Seoul High Court 2009Nu21934 (Law No. 17, 2010)

National Tax Service Review and Transfer 2008-0017

A nonresident who has an occupation that requires him/her to continually reside abroad for not less than one year while residing abroad.

At the time of transfer of stocks, the occupation that usually requires continuous residence in a foreign country for not less than one year has been located at the time of transfer, and it cannot be recognized that there is a basis for the living in Korea.

2010du15056 Revocation of revocation of request for rectification of transfer income tax

○ Kim

○ Head of tax office

The Seoul High Court Decision 2009Nu21934 Decided June 17, 2010

April 28, 2011

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

Article 1 (1) 1 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009; hereinafter referred to as the "Act") provides that an individual who has a domicile in Korea or has a domicile in Korea for at least one year (hereinafter referred to as "resident") shall be liable to pay income tax under the Act. Article 2 (1) and (2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010; hereinafter referred to as the "Enforcement Decree") provides that an address under Article 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010) shall be determined in accordance with objective facts of his/her living relationship, such as the existence of a family living together in Korea and a property located in Korea. Article 2 (4) 1 of the Enforcement Decree provides that a person residing or working in a foreign country has no domicile in Korea.

According to the reasoning of the judgment below, the court below acknowledged the facts as follows: ① the plaintiff retired from the non-party 1 corporation (hereinafter referred to as the "non-party 1 corporation") and worked for the non-party 10% shares for the Domeras and Inc. (hereinafter referred to as the "U.S. subsidiary"), which is the only family member living together with the defendant around April 15, 2006, and ② the plaintiff transferred part of the shares of this case to the non-party 1 corporation, the non-party 4 corporation, and the non-party 5 corporation's company's dominant shareholder at around October 31, 2006, and the plaintiff continued to work for the non-party 1 corporation to be the non-party 1 corporation, the non-party 1 corporation of this case, and the non-party 2 corporation's non-party 1 corporation's income tax related to the income of the non-party 1 corporation after residing in the U.S. corporation after May 206, 2006.

In light of relevant laws and records, the judgment of the court below is just, and there is no error of law by misapprehending the legal principles on residents and non-residents prescribed in Article 1 (1) of the Act, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, as otherwise alleged in the ground of appeal [The reasoning of the judgment of the court below and the records reveal that the plaintiff already retired from the non-party company around April 2006 and employed the non-party company to the U.S. subsidiary around May 2006, it cannot be deemed that the plaintiff was dispatched to the non-party company of the U.S. subsidiary.. corporation. Therefore, in relation to Article 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009), which stipulates the special case of resident judgment on the officers or employees dispatched to overseas business places of the domestic corporation, the judgment of the court below that the overseas domestic corporation does not constitute "overseas business places, etc. of the U.S. subsidiary" cannot affect the judgment].

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.