Incheon District Court 2007Guu4401 (Law No. 26, 2008)

National High Court 2006J 3553 (2007.05.09)

Whether the principle of good faith is applied to the case where a trade code is assigned differently from the fact.

It cannot be viewed as a public view that the disposition authority directly recognizes the business that it operates to the taxpayer only by erroneously granting a business code.

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

Article 80 (Determination and Correction of Income Tax Act)

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of KRW 4,502,046 against the plaintiff on March 2, 2006 shall be revoked.

The court's reasoning on this case is as follows: even if the data submitted by the plaintiff at the trial around October 2002 and the fact that ○○○ Fire Insurance Co., Ltd. was registered as an employee ○○○○○ as an employee around 2002, it is insufficient to reverse the fact of recognition of the first instance court's judgment that the amount deposited from the non-party company to the Plaintiff's account constitutes a performance fee for soliciting insurance contracts, etc. In addition, even if the public official belonging to the defendant directly entered the business code when the plaintiff applied for the registration of the business, such circumstance alone does not make it illegal to impose the penalty tax of this case. Thus, it is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

[Attachmentcheon District Court 2007Guhap4401 (Law No. 26, 2008)]

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1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 4,502,046 against the Plaintiff on March 2, 2006 (the Plaintiff’s application for correction of claim on May 19, 2008 appears to be erroneous) is revoked. The disposition of imposition of KRW 4,502,046 on global income tax for the year 2003.

쇠鹬 쇠鹬 3000 쇠鹬 3000

1. Details of the disposition;

A. On October 8, 2002, the Plaintiff registered a non-life insurance contract as an insurance broker with the trade name of "Korea Property Insurance Brokers Office", and filed a return on the total income tax accrued in 2003 by applying the simple expense rate of 97.8% of the insurance business (number 660100), which was paid to the Defendant around May 2004, as the individual entrepreneur who runs an insurance and pension-related service business with the same trade name as 0 Dong-dong 180-1 ○○○○○○○○○○, Incheon, Nam-gu, Incheon. Around May 2004, the Plaintiff filed a return on the amount of KRW 58,328,00 with respect to the amount of income paid by each insurance company, such as the Defendant, 00 fire marine insurance, 00 fire marine insurance, 00,000, 000 won.

B. After being notified by the director of the tax office of taxation of taxation data on the 00 Automobile Insurance Sales Agency (hereinafter referred to as a "non-party company"), the defendant judged that the plaintiff failed to report the insurance solicitation allowance of 25,083,000 won (hereinafter referred to as "the issue amount of this case") and other income 6,128,000 won, and the above amount of income shall be deemed as falling under the insurance and pension-related service (copi number 672000, simple expense expense rate 64.8%) and notified the plaintiff of the disposition of imposition of global income tax of 5,041,830 won for the year 206.

C. On June 15, 2006, the plaintiff appealed and filed an appeal on October 30, 2006. On May 9, 2007, the National Tax Tribunal accepted the plaintiff's appeal on other income 6,128,000 won and rejected the remainder of the appeal.

D. According to the purport of the decision of the National Tax Tribunal on November 6, 2006, the Defendant rendered a decision of correction that 6,128,000 won of other income shall be deducted from the Plaintiff’s business income, and 539,784 won of the disposition of March 2, 2006 constituted refundable tax (the disposition of imposition dated March 2, 2006, which was corrected as above).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 4, 20 evidence, Eul evidence 1, 2, Eul evidence 5, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful on the grounds of the above disposition grounds and relevant statutes, and the plaintiff argues that the disposition of this case is unlawful on the following grounds.

(1) The key amount of this case was already withheld by the non-party company as the insurance solicitation allowance received as the head of the non-party company's branch. Of the key amount of this case, 14,064,000 won out of the key amount was reverted to the non-party company's employees, 00,000,000, etc. (hereinafter "employee 000, etc."). Even if not, it was not for the household affairs, 6,949,816 won which was confirmed to have been paid to 00 employees, etc. by the passbook in the name of the plaintiff at least by the passbook in the name of the non-party company. Thus, the disposition of this case which was taxed by considering the key amount of this case as

(2) Although the Plaintiff did not have any negligence on the part of the public official in charge of the Defendant, the insurance code (the code No. 660100), which was granted at the time of filing an application for the registration of business on October 21, 2002, entered the Plaintiff in consultation with the public official in charge of the Defendant, and trusted the Plaintiff, the Defendant deemed the Plaintiff’s type of business as the insurance and pension-related service business, and issued the instant disposition after the estimation and revision of the simple expense rate, thereby making the Plaintiff’s change of the type of business as the insurance and pension-related service business, thereby imposing additional tax on the Plaintiff who was not responsible for the error of the type of business code harshly increased

(b) Related statutes;

(Omission)

(c) Fact of recognition;

(1) On March 9, 2002, the non-party company commenced an insurance service business of 00 buildings located in the Seocho-gu Seoul Metropolitan Government 00 Dong 1327-35, and closed its business on June 30, 2004, and there is no fact that the non-party company's branch office was registered at the place of business or another domestic place.

