Review Division 2008-0099 (2008.06.30)

Whether the actual operator of the gas station is a person;

In light of the fact that the employee in charge of loan has entered into a loan contract with the actual operator and the real estate sub-lease contract is prepared, but it seems to have actually entered into a sales contract to sell all the goods such as gas station facilities and goodwill, etc. to the actual operator, it is judged that the Plaintiff

The contents of the decision shall be the same as attached.

Article 14 (Real Taxation under Framework Act on National Taxes)

Article 2 (Taxpayer of Value-Added Tax Act)

1. The Defendant’s disposition of imposition of value-added tax amounting to KRW 19,744,600 for the first period of 2006 against the Plaintiff on March 2, 2008 shall be revoked.

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

The same shall apply to the order.

1. Details of the instant disposition

A. From April 26, 2004 to May 3, 2006, the Plaintiff was a business registration titleholder of ○○○○○○○○○ in Chungcheongbuk-ri 19-○ (hereinafter “instant gas station”).

B. On March 2, 2008, the Defendant issued a tax notice of KRW 19,744,600 on March 2, 2006 to the Plaintiff on the basis of the tax invoice related to the gas station of this case (hereinafter the instant disposition) after undergoing a tax investigation (hereinafter “instant disposition”).

C. On May 30, 2008, the Plaintiff asserted that the actual operator of the gas station in this case was not the Plaintiff. However, around June 30 of the same year, the Plaintiff received a decision to dismiss the said request for examination on the ground that the data submitted by the Plaintiff are insufficient to prove the above assertion.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 6, 15, 21, 22, 26 (including each number)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On January 10, 2005, the Plaintiff entered into a contract to transfer all of the facilities, goodwill, etc. of the gas station of this case to Nonparty ○○○ (the date of Nonparty 1) for KRW 80 million. Accordingly, the Plaintiff paid KRW 50 million as the down payment and the intermediate payment, and the remainder KRW 30 million in installments for ten months each month after the commencement of the business of the gas station. Accordingly, the actual operator of the gas station of this case is the head of the gas station after the conclusion of the contract for transfer, and the Plaintiff only lent only the name of the business operator of the gas station of this case to the head of ○○, and thus, the Plaintiff’s disposition of this case was unlawful since it was against the principle of substantial taxation.

(b) Related statutes;

Article 14 (Real Taxation under Framework Act on National Taxes)

Article 2 (Taxpayer of Value-Added Tax Act)

(c) Fact of recognition;

(1) On January 10, 2005, while operating the gas station of this case, the Plaintiff entered into a contract with the head of ○ and the head of ○ on January 10, 2005, under the title of the real estate lease contract, that the deposit amount of KRW 50 million is reverted to the lessor after one year (hereinafter the instant contract).

(2) However, even after the conclusion of the instant contract, the head of ○○ day continued to use business registration, accounts for sales, and credit cards under the name of the Plaintiff, and operated the instant gas station, but there was no separate distribution of sales revenue, etc. to the Plaintiff, other than the aforementioned premise deposit and monthly rent.

(3) The monthly salary for the employees Kim ○, etc. who worked at the instant gas station was paid to the head of the ○○ day, and the head of the ○○ day led to the management of funds, such as the payment of oil to the head of the ○○.

(4) During the period from January 10, 2005 to June 2006, the head of ○○○○ and the credit card sales claims of the instant gas station concluded a loan contract with the content of ○○○ and the credit card sales claims of the instant gas station as security.

(5) On April 30, 2004, the gas station of this case received a decision to commence auction from this court at around 2004, around 13017, and thereafter, on May 9, 2006, the registration of transfer of ownership in the name of Nonparty ○ System was made.

(6) On the other hand, it is written that the ○○ day from January 1, 2003 to March 31, 2006 operated the ○○○○-dong 19-O from March 31, 2006.

[Reasons for Recognition] Each of the evidence mentioned above, Gap evidence 2 through 7 (including each of the above numbers), Eul evidence 28-2, Eul evidence 29-1 and Eul evidence 29-2, witness ○○, the testimony of the highest seat, and the purport of the whole pleadings

D. Determination

(1) As to whether the Plaintiff is the actual business operator of the instant gas station, the following circumstances are revealed: ① the maximum ○○○○○○○○○○○○○○○, the head of the team in charge of lending the instant gas station, after completing an inspection by visiting the gas station directly; ② the Plaintiff and the head of the instant gas station, after examining documents, such as a letter of commitment and certificate of personal seal impression, the actual operator of the instant gas station entered into a loan contract with the Plaintiff, rather than the Plaintiff; ② the real operator of the instant gas station entered into the instant contract under title of the real estate lease contract without being returned one year, but it seems reasonable to interpret the instant contract as a sales contract to sell all of the gas station facilities and operating rights to the ○○○○○○○○○○○○○’s business operator, etc., which appears to be favorable to the Plaintiff’s actual business operator’s use of the instant gas station after the date of signing the contract with the Plaintiff’s name of the head of the instant gas station and the instant sales contract, and the Plaintiff’s actual use of the instant gas station under the name and management.

(2) Therefore, the instant disposition that reported the person liable for payment of the value-added tax of this case to the Plaintiff, not the head of the actual business owner, should be revoked on the ground that it violates the principle of substantial taxation.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition.