Cho Jae-2013-China-2824 (No. 27, 2014)

Whether a resident is a resident shall be determined by comprehensively taking into account the objective facts of living relationship, such as the existence of a family living together in Korea.

It is reasonable to see that a resident is a resident considering that he/she has a domicile in the Republic of Korea, along with his/her family members living together.

Article 2 of the Income Tax Act

2014Guhap56322 Revocation of imposition of global income tax

○ ○

○ Head of tax office

2016.05.10

2016.06.14

1. The Defendant’s disposition of imposing global income tax of KRW 21,621,950 for the Plaintiff on March 8, 2013 exceeds KRW 7,931,750 for the imposition of global income tax of KRW 21,621,950 for the year 207; the portion exceeding KRW 70,404,020 for the imposition of global income tax of KRW 91,265,720 for the year 208; the portion exceeding KRW 358,820,79 for the imposition of KRW 210,620,040 for the imposition of global income tax of KRW 358,820 for the year 209; the portion exceeding KRW 417,123,180 for the imposition of global income tax of KRW 417,443,740 for the year 201; the imposition of KRW 6126,17,560 for the global income tax of KRW 2014,100.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 1/2 is assessed against the Plaintiff, and the remainder 1/2 is assessed against the Defendant, respectively.

Cheong-gu Office

The Defendant’s disposition of imposition of global income tax of KRW 21,621,950, global income tax of KRW 91,265,720, global income tax of the year 2008, global income tax of KRW 358,820,790, global income tax of the year 2009, global income tax of KRW 417,123,180, global income tax of the year 2010, global income tax of KRW 126,117,560 for the year 201.

1. Details of the disposition;

A. ○○○ Director of the Regional Tax Office: (a) found the Plaintiff as a domestic resident under the former Income Tax Act (amended by Act No. 12852, Dec. 23, 2014; hereinafter referred to as the “former Income Tax Act”); and (b) deemed that the Plaintiff’s overseas business income was omitted in filing a report from 2007 to 201, and notified the Defendant thereof.

B. Accordingly, on March 8, 2013, the Defendant decided and notified the Plaintiff of the global income tax totaling KRW 1,014,949,200 for each of the pertinent years from 2007 to 2011 (hereinafter “instant disposition”).

Amount omitted in filing a report;

Global income tax (source)

Reversion to the year 2007

211,542,560

21,621,950

208 Reversion of year 2008

263,022,33

91,265,720

209 Reversion

955,231,042

358,820,790

201 Reversion of the year 2010

1,107,227,611

417,123,180

201 Reversion of year 201

346,809,620

126,117,560

Total

2,883,833,166

1,014,949,200

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on May 27, 2013, but was dismissed on June 27, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1, 13 evidence, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① Since 2004, the Plaintiff operated the trade brokerage business as a hub for China, and resided in China on an average of 318 days annually. This constitutes “when the Plaintiff continues to reside in a foreign country for at least one year as prescribed by Article 2(4)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26067, Feb. 3, 2015; hereinafter “former Enforcement Decree of the Income Tax Act”), and thus, the instant disposition on a different premise is unlawful.

② Even if the Plaintiff appears to be a domestic resident under the former Income Tax Act, the Plaintiff is also a dual resident under the Chinese Income Tax Act, and the Plaintiff is in the status of a dual resident. However, according to the criteria such as “portal residence prescribed by the Agreement between the Republic of Korea and the People’s Republic of China for the Avoidance of Double Taxation and the Prevention of Tax Evasion with respect to Taxes on Income” (hereinafter “Korea-China Tax Agreement”), “the center of heavy interest,” “the primary residence,” etc., the instant disposition on a different premise is unlawful.

③ The Defendant, as a matter of course, took the instant disposition against all of the amount deposited into the Plaintiff’s account under the Plaintiff’s name as a taxable object. The instant disposition is unlawful because it is unclear that the taxable object is illegal.

