Cho High Court Decision 2008west0756 (No. 18, 2008)

Whether a person is a business operator who has provided construction subcontracting services.

A person who recruits and manages daily workers in connection with each construction project, and adjusts wages, and is deemed to have received the settlement amount by his/her passbook and paid it to other daily workers, and is an independent service provider.

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

1. All of the plaintiff's claims are dismissed.

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

The defendant's imposition of value-added tax for the second period of 2003 against the plaintiff on October 17, 2007 and the second period of 2005 value-added tax for the second period of 209.154,290 won and 12,583,630 won shall be revoked.

1. Details of the disposition;

A. During an integrated investigation into ○○ Construction Co., Ltd. (hereinafter referred to as “○○ Construction”), the Director of Central Regional Tax Office: (a) confirmed that the Plaintiff was paid KRW 1.94,96, 749, 100,000 from ○○ Construction to ○○○ Construction Co., Ltd. (hereinafter referred to as “○○○ Construction”); (b) the Plaintiff was given a subcontract for construction work, and confirmed that the Plaintiff was paid KRW 1.914,96, 749, 100,000 and KRW 1.00,000 from ○○ Construction Co., Ltd. (hereinafter referred to as “the Second Construction”) and notified the Defendant of taxation data on the Plaintiff.

B. Accordingly, the Defendant rendered business registration to the Plaintiff on October 17, 2007, on the ground that the Plaintiff provided construction services independently for each of the instant construction projects and received construction costs, and imposed the Plaintiff the value-added tax of KRW 279,154,290 for the second term portion of value-added tax in 2003 and KRW 12,583,630 for the second term portion of value-added tax in 2005, respectively (hereinafter “each of the instant dispositions”).

[Reasons for Recognition] Unsured Facts, Evidence No. 1, Entry of Evidence No. 1.2 (including paper numbers), the purport of the entire pleading

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

A. The plaintiff's assertion

In light of the fact that ○○ Construction was posted on the Plaintiff’s welfare pocket book for construction workers of this case (the result of inquiry into the Mutual-Aid Association for Construction Workers of this Court), the Plaintiff’s income tax and resident tax were withheld, and the Plaintiff’s income tax was paid after 2006 (Evidence No. 15) and the Plaintiff’s payment of income tax was merely an independent business operator who participated in each of the instant construction works and provided labor after receiving wages. However, the Plaintiff’s payment of total wages from ○○○ Construction as the head of each of the field responsibility teams of each of the instant construction works of this case was illegal. Nevertheless, each of the instant dispositions against the Plaintiff, which was regarded as a “business operator that supplies goods or services independently,” under the Value-Added Tax Act, is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

In full view of the purport of arguments in Gap's evidence Nos. 6 and 8-10 (including various numbers), the plaintiff prepared an agreement to settle the amount of 1,960,526,70 won which is the supply amount agreed upon at the time of the above contract with 1,914,96,749 won (Evidence No. 8-2) with respect to the construction work of this case, with respect to the construction work of this case ordered by the Korea National Housing Corporation, the plaintiff was responsible for managing the above construction work of this case to the 00-day representative director of the 00 ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 2).

In light of the following circumstances, it is difficult to recognize that ○○ Construction paid income tax on the Plaintiff, as the income tax actually withheld and paid by ○○ Construction was different from the amount of the income tax, since the form and content of each document entered between the Plaintiff and ○○ Construction, the method of performing each of the instant construction works and receiving the price, and the following circumstances recognized by the purport of Gap 4, 5, and Eul 12-15 (including each number), namely, the income tax calculated by ○○ Construction’s statement of labor cost (Evidence No. 4) was different from the amount of the income tax that was actually paid by ○○ Construction. Since the welfare pocket book of the Construction Workers’ Mutual Aid Association is mainly managed based on the data provided by the business owner, it is difficult to readily conclude the relevant form of labor provision as employment solely on the ground that ○○ Construction’s welfare pocket book is managed based on the data provided by the business owner. Moreover, even if the Plaintiff provided labor for ○○ Construction from January 28, 2006 to April 28, 2006.

Therefore, it is reasonable to deal with the transfer of the case that the plaintiff is an independent supplier of services in relation to the blind case construction project.

3. Conclusion

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