Plaintiff (Attorney Lee Jae-chul, Counsel for plaintiff-appellant)

Korea

January 9, 2013

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 9,870,190 won with 5% interest per annum from October 11, 2006 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

1. Basic facts

A. The director of the Gangnam-gu Tax Office under the Defendant issued a disposition imposing global income tax and value-added tax on the Plaintiff, the title holder of the business (hereinafter “instant business”) selling and leasing ○○ Officetel, both of the Gangnam-gu Seoul (No. 1 omitted) and the same (No. 2 omitted), and on October 10, 2006, in relation to the instant business, the amount of global income tax was paid in KRW 65,415,820, global income tax for the year 2005, KRW 1,669,370, value-added tax for the year 203, KRW 31,092,580, value-added tax for the second year of February 2003, KRW 1,692,420, total amount of value-added tax for the year 1,692, and KRW 9,870,190 for the year 204.

B. Meanwhile, on the ground that Nonparty 1 is the actual business operator of the instant business, the director of the Gangnam-gu Tax Office under the Defendant’s jurisdiction imposed the said imposition of value-added tax on January 2007, and the director of the Labor Relations Office under the Defendant’s control revoked the said imposition of global income tax on September 201, and deducted the tax amount corresponding to the revoked portion from the tax amount to be paid by Nonparty 1.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 10-1, Eul evidence 11, Eul evidence 12-12-4, the purport of the whole pleadings

2. The allegations by the parties and the determination thereof

A. The parties' assertion

(1) Plaintiff

As seen earlier, the head of a tax office affiliated with the defendant must immediately refund the amount of tax payable to the plaintiff when he/she revokes the imposition of global income tax and each value-added tax against the plaintiff, but deducts the amount of tax payable from the amount of tax payable by the non-party 1, who is not related to the plaintiff. Thus, the defendant is obligated

(2) Defendant

A taxpayer of global income tax and each value-added tax related to the instant business, and a person who actually paid the relevant tax amount, are Nonparty 1, the actual businessman, not the Plaintiff who merely lent the title, and the head of the tax office under the Defendant’s jurisdiction is lawful to deduct the amount of tax payable from the amount of tax payable by Nonparty 1 after cancelling each of the above dispositions. As such,

B. Determination

(1) Article 14(1) of the Framework Act on National Taxes provides 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 a taxpayer and shall be subject to tax laws.” Article 51 of the same Act declares the substance over form principle by stipulating that “If there is any amount overpaid or erroneously paid by the taxpayer as a national tax, additional dues, or disposition fee for arrears, or there is an amount of refundable tax (if there is any amount of tax to be deducted from the amount of refundable tax under tax laws, referring to the remaining amount after deduction) to which the taxpayer has paid as a taxpayer, the head of a tax office shall immediately determine the amount overpaid or erroneously paid, or the amount of refundable tax to be refunded under the tax laws,

(2) Therefore, comprehensively taking account of the overall purport of the pleadings by Non-Party 2’s testimony as to who is the actual taxpayer and the actual taxpayer of global income tax and each value-added tax related to the instant business, it can be acknowledged that the representative of the business registration is the Plaintiff in relation to the instant business, the Plaintiff purchased the land for business in the name of the Plaintiff and completed construction permission, and the Plaintiff received the loan from the financial institution in the name of the Plaintiff in order to raise funds for acquiring the land for business. However, the Plaintiff did not own a new construction and sales business as well as related construction business as the above business in the name of the spouse of Non-Party 1, and did not separately input funds from the financial institution in relation to the above business, on the other hand, Non-Party 1 operated a new construction and sales business as the representative director of a house completed the corporation from 1980 to the date of its actual payment, and Non-Party 2 continued to purchase and sell the above land under the name of the Plaintiff and the Plaintiff’s business owner, including the purchase price of the land for business.

(3) Therefore, the Plaintiff’s assertion on the premise that the actual taxpayer who actually paid global income tax and respective value-added tax related to the instant business is entitled to claim the refund of such tax is without merit.

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.

Judges Cho Soo-eng