④ Even if the instant disposition is deemed lawful, the Plaintiff paid the total income tax on the instant business income in China from 2007 to 2012,132,433RB, and accordingly, the said tax amount payable should be deducted in accordance with Article 57 of the Income Tax Act and Article 23 of the Korea-China Tax Convention.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the overall purport of the arguments in Gap evidence Nos. 5, 25, and Eul evidence Nos. 2, 3, 4, 5, 6, and 7:

1) The plaintiff's domestic address

The plaintiff's family member as the head of the household shall be KimA (Cho), DobB (maried, son's wife after marriage on March 11, 2008) constitutes the same household from 00 ○○○○-dong ○○○○○○ 304 to 304 on December 16, 2006, which is acquired in the name of KimA (Cho), the plaintiff's family member as the head of the household, and the plaintiff's family member shall live in the above domicile, and if the plaintiff returns home, he shall reside in the above domicile.

2) Domestic residence period of the Plaintiff and the Plaintiff’s family members

The details of the domestic residence period of the Plaintiff and the Plaintiff’s family members during the period of attribution are as follows.

2007

208

209

2010

2011

32 days

37 days

41 days

70 days

39 days

KimA(al)

341 days

365 days

354 Date

361 days

355 days

his/her sonB(her son)

126 Date

327 Date

364 days

365 days

357 Date

DamageCC (maried)

341 days

327 Date

362 days

359 days

359 days

3) Details of the acquisition of real estate by the Plaintiff and KimA

The details of domestic real estate acquired by the plaintiff and KimA from 2005 until now are as follows.

Owners

Date of acquisition

Articles

Types

Acquisition Value

(unit: million won)

July 30, 2010

Seoul ○○-gu ○○-dong 113

Commercial buildings

Site

1,630

KimA

March 19, 2009

Seoul ○○-gu ○○○ 1515-5

Commercial buildings

Site

1,850

December 28, 2005

○○○-si ○○○-dong 415-1

(The current domicile of the plaintiff and his family member)

Apartment house

300

Total

3,780

iv)The details of the business registration of the Plaintiff and the Plaintiff’s family.

From 2004 to 2004, the details of business registration are as follows.

Business Operator

Trade Name

Opening date of business

Closure

Jinay

Multi-Service Station

February 25, 2011

October 15, 2012

The location of the Seodong shopping mall shall be the location of the commercial building and shall be the business operator of the export brokerage trade business and close down after the tax investigation of this case began.

Multi-building

July 30, 2010

In the name of the commercial building acquired on July 30, 2010, the location of the commercial building shall be the location of the real estate rental business.

KimA

Multi-building

March 19, 2009

The location of the new forest-dong commercial building acquired on March 19, 2009 in the name of KimA shall be the location of the real estate rental business.

Marench PCS

August 1, 2004

December 31, 2006

knoCC

Multilateral System

August 17, 2007

KimAA(30%), DamageCC(40%)

April 26, 2012

e)The details of the Plaintiff’s report on global income tax in the Republic of Korea

On June 1, 2009, the Plaintiff filed a final tax return on global income tax for 2008 with respect to the income received from ○ Metal Co., Ltd. on May 30, 201, and filed a final tax return on global income tax for 2010 with respect to the income and rent income from ○ Metal Co., Ltd. on May 30, 201. On May 31, 2012, the Plaintiff filed a final tax return on global income tax for 201 with respect to the rental income from YG stores for the year 201.

D. Whether the Plaintiff is a domestic resident

1) Relevant legal principles

According to Article 1-2 (1) of the former Income Tax Act, the term "resident" means a person who has a domicile in Korea or has a permanent domicile in Korea for not less than one year. According to Article 2 (1), (3) and (4) of the former Enforcement Decree of the Income Tax Act, the address under the former Income Tax Act shall be determined based on objective facts of living relationship, such as whether a family living together in Korea and an asset located in Korea exists, and has an occupation which requires a continuous residing in Korea for not less than one year, or if it is deemed that a family living in Korea has a continuous residing in Korea for not less than one year in view of his occupation and property status, he shall be deemed to have an address in Korea, and if it is deemed that a person who has a foreign nationality or a person who has obtained a permanent residence under foreign laws and regulations has no family living together in Korea and is not deemed to have a domicile in Korea.

