Article 21 (3) proviso of the Enforcement Decree of the Income Tax Act and the person who bears the burden of proof

The purpose of the proviso of Article 21 subparag. 3 of the Enforcement Decree of the Income Tax Act is to interpret that the actual entrepreneur is separate in the business stipulated in the same subparagraph, and that if the substance over form is possible, it shall be excluded from the taxation on the nominal owner in addition to the de facto business, it shall not be allowed to impose taxes on the nominal owner in addition to the de facto business. As such, the person who disputes the taxation on the nominal owner with regard to the burden

Article 7 (1) of the Income Tax Act, Article 21 subparagraph 3 of the Enforcement Decree of the Income Tax Act

Supreme Court Decision 84Nu68 Delivered on June 26, 1984

Plaintiff

Head of Namgu Tax Office

Daegu High Court Decision 85Gu186 delivered on August 13, 1986

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Article 7 (1) of the Income Tax Act provides that where the ownership of income is nominal and there is another person who has actually earned such income, income tax shall be imposed by applying this Act to a person who has actually earned such income pursuant to Article 4 (1) of the Framework Act on National Taxes: Provided, That this shall not apply to the income accruing from the business prescribed by the Presidential Decree, and Article 21 subparagraph 3 of the Enforcement Decree of the same Act provides that "any business other than those provided for in subparagraphs 1 and 2, which is run by the State or a local government after obtaining permission, authorization, license, patent, etc. from the State or a local government except for the cases where a person who has actually acquired such income is taxed under the nominal owner provided for in the proviso of Article 7 (

The purport of the proviso of Article 21 subparagraph 3 of the Enforcement Decree of the above Act is to interpret that the actual entrepreneur is separate in the business stipulated in the same subparagraph, and that if this is possible, the taxation on the nominal owner of the permission, authorization, etc. shall be excluded, so it shall not be allowed to impose tax on the nominal owner in addition to the actual entrepreneur. Thus, the argument that the substance over form is possible is that the plaintiff who disputes the taxation on the nominal owner. (See Supreme Court Decision 84Nu68 delivered on June 26, 1984)

2. Reviewing the judgment below in comparison with the records, the court below accepted the plaintiff's proof, while the plaintiff is the nominal owner of the establishment authorization of the school in the case, the actual business operator of the school in the case in the case in question is the Foundation in order to maintain the association in the case of the foundation, and the income of the school in the case in the case of the above association can be imposed on the above association. Thus, the court below's fact-finding process or decision of the court below is just and acceptable, and there is no illegality in violation of the rules of evidence, lack of reasons, and incomplete hearing, etc., such as the theory of lawsuit. The argument is groundless.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Yoon Yoon-hee (Presiding Justice)