early 2011west 2985 ( December 13, 2011)

It cannot be deemed that a joint business was operated only on the basis of the agreement of the business, so the tax disposition was illegal.

Since it is not enough to recognize that the plaintiffs operated a private teaching institute as a joint project only with the agreement on the business and the settlement statement of this case, the disposition imposing global income tax on the premise of a joint project is illegal.

2011Guhap43515 global income and revocation of such disposition

Lee Dong-A 3 others

The Head of the District Tax Office and two others

June 1, 2012

July 6, 2012

1. (a) On June 7, 201, the director of the regional tax office: (a) imposed global income tax of KRW 000 on Plaintiff A on June 7, 201 and KRW 000 on the aggregate of KRW 000 on the year 2008 and KRW 000 on the year 2009;

B. On June 7, 2011, 2000 won, 2008, which was reverted to Plaintiff BB in 2007, by the head of Dongjak Tax Office

The imposition of global income tax of KRW 000, the aggregate of KRW 000, the year 2009, 000;

C. On June 7, 2011, the director of the regional tax office imposed a global income tax of KRW 000, the total amount of KRW 000 for the year 2007, KRW 000 for the year 2008, and KRW 000 for the year 2009;

D. On June 7, 2011, the disposition imposing global income tax amounting to KRW 000,000 for the year 2007, KRW 000 for the year 2008, and KRW 000 for the year 2009 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On December 1, 2006, in the 0th OOO building in Gangnam-gu Seoul Metropolitan Government, the Plaintiff established the Gangnam EEEM (hereinafter “the instant fish driving school”) on the 0th floor of the OO building, completed its business registration, and at the same time, the Plaintiff (hereinafter “the Plaintiff”) was working at the instant fish driving school, the Plaintiff B, the snowCC, and the NewD (hereinafter “B”) as an instructor.

B. From 2007 to 2009, Plaintiff A returned and paid the global income tax according to the income amount calculated by deducting the tuition fees paid to the rest of the Plaintiffs for the operation of a private teaching institute (hereinafter referred to as “clateral tuition fees”), the expenses used for the operation of a private teaching institute, etc. from the total amount of income earned in the course of operating the private teaching institute, and the rest of the Plaintiffs, as an individual entrepreneur who provides independent human services, applied the standard expense rate (35%) to the tuition fees paid by Plaintiff A, and filed and paid the global income tax based on the income amount calculated by applying

C. From October 10 to January 20, 201, the director of the Seoul Regional Tax Office conducted a tax investigation with respect to the instant fish farming institute, and found that Plaintiff A was not a sole business operator, but a joint business operator with the rest of the Plaintiffs, based on the Dong business contract (see evidence 8, e.g., Evidence 8, and hereinafter referred to as “the Dong business contract of this case”) prepared between the Plaintiffs, and found that Plaintiff A was operating the instant fish farming institute. On the other hand, the director of the Seoul Regional Tax Office found the fact that the Plaintiff omitted an import declaration of approximately KRW 150 million from the income accrued in 2007, and notified the Defendants thereof.

D. The Defendants viewed the Plaintiffs as joint business income and paid the remainder to the Plaintiffs under Article 5 (1) 12 of the Enforcement Decree of the Income Tax Act, deeming that the key tuition fees paid to one of the joint business places to the Plaintiff, which were calculated as necessary expenses pursuant to Article 55 (1) 12 of the Enforcement Decree of the Income Tax Act, do not constitute necessary expenses. In particular, as shown below [Attachment 1], the sum of the total tuition fees received from the instant fish teaching institute from 2007 to 2009, and the sum of the total tuition fees paid by the Plaintiffs, which is the difference between the sum of the annual tuition fees received by the Plaintiffs from the instant fish teaching institute and the total income amount reported by the Plaintiffs as their own business income, was added as the income amount for the joint business place, and the said sum was allocated according to the ratio of the Plaintiff’s tuition fees received by the Plaintiffs, while the amount of income omitted in 200 in 207, considering that the Plaintiff’s share (the Plaintiff 37.5%, 25%, and 25% of the Plaintiff CC and 25%.