According to this, whether a person is a resident under the Income Tax Act, i.e., a person who has an address in the Republic of Korea should be determined by comprehensively considering the objective facts of living relationship, such as whether a person has a family living together in the Republic of Korea, whether a person has an asset located in the Republic of Korea

Furthermore, considering the fact that the Income Tax Act requires a comprehensive consideration of the objective living relationship in the Republic of Korea when determining the identity of an individual, and that the living relationship in the other country is not cited as a factor for comparative determination, and that the country is seeking resolution through a tax treaty, etc. in preparation for cases where the identity of both countries is recognized, it is necessary to determine whether a domestic resident is a resident based on a domestic living relationship, and it is not necessary to determine whether a domestic resident is a resident, such as overseas activities and asset holding (see Supreme Court Decision 92Nu1695, May 27, 1993).

2) In the instant case:

In light of the above legal principles, we can see the following circumstances, i.e., ① the Plaintiff’s family living together with the Plaintiff’s family living together, ② the Plaintiff’s resident registration address is a multi-family housing owned by his spouse, ③ the Plaintiff’s family living in the above resident registration address, ③ the Plaintiff’s living in the above resident registration address, and the Plaintiff’s living in the above resident registration address, ④ the period from 2007 to 2011, the Plaintiff’s living in the Republic of Korea was about 40 days per year, and the remainder of the Plaintiff’s staying in the Republic of Korea except the Plaintiff’s family were staying in the Republic of Korea for most annual periods, ⑤ the Plaintiff transferred most of the income generated in China to the Republic of Korea. The Plaintiff’s above funds appears to have been financial resources of the Plaintiff’s assets held in China, 6.0 billion won during the period to which the disposition in this case belongs, and the Plaintiff’s annual income after the Plaintiff’s lease of the above real estate is still subject to the Plaintiff’s final tax return on global income.

E. Determination as to the country of residence liable for tax payment

1) Relevant legal principles

If an individual falls under both a domestic resident and a foreign resident under the Income Tax Act, and thus, constitutes a person liable for income tax, etc. under the said foreign law, a separate provision is established through the conclusion of a tax treaty among countries to prevent this. If a person liable for tax payment is recognized as a dual resident, the determination of which country’s resident shall be made in accordance with the provisions of the tax treaty entered into with the country concerned, and the resident country and the determination of the said tax rate shall meet the taxation requirements: Provided, That as for the fact that the taxpayer who is a domestic resident falls under both a foreign resident and a foreign resident, the taxpayer bears the burden of proof (see, e.g., Supreme Court Decision 2006Du3964, Dec. 11, 2008).

Furthermore, according to Article 4 subparagraph 2 of the Korea-China Tax Convention, where an individual becomes a resident of both countries, ① a country with a permanent residence, ② a country with the most closely related personal and economic relations (referring to the most important interest), ③ a country with a temporary domicile, ④ a country with a citizen, and ④ a country with a citizen's order. However, when a country of residence cannot be determined by any standard, a country with a tax liability shall be determined through mutual agreement.

2) In the instant case:

In the case of this case, the plaintiff is deemed to be a resident of China, but the intention to use the permanent residence for a permanent purpose, not for a short-term stay, should be acknowledged as a subjectively, and objectively, it is reasonable to view that the plaintiff's permanent residence is domestically located in Korea in consideration of the following: Gap evidence 2 (China Resident Certificate) and Gap evidence No. 4 (China Resident Certificate) submitted by the plaintiff, it is difficult to see that the plaintiff's permanent residence is in China, and there is no other evidence to recognize it; rather, the plaintiff's family members reside in Korea; ② the plaintiff transferred most of their trade brokerage income to Korea; ③ the plaintiff acquired real estate in the name of the plaintiff or his family in Korea with its financial resources; and the plaintiff's permanent residence is in Korea.

