Whether the Plaintiff constitutes a resident

The plaintiff shall be a resident when determining whether he/she has a family living together in the Republic of Korea, domestic occupation and income status, assets located in the Republic of Korea, domestic economy and legal relations, etc.

2017Guhap65808 Revocation of Disposition of Imposing global income tax, etc.

AA

BB Director of the Tax Office

2018.06.20

2018.07.17

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of global income tax of KRW 54,90,350 (including additional tax of KRW 17,446,162), global income tax of KRW 163,843,440 (including additional tax of KRW 58,613,449) in 2012, global income tax of KRW 1,889,301,00 (including additional tax of KRW 549,435,00) in November 5, 2014, and the imposition of penalty tax of KRW 149,752,40 (including additional tax of KRW 42,194,833) in 2013, shall be revoked.

1. Circumstances of dispositions;

A. A. The Plaintiff, a person who acquired U.S. citizenship around June 1990, transferred to the Republic of Korea around August 2000, and was in office as the representative director of the Korea AAAA corporation established in the Republic of Korea (hereinafter referred to as "AAAA") around 1995. Around March 21, 201, the Plaintiff resigned from the office as the representative director and left Hong Kong on April 6, 201.BB (hereinafter referred to as "BB") was a shareholder holding 50,000 shares of BBB (hereinafter referred to as "BB"), and did not receive dividends of KRW 1 billion in the year 2012 from BB, dividends of KRW 1 billion in the year 2013, and income tax was not paid to the Plaintiff under the Hong Kong Tax Authority and the Plaintiff was not paid to the pertinent tax authority under the Income Tax Act (amended by Act No. 2314, Feb. 21, 2013).

C. After conducting a tax investigation with respect to AAA and the Plaintiff from June 23, 2014 to October 16, 2014, the Director of the ○○○ Regional Tax Office determined that the Plaintiff constituted “resident” under the former Income Tax Act. The Plaintiff’s constructive dividend income with respect to the capital reduction of the Hong Kong corporations, 2011, KRW 369,875,803, KRW 1 billion, the dividend income received from BB in 2012, KRW 10 billion, the dividend income received from the BB in 2013, and KRW 10 billion, the dividend income received from the BB in 2013, and KRW 640,948,812, etc., the Plaintiff notified the Defendant of the gift tax by deeming that the Plaintiff’s share of 100% is deemed to be the “E-listed 30,000,0000,000 shares of the Plaintiff’s gift tax.”

D. According to the above notice of taxation data, the Defendant imposed a total of KRW 54,90,350 (including additional tax 17,446,162) on global income tax in November 3, 2011, global income tax in 2012, KRW 163,843,440 (including additional tax 58,613,449), global income tax in 2013, global income tax in 2013, KRW 1,889,301,00 (including additional tax 549,435,009), and KRW 149,752,400 (including additional tax 42,194,833) on global income in November 5, 2014, and KRW 36,565,206 (including additional tax) on global income gift tax in 206, respectively.

E. On January 28, 2015, the Plaintiff dissatisfied with each of the instant dispositions, etc., and filed an appeal with the Tax Tribunal on January 28, 2015. The Tax Tribunal revoked the disposition imposing gift tax on the gift made on March 21, 2017, and dismissed all of the Plaintiff’s remaining appeals.

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The Plaintiff, as a U.S. citizen, was a resident under the former Income Tax Act by staying in the Republic of Korea as the representative director of the AAA for the period of 2010. However, on March 21, 2011, the Plaintiff resigned from office as the representative director of the AAAA and moved to Hong Kong on April 6, 2011. The Plaintiff was staying in Hong Kong for the largest period of time while living together with his family members living in Hong Kong; the Plaintiff did not own domestic real estate from 2011 to 2013; the Plaintiff resigned from office as the representative director of the AAAAA on March 21, 201; the Plaintiff was retired from office as the representative director of the AAAA; the Plaintiff did not have any occupation in need of domestic residence by retiring from the AAA; and all other business activities were performed in Hong Kong; thus, each of the instant dispositions on the other premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Criteria, etc. for determining whether a resident is a domestic resident

