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(영문) 실질적인 공동사업자로 보아 부가가치세 연대납세의무지정을 통지한 처분의 당부(기각)
조세심판원 조세심판 | 2007-08-27 | 국심2007전1427 | 부가
[Case Number]

National High Court 2007 Jeon1427 (Law No. 27, 2007)

[Items]

Addition

[Types of Decision]

Dismissal

[Summary of Decision]

If a person who is not registered as a joint businessman in a business registration certificate has carried on a substantial joint business, a disposition of notifying the designation of value-added tax to be jointly paid is justifiable.

[Related Acts]

Article 2 of the Value-Added Tax Act / Article 25 of the Framework Act on National Taxes

【Disposition】

I dismiss the appeal.

【Reasoning】

1. Summary of disposition;

In the process of the investigation of value-added tax by the disposition agency on the OOO located in the OOOO (hereinafter referred to as the "OOO establishment") registered as a sole business operator, the fact that the non-claimed income amount of KRW 799,393,921 (the first term portion of KRW 393,495,702, the second term portion of KRW 2005 in 2005, the second term of KRW 405,898,219 in 2005) was omitted and the business place at issue was conducted jointly by the claimant, the non-claimed O and three OO jointly.

The disposition agency notified the value-added tax on the omitted amount of income in the main place of business to the joint and several taxpayers who are substantially joint and several entrepreneurs of the main place of business. On October 31, 2006, the disposition agency notified the claimant to jointly and severally pay the first term portion of value-added tax in 2005, 48,407,840 won, and 47,693,040 won in 2005 (hereinafter referred to as "market value-added tax").

On December 28, 2006, the claimant appealed and filed an appeal on April 25, 2007.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

From March 10, 2004, the claimant and the non-claim OO jointly run the key business place. However, on February 22, 2005, there was a conflict between the claimant's sole title transfer registration of real estate to which the key business place belongs, and the bank liabilities unredeemed, etc. on March 5, 2005, and the non-claim OO filed a lawsuit against the claimant seeking cancellation of ownership transfer registration of real estate to which the key business place belongs on the ground that his/her right of ownership is infringed, it is improper to give notice on the designation of the claimant to jointly pay the outstanding value-added tax by deeming the claimant as a joint business place as a key business place, notwithstanding the fact that the non-claim OO violated his/her right of ownership.

(b) Opinions of disposition agencies;

From March 10, 2004 at the time of the tax investigation of the agency's disposition office on the key business place in August 2006, the claimant is confirmed pursuant to the applicant's statement and the partnership agreement that the claimant has operated the business jointly with the non-claim 25%, OO50%, and 25% of the authorizedO25% from October 25, 2005 while the claimant has operated the business jointly with the non-claim OO and the non-claim 25% from the date of the tax investigation of the agency's disposition office on the key business place in August 2006, and the claimant has not received any profit and loss distribution as to the profits of the joint business place, but the non-claim O has paid a certain amount of monthly wage, and there is no specific submission of the contract for termination of the partnership contract or the court's ruling on March 10, 2004, it is justifiable to designate the claimant as the business place and notify the value-added tax liability to the issues of the joint business place.

3. Hearing and determination

A. Key issue

The legitimacy of the disposition of designating and notifying a joint tax liability for value-added tax by deeming the claimant as a substantial joint business operator

(b) Related statutes;

(1) The Value-Added Tax Act (amended by Act No. 7876 of March 24, 2006)

【Taxpayer】

(1) A person who independently supplies goods (referring to goods prescribed in Article 1; hereinafter the same shall apply) or services (referring to services prescribed in Article 1; hereinafter the same shall apply) on a business basis, regardless of whether it is for profit-making purposes (hereinafter referred to as "business operator") shall be liable to pay value-added taxes under this

(2) The taxpayers referred to in paragraph (1) shall include individuals, corporations (including the State, local governments, and local government associations), unincorporated associations, foundations, and other organizations.

