Whether the Plaintiff is a actual business operator of the instant workplace

It is difficult to conclude that the Plaintiff is a practical business operator or a partner of the CCC.

Article 14 of the Framework Act on National Taxes

Incheon District Court 2015Guhap53576 global income and revocation thereof.

AA

BB Director of the Tax Office

April 28, 2016

May 13, 2016

1. The part of the instant lawsuit regarding the revocation claim against the imposition of local income tax shall be dismissed.

2. The Defendant’s global income tax amounting to KRW 9,039,840,00 for the portion reverted to the Plaintiff for the year 2013, as of December 1, 2014

The imposition disposition shall be revoked.

3. One-one of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Details of the disposition;

A. From January 2, 2013 to December 31, 2013, the Plaintiff was registered as a business operator of an e-commerce retail company (hereinafter “instant company”) with the trade name “D” (hereinafter “D”) from January 2, 2013 to December 31, 2013.

B. On June 2, 2014, the Plaintiff filed a return on global income tax of KRW 39,742,592 as global income by applying the simple expense rate when filing a return on global income tax for the year 2013. However, the Defendant, as a new entrepreneur that commenced a business in 2013, declared that the amount of income by type of business in 2013 falls under the person obligated to adopt double entry system (at least 300 million won in retail business), and accordingly, issued a notice of correction and notification of KRW 9,039,840 in global income tax for the year 2013 and KRW 9,980,290 in local income tax for the Plaintiff on December 1, 2014, on the ground that the amount of income by type of business in 2013 should be applied to the person obligated to adopt double entry system (hereinafter “instant disposition imposing global income tax for the instant case”), respectively.

C. The Plaintiff filed an objection against the Defendant on December 31, 2014, but the Defendant dismissed the said objection on January 28, 2015, and the Plaintiff again filed a petition for adjudication with the Tax Tribunal on April 30, 2015, but was dismissed on August 24, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence No. 1, Eul evidence No. 5, the purport of the whole pleadings

2. Whether the part concerning the claim for revocation of imposition of local income tax of the instant lawsuit is lawful

We examine ex officio the legitimacy of this part of the lawsuit.

According to Article 93(1), (2), and (5) of the former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014); and Article 93(1), (2), and (5) of the Local Income Tax Act (amended by Act No. 12153, Feb. 25, 2005); where the head of a tax office collects the income tax according to the method of assessment and notice according to the correction, determination, etc. under the Framework Act on National Taxes or the Income Tax Act, even if the amount of local income tax is imposed and notified together, it shall be deemed that the head of the relevant local government imposed and notified the amount of local income tax. Thus, the defendant seeking revocation of the disposition imposing local income tax of this case shall be the head of the Yeonsu-gu Incheon Metropolitan City, the head of the relevant

Therefore, among the instant lawsuits, the part seeking revocation of the imposition of local income tax of this case is unlawful as it is against a non-qualified person.

3. Whether the disposition imposing global income tax of this case is lawful

A. Summary of the parties' arguments

1) The plaintiff's assertion

The Plaintiff, while serving in the Internet shopping mall of "E" in the form of part-time business, is unable to register as a business operator due to the Plaintiff's actual business operator who served as FF's employee, and upon the request of the said business operator, the Plaintiff was registered as a business operator of the instant business by lending the name to CCC, and is not the actual business operator of the instant business. Therefore, the disposition of imposition of global income tax of the instant business operator on the premise that the Plaintiff is the actual business operator is illegal and thus, the disposition of imposition of global income tax of the instant business shall be revoked.

2) The defendant's assertion

In light of the fact that the Plaintiff directly visited the Namcheon Tax Office and applied for the registration of business in the name of the Plaintiff, filed a report on value-added tax and global income tax, and filed a report on the closure of business of the instant business entity, and CCC served as a FF employee and had a record of business registration in its name, etc., the circumstances leading up to the name lending

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Article 14(1) of the Framework Act on National Taxes declares the principle of substantial taxation by stipulating that “if the ownership of income, profit, property, act, or transaction subject to taxation is merely nominal and there is another person to whom such income, profit, property, act, or transaction belongs, the person to whom such income, profit, act, or transaction belongs shall be liable to pay taxes.” Therefore, if there is a separate person who substantially controls and manages such income, profit, property, act, transaction, etc. different from the title to which such income, profit, act, or transaction belongs, the nominal owner on the ground of form or appearance shall not be the person to whom such income, etc. belongs, but the person who substantially controls and manages the relevant taxable object shall be the person to pay taxes in accordance with the principle of substantial taxation. In addition, the determination of such a case shall be made by comprehensively taking into account various circumstances such as the process of

