the instant massage procedure.

In the course of the tax investigation, 'I' was in charge of the overall management of the instant massage treatment from April 2006, and 'I' stated to the effect that 'I' acquired the real estate of this case and 'I't know that I would like to start the business as I had been in charge of the instant massage treatment, and that I would like to start the business as I had been in charge of the instant massage treatment, and that I had the same level of defect as I had been in charge of the building management, business, etc., and that I would like to be in charge of the

(9) At the place of the instant massage procedure, to identify the revenue and expenditure, written in the Kabter.

In addition, the daily account book, the daily account book, the daily status table, etc. prepared by the one-day balance sheet and the two-day balance sheet were prepared.

(10) The daily account book prepared by the Blue House from February 23, 2007 to March 2, 2010, with the total nine books.

이 사건 안마시술소의 일별 수입과 지출내역(여성접대부의 근무내역과 지급내역 포함)이 기재되어 있다. 또한 박●●이 작성한 일일현황표는 이 사건 안마시술의 일일 집계표로서 여기에는 수입현황과 지출현황이 일계와 누계로 기재되어 있는데, 수입현황은 카드수입과 현금수입으로 구성되어 있고, 지출현황은 안마, 실장님, 아가씨, 잡비의 내역으로 구성되어 있다. 여기서 '카드수입'은 손님이 안마를 받고 카드로 결제한 금액을, '현금수입'은 손님이 안마를 받고 현금으로 결제한 금액을, '안마'는 안마를 받은 손님의 숫자에 19,500원을 곱한 금액을, '실장님'은 여성접대부를 관리하는 실장이 여성접대부들이 서비스를 한 숫자만큼 가져간 인건비를, '아가씨'는 여성접대부들이 손님한테 한 서비스의 숫자를 합산하여 기재한 금액을, '잡비'는 이 사건 안마시술소에서 운용비용으로 들어간 운영비, 전기료, 공과금, 음료수, 식대, 자재비, 급여, 임대료 등을 기재한 것이다. 한편, 일일현황표상 '잡비'에는 원고가 허★★를 통하여 박●●으로부터 지급받은 수익금, 부가가치세 등 각종 세금과 공과금, 직원들에 대한 가불금 등이 포함되어 있다.

(11) 허★★는 매주 화요일과 금요일에 이 사건 안마시술소를 방문하여 박●●이

The daily current status table and specification table prepared were replaced by the daily current status table, the actual balance and the balance of the passbook confirmed and settled the revenue amount, and the balance of the passbook was carried out with the documents, such as the remaining cash and the daily current status table excluding some of the revenue amount.

(12) The Plaintiff received the monthly salary of KRW 3 million from the Plaintiff, and Kim ▽△△ also received the monthly salary from the Plaintiff.

The person received benefits of KRW 5 million.

(13) Before the end of gambling, the card as if the other place of massage procedure reported tax in accordance with the direction of the Plaintiff.

Of the sales and cash sales, 8 to 10% of the sales and cash sales were reported to the sales and taxes were disbursed from the revenue of the place of massage practice in this case.

(14) Blue Blue House: Blue House, cleaning, and male employees who were paid the salary.

was withheld at the time of the payment of the benefits, and it was not withheld for those who paid service charges.

(15) The Defendants were subject to the instant disposition and obtained at the time of the tax investigation.

The omitted income amount, etc. was calculated based on the daily account book and the daily expense table, and the "miscellaneous expense table" included advance payment, withholding service fee, and the income paid to the Plaintiff, etc., which are not recognized as necessary expenses under the Income Tax Act, while the daily account book submitted by the head of Si/Gun/Gu is detailed for each item of expenditure, and the expense amount exceeds the necessary expenses reported in comparison with the total expense amount by item of expenditure and the necessary expenses reported in relation to the place of the massage treatment in this case.

[Ground of recognition] A without dispute, Gap evidence 2, 5, 6, 9, Gap evidence 12-3, Eul evidence 4 through 12, Eul's witness standing testimony and the purport of the whole pleadings

D. Determination

(1) As to the Plaintiff’s first argument

The evidence mentioned above, the facts of the recognition, and the whole purport of the pleading are recognized as follows.