Furthermore, even if the plaintiff is deemed to have a permanent domicile in both Korea and China, it is reasonable to see that it is at least a focus on the plaintiff's important interest in light of the aforementioned circumstances. In accordance with the Korean Tax Convention, the resident country liable for tax to the plaintiff is the Republic of Korea and the plaintiff is subject to the income tax in Korea, and this part of the plaintiff's assertion on a different premise is without merit.

F. Whether the disposition of this case is unclear

In revising the final return on tax base of a taxpayer pursuant to the provisions of the Income Tax Act because there is an error or omission in the books or evidence, but it is recognized that there is an error or omission in the details of a tax return by other data, and where it is possible to conduct a field investigation, it may also be corrected by other data. As such, the field investigation stipulated in the related Acts and subordinate statutes does not have any special limitation in the objective way so long as it can be viewed as an objective way to capture the actual income. Thus, determination of a taxpayer's total revenue by investigating the amount deposited in the account of a financial institution of the taxpayer is a legitimate field investigation. In general, if the burden of proving the facts of taxation in the course of a lawsuit imposing tax should be borne by the taxpayer, but if it is proved that the other party is not eligible to the application of the empirical rule, it cannot be concluded that the other party is an unlawful disposition that fails to meet the taxation requirements unless it proves the circumstances that the facts at issue are not eligible to the application of the empirical rule in light of the empirical rule (see, e.g., Supreme Court Decision 2003Du14284).

Although it is disputed to the purport that the disposition of this case is unlawful, the plaintiff's total amount deposited into his own account as income from overseas source. However, the plaintiff stated that the entire amount deposited into the above account in the tax investigation process of the ○○ Regional Tax Office was income earned by its trade brokerage business in China, and that the contents, purport, attitude, etc. of the above statement appears to be reliable by specific and clear (No. 8-1), and that the plaintiff's statement to the purport that it is improper to consider the whole amount as the tax ground for taxation even though he voluntarily stated to the above purport, although he did not point out at all about the specific amount that he thought to be unfair, the defendant does not actually point out about the specific amount that he thought to be unfair, and it appears that the disposition of this case was made by considering the fact that the amount actually deposited into the account under the name of the plaintiff is presumed to be income related to foreign business, not all (No. 1,12, and evidence No. 13). Thus, the plaintiff's above assertion is without merit.

H. Determination on the assertion of income tax deduction paid in China

Article 57 of the former Income Tax Act provides that the foreign source income shall be deducted when the foreign income tax is paid or payable in a foreign country on the foreign source income if the foreign source income is added to the global income amount of the resident. According to the evidence Nos. 10, 18, 19, 23, 30, 31, and 32 of the former Income Tax Act, the plaintiff is recognized to have paid the income tax on the foreign source income in China from 2007 to 2011, as stated in the "China paid income tax" column in the following table, which is the taxable period for the disposition of this case. Thus, the plaintiff's assertion on this part is with merit to the

In other words, in full view of the overall purport of the arguments as seen earlier, comprehensively taking account of the scope of revocation of the disposition of this case where the income tax paid by the Plaintiff in China was subject to taxation on income generated from overseas sources, the total income tax for each corresponding year from 2007 to 2011 is calculated by deducting the income tax paid by the Plaintiff in China (the exchange rate is the exchange rate at the time of payment) and the amount indicated in the "political tax amount" in the table below is recognized. Thus, the global income tax for each corresponding year from 2007 to 2011 is legitimate within the scope of the global income tax for each corresponding year from 2007 to 20

Income Tax (RMB) paid by China

Amount of legitimate tax;

Reversion to the year 2007

70,588

7,931,750

208 Reversion of year 2008

151,260

70,404,020

209 Reversion

670,767

210,620,040

201 Reversion of the year 2010

871,751

240,443,740

201 Reversion of year 201

322,689

61,814,140

Total

2,087,055

591,213,690

3. Conclusion

Then, the plaintiff's claim is justified within the above scope of recognition and the remaining agency

The Gu is dismissed for lack of reason.