A) Article 1-2(1)1 of the former Income Tax Act concerning a resident, his/her domicile or temporary domicile means an individual who has a domicile in Korea or has a domicile in Korea for at least one year (Article 1-2(1)1 of the former Income Tax Act). Furthermore, his/her domicile shall be determined by objective facts regarding living relationship, such as the existence of a family living together in Korea and of assets located in Korea [Article 2(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26067, Feb. 3, 2015; hereinafter the same shall apply] Where an individual living in Korea has a occupation which requires him/her to continue residing in Korea for at least one year, his/her domicile in Korea shall be deemed to have a domicile in Korea (Article 2(3) of the former Enforcement Decree of the Income Tax Act). Furthermore, if the person has a domicile in Korea for a long time from the date on which he/she has a foreign nationality or a family living together with his/her permanent domicile in Korea, and it shall be deemed that person has no domicile in Korea for at least two years.

B) Criteria for resident judgment

In light of the above contents and purport of the provisions, the distinction between a resident and a nonresident shall be determined by comprehensively taking into account the existence of a family living together in the Republic of Korea, domestic occupation and income status, assets located in the Republic of Korea, domestic economic and legal relations, etc. Furthermore, the former Income Tax Act only stipulates that an objective living relationship in the Republic of Korea should be comprehensively considered when determining an individual’s identity, and the living relationship in the other country is not considered as a comparative factor, and it is seeking resolution through a tax treaty, etc. in preparation for cases where both countries’ residence are recognized (referring to Supreme Court Decision 92Nu1695 delivered on May 27, 1993).

(ii) recognized facts or circumstances;

A) The Plaintiff’s current status of residence in Korea before departure from Hong Kong

(1) The Plaintiff was born in the Republic of Korea in 1962 and moved to the United States around August 1979, and acquired the citizenship of the United States around 1990.

(2) On June 200, the Plaintiff acquired the ownership of ○○○○-dong 291 and 302 (hereinafter “○○○-dong 291”) from FF (hereinafter “FF”) at the time of the Plaintiff’s divorce around July 200, and reported domestic residence (within the period of stay until February 23, 201). On April 201, 201, the Plaintiff sold ○○-dong 2 to AAAA around the time of his departure from Hong Kong, and did not report the domestic domicile, and reported the so-called four-called four-party insurance deprivation on March 31, 201.

(3) Meanwhile, around 2010, the Plaintiff remarriedd with GG, and around September 201, HH was born with GG.

B) The Plaintiff’s current status of residence and number of days of stay in Korea and abroad after departure from Hong Kong

(1) From April 201, the Plaintiff leased a house in Hong Kong and lived with GG and HH. The rent, maintenance cost, etc. of the said house were borne by EEEE. However, gas costs and water supply costs were paid in the name of the Plaintiff and GGG in order to secure evidence that the Plaintiff used Hong Kong account with his domicile in Hong Kong.

(2) Even after the Plaintiff’s mother departs from Hong Kong, the Plaintiff’s mother, leased ○○dong from AJJ to ○○dong, possess new products, perform repair works, pay management fees, electricity fees, etc. of ○○○dong, while managing AAAAA’s employees through ○○dong, it appears that the Plaintiff resided in ○○ Dongdong during the period of his/her stay in the Republic of Korea. On October 2012, 2012, the Plaintiff leased ○○○○ Dong 60, 611, 102 (hereinafter referred to as “○○dong apartment”) in this Section, and thereafter, it appears that the Plaintiff was moving into ○○dong apartment around November 2012.

(3) The number of days of stay in Korea and abroad between the Plaintiff and his family from 2010 to 2013 are as listed in Table 1 below, and the number of days of stay in Korea and abroad of the Plaintiff and their family members are as listed in Table 2 below.

