Early High Court Decision 2015JE 5375 ( October 15, 2016)

Whether the Plaintiff is a real business entity

Since it is difficult to see that the Plaintiff is the subject of business ownership with respect to the instant workplace, the instant disposition taken on the premise that the Plaintiff operated the instant workplace solely or jointly, is unlawful in violation of the principle of substantial taxation.

Article 14 (Real Taxation)

Suwon District Court 2016Guhap64082 ( October 14, 2017)

It seems that the money stipulated in the business agreement is paid.

400,000 won per month in the name of the rent transferred from the business account to the private account; and

The remaining one million won after subtracting three million won paid as the rent for the place of business of the case shall be the same as the instant partnership agreement.

Pursuant to this section, the Plaintiff leased the Plaintiff’s business registration name to FF and the time of the instant place of business

It seems that it was paid in consideration of the use of the theory.

② GG livestock Co., Ltd. (hereinafter referred to as “GG livestock”) that supplied Chinese rain to the instant workplace.

section 2015 Ghana for the payment of the purchase price of the goods against the plaintiff (U.S. District Court 2015 Ghana)

20000호)를 제기하였다가 2016. 3. 11. '원고가 이 사건 사업장을 단독으로 또는 임ㅁㅁ

It is difficult to view that GG livestock was operated jointly with the Department, and GG livestock was run by the HGF in this case.

It is reasonable to view that the Plaintiff was a business owner of the business and the Plaintiff was aware of the fact that he was only the nominal lender

on the ground that the judgment dismissing the claim was rendered and became final and conclusive as it is. The name of the plaintiff by the FF

Business registration of the place of business of this case for the purchase of food materials, etc. using the account of the member

The name was the name of the plaintiff, and the company that had been engaged in a transaction with the business place of this case at that time.

They seem to have been aware of the FF that is not the plaintiff as the actual operator.

(3) As for the agreement of the same business drawn up between the Plaintiff and the FF, the FF will in the instant workplace.

There is only the fact that the monthly rent is paid, and the content of the distribution of profits is stated.

did not exist.

(4) In addition to rent, the amount deposited into the Plaintiff’s personal account and sales of the workplace of this case

There is no particular correlation between the scale (the details of the return of value-added tax on the instant business establishment);

According to the 1st of the year 2014, the amount deposited into an individual account is the largest.

From 3 million won to 4 million won in 2012 and 2013, 200 million won to 2 million won in 2014

(C) The above deposited money was issued in connection with the instant business establishment.

It is difficult to see that the said money was distributed. Rather, all of the said money was deposited in the name of ‘benefit’, which is private.

The amount of KRW 4 million under a contract under the Credit Agreement was deposited from October 2012, but the status of the salary was paid in the name of the recipient.

Money was paid from November 2012, 2012, which, as alleged by the Plaintiff, Hah transferred the money to HaF.

to resolve the dispute upon the occurrence of the dispute by taking into account the fact that the dispute was made.

The plaintiff entered into an employment contract with the FF and entered and work in the workplace of this case;

The Plaintiff appears to have been a representative director on October 2014, 2014, and the Plaintiff is a DD EF, the representative director of which is a representative director.

A contract of employment with C.S. was entered into, and after that time, money in the name of 'benefit' from the account of the Republic of Korea.

In light of the fact that the money under the name of DF is deposited without being paid from DF, the said money is paid.

It is reasonable to view that the Plaintiff was paid as remuneration for providing labor at the instant workplace.

4) Therefore, it was proved that the Plaintiff was the subject of the ownership of the business in the instant workplace.

It is difficult to see that the Plaintiff operated the instant business solely or jointly.

The instant disposition taken under No. 1 is unlawful against the principle of substantial taxation.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

section 3.

Kim*

○ Head of tax office

2017.02.07

oly, 2017.02

1. On September 15, 2015, the Defendant’s disposition rejecting an application for rectification with respect to each value-added tax and global income tax stated in the separate sheet against the Plaintiff is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order of the Gu office.

1. Details of the disposition;

A. The plaintiff is a person registered as a business operator of the "DB" (hereinafter referred to as the "place of business of this case"), which is a restaurant in AA City BB, 125 (CCdong).

B. On October 24, 2013, the Plaintiff reported to the Defendant the amount of value-added tax paid for the first term portion of the Value-Added Tax for the year 2013 on January 24, 2014, KRW 25,122,205, and the amount of value-added tax paid for the second term portion of the year 2013 on January 24, 2014, KRW 46,453,350, and KRW 50,898,807, which was the amount of value-added tax paid for the second term portion of the year 2014 on July 25, 2014. In addition, the Plaintiff reported to the head of EE tax office the amount of global income tax paid for the year 20,089,600, and KRW 22,305,314, 2015, the amount of global income tax payable for the year 2014.

C. On July 23, 2015, the Plaintiff filed a request for correction with the purport that “the Plaintiff is merely the nominal name holder of the instant workplace and the FF is a de facto business operator, and thus, the Plaintiff would request FF to impose value-added tax and global income tax.” However, the Defendant rendered a decision to dismiss the Plaintiff’s request for correction on September 22, 2015 (hereinafter “instant refusal decision”). D. The Plaintiff, who was dissatisfied with the instant refusal decision, filed a request for adjudication with the Tax Tribunal on October 22, 2015, and received a decision to dismiss the Plaintiff’s request for correction on February 15, 2016.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 3, 15, and 16, and the purport of the whole pleadings

A. The plaintiff's assertion

The Plaintiff, while subleting the instant business place to FF, was employed by FF with the name of the business operator in the instant business place in the future of the Plaintiff, due to lease relationship with the lessor, business compensation issues following the implementation of public works, etc., and only worked as an employee. Since the actual operator of the instant business place is the FF, value-added tax and global income tax should be imposed on FF under the principle of substantial taxation. The instant rejection decision is unlawful.

