early 209 Heavy3926 (Law No. 9, 2010.29)

Since actively involved in the operation of the workplace, it is reasonable to see the lessor as the actual business owner.

Although the lease contract was concluded at the workplace, it is reasonable to see the lessor as the actual business operator, since the lessor has the authority to determine and change the transaction partner and the sales items in the contract, the lessor has changed the transaction partner, and the lessor has instructed the lessor to preserve the deficit of another workplace with the profits of the workplace, and has actively involved in the operation of the workplace by receiving regular reports on the details of

Article 14 (Real Taxation under Framework Act on National Taxes)

2010Revocation of disposition of imposition of value-added tax, etc.

Maximum XX

Head of the tax office

October 18, 2011

November 15, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of value-added tax on August 6, 2009 KRW 80,426,400, special consumption tax, KRW 191,59,530, and education tax amount of KRW 47,894,180 shall be revoked.

1. Details of the disposition;

A. On July 10, 2002, the Plaintiff opened and operated a business of, inter alia, Young-si, 00-1, 000-2, and 00-3 ground-based tourism or transfer rate (hereinafter referred to as the “instant business establishment”) on the ground, and entered into a lease agreement with the Defendant’s auxiliary participant (hereinafter referred to as “GlaA”) on February 1, 2005, this BB, and the Plaintiff entered into a lease agreement with KimA and B for KRW 400 million (the deposit amount shall be reduced to KRW 350 million), monthly rent 35 million, and the lease period shall be from February 1, 2005 to January 30, 2007, each of the above lease agreements with KRW 100,000,000,000,000,000 for KRW 300,000,000,000,000 from January 30, 2007.

B. From January 9, 2008 to May 2, 2008, the Central Regional Tax Office has conducted a tax investigation on the instant workplace, and as a result, from January 1, 2004 to June 30, 2007, it found that KRW 2,115,00,000, which was set as service charges, was omitted in the sales declaration during the instant workplace’s credit card sales from January 1, 2004, and on the premise that KimA is the actual business owner of the instant workplace (hereinafter referred to as the “instant key period”), it was determined that the Plaintiff omitted a report on rental sales of KRW 951,00,000 during the instant key period on the premise that the Plaintiff is the actual business owner of the instant workplace.

다. 피고는 2008. 7. 1. 김AA에게, 이 사건 쟁점기간 동안의 봉사료 과대계상에 따른 매출 신고 누락분 1,640,000,000월에 대한 부가가치세 211,973,530원과 특별소비세 239,190,250원을 경정ㆍ고지하였고, 원고에게는 2004. 1. 1.부터 2005. 1. 31.까지 사이의 봉사료 파대계상에 따른 매출 신고 누락분 475,000,000원과 이 사건 쟁점기간 동안의 임대매출 신고 누락분 951,000,000원에 대하여 부가가치세 203,668,400월, 종합소득세 222,282,600훤, 특별소비세 63,361,950원의 각 부과처분을 하였다.

D. On August 19, 2008, KimA filed a petition for review against himself for the imposition of the value-added tax and the special consumption tax on himself, and on April 10, 2009, the Commissioner of the National Tax Service revoked the said disposition on the grounds that KimA cannot be deemed the actual business owner of the workplace of this case during the key period.

E. On August 6, 2009, the Defendant rendered a disposition of imposition of value-added tax of KRW 80,426,400, special consumption tax of KRW 191,59,530, education tax of KRW 47,894,180 (hereinafter “instant disposition”). On October 28, 2009, the Plaintiff filed a tax appeal with the Tax Tribunal, and the Tax Tribunal (the Tax Tribunal) rendered a decision on September 29, 2010 to rectify the tax base and amount of tax of the instant disposition to the Plaintiff on September 29, 2010. After that, on November 2, 2010, the Director of the Central Tax Office notified the Plaintiff of the decision as to the initial re-investigation.