(4) On the other hand, around October 2012, the Plaintiff lost a domestic driver’s license to an employee of the AAA, and took measures to have the domestic driver’s license reissued by verifying the procedure for receiving the re-issuance of the domestic driver’s license and ordering the replacement of the domestic driver’s license.

C) Plaintiff’s domestic and foreign assets

(1) The Plaintiff owns approximately KRW 44.5% of the AAAAA’s issued stocks (an amount equivalent to KRW 84.4 billion) and approximately KRW 24.14% of the issued stocks of BB (an amount equivalent to KRW 1,28.4 billion) and held KRW 100% of the issued stocks of EE in Hong Kong corporations (an amount equivalent to KRW 1.2 billion). The sales status of BB, AAAAA, and EE from 2010 to 2013 are as listed below.

(2) On March 30, 201, immediately before departure from Hong Kong, the Plaintiff purchased apartment houses in Seoul using the Plaintiff’s funds in the name of GG.

(3) On April 201, the Plaintiff terminated the domestic deposit account that is not used in the name of the JJ, thereby holding two domestic deposit accounts and receiving dividends from AAAA and BB to the said account. Furthermore, the Plaintiff appears to have used the said account by managing the domestic deposit account in the name of the JJ as well as the domestic deposit account opened in the name of the Plaintiff, and the details of the domestic deposit account opened in the name of the JJ as well as the domestic deposit account opened in the name of the Plaintiff were reported to the Plaintiff. While the Plaintiff paid the cost of living to the JJ each month, the Plaintiff did not transfer or transfer the cost of living to the domestic deposit account in the name of the JJ. However, in light of the fact that the Plaintiff did not transfer or transfer the cost of living to the domestic deposit account in the name of the JJ.

(4) Meanwhile, the Plaintiff did not own real estate or financial assets in Hong Kong, in addition to holding stocks of the EEE, Hong Kong corporations.

D) The Plaintiff, such as the Plaintiff’s involvement in the work of AA and BB, has continuously been engaged in the work of AAA and BB, such as the time when the Plaintiff was employed as the representative director of AAA even after his/her departure from Hong Kong, using the Plaintiff’s office in the name of AAAAA, and making use of the name of AAAAA, and reporting the status of the relevant company, including merger of the company, the volume and water supply of shares, production plans and prices, etc., consultation on the relevant company, annual performance management, annual performance management, appointment schedule of the company, appointment of officers, new employment and promotion of the staff, transfer of the AAA office, and prepayment of corporate tax, etc.

E) The Plaintiff’s religious activities, political support, and mountain conference activities

Even after the departure from Hong Kong on April 6, 2011, the Plaintiff continued to exchange with the pastors of the domestic church and transferred donations to the church. On February 21, 2014, the Plaintiff purchased two bonds (a total of KRW 3 billion) around February 21, 2014, and provided the two students of the above church for the purpose of academic affairs among the members of the above church for the purpose of academic affairs. In addition, even around 2011 and 2012, the Plaintiff continued to exchange with the domestic branch by engaging in activities as the chairperson of the Korean mountain conference on a regular basis, such as participating in mountain activities, or convening the mountain conference, and deposit of donations to the domestic political party under the name of the JJ at around 2012.

3) Determination

The above facts and circumstances are as follows; ① the Plaintiff, before and after departure from Hong Kong on April 6, 201, is deemed to have managed the number of domestic deposit accounts opened in Korea, the name of the owner of domestic real estate, the lessee of domestic real estate, the name of the payer of gas and water supply costs used in Hong Kong Housing; ② The number of domestic stay days from 2011 to 2013 were 169 days (201 years), 163 days (2013 years) and 163 days (2013 years) under the premise that the Plaintiff continued to own and use the Plaintiff’s shares in the name of the Plaintiff’s family for the pertinent taxable period, and the Plaintiff’s 167 days (2011), 147 days (201), 201, 2012, 2013) and 4 days of domestic stay together with the Plaintiff’s family members, and each of the Plaintiff’s shares during the pertinent taxable period is deemed to have been within the Republic of Korea during each of Korea.

3. Conclusion

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