Cho High 201.0247 (Law No. 2011.06)

No real business operator shall be deemed to have been involved in the operation of the place of business, and the circumstances, etc. that have not been distributed.

Although the Plaintiff is registered as a business entity, in light of the fact that the Plaintiff was not involved in the operation of the place of business, did not receive any distribution of profits, and that the business income has already been paid to the Plaintiff prior to the registration of the joint place of business, it cannot be deemed that

2011Guhap2472 global income and revocation of disposition

Shin XX

Head of Cheongju Tax Office

September 6, 2012

October 11, 2012

1. The defendant's rejection disposition against the plaintiff on October 1, 2010 against the plaintiff shall be revoked as to the request for correction of reduction of global income tax for the year 2009.

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

The same shall apply to the order.

1. Details of the disposition;

A. From April 16, 2009, the Plaintiff registered its business with the trade name of " XX", and changed its business registration from the joint business place of this case to the joint business place of this case on September 2, 2009 to the sales of home appliances through open market and attracting of Internet service subscribers, and around June 24, 2009, the Plaintiff changed its business registration to the joint business place of which the Plaintiff had been employed on August 24, 2009 and the Plaintiff changed its business registration from September 2, 2009 to the exclusive business place of this case after leaving the joint business place of this case to the sales of home appliances and attracting of Internet service subscribers.

B. On May 31, 2010, the Plaintiff and the tax agent who represented the final return of global income tax base by thisA filed a return on global income tax base with the Plaintiff: (a) the business income attributable to the Plaintiff out of KRW 000,000, which was accrued to the instant place of business in 2009; and (b) the Plaintiff’s global income tax base return was filed with the Plaintiff as KRW 000,000, and the global income tax amount, which

C. As the Plaintiff did not pay the above global income tax, the Defendant notified the Plaintiff that the Plaintiff should pay KRW 000 out of the global income tax amount of KRW 000 (this tax amount of KRW 000, penalty tax of KRW 000), which reverts in August 31, 2010, until August 31, 2010. On September 3, 2010, the Defendant notified the Plaintiff that the amount of penalty tax of KRW 00 (this tax of KRW 000, penalty tax of KRW 000, penalty tax of KRW 00, which was calculated by deducting the already paid tax amount of KRW 00,000, and the remainder of KRW 00, which was calculated by September 30, 2010.

D. On August 31, 2010, the Plaintiff filed a claim with the Defendant for a correction of the global income tax base on the grounds that both business income for the year 2009, accrued to the Defendant in the instant workplace, was attributed to thisA, and there was no business income of the Plaintiff. The Defendant rendered a disposition rejecting the instant disposition on October 1, 2010 (hereinafter “instant disposition”). Accordingly, the Plaintiff dissatisfied with the instant disposition and filed a claim for a tax judgment on December 29, 2010, and the Tax Tribunal rendered a re-audit decision to the effect that the Plaintiff re-audited the Plaintiff’s income amount for the instant workplace on September 6, 201, and that “the global income tax base and the tax amount for the year 2009, which was the final return on May 31, 2009,” was corrected.

E. On October 7, 2011, the Defendant issued a revised global income tax base for the year 2009, 000 won to the Plaintiff, deeming that the Plaintiff independently operated the instant place of business from April 16, 2009 to August 23, 2009, jointly with this AA during the period from August 24, 2009 to September 2, 2009, and notified the Plaintiff of the global income tax base for the year 2009, and the global income tax amount for the year 2009 as KRW 00 (this tax amount, KRW 00, additional tax amount,000).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2, Eul evidence 1 through Eul evidence 4, Eul evidence 7, Eul evidence 9, Eul evidence 10, the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff is registered as the sole or joint business operator of the instant business place until September 2, 2009, but this was a way to maintain the business registration number as is while transferring the instant business establishment. In fact, the period during which the Plaintiff was operating the instant business establishment from April 16, 2009 to July 10, 2009, and the period during which the Plaintiff transferred the instant business establishment to EA and KimB, who had been employed on July 10, 2009, was from April 16, 2009 to July 10, 2009. Thus, the global income tax base for the Plaintiff shall be zero won. Accordingly, the disposition rejecting the Plaintiff’s request for correction on the premise that the Plaintiff is the business operator of the instant business place until September 2, 2009, was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) On June 2009, the Plaintiff started the so-called Internet collection business, which started to run the so-called Internet collection business (Center) with the provider of Internet services, by employing Lee A and KimB as an employee and paying fees to the lower business stores attracting Internet service subscribers, while taking into account the business difficulties such as civil petitions related to attracting subscribers, while taking into account the closure of the business, the Plaintiff decided to transfer the instant business establishment to Lee Dong pursuant to the above AA pursuant to the provisions of the said AA while taking into account.

