Revocation of imposition of value-added tax

It shall be determined by comprehensively taking into account various circumstances, such as the details of the use of the name in determining whether the actual business operator is the actual business operator, the details of the agreement by the parties, the degree and scope of involvement by the nominal owner, the relationship of internal responsibility and calculation

Article 14 of the Framework Act on National Taxes

2014Guhap53057 Such revocation as value-added tax, etc.

CHAPTER A

*The Director of the Tax Office

1. The plaintiff's appeal is dismissed.

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

The Defendant’s value-added tax for the first period of December 1, 2008 against the Plaintiff on December 1, 2013, KRW 4,267,110, and KRW 208 for the first period of 208.

Value-added tax for the first quarter of year, 19,784, 110 won, value-added tax for the second quarter of year 2008, 12,609,390 won, 2008

Value-added tax for the second term portion of year, 8,497,260 won, value-added tax for the second term portion of year 2008, 4,813,670 won, 209

Value-added tax for the first term portion 24,776,850 won, value-added tax for the second term portion in 2009, 23,662,800 won, and 2010

Value-added tax for the first term portion 9,483,580 won, global income tax for the year 2008 176,348,480 won, global income for the year 2009

The imposition of tax 131,759,090 won, and 29,976,300 won of global income tax in 2010 shall be revoked.

1. Details of the disposition;

가. 원고 소유(2000. 3. 2.부터 1/2 지분 소유, 2000. 11. 30.부터 나머지 1/2 지분도 소유)의 **시 **구 **대로 223 지상 건물(이하 '이 사건 건물'이라 한다)에 있는 모텔DDD(이하 '이 사건 모텔'이라 한다)의 사업자명의는 2000. 11. 1.부터 2008. 1. 23.까지 원고, 2008. 1. 23.부터 2008. 9. 8.까지 GGG, 2008. 9. 8.부터 2008. 12. 2.까지 FFF, 2008. 12. 2.부터 2010. 3. 31.까지 원고로 순차 변경되었다. 나. OO지방국세청장은 원고가 대표이사로 등재된 주식회사 @@@(이하 '@@@'라 한다)에 대한 법인통합조사를 실시하였는데, 그 과정에서 @@@ 회장 비서실에서 보관하던 이 사건 모텔의 2008. 1. 1.부터 2010. 3. 29.까지의 일별, 월별 판매일보를 통해 위 기간 중 이 사건 모텔의 현금 수입금액 중 562,758,000원에 대한 세금신고가 누락된 사실을 확인하였다.

C. On September 5, 2013, the director of the regional tax office notified the Plaintiff of the result of the tax investigation that value-added tax will be imposed in KRW 106,775,765 and global income tax will be imposed in KRW 334,953,232 based on the above investigation result. The Plaintiff filed a request for the review of the legality before taxation on October 7, 2013, but the director of the regional tax office decided not to adopt the tax on November 14, 2013.

D. The Defendant imposed value-added tax and comprehensive income tax on December 1, 2013 on the Plaintiff, as stated in the purport of the claim, according to the determination on the propriety of the aforementioned taxation prior to the taxation (hereinafter “instant disposition”).

E. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on December 5, 2013, but was dismissed on March 4, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1, 2, 4, and 5 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition of this case imposing value-added tax and comprehensive income tax on the Plaintiff is unlawful as it is against the substance over form principle on the Plaintiff, because the Plaintiff was the actual business operator of the instant franchise, and the Plaintiff was merely the nominal lender.

B. Determination

1) Relevant legal principles

Article 14 (1) of the Framework Act on National Taxes declares the principle of substantial taxation by stating that "if the ownership of income, profit, property, act or transaction subject to taxation is nominal and there is another person to whom such ownership belongs, the person to whom such ownership belongs shall be liable to pay taxes and the tax law shall apply."

Therefore, in cases where there is a person who substantially controls and manages a taxable subject to income, profit, property, act, transaction, etc. different from the nominal owner, the nominal owner on account of form and appearance should be the person who actually controls and manages the taxable subject to taxation in accordance with the substance over form principle, instead of the nominal owner as the person liable for duty payment. Furthermore, whether such a case is a case should be determined by comprehensively taking into account various circumstances such as the details of the use of name, content of the agreement between the parties concerned, the degree and scope of the nominal owner’s involvement, internal responsibility and calculation relationship