Article 5 【Supplementary Records】

(1) A person who starts a new business shall register with the head of the competent district tax office having jurisdiction over the place of business within 20 days from the date of commencing the business under the conditions as prescribed by the Presidential Decree: Provided, That a person who intends to start

(2) The head of the competent district tax office having jurisdiction over the place of business shall issue a certificate of registration assigned with a registration number (hereinafter referred to as "business registration certificate") to the business registered under paragraph (1).

(2) Framework Act on National Taxes (amended by Act No. 7930 of April 28, 2006)

Article 14 (Real Taxation)

(1) If the title to the income, profit, property, act or transaction subject to taxation is merely nominal and a person to whom such title belongs exists, the tax-related Acts shall apply to such person to whom such title belongs as a taxpayer.

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

Article 25 【Joint Tax Liability】

(1) National taxes, additional dues and expenses for disposition on default related to joint-owned property, joint-owned property, or property belonging to the relevant joint-owned business shall be jointly and severally liable to pay them.

(2) through (4) Deleted.

Article 25-2 【Application of the Civil Act concerning Joint and Several Liability for Tax Payment】

With respect to the liability to jointly and severally and severally pay the national taxes, additional dues and disposition fees for arrears under this Act or other tax-related Acts, the provisions of Articles 413 through 416, 419, 421, 423 and 425 through 427 of the Civil Act shall apply mutatis mutandis.

(3) Civil Act (amended by Act No. 7765 of Dec. 29, 2005)

Article 413 【Contents of Joint and Several Obligation】

If each of the several obligors has the responsibility to perform the whole obligation, and the performance by one of the obligors discharges the other's obligation, the obligation shall be a joint and several obligation.

Article 414 【Demand for Discharge of Liability for Damages】

The obligee may demand performance, in whole or in part of the obligation, against one of the obligors jointly and severally liable or all of them simultaneously or in succession.

§ 415. 【Nullity or revocations in Respect of Obligors】

The ground for nullifying or avoiding a juristic act in regard to one of the obligors jointly and severally liable, shall not affect the others' obligation.

【Absolute Effect of Claim for Performance】

The demand for performance against one of the obligors jointly and severally liable is effective against the other.

Article 419 【Absolute Effect of Release】

The release of obligation from one of the obligors jointly and severally liable, shall be effective, in order to benefit from the others' share.

【Absolute Effect of Extinctive Prescription】

When the extinctive prescription of one of the obligors has expired, the other obligors shall be exempted from the obligation only in proportion to their respective shares.

Article 423 【Principles as to Relativity of Effect】

Except as provided for in the preceding seven Articles, the matters concerning one of the obligors jointly and severally liable shall not be effective.

§ 425. 【Re-appellant's Right to Claim Reimbursement】

(1) When one of the obligors jointly and severally liable is repaid, or he/she becomes jointly and severally liable at his/her own expense, he/she may exercise the right to indemnity against the other obligors.

(2) The right to indemnity under the preceding paragraph shall include legal interest, expenses which cannot be avoided, and other damages after the date of discharge.

§ 426. Notice as Requisite for Reimbursement)

(1) When one of the obligors jointly and severally liable has, without notifying the others thereof, become jointly and severally liable, or at his own expense, a ground for setting up against the obligee, which would have set up against the other obligors, the claim which would be extinguished by the set-off may be set up against the obligors, limited to the proportion of their respective shares, and when the ground for setting up the set-off

(2) When one of the obligors jointly and severally liable fails to notify the others that he/she was jointly and severally liable, at his/her own expense, he/she has performed performance to the obligee or otherwise has performed an act of immunity for value, the latter may claim in good faith that the act of immunity is effective

§ 427. 【Share of Obligor who is Insolvent】

(1) When there is anyone who has no means to redeem, the obligor's share to be borne by him, shall be apportioned in proportion to the shares to be borne by the person who has the right to demand the reimbursement and other self-sufficiency: Provided, That if the claimant was negligent, he may not demand

(2) In the case of the preceding paragraph, if the other obligor, who is to share the share of the obligor with no means to repay, receives a discharge from the obligee, the share of the obligor shall be borne by the obligee.

