Ulsan District Court-2014-Guhap-5860 (2015.07.02)

Cho High Court Decision 2014Da1897 ( October 06, 2014)

Additional tax notice shall be deemed to be a separate business operator who independently employs workers and provides construction services, and a disposition of additional tax notice is legitimate.

(1) The non-party company supplied workers to the non-party company, received the payment for the amount of work from the non-party company, paid wages according to the number of working days to the workers, and brought the remainder to the workers. Since the payment for the work is a price for the worker who is not the price for the work, the disposition of additional tax notice following the provision of service is justifiable.

Article 2 of the Value-Added Tax Act

2015Nu2240 Revocation of Disposition of Imposing Value-Added Tax

AAA

00. Head of tax office

Ulsan District Court Decision 2014Guhap5860 Decided July 2, 2015

December 11, 2015

January 15, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court is revoked. The Defendant’s imposition of value-added tax ○○○ on January 3, 2010 (won, value-added tax on February 2010, and value-added tax on January 201, which was imposed on the Plaintiff on January 3, 2014 (won, value-added tax on February 201, and value-added tax on January 201) is revoked.

1. The issues of the instant case and the judgment of the court of first instance

A. The issues of the instant case

"The plaintiff provided shipbuilding-related services to Seongdong ○○○ (hereinafter "non-party company")", from January 1, 201 to December 31, 2011, on the ground that "the plaintiff provided shipbuilding-related services to the non-party company" and "the plaintiff did not return or pay value-added tax by omitting sales despite having received construction payment under the construction contract from the non-party company", "the plaintiff received construction payment from the non-party company," and "the non-party did not return or pay value-added tax by omitting sales." On January 3, 2014, the plaintiff notified the plaintiff on January 3, 2010, the value-added tax ○○○, the value-added tax ○○, the value-added tax ○, the value-added tax ○, the value-added tax ○, the value-added tax ○, the first half of January 2011, and the issue of this case is whether this case is a non-party company's employee under the direction and supervision of the non-party company, whether this case will be deemed an employee or an employee.

"The court of first instance" concluded a contract with the plaintiff and the non-party 1 to pay the work amount to the non-party 1, and the non-party 2 paid the work amount to the plaintiff. The non-party 1 paid the plaintiff total ○○ by the non-party company from January 1, 2010 to December 31, 2011. Upon the plaintiff's receipt of the work price as above from the non-party company, the plaintiff set the wages according to the number of working days and paid the non-party 2 to the non-party 1. In this case, the non-party company did not participate in any way of the plaintiff's payment of wages to the worker, and the non-party 1 company written a contract for construction work at each time. The contract for construction is terminated by paying the work price to the plaintiff, and the plaintiff is not responsible for the labor relations, retirement allowances, welfare, etc. to the non-party 1's employees, and the plaintiff is not responsible for the remaining work amount to the non-party 1's employees.

In addition to the above circumstances, the plaintiff argues that the plaintiff is merely an independent worker, not an independent business operator, and the court of the first instance states properly, the following circumstances acknowledged as follows: (i) the plaintiff argued that the non-party company was in charge of supervision or work order in the process of performing the work, i.e., the non-party company merely issued a general order to the plaintiff, and specific work order to the workers taken place by the plaintiff seems to have been given to the non-party company, not the non-party company; (ii) the workers taken place are not the non-party company, but the plaintiff received wages from the plaintiff; and (iii) the money paid to the non-party company to the non-party company is not calculated on the basis of daily allowance for workers including the plaintiff, but on the basis of the amount of work completed; and (iv) the plaintiff did not appear to have received the above work order from the non-party company to the non-party company, but it is difficult to view that the non-party company was in charge of the non-party company's employment certificate (the non-party company's employment certificate).

Therefore, the reasoning for the court’s explanation on the instant case is as stated in the reasoning for the judgment of the court of first instance, except for the addition of some of the above circumstances, and thus, this is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

3. Conclusion

If so, the judgment of the first instance is justifiable, and the appeal of the plaintiff is dismissed as it is without merit.