Even if the tax is imposed on the person as the actual business operator, if the substance such as the transaction is unclear, the burden of proof shall return to the tax authority.

As long as the tax authority considers the nominal business operator as the actual business operator and imposed tax, the difference between the name and substance of the transaction, etc. shall be determined by the tax authority that bears the ultimate burden of proof if the nominal business operator subject to the tax disposition needs to prove his/her assertion, or the substance of the transaction, etc. is unclear, and the judge cannot have conviction.

2016Guhap65916 global income and disposition

○ ○

○ Head of tax office, ○ head of tax office

December 2, 2016

January 20, 2017

1. On January 4, 2016, the head of the tax office having jurisdiction over the Plaintiff shall revoke each of the dispositions taken against the Plaintiff by the Defendant on January 4, 2016.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The imposition of global income tax of KRW 00,000,000 on the Plaintiff on January 4, 2016 by the head of the relevant tax office, and the imposition of KRW 00,000,000 on the Plaintiff shall be revoked by the head of the relevant tax office on January 4, 2016, respectively.

1. Details of the disposition;

A. The plaintiff registered the wholesale and retail business of fishery products under the trade name of "BB fishery" (hereinafter referred to as the "place of business of this case") in Jung-gu, 2002.* BB, Dong, Jung-gu.

B. From October 5, 2015 to October 24, 2015, the head of the BB tax office conducted a general consolidated investigation on the instant workplace and notified the Defendants of the taxation data on the omission of sales and the processing purchase. Defendant ○○ Tax Office, on January 4, 2016, notified the Plaintiff of the taxation data on the omission of sales and the processing purchase. Defendant ○○ Tax Office, on January 4, 2016, revised and notified the Plaintiff of the local tax amounting to KRW 00,000,000,000, respectively (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on January 21, 2016, but the Tax Tribunal dismissed the appeal on June 3, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 20-1, 2, and Gap evidence 25, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff is the nominal owner of the instant place of business and the husband of the instant place of business, who is the husband of the instant place of business, and actually operates the instant place of business under the name of the Plaintiff, and thus, the actual owner of the income, etc. of the said place of business is the △△△, and the global

B. Determination

1) Legal principles

The substance over form principle under Article 14(1) of the Framework Act on National Taxes, in cases where there is a separate person to whom such income, profit, property, transaction, etc. belongs, unlike the nominal person to whom such income, profit, property, transaction, etc., belongs, the person to whom such income, etc., belongs is not the nominal person, but the actual person to whom such income, etc., belongs, on the ground of form and appearance, is the tax obligor (see Supreme Court Decision 201

The tax authority shall, in principle, assume the burden of proof as to the existence and the tax base of the facts requiring taxation. This also applies to cases where the tax authority contests that the nominal owner of the transaction, etc. and the actual owner of the transaction, etc. are different, barring 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 owner as the nominal owner of the business, it is necessary for the business owner to assert and prove that the nominal owner of the transaction, etc. is different from the nominal owner of the transaction, etc. so long as the tax was imposed. In such a case, the need for proof is sufficient to the extent that the judge made reasonable doubt about the fulfillment of the taxation requirement. As a result, it is unclear whether the substance of the transaction, etc. belongs to the nominal owner, and if the judge becomes unable to have conviction, then the disadvantage therefrom is back to the tax authority bearing the ultimate burden of proof (see Supreme Court Decision 2011Du93

2) In the instant case:

① On October 28, 1981, the Plaintiff was married with △△△△△△△, but divorced on May 17, 2010, and △△△△ was married on October 8, 2015 with △△△△△△△, ② from July 11, 2003, the Plaintiff resided in Seoul DaD EE-dong** 101,00***** the address of △△△△△ was 47, 86-gil H * * Dong * ** the date of this case’s lease contract with △△△△△△△△△△△△△△, in light of the fact that the Plaintiff was married with △△△△△△△△△△△△△ on May 28, 198, the Plaintiff entered into a contract with △△△△△△△△△△△△△△△, the name of the Plaintiff** the Plaintiff’s spouse of the above △△△△, the real name of the Plaintiff** the Plaintiff’s sales business.

Even based on all evidence submitted by Defendant ○○○ Tax Office, it is insufficient to recognize the Plaintiff as the actual operator of the instant workplace, and there is no other evidence to acknowledge this otherwise. Therefore, the instant disposition that imposed global income tax and local tax on the Plaintiff by deeming the transaction related to the instant workplace as the transaction of the Plaintiff, the nominal owner, is unlawful as it violates the principle

3. Conclusion

Therefore, all of the claims by the Defendants against the Plaintiff are dismissed as it is without merit. It is so decided as per Disposition.