Suwon District Court 2013Guhap6184 (2014.03)

Income earned by establishing a corporation in China is included in the dividend income.

Dividends or shares of profits or surplus accrued from the establishment and management of a corporation in China by the Plaintiff alone by investing 100% of capital in China constitute dividend income.

Article 17 [Dividend Income] of the Income Tax Act

2014Nu48353 Detailed income and revocation of disposition of global income;

IsaA

O Head of tax office

Suwon District Court Decision 2013Guhap6184 Decided April 3, 2014

November 20, 2014

December 4, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The global income tax for the year 2009 owed by the Defendant to the Plaintiff on May 1, 2012

The imposition of OOO members shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation in this decision is as follows: (a) part of the reasoning for the judgment of the court of first instance is written as follows; and (b) the reasoning for the judgment of the court of first instance is as stated in the reasoning of the judgment of the court of first instance except for the addition of the judgment of the plaintiff as stated in Paragraph (3) below; and (c) thus, it shall be cited in accordance with Article 8(2) of the

2. Parts to be dried;

(a) No. 7 of the judgment of the court of first instance shall be subject to the second part of the judgment of the court of first instance, "O limited liability company" as "O limited liability company";

B. Part 8-9 of the judgment of the first instance court " shall be determined on the basis of the living relationship in the Republic of Korea (see, e.g., Supreme Court Decision 92Nu11695, May 27, 1993) as "the identification of a domestic resident should be determined on the basis of the living relationship in the Republic of Korea, and it shall not be determined on the basis of the living relationship in the Republic of Korea, and it shall not be determined on the basis of the living relationship, such as overseas activities and asset holding (see, e.g., Supreme Court Decision 92Nu1695, May 27, 1993)

C. In full view of the fact that the Plaintiff’s 3 children were studying in the United States in the year 2009, the part of the first instance court’s 8th 19-20 (“the Plaintiff’s 19-20th 8th 8th 8th 19-20th 8th 8th 19-20th 8th 8th 8th 8th 8th 2006, “the Plaintiff’s 3 children were residing in the Republic of Korea,” and “the Plaintiff’s 3 children were staying in the Republic of Korea,” and “the Plaintiff’s 14, 15, and 17th 17th 20 1st 20 2nd 20 2nd 1st 20 2nd 200 2nd 3th 200.

(d) No. 19 to 10 pages 6 of the judgment of the court of first instance shall be added to the following:

(c)

2) In full view of the evidence submitted by the Plaintiff to the appellate court and the circumstances of its assertion, it is insufficient to conclude that the Plaintiff is a resident under the Chinese Income Tax Act, and there is no objective evidence to acknowledge it otherwise.

Furthermore, even if the plaintiff is a resident of China, if the plaintiff can be seen as a domestic resident for the same reasons as the plaintiff's live in China, as stipulated in Article 4 (2) of the Korea-China Tax Convention, if the permanent domicile is proved as China as of 2009, or if the plaintiff's permanent domicile is unclear, it shall prove that the most closely related country (the center of the largest interest) is China, but the defendant's imposition disposition of the global income tax of this case against the plaintiff is illegal.

그런데, 앞서 인정한 사실과 증거 등으로 알 수 있는 다음과 같은 사정들, 즉 ① 앞서 본 한중조세협약에서 말하는 '항구적(恒久的) 주거'란, 그 문언의 의미상 단기 체류 목적이 아니라 항구적으로 사용하기 위한 의도로 개인이 언제든지 계속 사용될 수 있는 주거의 형태를 갖춘 곳으로 가족이 있는 경우라면 가족이 그 생활을 형성하고 있는 근거지를 의미한다고 볼 수 있다 할 것인데, 2009년도를 기준으로 원고의 처나 그 자녀들은 1년의 기간 중 대부분을 국내에 거주하고 있었던 점, ② 또한, 원고와 원고의 처는 모두 그 국적이 한국이고, 2009년을 기준으로 국내에 상당한 금융자산을 보유하면서 그에 대한 금융소득을 얻고 있음과 아울러, 원고의 처는 2009년도에만 국내에서 5건의 부동산을 취득하는 등 국내에서 적극적으로 경제적 투자 활동을 수행하였던 것으로 보여, 원고와 그 처의 주요 재산의 관리 장소는 국내라고 할 것인 점, ③ 나아가, 국내에 비교적 거액의 부동산 및 금융자산을 보유한 원고나 원고의 처로서는 국내의 경제 상황과 그 동향 등에 대한 관심을 기울이면서 투자 활동을 지속할 필요가 있다고 판단되는 점, ④ 한편, 원고와 원고의 처는 모두 2004. 10. 18.부터 국민건강보험에 가입하여 매월 국민건강보험료를 납부하고 있는 이상, 원고 등의 중요 질병에 대한 치료장소도 국내라고 보이는 점 등을 위 법리 및 앞서 살핀 원고 부부의 2009년 전・후의 국내 재산 소유와 그 취득관계, 원고 가족들의 거주형태, 원고가 중국에서 영위하는 사업이 원고의 형수가 운영하는 국내 법인을 위한 위탁가공업인 점 등의 여러 사정과 종합해 볼 때, 원고가 항소심에 이르기까지 제출한 증거들과 그 주장의 사정을 모두 고려한다고 하더라도, 한중조세협약이 정한 원고의 '항구적 주소지' 내지 '중대한 이해관계의 중심지'가 한국이 아니라 중국이라고 인정하기에 부족하고, 달리 이를 인정할 증거도 없다.