E. The Defendants imposed global income tax on the Plaintiffs on June 7, 201 in accordance with the calculation of the above income amount as listed below (hereinafter the above imposition disposition of global income tax on the Plaintiffs in 2007.

The remaining disposition except the imposition of global income tax shall be referred to as "each disposition of this case".

F. The Plaintiffs filed an appeal with the Tax Tribunal on August 5, 201 on each of the instant dispositions, but the Tax Tribunal dismissed all the Plaintiffs’ claims on December 13, 201.

[Based on Recognition] The non-contentious facts, Gap evidence 1, and 4 (including household numbers, hereinafter the same shall apply), 5, 8, and Eul evidence 1, and the purport of the whole pleadings

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

A. The plaintiffs' assertion

The instant fish driving school was operated independently by the Plaintiff AA, while the Plaintiffs did not operate thisA and the instant fish driving school as joint business operators, and each of the instant dispositions against the Plaintiff was unlawful on the premise that it was different from this.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The plaintiffs were incorporated as a corporation of the instant fish farming institute in the future, and the plaintiffs planned to operate it as directors, and on October 31, 2006, enter into the instant contract with the following contents:

sexuality.

2) On the other hand, around October 28, 2006, the plaintiff Lee Dong-A, as the facility of the fish driving school of this case, leased the total deposit amount of KRW 250 million in personal name, the office of KRW 000,000, and KRW 000,00, and completed the registration of the operator of the fish driving school of this case and the founder of the driving school of this case in his own name on December 1, 2006.

3) On July 31, 2007, the Plaintiffs established a FF global producer (hereinafter referred to as “FF global”) for the purpose of studying and learning consulting, and at the time, the company’s capital was 00 won, and the Plaintiff’s shares were the same as the shares in the instant case.

4) On June 12, 2008, the remaining plaintiffs prepared the FF Council settlement statement of the income tax related to the income tax of 2000 won in relation to the income tax of 2007 of A, and the tax amount borne by A as the operator of the instant fish driving school in 2007, and the plaintiffs, like the plaintiffs, who are the remaining single business operators of A and 000 won in relation to the import tuition fee of 200 won, which determined the remainder of the tax amount calculated in consideration of standard expense rate for each share of 200 won in 2007, which determined the FF Council settlement statement of 200 won in relation to the income tax of 207 (hereinafter "the settlement statement of this case"), and accordingly, the plaintiff Eul paid 00 won and DoD paid 00 won to A.

5) From 2007 to 2009, Plaintiff A returned and paid the comprehensive income tax for the pertinent taxable period according to the income amount calculated by deducting tuition fees paid to the remainder of the Plaintiffs from the total amount of income of the instant fish driving school as shown in Table 2, as well as other pure necessary expenses. As such, the occurrence of pure necessary expenses exceeding the remainder of the Plaintiffs’ remainder of the total tuition fees from the total tuition fees of the instant fish driving school, and accordingly, Plaintiff A incurred difference between Plaintiff A and his income amount as listed in Table 3.

6) On June 30, 201, Plaintiff A comprehensively transferred KRW 000 and KRW 000 of the remaining assets of the instant fish farming institute and KRW 000 to the FF global, and on August 10, 2011, Plaintiff A issued sales tax invoices to FF global for the aforementioned equipment, facilities, and equipment, and book inventories.

7) On August 31, 201, the founder of the instant fish driving school changed from the Plaintiff EA to the FF global, and the FF global capital total (capital + earned surplus, etc.) became 000 won as of the end of 2011.