2) On July 20, 2009, the Plaintiff and thisA entered into a contract for business transfer with the content that “the Plaintiff shall, in the transfer of equity, investment, office deposits, office deposits, house fixtures and taxes to thisA, shall consult and confirm the content thereof, and thisA shall succeed to the employment of the existing employees. By August 9, 2009, the Plaintiff shall meet all the requirements for transfer of the instant business.” The Plaintiff entered into a contract for business transfer with the content that “the Plaintiff shall take over all public charges, management expenses, maintenance expenses, and tax expenses incurred after July 10, 2009.” The KimB jointly guaranteed the obligations of thisA.

3) On August 24, 2009, thisA determined that it is necessary to maintain the existing business number for the continued existence of a contract with an existing business partner and the collection of fees, and found the method, and registered the Plaintiff and thisA as a joint business proprietor with 50% shares of each of the 50% shares, but on September 2, 2009, the Plaintiff changed the business registration to withdraw from a joint business proprietor. The Plaintiff and thisA terminated the joint business on September 4, 2009, the Plaintiff transferred all shares to thisA, and the transferee is responsible for all taxes and all other matters later.

4) Meanwhile, from November 1, 2006, including the period during which the Plaintiff had been operating the instant business, the Plaintiff served as an employee of the MM industry (a changed trade name: PP et al.; hereinafter “MM industry”). On August 21, 2009, before changing the business registration to a joint business proprietor, the Plaintiff entered into a mortgage agreement on the instant business office with the MM industry as a creditor, KimB, and GuCC, with the MM industry as a collateral holder and KimB as the debtor, on August 21, 2009.

5) After July 10, 2009, thisA operated the instant workplace with the Plaintiff’s account and seal from joint business operators until the Plaintiff withdraws from joint business operators. Since July 10, 2009, the Plaintiff was not involved in the operation of the instant workplace, and the Plaintiff did not receive any profit accrued from the instant workplace or received any wage.

6) According to the review decision by the Tax Tribunal, the details of the investigation conducted by the Defendant on revenue and necessary expenses incurred in the instant workplace during the period when the Plaintiff was registered as an entrepreneur are as follows. The Defendant, on the premise that 50% of the business income accrued from August 24, 2009 to September 2, 2009, when the Plaintiff was registered as an entrepreneur, shall be deemed to have accrued to the Plaintiff, and the Plaintiff’s business income shall be deemed to have accrued to the Plaintiff, and accordingly, notified the global income tax base by correcting the global income tax base of KRW 00 (including the earned income received in the MM industry) and the global income tax amount of KRW 00 (including the earned income received in the MM industry).

[Ground of recognition] Unsatisfy, Gap evidence 1 to Gap evidence 4, Eul evidence 3 to Eul evidence 6, Eul evidence 8, Eul evidence 11, Eul evidence 12, testimony of EA, KimB and Sod respectively, the purport of the whole pleadings and arguments

D. Determination

1) If the title of the income, profit, property, act or transaction subject to taxation under the principle of substantial taxation as stipulated in Article 14 of the Framework Act on National Taxes is merely nominal, and there is another person to whom such title belongs, the person to whom such title actually belongs shall be the taxpayer. Meanwhile, even if a joint business operator of a business place files a lawsuit to impose a comprehensive income tax on the grounds that a tax office has omitted income after filing a business registration under the Value-Added Tax Act and filing a tax return and subsequently the tax office has failed to do so, the burden of proving the legality of taxation cannot be deemed as a violation of the principle of good faith in view of the fact that the tax authority is in a superior position against the taxpayer, such as having the authority to conduct a field investigation in tax legal relations (see Supreme Court Decision 97Nu4968, Jun.

2) According to the above facts, although the Plaintiff is registered as the business operator of the instant workplace until September 2, 2009, it cannot be deemed that the business income accrued during the pertinent period was actually reverted to the Plaintiff in view of the Plaintiff’s completion of settlement of accounts on the part already invested before the Plaintiff was registered as the business operator of the instant workplace after July 10, 2009. Meanwhile, since the Plaintiff did not have business income during the period in which the instant place of business was operated, the instant disposition was unlawful on the premise that the business income accrued from the instant place of business until September 2, 2009 belongs to the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.