C. Facts and determination

(1) From March 10, 2004, the claimant and the non-claim OOO jointly run the key business place as one half of the shares, but on March 5, 2005, the non-claim OO filed a lawsuit against the claimant seeking cancellation of ownership transfer registration for the real estate to which the key business place belongs on the ground that his/her ownership has been infringed, and thus, the trust between partners is broken and the trust between partners is not broken, and even from March 5, 2005, it is unreasonable to give notice of designation to the claimant to jointly pay the value-added tax by deeming the claimant as a joint business place at the key business place at the key business place and submit the contents of the content certification and complaint case as evidentiary documents.

On July 6, 2006, when examining the contents of the claimant sent to OO on March 10, 204, the claimant and OOO's investment in 50% for the joint management of the issue place of business, respectively, and decided on the partnership. However, the claimant's failure to repay bank obligations of OO, the claimant's demand for transfer of shares of 1/2 of real estate acquired at the issue place of business, etc., cannot jointly operate the partnership's dissolution, liquidation, and compensation for damages. Thus, other contents certificates sent by the claimant to OO on July 19, 2006, sent by the claimant to OO on July 6, 2006, including bank obligations, among those certificates sent by the claimant to OO, they can no longer be seen as a violation of the OO's ownership ratio since OO's ownership ratio was cancelled on the grounds that O's ownership ratio was no more than 860,758,2266 O's ownership ratio.

(2) On the other hand, examining the contents of the agency's investigation as to the claimant's actual partnership business, the association agreement prepared on March 10, 2004, prepared on the basis of the agreement between the claimant and the non-claim-OOOOOOOOOOOO's establishment and 50% investment, and operation of wedding and annual conference, etc. (OOO). The partnership's execution of business is a contract for joint operation with the claimant and the non-OOOOOO. The partnership agreement prepared on October 25, 2005, prepared on October 25, 2005, 25% of the claimant, non-claim 50% of the claim, OOOOO, 25% of the claim, and the partnership is jointly operated by

* Contents of partnership agreement

(unit:,000 won)

Section 1. Partnership Agreement ② On October 25, 2005, the date of the conclusion of partnership agreement ② from March 10, 2004 to October 25, 2005, from March 10, 2004 to October 25, 2005, from March 10, 2004 to October 25, 2005, 2004, 50% of the investment ratio of partnership in partnership operation OOOOOOOOO OO OO O O O O O O O O O O O O O O O O O O50% * 650,00425,000 O O650,000 O O650,000 O-O 00

In addition, the applicant's written answer prepared at the time of the tax investigation by the agency on August 1, 2006, which was made up at the time of the tax investigation by the agency, was made up with 50% investment from OO on March 10, 2004. The content of the contract was effective until the date of the tax investigation, and the applicant stated that OO was appointed as a management director (agent) and managed the key place of business because the applicant could not directly manage the key place of business because he operated the construction business, OO was in force until the date of the tax investigation, OO was appointed as a management director. The written answer of YO was made out on August 7, 2006, OO was made out at the office of OOY-dong 616, YO-dong, 204. At the same time, the applicant was present at the end of 2005, OO which was the agent's representative at the time of signing the contract and at the same time, 300.5%.

(3) In full view of the above facts, the claimant asserted that the business relationship with the non-claim OO was terminated when operating the controversial business jointly with the non-claim OO as described in the partnership agreement from March 10, 2004, and from March 5, 2005, the actual partnership relationship with the non-claim OO was terminated. However, the claimant did not submit objective evidentiary documents, such as the termination contract for the partnership business or the court ruling, which was signed on March 10, 2004 and October 25, 2005, and had the non-claim OO as the petitioner's representative until the end of 2005 from the written response of the claimant and non-claim OOO as the managing director of the main business place. The claimant's statement from March 10, 2004 to the disposition office's tax investigation to the date of the disposition office's tax investigation.

Therefore, there is no error in this case that the disposition agency designated and notified the claimant to jointly pay the value-added tax by deeming the claimant as a substantial joint business operator of the workplace at issue.

4. Conclusion

This case's request for a trial is without merit, so it shall be decided in accordance with Article 81 and Article 65(1)2 of the Framework Act on National Taxes.

August 27, 2007

Chief Justice Park Dong-sik

National Tax Judge Kim Hong-man

Hexal Jiny

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