Examination Income 2009-005 (Oc. 17, 2009)

The legitimacy of the assertion that he/she falls under a non-resident after leaving the Republic of Korea with his/her family living together

Whether a person who departs from the Republic of Korea is a resident or not shall be determined by comprehensively taking into account the objective facts of living relationship, such as existence of a family living together in the Republic of Korea, existence of assets located in the Republic of Korea, purpose of departure from Korea, occupation, and whether

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of global income tax of KRW 690,408,08,080 against the Plaintiff on November 1, 2008 shall be revoked.

1. Circumstances of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by adding the whole purport of the pleadings to each entry in Gap evidence 2, Gap evidence 7, Gap evidence 8, Gap evidence 10, Eul evidence 10, and Eul evidence 1:

A. From October 1997, the Plaintiff was granted a stock option from BEA on November 1997 while working as a domestic subsidiary of the AAA system company (BEA Systs, Inc., hereinafter referred to as “BEA”) that is a software developer at AAA system Korea corporation, a software developer.

B. After that, between May 17, 2001 and June 29, 2001, the Plaintiff acquired profits equivalent to KRW 618,121,082 (hereinafter “the first exercise profit”) calculated by subtracting the exercising price from the exercising price of stock option by exercising a stock option of 15,500 shares from the exercising price of shares. From July 2001, the Plaintiff left the Republic of Korea with the above company KimB, its family member KimB, its Mar. 9, 2001, left the Republic of Korea with the U.S. No. 12,329 shares from October 8, 2001 to October 10, 201, deducted the exercising price of shares from the exercising price of stock option (hereinafter “the exercise price of stock option”) and the profits equivalent to KRW 1537,586,5750 shares from exercising the exercise price of stock option (hereinafter “the profits equivalent to the exercise price of stock option”).

C. As the Plaintiff did not file a comprehensive income tax on each of the above interests, the Defendant: (a) deemed the first profit on November 1, 2008 as earned income and the second profit as other income; and (b) determined and notified the global income tax of KRW 690,408,08,080 for the global income tax of 2001 (hereinafter “instant disposition”).

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that since the plaintiff's family on August 9, 2001 falls under a non-resident under the Income Tax Act on the following day after residing and settled in the United States for the work of IT companies in the U.S. local area (information technology), the part corresponding to the first exercise profit of the disposition of this case was made after the lapse of seven years from July 31, 2001, the 10th day following the 10th day before the date of departure, which is the deadline for filing the tax base and tax amount, and that the remaining part on the premise that the plaintiff is a resident is illegal.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Facts of recognition

The following facts may be found to be without dispute between the parties, or with the overall purport of the pleadings as stated in the evidence of 1, 4, 5, 16, 19, 11, 12, 13, 14, 16, 17, 19, 2, and 2.

(A) On August 9, 2001, the Plaintiff obtained a student volunteer with the purpose of departure from the Republic of Korea as a course of study training, and left the Republic of Korea with his/her family members, and resided in the Nostongroporo, a tropha, a tropha, where a global advanced company is located.

(B) Examining a certified copy of the register of overseas Koreans against the Plaintiff issued by the consul General, the purpose and qualification of the Plaintiff’s sojourn is residence, the period of stay is from August 10, 2001 to the date of registration of overseas Koreans, and the date of registration of overseas Koreans is from May 30, 203.

(C) After departure from the Republic of Korea, the Plaintiff completed the language training course of Norway or universities from August 20, 2001 to May 17, 2002, and continued to hold the course of MBA from June 2002 to May 2004.

(D) During that period, the Plaintiff was issued a social security card on August 13, 2001, and was issued a driver’s license on September 6, 2001.

(E) In addition, on September 8, 2001, the Plaintiff sold the UN EE apartment 101 1505 dong 1505 dong in Seoul EE-dong, which was residing at the time of departure from the Republic of Korea. On September 20, 2001, the Plaintiff purchased 36 dong FE-dong FEdong 103 above the above sale price, and entered into a contract for the lease of this at a higher level than the above sale price. The Plaintiff had two parcels of land in the Gyeongcheon-gun, Gyeong-gun, Seoul, which was owned by inheritance in the Republic of Korea from the following point of entry.

(F) However, around that time, the U.S. has been faced with serious economic depressions throughout the whole economy as well as IT industry, and the H-1B visa issuance review required for foreigners to work in IT companies in 2001 was considerably close.

(G) After completing the MBA process on May 2004, the Plaintiff was issued an employment permit on July 1, 2004, but was returned to Korea with his family on July 20, 2004. During the period of stay in the United States, the Plaintiff and his family members returned to Korea on May 26, 2002 to prepare for and participate in the marriage of female children, but the Plaintiff left Korea on June 25, 2002 and left Korea around July 30, 2002.

(h) After returning to the Republic of Korea, the Plaintiff resided in the said newF apartment from March 2, 2005 with his family members residing in the said newF apartment from March 2, 2005. On the other hand, from December 13, 2004 to July 8, 2005, the Plaintiff retired from the sales promotion service in the GGG, and thereafter retired from the office, and thereafter he had been temporarily worked in the HHHHHHHH Korea Co., Ltd. from August 1, 2005 to October 20, 205, and re-employed again to the AAAAA system Korea Co., Ltd.

(2) Whether it is a non-resident

According to Article 1(1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009), and Articles 2 and 4(2) of the Enforcement Decree of the Income Tax Act, the term “resident” means a person who has either a domicile or a temporary domicile in the Republic of Korea for not less than one year. The address shall be determined based on objective facts of living relations, such as the existence of a family living together with a domicile in Korea as a basis for living, and of assets located in Korea. If a family living in Korea has an occupation which requires continuous living in Korea for not less than one year, or if it is deemed that a family living in Korea continues to reside in Korea for not less than one year in view of such occupation and property status, it shall be deemed that the person has a domicile in Korea; if a family living in Korea has no family living in Korea, or if it is deemed that the person has a temporary domicile in Korea after his occupation and property status, it shall be deemed that the person has no domicile in Korea.

According to the Income Tax Act, whether a person who has left Korea from a foreign country is a resident, that is, a person who has a domicile in the Republic of Korea should be determined by considering the objective facts of living relationship, such as whether a person has a family living together in the Republic of Korea, whether a person has an asset located in the Republic of Korea, the purpose of departure, occupation

In this case, as seen earlier, the Plaintiff left the Republic of Korea after departure from the Republic of Korea as a student studying abroad for the purpose of the original language training, and left the Republic of Korea. Even if the Plaintiff left the Republic of Korea with his intention to find employment at the time of departure from the Republic of Korea, there is no specific and direct act to find employment. On the other hand, even during the period of stay in the United States, he returned to the Republic of Korea with his family and resided in the Republic of Korea for a period of one month. On July 20, 2004, the Plaintiff was employed in the IT-related business and was employed in the Republic of Korea after returning from the Republic of Korea after returning to the Republic of Korea, and the Plaintiff was employed in the former IT-related business, rather than transferring the proceeds from the sale of the apartment and leased it to the other high-priced business, the Plaintiff still resided in the apartment, and was in possession of the two lots of land before departure from the Republic of Korea for the period of stay in the United States, and even if it was difficult for the Plaintiff to find employment at any time, the Plaintiff’s residence in the Republic of Korea.

D. Sub-determination

Therefore, the plaintiff's argument that is examined in another whole is without merit, and the disposition of this case made by the defendant to the same purport is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed.