Daegu District Court 2009Guhap3295 ( October 16, 2010)

early 209Gu2643 (Law No. 916, 2009)

It is legitimate to impose tax on the husband who actually operated the place of business under the name of the denial.

The Plaintiff’s signature in the account book and transaction book registered in the name of the spouse, and the court was sentenced to a fine for the violation of the Labor Standards Act on the ground that the Plaintiff was the actual operator, and the employee and the business partner confirmed that the Plaintiff was the actual operator, and thus, the taxation is legitimate.

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The decision of the first instance is revoked. The defendant's disposition of imposition of value-added tax of 18,916,100 won for the second term of 2004 against the plaintiff on February 6, 2009, value-added tax of 4,224,080 won for the first term of 205, value-added tax of 4,964,80 won for the second term of 2005, value-added tax of 4,964,800 won for the second term of 205, value-added tax of 48,310 won for the first term of 206, value-added tax of 1,095,360 won for the second

1. Circumstances of dispositions;

A. The Plaintiff’s wife around July 1, 2004, around 2004, around 00 ○○○○-ri 304, registered the business of the △△ chemical.

B. In the second taxable period of the value-added tax in 2005, the Defendant: (a) considered the receipt of three tax invoices of KRW 50,000,000,000 from the 2nd taxable period of the value-added tax; (b) imposed the value-added tax of KRW 6,751,500 on the 2nd taxable year of 2005 on the leapA; and (c) imposed the Seocho-gu Head of the tax office on the legu Tax Office based on the above taxation data, on May 1, 2008, imposed the amount of KRW 14,338,340 on the leapA in 205.

C. In response to this, the actual business operator of the △△ chemical in △△△ City filed an objection to the purport that he is the Plaintiff’s model BB, and the head of Seogu District Tax Office accepted this and accepted it and returned taxation data to the Defendant. The Defendant: (a) regarded the headB as the actual business operator, and imposed the value-added tax of KRW 7,378,50 on September 1, 2008.

D. On February 6, 2009, the head of B filed an objection with the Plaintiff to the effect that the Plaintiff had the leading authority to operate the △△△ chemical, and the head of the Daegu Regional Tax Office recognized the business operator who actually operated the △△ chemical as the Plaintiff, and the Defendant imposed and collected the value-added tax on the Plaintiff as stated in the purport of the claim (hereinafter “each disposition of this case”).

E. The Plaintiff appealed and filed a petition for trial on July 2, 2009 on March 12, 2009, but the Tax Tribunal dismissed the petition on September 16, 2009.

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

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

A. The plaintiff's assertion

After September 26, 2006, the Plaintiff operated the Do governor chemical in Do, Do governor chemical in Seoul Special Metropolitan City, and the actual business owner of the Do governor chemical in the middle of the taxable period is the Plaintiff’s Do governor B, and the Plaintiff only worked as an employee. Thus, each of the instant dispositions is unlawful since it

B. Determination

(1) The following circumstances, which are acknowledged by considering the overall purport of the pleadings in the statements No. 1, No. 2, No. 4, No. 5-1, No. 5-4, and No. 6, i.e., △△△△△, a plastic criminal delivery factory operated by the Plaintiff, around August 2, 2004, registered the Plaintiff’s business in the name of △△’s wife’s name and carried on the same business. Until that time, the Plaintiff’s vice president had been working for the △△△△△△, it is difficult to ascertain the Plaintiff’s actual involvement in the operation of the △△△△△△, and there was no other evidence to acknowledge that the Plaintiff was in violation of the Plaintiff’s chemical law, including △△△△△△△, which was a witness of △△△△△, and △△△△△△, which was in violation of the Plaintiff’s duty to make a false statement in the Plaintiff’s account book or transaction book of △△△△△.

(2)Therefore, it is reasonable to view that the Plaintiff had been actually operating the △△△ chemical from around August 2004 in which △△△ was insolvent, and that △△△ was also involved in the management of the △△ chemical as the Plaintiff’s member.

(3)On the other hand, the legal nature of the joint and several tax liability stipulated in Article 25, Paragraph 1 of the Framework Act on National Taxes is not fundamentally different from the joint and several liability under the Civil Act, and each joint and several tax obligor is jointly and severally liable for tax payment for the whole amount of national taxes related to a joint and several business without any specific tax liability, unless otherwise specifically provided for in the individual tax law. In imposing national taxes, each joint and several business proprietor, who is a joint and several tax obligor, may be notified of the tax payment for the whole amount of national taxes individually (see Supreme Court Decision 9Du2222, Jul. 1

(4) In the case of this case, as long as the Plaintiff is deemed to have been a joint business owner of the Gun chemical in Do, as seen earlier, pursuant to Article 25(1) of the Framework Act on National Taxes, the Plaintiff is jointly and severally liable with the headB to pay national taxes related to the Gun chemical in Do, and in such a case, the Plaintiff is liable to pay the tax even if the instant tax disposition was rendered by making the Plaintiff liable for tax payment.

3.In conclusion

The judgment of the court of first instance which dismissed the plaintiff's claim is just, and the plaintiff's appeal is dismissed.