Where most of the construction costs are not attributed due to fraudulent use of the name, the nominal owner shall not be deemed the income earner.

After concluding a construction contract under the Plaintiff’s name after submitting a written estimate for installation of a stop or facility in the name of the Plaintiff, a boiler dealer, and the construction cost was paid directly by the facility operator or through the account in the name of the boiler dealer, and the remainder excluding the boiler price belongs to the facility operator. Therefore, it is reasonable to view the actual business operator as the facility operator.

2011. Revocation of notice of global income tax of 201Guhap816

XX Kim

Head of North Busan District Tax Office

July 7, 2011

August 11, 2011

1. Of the instant lawsuit, the part that the Defendant sought revocation of the imposition of global income tax of KRW 40,058,740 for the Plaintiff on September 1, 2010 shall be dismissed.

2. The Defendant’s imposition of value-added tax of KRW 40,839,100 on December 1, 2009 against the Plaintiff on December 1, 2009 shall be revoked.

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

The disposition of imposition of global income tax of KRW 40,058,740 against the Plaintiff on September 1, 2010 is revoked.

1. Details of the disposition;

A. The Plaintiff is a business operator who manufactures boiler, etc. under the trade name of XX engineering.

B. On April 19, 2006, the Busan regional tax office concluded that the Plaintiff entered into a supply price of KRW 270 million in the OOB-dong, Changwon-si (hereinafter “instant construction”), and completed the instant construction on August 20, 2006, but did not issue a tax invoice, and notified the Defendant of this fact as taxation data.

C. On October 22, 2009, the Defendant notified the Plaintiff of the pre-announcement of taxation on value-added tax, and the Plaintiff filed a request for pre-assessment review. However, on December 1, 2009, the Defendant notified the Plaintiff of the imposition decision of KRW 40,839,100 of value-added tax (the Plaintiff received the above notice on December 14, 2009; hereinafter referred to as “the imposition disposition of value-added tax”) in accordance with the non-adopted decision of the pre-assessment review (the Plaintiff received the above notice on December 14, 2009; hereinafter referred to as “the imposition disposition of value-added tax”), and the Plaintiff appealed against it and filed a request with the Busan District Tax Tribunal on June 1, 2010, but the Tax Tribunal dismissed the said request on November 23, 2010.

D. The Defendant notified the Plaintiff of the pre-announcement of global income tax on the grounds of the above B B B, and the Plaintiff filed a request for pre-assessment review on July 26, 2010, and partially adopted the pre-assessment review decision, the Defendant notified the Plaintiff of the imposition of KRW 40,058,740, global income tax for the year 2006 according to the pre-assessment review decision (hereinafter “instant global income tax imposition disposition”).

On September 3, 2010, the Plaintiff was served with the above imposition decision.

[Reasons for Recognition] Gap's evidence 5, 6, Eul's evidence 1, party, 12 to 14, the purport of the whole pleadings

2. Whether the disposition of global income tax in the instant lawsuit is legitimate

ex officio, the instant lawsuit pertaining to the legality of the disposition imposing global income tax in the instant case is deemed lawful.

A. Although the Plaintiff seeks revocation of the instant global income tax disposition against the Defendant, the administrative litigation seeking revocation of the instant global income tax disposition, unlike the discretionary transfer principle of administrative appeals applied to the general administrative litigation, must undergo a prior trial procedure, such as a request for examination or a request for adjudgment, as prescribed by the Framework Act on National Taxes, and any administrative litigation filed without going through such legitimate prior trial procedure is unlawful.

Therefore, according to the foregoing, the Plaintiff’s imposition of the value-added tax in this case is deemed to have duly undergone a request for judgment against the Tax Tribunal. However, there is no evidence to prove that the said imposition of the global income tax in this case had gone through the preceding trial procedure. The imposition of the value-added tax and the imposition of the global income tax in this case cannot affect the imposition of the global income tax only as a separate disposition separate from each other, and do not constitute a case where the request for examination subject to the imposition of the value-added tax cannot be subject to the imposition of the global income tax in the imposition of the global income tax, and does not need to go through the overlapping trial procedure (see Supreme Court Decision 2004Du2837, May 10,

B. Even if the Plaintiff received a request for review on the disposition of imposition of value-added tax of this case on the same issue, and thus, it is not necessary to undergo a separate procedure of review on the same issue, a revocation lawsuit in an appeal litigation shall be filed within 90 days from the date on which the Plaintiff becomes aware of such disposition in principle, and within one year from the date on which the disposition, etc. is rendered. Since the collection period system and the administrative appeals system in order to promote the prompt stability of legal relations in public law differ from their purport, the imposition period and the administrative appeals system are different for any taxation to which the necessary transfer principle in the administrative appeal is applied, and thus, it does not automatically exclude the period of filing a lawsuit from the date on which the Plaintiff received a decision of imposition of global income tax of this case on September 3, 2010, as seen earlier, from the date on which the Plaintiff seeks the revocation of the disposition of this case from the date on which the Plaintiff filed the disposition of global income tax of this case after the date on which 90th of February 14, 2011.