[Ground of recognition] Evidence No. 2-1, 2, reduction of 4, 10, evidence No. 10, evidence No. 1, the whole and purport of the pleading

2. Whether the measure of this case was adopted

A. The plaintiff's assertion

The defendant taken the disposition of this case by deeming the plaintiff as the actual business owner of the workplace of this case, based on the facts that the name of the business operator and the business operator in the name of the business operator in the workplace of this case is in the future of the plaintiff and the statements of related parties, such as KimAA, who operated the workplace of this case. On February 1, 2005, the plaintiff did not participate in the operation of the workplace of this case after renting the workplace of this case to KimA, and KimB was actually operating the workplace of this case, and it was difficult for KimB to change the name of the business operator in the name of the National Agricultural Cooperative Federation (hereinafter referred to as the "CF") that lent the business fund to the plaintiff as security and the name of the business operator in the loan clause and the name of the business operator in the loan clause to the third party. Thus, the disposition of this case with the plaintiff as the entire business owner in the

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition,

1) Business registration title relation to the instant business establishment

On March 20, 2002, the Plaintiff purchased the instant business site and building and finished the registration in the name of the Plaintiff, and completed the registration of the Plaintiff’s name, and subsequently borrowed approximately KRW 2.5 billion from Nonghyup, and completed the registration of the establishment of a collateral security to Nonghyup with respect to the instant business site and building as Nonghyup. On July 10, 2002, the Plaintiff was registered as a business operator under his name while operating the instant business.

Even after the conclusion of the instant lease agreement, the Plaintiff left the name of the business operator and the name of the business operator in the instant workplace as the Plaintiff. On August 1, 2009, the Plaintiff concluded a lease agreement on the instant workplace with the LeeB, and around that time, changed the name of the instant business operator and the name of the business operator in the instant workplace to BB.

2) Lease deposit and monthly rent under the instant lease agreement

At the time of the Plaintiff’s opening of the instant establishment, 20 persons had worked in the instant establishment. The Plaintiff received a total of KRW 100,000,000 per waitter’s KRW 5,000 per waitter. The deposit is the security deposit of the nature of securing compensation for the damage in the event of the instant lease contract’s loss due to the wait’s failure to receive the drinking value from each other’s customer in charge. Of the deposit of the instant lease’s KRW 3,50,000,000, 100,000 won was replaced by the existing water’s deposit already received from the wait, and KRW 1,90,000,00 was appropriated for the wait’s deposit additionally paid by the waitter at the time of the instant establishment, and KRW 3,00,000,000,000 won was borne by the wait, respectively.

After the termination of the instant lease agreement, the Plaintiff entered into a new lease agreement with the EB on August 1, 2009 on the instant workplace and set the lease deposit as KRW 50 million,000,000, and around that time, received KRW 50,000 from EB. The said KRW 50,000 from EB and the said money did not include wata deposit.

The Plaintiff received KRW 35 million each month from KimA during the term of the instant lease agreement, regardless of the business performance of the instant business establishment. However, the Plaintiff reported to the Plaintiff the amount calculated by deducting various expenses, such as the interest on loans, from the total amount of KRW 35 million at the instant business establishment, and remitted the amount to the Plaintiff’s account each month. The monthly rent set forth in the said lease agreement between the Plaintiff and LeeB is KRW 20 million.

3) Details of the instant lease agreement

The contents of this case on the lease agreement of this case are as follows.

【Omission of Terms and Conditions of Lease Agreements】

4) Transaction relationship between the instant place of business

The Plaintiff was supplied with alcoholic beverages of the instant workplace from KimGGG, which had been operated by the △△ liquor company, and KimGG requested the Plaintiff to change its workplace and trade alcoholic beverages with the company where the Plaintiff works, and the Plaintiff changed the liquor trading place of the instant workplace to △△ Dong in the first half of 2007, and again changed to △△ Dong in the second half of 2007.