과 같은 사정, 즉 ① 이 사건 안마시술소에서 일을 하였거나 관리를 담당하였던 원◎◎, 홍◇◇, 서△△, 박●●, 김▽▽ 모두 이 사건 세무조사 과정이나 이 법정에서 원고가 이 사건 안마시술소의 실제 운영자라는 취지로 진술한 점, ② 이 사건 안마시술소의 영업에 따른 수익이 박●●으로부터 허★★를 통하여 원고에게 전달된 점(원고 스스로도 자신의 경리직원인 허★★를 이 사건 안마시술로 보내 박●●으로부터 안마시술소의 운영 수입을 받아오게 한 점을 인정하고 있다), ③ 원고는 이 사건 건물을 박●●에게 임대하였다고 주장하면서 임대차계약서를 제출하였으나, 원고가 주장하는 임대차계약의 임차보증금의 자금 흐름에 비추어 볼 때 위 임대차계약은 허위인 것으로 보이는 점, ④ 박●●과 김▽▽는 이 사건 안마시술소를 운영하는 대가로 원고로부터 일정액의 급여를 지급받았고, 시각장애인인 원◎◎, 홍◇◇ 및 서△△은 안마서비스를 제공하고 손님이 낸 요금 중 1인당 19,500원을 제공받은 점, ⑤ 원고는 역삼세무서장이 원고에 대하여 한 통고처분을 그대로 이행한 점, ⑥ 허★★는 이 법정에서 자신은 정확한 내용을 모른 채 박●●이 주는 대로 안마시술소의 수입금과 일일현황표를 원고에게 전달하였다는 취지로 증언하였으나, 원고는 이 사건 안마시술소의 운영수입에 따른 정산을 하기 위하여 허★★를 박●●에게 보냈고, 박●●은 허★★가 일일현황표와 명세표를 일일이 대조하고 실제 잔고와 통장 잔고를 확인하여 수익금액을 정산하였다는 취지로 진술한 점 등에 비추어 볼 때, 허★★의 위와 같은 증언은 그대로 믿을 수 없는 점, ⑦ 원고는 일일현황 집계표(갑 제14호증)를 근거로 박●●이 3년간의 이익금 979,941,242원을 가지고 갔다는 취지로 주장하나, 원고는 총수입 합계에서 봉사료 합계와 잡비를 공제하여 순이익을 계산하였으나, 위 잡비에는 비용으로 볼 수 없는 항목들이 포함되어 있을 뿐만 아니라, 박●●이 위와 같은 돈을 가지고 갔다는 증거도 없으며, 허★★가 일주일에 두 번씩 이 사건 안마시술소에 와서 수입을 정산하고 운영경비를 제외한 나머지를 모두 가지고 간 점 등에 비추어 볼 때, 원고의 위 주장은 받아

In full view of the fact that it cannot be seen, it is reasonable to view that the Plaintiff actually operated the place of massage treatment in this case by itself, and on a different premise, the above assertion by the Plaintiff is without merit.

(2) As to the second argument of the Plaintiff

The evidence mentioned above, the facts of the recognition, and the whole purport of the pleading are recognized as follows.

The aforementioned circumstances are as follows: ① the Defendants calculated the omitted income amount based on the daily account book and the current status table; ② the above daily account book and the current status table were made pursuant to Bright of Bright which had been in charge of the revenue and expenditure of the instant massage procedure; ② the Defendants calculated the necessary expenses based on the daily account book; ② the disbursement details are detailed in the daily account book; while the “miscellaneous expense table” includes advance payment, withholding service fee, and the Plaintiff, which are not recognized as necessary expenses under the Income Tax Act, the calculation of necessary expenses based on the daily account book can be recognized as reasonable; ③ Defendant Gangnamnam Tax Office calculated the omitted amount of service fees paid to female loans employed at the instant massage procedure; and ③ the calculation of the amount to be withheld by multiplying the withholding tax rate by the Plaintiff; ② the Defendants calculated the expense amount based on the daily account book, and thus, it cannot be deemed that there is no ground to deem the Plaintiff’s taxation disposition based on the instant principle as being inconsistent with the Plaintiff’s daily income of service fees.

3. Conclusion

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