(2) On October 21, 2002, the Plaintiff entered the main type of business into the business registration application as 'insurance', 'damage insurance', 'life insurance', 'life insurance', and 'life insurance' without stating the main type of business as public space, and presented the registration certificate to the public officials belonging to the Defendant. The above public officials in charge stated the Plaintiff's explanation and the above business registration application as 'insurance', 'damage insurance', 'damage insurance', 'damage insurance', 'damage insurance', 'damage insurance', 'liability 660100, 97.8%).

(3) From August 30, 2002 to 000, the non-party company leased 00 Dong-dong 480-100 building in Nam-gu, Incheon, but the above place was actually used by the plaintiff without compensation.

(4) The 000 used the name of Nonparty Company’s 00 head of the non-party company’s 00 branch office, and concluded an insurance contract on behalf of the non-party company while mediating the insurance contract on behalf of the non-party company, but no employee, etc. is subject to withholding.

(5) During the instant taxable period, the Plaintiff received 26,173,365 won from the non-party company as the performance fee, etc. for the solicitation of insurance contracts, etc. during the instant taxable period from the non-party company, and paid 6,390,00 won in total to the 00 employee, etc. until the payment of 276,700 won to 00 won through the above passbook account.

(6) Meanwhile, among the Plaintiff’s revenue in 2003, the amount received from the Non-Party Company is KRW 52,200,483, the amount received from the Non-Party Company is KRW 25,083,533, and the amount received from the 00 Insurance Association as an incorporated association is KRW 6,128,00.

[Reasons for Recognition] A. 1,2,9 through 19, 1 to 5 to 24, 1 to 25-1 to 49, 1 to 25-2-1 to 2-2, 3-1 to 40, and 40 to 3-1 to 3-2, and the purport of the whole pleadings

D. Determination

(1) Determination on the first argument

앞서 살핀 바와 같이, 원고는 보험업법상 독립적으로 보험계약을 체결하는 보험중개인으로 금융감독원에 등록이 되어 있고 개인사업자로 사업자등록이 되어 있는 점, 원고의 2003년도 수입금액 중 원고의 개인사업자소득인 '00윈윈손해보험중개'로 인한 소득이 전체 소득의 62% 상당{≒ 52,200,483 ÷ (52,200,483 + 25,083,533 + 6,128,000}을 차지하고 있는 점, 소외 회사는 보험서비스업을 하면서 지점을 설치한 사실이 없고 직원 000 등은 위 소외 회사의 근로소득세 원천징수 대상자도 아닌 점, 소외 회사는 이 사건 쟁점금액 전부를 원고 명의의 기업은행 통장계좌에 입금한 점 등에 비추어 보면, 원고는 독립적으로 그의 개인사업을 수행하면서 이에 부수하여 소외 회사의 보험모집 관련 업무를 사실상 수행한 것으로 보여지고 나아가 000 등은 사실상 원고에게 고용되었거나 원고의 이행보조자로서 소외 회사의 보험계약자를 모집하고 알선한 자들에 불과하다고 보여지므로, 원고의 위 주장은 이유 없다.

(2) Judgment on the second argument

In light of the following, even if the standard expense code stated in the business registration and the standard expense code attached thereto as an insurance business under the Plaintiff’s responsibility, in principle, should be reported according to the actual type and items of business, the Plaintiff provided the cause to the Plaintiff’s mistake by entering the business registration application form, the main issue, and the damage insurance, and the Defendant’s additional tax burden has increased due to the change of the business type code due to the Defendant’s mistake, the additional tax is an administrative sanction imposed by the taxpayer as prescribed by the Act in order to facilitate the exercise of the taxation right and the realization of tax claims, and the taxpayer’s intentional or negligent act is not considered in the case where the taxpayer violates the tax return and tax liability as prescribed by the Act without justifiable reasons. In light of the above, even if the standard expense code stated in the Defendant’s official’s wrong guidance as an insurance business from the actual insurance business, it cannot be deemed that there is a justifiable reason for not imposing additional tax solely on such circumstance, and even if the public official belonging to the Defendant stated the Plaintiff’s business type based on the Plaintiff’s business registration application form, etc.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.