Cho High Court Decision 2008J3481 ( December 23, 2008)

Whether the sales commission received for the land sales business can be viewed as the business income;

The initial disposition imposed on the sales commission in an independent position on the ground that it has not registered as an independent business operator with respect to the sales commission received according to its performance, and that it has received a fixed wage every month from a specific business operator and withheld and paid labor income tax, etc. is justifiable.

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

1. Each of the instant claims for revocation of the portion exceeding KRW 46,459,860 among the disposition imposing global income tax of KRW 71,356,530 for the year 2005 and for revocation of the portion exceeding KRW 32,098,640 among the disposition imposing global income tax of KRW 60,191,040 for the year 2006 shall be dismissed.

2. Each of the remaining claims of the Plaintiff shall be dismissed.

3. The plaintiff shall bear the litigation costs.

The Defendant’s imposition of global income tax of KRW 71,356,530 for the year 2005 against the Plaintiff on July 1, 2008 and global income tax of KRW 60,191,040 for the year 2006 is revoked.

1. Circumstances of the disposition;

A. The company of this case, including the forest and field land, is a company that conducts real estate sales business, etc. by purchasing and dividing the forest and field land, and selling it through employees such as the youthter. The company of this case is a company that operates the real estate sales business, etc.

B. The Seoul Special Metropolitan City Mayor M paid the Plaintiff KRW 180,283,00, KRW 250,000 in 2005, and KRW 149,634,00 in 206, and KRW 149,634,00 in 206 (hereinafter “each of the above sales allowances paid to the Plaintiff”) with each of the sales allowances of this case as business income, and the Plaintiff reported and paid the income tax amount equivalent to 3/100 of the amount paid, and the Plaintiff also reported and paid the final return of tax base of global income in 2005 and 206 with each of the sales allowances of this case as business income.

C. The director of ○○○ Regional Tax Office: (a) deemed that each sales allowance of the instant case was not business income, and notified the Defendant of the taxation data by deeming that it was reported as business income, through a tax investigation on the income of △M and △△ region; (b) the Defendant included the Plaintiff’s sales allowance in the Plaintiff’s earned income in 2005 and 2006, and imposed global income tax of 71,356,530 won for the year 2005 and global income tax of 60,191,040 won for the year 206 [the Defendant included the sales allowance of the instant case in his earned income of 152,134,000 won for each of the instant sales allowances (2,50,000 won for sales allowances received from △M in 206 + the Defendant included the sales allowance of the instant case in his earned income in the sales allowance of △ region 2006,140,3600 won for the year 206];

D. Since then, in imposing global income tax for the year 2005 and 2006, the Defendant found any error in the calculation of business income and wage and salary income of each of the instant sales allowances, and deducted each of the instant sales allowances included in the acquisition of the place of business on January 21, 2009, and corrected the amount of KRW 71,356,530 as global income tax for the year 2005 as KRW 46,459,860, and the global income tax for the year 2006 as KRW 60,191,040 as global income tax for the year 209,640 (hereinafter referred to as “each of the dispositions imposing global income tax for the year 2005, which was corrected as above”), each of the disposition imposing global income tax for the year 2005, KRW 46,459,860, KRW 32,640 for the year 206, and KRW 32,640 for the year 206”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-2, Gap evidence Nos. 4, 5, Eul evidence Nos. 1 and 4, the purport of the whole pleadings

2. Determination as to whether the part seeking revocation of a portion exceeding 46,459,860 won among the disposition imposing global income tax of KRW 71,356,530 for the year 2005 and the part seeking revocation of the disposition imposing global income tax of KRW 60,191,040 for the year 2006 exceeds KRW 32,098,640 for the part seeking revocation of the disposition imposing global income tax of KRW 60,191

On July 1, 2008, the defendant issued a disposition imposing global income tax of KRW 71,356,530, global income tax of KRW 60,191,040 for the year 2005, and global income tax of KRW 60,191,040 for the year 206. On January 21, 2009, the above amount of KRW 71,356,530 for global income tax of KRW 46,459,860 for the year 2005, and KRW 60,191,040 for global income tax of KRW 32,098,640 for the year 206 was reduced to KRW 71,356,530 for the above amount of global income tax of KRW 46,459,860 for the year 206, and the above portion of the portion claimed for revocation is unlawful. Therefore, there is no portion in excess of the above amount of KRW 61,301,6409,6408.

3. Whether the dispositions of this case are proper.

A. The plaintiff's principal

The plaintiff did not enter into an employment contract with each company of this case and provide labor in a subordinate relationship, but rather provided land sales services by forming a team with sales employees such as elb, etc. in an independent relationship. Thus, each sales allowance of this case received in return for land sales services constitutes the acquisition of the business office.

(b) Related statutes;

It shall be as shown in the attached Form.

C. Determination

In full view of the overall purport of pleadings, Gap evidence 2, Eul evidence 2, Eul evidence 3-1, 2, Eul evidence 4, Eul evidence 5-1, 2-2, and Eul evidence 5-2, the plaintiff was paid 3,300,000 to 3,50,000 won each month from March 31, 2004, and the plaintiff was paid 3,300 to 3,50,000 won each month in 205, and the representative director from February 2, 2006 to March 15, 2006, and the plaintiff was paid 4,90,000 won each month from the date of the above employment income of the company from Gap evidence 3-2, and the above employment income tax was derived from each of the above employment income tax (2), and the plaintiff was not paid 3,00,000 won for each of the above employment income of the above companies, and it was not recognized that the plaintiff was directly engaged in the sales of each of the above shares.

4. Conclusion

Therefore, among the instant lawsuit, the part seeking revocation exceeding KRW 46,459,860 of the disposition of imposition of global income tax of KRW 71,356,530 for the tax year 2005 and the part seeking revocation exceeding KRW 32,098,640 of the disposition of imposition of global income tax of KRW 60,191,040 for the tax year 2006 is dismissed, respectively, and the remaining claims of the Plaintiff seeking revocation of each of the instant dispositions are dismissed as it is unlawful. It is so decided as per Disposition by the assent of all participating Justices on the bench.