B. Determination

1) Article 14(1) of the Framework Act on National Taxes declares the principle of substantial taxation by stipulating that “if the ownership of income, profit, property, act, or transaction subject to taxation is merely nominal and there is another person to whom such income, profit, property, act, or transaction belongs, the person to whom such income, profit, act, or transaction belongs shall be liable to pay taxes.” Therefore, if there is a separate person who substantially controls and manages such income, profit, property, act, transaction, etc. different from the nominal owner, the nominal owner shall not be the person to whom such income, profit, act, or transaction belongs, but the person who substantially controls and manages the relevant taxable subject to taxation shall be the person to whom such income, etc. is liable to pay taxes in accordance with the principle of substantial taxation. Furthermore, the determination of such case should be made by comprehensively taking into account various circumstances such as the developments leading to the use

On the other hand, in principle, the tax authority bears the burden of proving the existence and the tax base of the taxation requirement. This also applies to cases where the tax authority contests that the title of transaction, etc. and the actual subject of ownership are different, barring special circumstances, such as a separate legal provision converting the burden of proof. However, as long as the tax authority imposed tax on the nominal trader by deeming the nominal trader as the actual trader, it is necessary to assert and prove that the title of transaction, etc. and the substance of the transaction, etc. are different. In this case, the need for proof is sufficient to the extent that the judge has a reasonable doubt as to the fulfillment of the taxation requirement. As a result, if it is unclear whether the substance of the transaction, etc. belongs to the nominal person, and it becomes impossible to obtain conviction of the judge, then the disadvantage therefrom is back to the tax authority bearing the ultimate burden of proof (see, e.g., Supreme Court Decision 2011Du935, May 16, 2014).

① On July 27, 2009, the Plaintiff leased the instant workplace from HahH with a deposit of KRW 100 million, monthly rent of KRW 3 million, and the term of lease from July 30, 2009 to July 30, 201. According to the said lease agreement, the Plaintiff is prohibited from subleting the instant workplace without the lessor’s consent. The Plaintiff and Hahhhh set the term of lease on August 10, 201, with a special agreement stipulating that the instant workplace shall be incorporated into part of the site for road due to the road expansion work due to the construction work due to the construction work due to the construction work of Kui AA Highway. The immediate closure after the receipt of business compensation.

② With respect to the forest FF and the instant workplace on August 10, 2012, the Plaintiff:

'Agreement on Trade' was drawn up (hereinafter referred to as 'Agreement on Trade').

③ The account used for the operation of the instant business establishment is the national bank account in the name of the Plaintiff (Account Number 3AAA-B-CCC, hereinafter referred to as a “local bank account”) and the D bank account (Account Number AA-SS-CC; hereinafter referred to as “C”) and the D bank account in the name of the Plaintiff, and another national bank account in the name of the Plaintiff (Account Number SSS-04-0CC, hereinafter referred to as “SS-0CC”) were used for personal expenditure of the Plaintiff.

④ However, from October 2012 to the end of each month, the amount of KRW 4 million and the amount of KRW 4 million converted from the end of each month was separately deposited in the account of the Republic of Korea. The said amount was transferred from the account of the Republic of Korea. The said amount was indicated as “GG wages” and “GG monthly wages” in the account of the Republic of Korea. The Plaintiff transferred KRW 3 million out of the amount of KRW 4 million deposited in the fixed amount to HG as rent for the instant business establishment.

On the other hand, most of the proceeds from the operation of the business site of this case deposited into the account of the Commission was transferred to the deposit account.

⑤ On August 27, 2015, the Plaintiff and the FF bear all matters related to the instant business, such as all taxes, public charges, and goods unpaid, wages, and retirement allowances, which were, or are likely to be, arising from the instant business establishment by the date of termination of entrustment, and the entrustment contract with the instant business establishment is concluded.

On August 31, 2015, an entrustment agreement was made with the content that "the termination will be terminated as of August 31, 2015."

(6) On the other hand, HF served as the representative director of DDF, Inc. (hereinafter "DDF"), promoted restaurant franchise business, and operated the restaurant in Goyang-si, Jungdong-gu, Seoul, and SAAAS and DD in Seoul, as the same trade name as the place of the instant business.

3) In full view of the following circumstances, which can be recognized by the evidence revealed earlier, the actual operator of the instant place of business is the FF, and there is sufficient reason to deem that the Plaintiff, without the lessor’s consent, lent its business registration name to F while maintaining the business registration name in order to sublease the instant place of business and receive business compensation in accordance with the incorporation into the road site of a part of the instant place of business. The evidence submitted by the Defendant alone is insufficient to recognize that the Plaintiff actually operated the instant place of business or was in the position of joint investment business operators in relation to the operation of the instant place of business, and there is no other evidence to prove otherwise

① If the Plaintiff was actually operating the instant workplace, the Plaintiff was transferred to a business account in the name of the Plaintiff by dividing the agreed amount of KRW 4 million into a personal account in the name of payment, and then did not make a transaction by paying rent to the lessor again through the said personal account. Furthermore, in light of the fact that most of the revenues of the instant workplace deposited into the said business account were transferred back to the FF’s account, the F alone, while operating the workplace by using the said business account, to the Plaintiff as the Plaintiff’s personal account.