The Plaintiff was supplied with the task of the instant workplace from Kim H, which was originally operated by the ○○○ Department. Since Kim H, Kim H unfairly claimed excessive daily payment, Kim H reported the same to the Plaintiff, and thereafter, the file trading company was changed to another place at the Plaintiff’s instruction.

5) Financial management of the instant workplace

This case’s credit card companies at the instant workplace were changed to BK information operated by the Dongs of BB, and the credit card companies were changed to BK information on July 23, 2007. BK information was changed to BK between July 23, 2007 and August 24, 2009.

In 206 and 35 million won to be paid monthly to the Plaintiff according to the instant lease agreement, the Plaintiff, a general manager of the instant business establishment, entered the details of the money to be finally transferred to the Plaintiff, with deducting the interest on the agricultural loans, mobile phone charges, public charges, etc. during each relevant month from the monthly amount of KRW 35 million to be paid each month according to the instant lease agreement, which is within the term of the instant lease agreement, and reported to the Plaintiff each month.

The management department KimN of the instant workplace, which was in the relationship with the Plaintiff, delegated the tax reporting duties of the instant workplace to the tax accountant Lee NN while taking charge of business account books.

6) Status of KimA

From August 6, 2002, KimA served as awater in the instant workplace, and promoted to awater on or around June 2003. The head of awater is the position in charge of the overall management and supervision of thewater working in the instant workplace and the management of the customers within the age club. Since KimA does not directly receive any customer, if thewater, who is the head of awater, collects all of thewater, and pays KRW 4-5 million to KimA, who is the head of awater, all of the services and rents paid to customers, and pays KRW 4-5 million monthly, it would be the revenue of KimA. The Plaintiff was the head of the instant workplace, including the period of the instant lease, and Kim AA was disadvantageous to the head of awater or the manager.

In the instant workplace, the Plaintiff acquired YYAE with a proper plan to attract the customers of the young class in the instant workplace, and made it possible for KimA to take charge of the operation of YAE with the enemy arising from the operation of YAE until the YAE’s business is normalization.

[Ground of recognition] Class A 2, Evidence Nos. 12, evidence Nos. 12, evidence Nos. 1-8, evidence No. 10, evidence Nos. 1-2, evidence Nos. 1-7, evidence Nos. 1-16, evidence Nos. 1-14, evidence Nos. 14, evidence Nos. 15-1, 2, and 19-1, 2, and 19-2 of the evidence Nos. 2, evidence Nos. 2, 2, and 19-2 of this Court, evidence Nos. 12, witness KimA's testimony, part of witness No. B's testimony, and the purport of the whole pleadings

D. Determination

Inasmuch as the determination of a taxpayer based on the substance over form principle under Article 14(1) of the Framework Act on National Taxes ought to be based on legal substance, rather than external appearance, if the ownership of the income, profit, property, act or transaction subject to taxation is merely nominal and there is another person to whom it actually belongs, the person to whom it actually belongs shall

In light of the following circumstances revealed by the facts as seen earlier, i.e., (i) the Plaintiff maintained the name of the Plaintiff after the conclusion of the instant lease agreement as to the name of the business operator and the name of the business operator regarding the instant letter of business [it is difficult for the Plaintiff to change the name of the business operator and the name of the third party under the terms and conditions of the loan with agricultural cooperatives, but the Plaintiff could not change the name of the business operator and the name of the business operator in the instant place of business from August 1, 2009 when the above loan remains, and the Plaintiff could change the name of the business operator and the name of the business operator in the instant place of business from the instant place of business to the BB (Evidence B and 7). In light of the fact that the Plaintiff’s business operator’s new lease of the instant place of business to this case and the name of the business operator in charge of the instant place of business to the Plaintiff, regardless of the expiration of the lease agreement term, the above assertion is not persuasive.

3. Conclusion

Therefore, the plaintiff's claim based on the premise that the actual business owner of the workplace of this case is not the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.