Meanwhile, in principle, the tax authority bears the burden of proving the existence and the tax base of the facts requiring taxation. This also applies to cases where the tax authority contests that the nominal owner of the transaction, etc. and the actual owner of the transaction, etc. are different, barring special circumstances, such as a separate legal provision converting the burden of proof. However, as long as the tax authority imposed tax on the nominal owner as the nominal owner, it is necessary for the business owner to assert and prove that the nominal owner of the transaction, etc. is different from the nominal owner of the transaction, etc. so long as the tax was imposed on the nominal owner. In such a case, the need for proof is sufficient to the extent that the judge has a reasonable doubt as to whether the transaction requirements were satisfied. As a result, it is unclear whether the substance of the transaction, etc. belongs to the nominal owner, and if it becomes impossible to obtain conviction by the judge, then the disadvantage therefrom is back to the tax authority bearing the ultimate burden of proof (see Supreme Court Decision 2011Du935, May 16,

Comprehensively taking account of the following circumstances acknowledged by the aforementioned evidence, Gap's evidence Nos. 4, 5, 7, 9 through 11, Eul's evidence No. 12-10, Eul's evidence No. 3, and the overall purport of the arguments and arguments, it is insufficient to acknowledge that the evidence submitted by the plaintiff alone is B, and the plaintiff was not involved in the operation of the her mother, and there is no other evidence to prove otherwise. Therefore, the disposition of this case premised on the plaintiff's operation of the her mother is legitimate, and thus, the plaintiff's assertion is without merit.

① In the course of the tax investigation, barring special circumstances, such as: (a) if a tax authority has received a written confirmation from a person liable to pay tax to a certain taxable fact in the course of the tax investigation, it may not readily deny the value of such written confirmation (see, e.g., Supreme Court Decision 2006Du8068, Sept. 25, 2008); (b) in the course of the tax investigation into the instant cartel, the Plaintiff prepared a written confirmation stating that “the Plaintiff, as the representative of the instant youth, omitted cash sales of KRW 619,034,30,00 from 208 to 2010; (c) from Jan. 23, 2008 to Sep. 8, 2008; or (d) from Sept. 8, 2008 to Dec. 25, 2008, the Plaintiff had no evidence to acknowledge that the Plaintiff’s false document was registered with the Plaintiff’s business entity; and (d) the Plaintiff’s false document.

② The Plaintiff asserted that, unlike the confirmation of the facts made on December 7, 2005 and the content of the certificate of performance (Evidence A7), the Plaintiff was engaged in the leasing business solely while independently owning the instant building, and that, not less than four million won, the Plaintiff was at least four million won from the lease revenue, but the Plaintiff, for any reason, the instant franchise located in the instant building.

It is not clearly explained whether the name has been operated.

③ immediately after receiving the notice of the results of tax investigation to the effect that the instant disposition is scheduled to be imposed.

the plaintiff is registered as representative director while coordinating the divorce and division of property with BB.

@@@의 주식 등 이와 관련한 일체의 권리를 서BB에게 양도하고, @@@에 부과될

The tax shall be borne by B up to 3 billion won on the basis of the additional tax collected by the National Tax Service

business registration in the name of the plaintiff, even though the agreement to share at a certain rate is reached;

with respect to the instant telecom, the Plaintiff would have ownership of the instant building.

는 것 외에는 추가로 합의한 내용이 없다. 즉, 원고는 @@@와 이 사건 모텔 모두 실

In contrast to the assertion that a qualitative business operator is not the Plaintiff but SB, at the time of the establishment of the above mediation

In addition, notice of the tax investigation result that value-added tax, etc. related to the franchise of this case is scheduled to be imposed

은 상태였음에도 위 조정절차에서는 @@@와 관련한 세금문제만 합의하였을 뿐 이 사

No agreement was reached on taxes related to the Moel.

④ 원고는 서BB와 공동으로 @@@를 운영하면서 매출금액을 거짓으로 기재한 매

Corporate tax and value-added tax evasion by submitting a list of total tax invoices by source and omitting sales;

The criminal facts are recognized as criminal facts, but the degree of participation is insignificant and the evaded tax amount is insignificant compared to BB.

The suspension of indictment shall be imposed in consideration of the circumstances such as partial payment and the prosecution of BB's non-detained;

받은 것이므로, 이 사건 모텔의 매출금이 @@@ 사업장 인근 은행(OO 퇴계로지점)에

서 인출되었고 출금자도 @@@ 직원이라는 사정만으로는 이 사건 모텔의 실질적 사업

It is difficult to view that the Plaintiff is not the Plaintiff but the bookB.

⑤ From January 1, 2008 to March 29, 2010, the instant telecom with the proviso to the instant disposition.

까지의 일별, 월별 판매일보는 @@@ 사업장 내 회장 비서실에 보관되어 있었는데, 원

고가 @@@의 회장으로서 회장실을 사용해왔으므로 위 장부도 원고의 실질적인 지배

It is natural to view that there was such act.

3. Conclusion

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

shall be ruled.