[Based on Recognition] The non-contentious facts, Gap 1, 2, 5, 7 through 10, 13 through 20, and Eul 2, 3, 5 through 10, and the purport of the whole pleadings

D. Determination

1) Joint business means a partnership business form in which two or more persons agree to operate a joint business by making investments in accordance with a partnership agreement under Article 703(2) of the Civil Act, and all the parties have a direct interest in the success of the joint business by determining their shares or ratio of sharing of profits and losses. Of course, a joint business should be determined by comprehensively taking into account the following: (i) whether a business is a sole business or a joint business; (ii) whether a contract is a type of a partnership agreement or a partnership agreement; (iii) whether a profit or loss has been shared between the parties; and (iv) whether a joint business has been made with respect to the property required for a joint business; and (iv) whether a joint business has been internal joint business operation; and (iii) whether a joint business operator has been an external joint business operator and a type with the external business operator. In particular, Article 43 of the Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same shall apply) deeming the income amount itself to be one resident; and whether a joint business has been distributed or calculated according to each income ratio.

2) In full view of the following circumstances recognized by the overall purport of the above facts and arguments, it is insufficient to recognize that the plaintiffs operated the instant fish farming institute as a joint business place, and there is no evidence to acknowledge that the Plaintiffs operated the instant fish farming institute as a joint business place.

① In accordance with the above [Attachment 2], and the fish driving school in this case was calculated from 2007 to 2009 when the entire amount of income was deducted from the total amount of income to 2009, the entire amount of income in the place of business, including the key instructor fee, does not reach the Plaintiff’s individual instructor fee, and from the perspective of the Plaintiff’s individual, it is evaluated that it was proper for the Plaintiffs to have been in a proper state. Accordingly, the essential part of the profits the Plaintiffs gained while working in the fish driving school in this case is the Plaintiff’s tuition fee. As seen above, the Plaintiffs’ tuition fee paid is fixed at a certain ratio out of the individual instructor’s tuition fee regardless of the ratio of shares under the contract in this case, and the designation of the instructor is fixed in accordance with the characteristics of the individual instructor’s tuition fee. This situation seems to be in line with the characteristics of the joint business operation school in which the business proprietor jointly operates in proportion to the ratio of shares and shares the results or risks arising therefrom, and it seems that the individual formed a separate agreement with each of the Plaintiff.

② According to the instant contract or this BB’s statement (No. 2) at the time when the letter of the instant contract was prepared, when net profits accrue from the sales of the instant fish farming institute excluding the Plaintiff’s tuition fees, the profits would be borne by the Plaintiffs, and, to the extent that the net losses occurred, the instant contract was in the nature of the joint venture. However, as seen earlier, the instant fish farming institute was in the situation where the annual net losses occurred, and there was no evidence to deem that the Plaintiffs shared the common funds, and it is difficult to view that the instant net profits and losses were distributed among the Plaintiffs. Although it existed in the remaining Plaintiffs, it was difficult to view that the Plaintiffs were to share the income tax for 207 years in excess of the Plaintiff Company’s excess of the Plaintiff Company’s income tax, and that it was difficult to view that the Plaintiffs were to bear the remaining expenses by applying the Plaintiff’s annual average income tax as the Plaintiff’s income tax, and that it was difficult to view that the Plaintiffs were to bear the Plaintiff’s remaining expenses by applying the Plaintiff’s annual average income tax as the Plaintiff’s income tax as the Plaintiff’s income tax from 200.

③ The initial Plaintiffs are recognized to have made their respective contributions to jointly operate the instant fish driving school. However, in light of the fact that the instant share distribution following the Plaintiffs’ contributions did not have any particular impact on the distribution of profits and losses of the instant fish driving school, and that the Plaintiff succeeded to the FF global shares that comprehensively acquired the operation of the instant fish driving school, it is difficult to view the form of the instant fish driving school as a joint business place solely on the sole basis that the Plaintiffs jointly invested in the instant fish driving school.

④ The Plaintiff: (a) registered the instant fish driving school as an individual entrepreneur; (b) received tax invoices under the name of the individual entrepreneur in external transactions; and (c) concluded the instant fish driving school lease agreement under the name of the individual; and (b) performed activities as an independent subject externally.

3) As such, it cannot be seen as a joint business place, and each of the instant dispositions taken on the premise thereof is unlawful.

3. Conclusion

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