Seocho 2012west 3151 (Law No. 07, 2014)

Inasmuch as the Plaintiff provided advisory services with continuity and return in an independent position on a commercial basis, the advisory fee in this case constitutes business income.

It is reasonable to see that the Plaintiff provided advisory services with continuity and return as independent status for profit. Thus, each of the dispositions of this case where the Plaintiff determined the amount of the Plaintiff’s comprehensive income tax by deeming the advisory fees as the business income of this case is legitimate.

Article 19 of the Income Tax Act

2014Guhap57690 global income and revocation of such disposition

EO

AA Head of the Tax Office

August 28, 2014

October 16, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Each disposition taken by the Defendant against the Plaintiff on April 4, 2012, the imposition of the global income tax for 2007, the global income tax for 2008, the global income tax for 2008, the global income tax for 2009, the global income tax for 009, and the global income tax for 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff served as a public official for 30 years from 1974 to 2004, and served as an OO or OO prior to his retirement. The Plaintiff thereafter served as a member of a limited liability law firm (hereinafter referred to as “instant law firm”) from July 26, 2004.

B. During the period from 2007 to 2010, the Plaintiff provided advice on tax or overall management to the BB Co., Ltd. and eight domestic companies (hereinafter referred to as “the advisory company of this case”), and received a total of OO (hereinafter referred to as “the advisory fee of this case”) in return, deeming it as other income, and filed a comprehensive income tax return by applying 80% necessary expenses.

C. However, on April 4, 2012, the Defendant calculated the Plaintiff’s global income for the year 2007 through 2010 on the ground that the advisory fee income constituted the Plaintiff’s business income, and subsequently corrected and notified the Plaintiff on April 4, 2012, the Plaintiff of the global income tax for the year 2007 (including additional taxes), the OO of global income tax for the year 2008 (including additional taxes), the OO of global income tax for the year 2009 (including additional taxes), and the OO of the global income tax for the year 2010 (hereinafter “each disposition of this case”).

D. Accordingly, the Plaintiff filed an appeal with the Tax Tribunal on June 28, 2012, but on February 2014.

7. A decision of dismissal was made by the Tax Tribunal.

Facts that there is no dispute for recognition, Gap evidence 1 and 2 (including a branch number if there is a number)

Statement, the purport of the whole pleading

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The plaintiff retired from office in 2004 and has been working as a standing adviser in the law firm of this case until now. The plaintiff is not in a separate position to conduct business, and only in case where the company requires professional knowledge accumulated in past public service life, the company provided advisory services on the overall management by oral advice on the job such as temporary and irregular side, and only received the price on a yearly basis or six-month basis for convenience, and there was no business activity to conclude a contract for advisory services, and there was no separate office or employee. Thus, the advisory fee income of this case should be divided into temporary and incidental income as other income.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

(c) Fact of recognition;

(1) The Plaintiff, while serving as the senior official fee at the National Tax Service, was retired from office, entered into a contract with the pertinent advisory firm on tax or overall management with the pertinent advisory firm during the period from 2007 to 2010, separately from the benefits received from the said law firm, and in return, received the advisory fee as indicated below.

OO

The advisory agreement entered into with the Plaintiff and the instant advisory firm is to provide the Plaintiff with advice on tax or overall management to the enterprise subject to advisory with a term of one year, and the price for advisory services is to be paid in advance on a six-month basis. The details of the advisory agreement entered into with the Plaintiff and the CCC Co., Ltd., DDD Co., Ltd., and EE Co., Ltd are as follows.

Fidelity from July 24, 2004 to the present date, the Plaintiff has been in office as a full-time adviser in the law firm of this case, and earned income received from the said law firm from 2007 to 2010 are as follows:

OO

Facts without any dispute, Gap evidence 3, Eul evidence 1 and 2 (including each number), the purport of the whole pleadings, and the purport of the whole pleadings.

D. Determination

(1) Whether an income constitutes a business income or a temporary income constitutes other income shall not be attributable to the form, name, and appearance of the transaction entered into between the parties, but shall be assessed according to the substance of the transaction, and shall be determined according to social norms, considering the substance of the taxpayer’s vocational activity, the period, frequency, mode, and the other party of the transaction, in light of whether the activity is for profit, and whether the activity is for profit, and whether the activity has continuity and repetition to the extent that it can be seen as business activity. In making the determination, the determination shall be made in consideration of not only the income but also all the circumstances before and after the activity.

(See Supreme Court Decision 2000Du5203 Decided April 24, 2001).

D. The Plaintiff, regardless of this case’s law firm, has entered into an advisory service contract with the Plaintiff and independently provided services as an advisory firm regardless of this case’s law firm. ② From 2007 to 2010, the Plaintiff entered into an advisory service contract with the Plaintiff nine companies (six companies in 2007, five companies in 2008, six companies in 209, three companies in 2010). ③ The contract term of the advisory service contract concluded by the Plaintiff was extended on the basis of one year. The Plaintiff’s actual contract term of the advisory service contract was extended on the basis of one year. The Plaintiff’s actual contract term of the advisory service contract is within several years per company (CC, EE corporation, FFF corporation, GGGGD corporation, DD DD corporation, etc.). ④ The Plaintiff’s method of offering advisory service to the Plaintiff or other company’s independent advisory service to the Plaintiff is difficult to view that the Plaintiff did not provide it as an advisory service for profit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.