3. Additional determination

A. The plaintiff's assertion

The Defendant: (a) deemed that the Plaintiff’s company (OLLC; hereinafter “instant company”) operated in China as an individual entrepreneur who is not a corporation; and (b) recognized the income accrued from the instant company as the Plaintiff’s business income; and (c) rendered the instant disposition by deeming the instant company as the Plaintiff’s business income; (b) deeming that the Plaintiff’s income accrued from the instant company constitutes the Plaintiff’s personal income, it is unlawful for

B. Determination

(1) Article 4 (1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) which applies to the disposition of this case provides that "the total amount of interest income, dividend income, real estate rental income, business income, labor income, annuity income, and other income generated in the pertinent year" shall be global income. Among such global income, the business income from such global income is income generated from a certain business and is listed in the type under Article 19 (1) of the former Income Tax Act, and the dividend or distribution of profits or surplus received from a foreign corporation (title 6) is also defined as dividend income.

On the other hand, the subject matter of a lawsuit seeking revocation of a tax disposition is the objective existence of the tax base and amount of tax recognized by the disposition of the tax authority, and the tax authority may exchange and change the grounds for disposition within the scope that maintains the identity of the disposition in order to support the legitimacy of the tax base and amount of tax recognized by the disposition until the conclusion of fact-finding proceedings. In order to support the legitimacy of the disposition imposing global income tax, the tax authority’s assertion of only the source of income within the scope of the global income subject to added taxation constitutes a change in the grounds for disposition within the scope that maintains the identity of the disposition (see Supreme Court Decision 200Du2181, Mar. 12, 2002).

(2) In light of the overall purport of the statements and arguments set forth in Gap evidence Nos. 4 and 5, even if considering all the evidence submitted by the defendant and the circumstances of its assertion, it cannot be readily concluded that the OO members, which are taxable income of the instant disposition (see evidence No. 1; hereinafter referred to as "indic income"), are the plaintiff's overseas business income, and there is no other evidence to acknowledge it.

(3) However, the fact that the Defendant changed the grounds for disposition to the preliminary dividend income under Article 17 (1) 6 of the former Income Tax Act, not the Plaintiff’s business income, through the Defendant’s preparatory brief as of November 10, 2014, which was stated on November 20, 2014, the second date for pleading in the appellate trial (the aforementioned preparatory brief was served on the Plaintiff on November 11, 2014).

Therefore, in light of the above legal principles, the health class, business income, and dividend income are separately prescribed in the former Income Tax Act, but in principle, they are imposed as global income by adding up each other under the former Income Tax Act. In addition, in the appellate court, if the Plaintiff holds 100% of the shares of the company of this case, the Plaintiff’s income acquired from the company of this case constitutes dividend income (refer to the legal brief submitted by the Plaintiff on September 3, 2014, which is the first date for pleading in the appellate court, as stated in September 4, 2014). In light of the above legal principles, the Defendant’s conjunctive grounds for disposition are allowed to be added to the instant disposition and changes in the grounds for disposition within the scope that maintains the identity of the disposition.

Therefore, if the pertinent income can be seen as the Plaintiff’s dividend income, the instant disposition may be deemed lawful. According to the purport of the Plaintiff’s statement and the entire argument, the director of the Central District Tax Office: (a) deemed that the Plaintiff and his wife acquired real estate and stocks in Korea without any apparent source of funds; (b) determined that the Plaintiff’s income was the source of funds acquired in 2009; and (c) determined that the said income was the company’s business income at the time of the investigation; (b) the Plaintiff reported and paid the global income tax for 209 in Korea to the tax authority; and (c) determined that the Plaintiff’s global income tax base and tax amount for 4 and 5, and No. 15 were the global income tax amount for 10% of the capital amount solely invested in China; and (d) determined that the Plaintiff’s income was non-taxable or non-taxable income for 209 as global income tax amount for 10 years, and that there were no issues or evidence that the Plaintiff could be subject to separate taxation.

C. Sub-committee

Therefore, the defendant seems to be able to impose the comprehensive income tax on the plaintiff as to the income at issue, such as the disposition of this case. Thus, the plaintiff's assertion based on a different premise cannot be accepted.

4. Conclusion

If so, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is consistent with this conclusion, so the plaintiff's appeal is dismissed.