On the other hand, in principle, the tax authority bears the burden of proving the existence and the tax base of the tax requirement. This also applies to the case where the tax authority contests that the nominal partner of the transaction, etc. is different from the nominal partner, barring any special circumstances, such as a separate legal provision converting the burden of proof. However, as long as the tax authority imposed tax on the nominal trader by deeming the nominal trader as the nominal trader, it is necessary for the nominal trader to assert and prove that the nominal partner of the transaction, etc. is different from the nominal one. In such a case, the need for proof is sufficient to the extent that the judge has a reasonable doubt about the fulfillment of the tax requirement. As a result, it is unclear whether the substance of the transaction, etc. belongs to the nominal person, and if it becomes impossible to obtain conviction of the judge, then the disadvantage therefrom is back to the tax authority bearing the ultimate burden of proof (see Supreme Court Decision 2011Du9935, May 16, 2014).

2) In full view of the following circumstances, based on the above legal principles, the Plaintiff is merely registered as a nominal business entity with respect to the instant business entity, and it is highly probable that CCC actually runs an electronic commerce (class category) retail business by opening the instant business entity. It is difficult to conclude that the Plaintiff was proven solely on the evidence submitted by the Defendant and the circumstances asserted by the Defendant that the Plaintiff was the actual business entity. Thus, the imposition disposition of global income tax of this case, which the Plaintiff reported as the actual business entity of the instant business, was unlawful in violation of the substance over form principle.

① CCC entered the F in November 2003 and worked for F until August 2014, 201, operated an electronic commerce retail business with its own business registration in its own name, from June 5, 2001 to November 21, 2003, from August 22, 2008 to June 12, 2009, the individual cargo transportation business entity of FFF, from August 22, 2008 to June 12, 2009, and from January 3, 2011 to EEE (the trade name appears to be changed to EE).

② However, as the FF’s representative changed and the working conditions change, thereby preventing the FF from operating its business by registering its business in its name, the CCC closed down its business on June 22, 2012, and opened its e-commerce retail business with the trade name called “EE”. However, upon the request of the JJ, the CCC closed its business after several months.

③ At the time, CCC asked the Plaintiff, who had worked in the part-time EE form, to lend the name of the business operator to operate the business. On January 2, 2013, CCC closed its business on December 31, 2013 at the Plaintiff’s request while operating the instant business by lending the name of the Plaintiff and operating the said business, and thereafter, e-commerce retailers are operating in the name of CCC NN in the name of CCC.

④ CCC became aware of the Plaintiff through friendly introduction, employed the Plaintiff in the form of part-time prior to the nominal name transfer. The Plaintiff’s primary work was a graphic work that revises pictures of electronic commerce products, and its duty was not significantly changed after the registration of the Plaintiff’s business (However, CCC paid a certain amount in return for the name transfer, and it appears that it paid a certain amount in return for the name transfer).

⑤ CCC opened the instant company under the name of the Plaintiff’s business operator and opened the instant company, and prepared and submitted a “written confirmation (Evidence No. 10)” to the effect that the Plaintiff was only an employee who received benefits, and the Plaintiff was present at this court as a witness, and stated in another person’s name on the background and reason behind opening and closing the clothing retail business, the source of funds necessary for the instant company’s opening and closing the business, the internal situation and calculation related to the instant company’s operation, management and disposal authority. The CCC’s statement was consistent with the detailed confirmation document and substitution, the details of the account transfer (such as the Plaintiff’s personal account transfer from the instant company’s account opened under the Plaintiff’s name to the cCC’s personal account, and it was difficult for the Plaintiff to receive the cCC’s money from the account opened under the name of cCC to the 30th of December, 2013 to the 30th of December account transfer.

(6) Although the agreement on the location of the instant company and the report on the closure of business are deemed to have been made in the name of the Plaintiff, such circumstance alone is insufficient to readily conclude that the Plaintiff is a actual business operator or a partner of the CCC.

4. Conclusion

Therefore, the part of the claim for revocation of the imposition disposition of local income tax of this case among the lawsuit of this case is unlawful, and thus, it is so decided as per Disposition by the assent of all participating Justices.