3. Whether the disposition of value-added tax in this case is legitimate

A. The parties' assertion

1) The plaintiff's assertion

The instant corporation did not perform the instant construction work because ChoB used the Plaintiff’s name by stealing, and the actual construction cost was received by ChoB all the remainder of KRW 240 million except for the portion settled with the Plaintiff and boiler price. Therefore, the imposition of value-added tax against the Plaintiff on the ground that the instant construction work became the Plaintiff’s name is illegal.

2) The defendant's assertion

In light of the fact that the instant construction contract was concluded in the name of the Plaintiff, most of the construction payments were deposited into the Plaintiff’s account, and that most of the contract payments were filed against the contractor in the name of the Plaintiff, and that the Plaintiff’s claim for the payment of the remainder of construction works was filed against the contractor in the name of the Plaintiff, and that the Plaintiff’s claim is merely an employee employed in the other business chain operated by the Plaintiff and received monthly salary around 2008, and that the Plaintiff’s failure to issue tax invoices regarding the instant construction works is for the purpose of evading taxes, such as value-added tax, between the Plaintiff and JungA, it is reasonable to view the Plaintiff as

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In light of the substance over form principle declared by Article 14 of the Framework Act on National Taxes, if the ownership of income, profit, property, act, or transaction is merely nominal, and there is another person to whom such income, profit, property, or transaction belongs, the tax-related Act shall apply to the person to whom such income, profit, act, or transaction belongs, and it is not allowed to impose tax on any person other than the de facto business operator. However, a nominal lending is an act promoting tax evasion under an agreement with the de facto business operator, and it is difficult for the tax authority to understand the substance from outside, barring any special circumstance, to impose tax on the nominal business operator by deeming the nominal business operator as the de facto business operator, and the burden of proof is asserted as to the fact that the substance over form can be imposed on a separate real business operator who is not the nominal business operator on the ground that it is different from the real business relationship (see, e

2) We examine whether the actual contractor of the instant construction is the Plaintiff or the Plaintiff’s claim.

A) Comprehensively taking into account the following facts: Gap 1, 4, and 8's 10 copies, Eul 3, and 4's each statement, Gap 2, 3, and 7's each statement, and the whole testimony of Jung 2's testimony, the plaintiff submitted a written estimate to Jung 2 without the plaintiff's consent or any discussion with the plaintiff, and thereafter, entered the Busan Bank's account number in the name of the plaintiff as the passbook to receive the payment of the construction cost in the contract. ② The contractor of the construction of the construction of the construction of the 300 billion won was introduced only from 100 won to 200 billion won, and the plaintiff was also aware of the 200 billion won as the contractor of the construction contract of the 300 billion won on the date of the construction contract, and the plaintiff was actually aware of the 200 billion won on the 160 billion won of the construction cost of the construction work of the 300 billion won on the 206 billion won of the contract.

B) According to the above facts, it is reasonable to view that: (a) the instant construction project was carried out by ChoB under a contract with the Plaintiff by abusing the Plaintiff’s name; (b) the construction project was actually carried out by ChoB; and (c) the construction cost was paid by ChoB directly from the Plaintiff or through the account in the name of the Plaintiff; and (b) it is reasonable to deem that the contractor’s name in the instant construction contract was the Plaintiff and thus, income, profit, property, act, or transaction subject to taxation was actually reverted to ChoB.

On the contrary, regarding the Defendant’s initiative that the Plaintiff is a actual business operator of the instant construction project or that the Plaintiff subcontracted the instant construction project to ChoB by receiving a contract for the instant construction project, the instant construction project is under the name of the Plaintiff, and only a part of the money transferred from Jung-A, the contractor, transferred the money to ChoB, and the Plaintiff filed a lawsuit for the claim for remainder of construction costs in the name of the Plaintiff, etc. In addition, it is insufficient to recognize this by viewing each of the entries in the evidence Nos. 5 and 11 submitted by the Defendant, and there is no other evidence to prove

Therefore, the imposition of the value-added tax in violation of the principle of substantial taxation is not allowed, as it is not allowed to impose the tax on the Plaintiff who is the nominal owner.

3. Conclusion

Therefore, the part of the lawsuit of this case seeking the revocation of the disposition imposing global income tax of this case is unlawful, and thus, the disposition imposing the value-added tax of this case should be revoked as it is unlawful. Thus, this part of the plaintiff's claim shall be accepted as it is so decided as per Disposition.