제2차납세의무자 지정의 당부[국패]
Appropriateness of the designation of a secondary tax obligor
The designation of the person liable for secondary tax payment is illegal, since it is merely a shareholder of the delinquent corporation and it is not managed or managed as a representative director or shareholder as of the date of establishment of the tax liability.
Article 14 of the Framework Act on National Taxes
1. Revocation of a judgment of the first instance;
On February 25, 2003, the Defendant revoked the disposition of imposition of value-added tax of KRW 166,581,290, including value-added tax imposed on a secondary taxpayer.
2. All costs of the lawsuit are borne by the Defendant.
The same shall apply to the order.
1. Details of the disposition;
The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry in Gap evidence 2, Eul evidence 1, 3, and Eul evidence 14-1, 14-3.
A. The office of ○○ Enterprise Professional Engineer (hereinafter referred to as the “office of ○ Enterprise Professional Engineer”) was established on August 18, 1994 for the purpose of equipment construction business, and was closed on April 14, 2003.
B. The Plaintiff is registered as the representative director on the corporate register of the delinquent corporation from March 31, 200 to December 6, 2000. The Plaintiff holds approximately 57.14% of the shares issued as of December 2001 and December 12, 2002, out of 35,000 shares issued as of March 31, 200 to December 6, 200.
C. The Defendant imposed a total amount of 291,532,00 won on the delinquent corporation due to the value-added tax for the second period of 2001, but did not pay it by the delinquent corporation. On February 25, 2003, the Plaintiff, who was the oligopolistic shareholder, was designated as the secondary taxpayer, and imposed 16,581,290 won in proportion to the shareholding ratio (hereinafter “instant disposition”).
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The fact that the plaintiff was a representative director and a shareholder on the corporate register of the delinquent corporation under the statement of changes in stocks, etc. is merely a nominal name. However, in fact, since the representative director or shareholder of the delinquent corporation does not operate the delinquent corporation or exercise shareholder's right, the disposition of this case that the plaintiff designated and imposed as an oligopolistic shareholder of the delinquent corporation is unlawful.
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
Article 39(1)2(a) and (2) of the Framework Act on National Taxes provides that where the property of a corporation is insufficient to cover the national tax, additional dues, and disposition fee for arrears imposed on or to be paid by the corporation, the secondary tax liability shall be imposed on the oligopolistic stockholder who owns not less than 51/100 of the total number of issued and outstanding stocks of the corporation concerned as of the date on which the liability for national tax payment is established and who actually exercises the rights thereto. Here, the fact that the oligopolistic stockholder falls under the oligopolistic stockholder should be asserted and proved by the tax authority. However, the tax authority must prove that the submission of materials that can be seen as oligopolistic stockholder by the list of stockholders, the statement of stock transfer status, or the certified copy of the register, etc. of the company, is deemed to have been made by the person who intends to be exempted from the secondary taxpayer’s liability. The fact that the secondary taxpayer is not a shareholder but a shareholder in form, etc. (see, e.g., Supreme Court Decision 94Nu797, Jan. 20, 1995).
According to the reasoning of the court below's ruling, Gap evidence Nos. 2, 3-1, 4-1, 2-2, 3-3, 3-2 of Eul evidence Nos. 2, and Eul evidence Nos. 3 and 1-2 of Eul evidence Nos. 3, and the testimony of the court of first instance and the court of appeal Nos. 1-2 of this case, the non-existent corporation established on Aug. 18, 1994 for the purpose of the installation work business, etc. and has taken office as the representative director, and owned all the issued stocks, the non-performing corporation No. 1. 2 of this case's 0 was registered as the representative director of this case's ○○○○ corporation's 1's 0's 0's 6's 1's 0's 1's 's '' and '1''' ''' '' '' '' '' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' '.
3. Conclusion
Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case will be accepted on the grounds of its reasoning, and since the judgment of the court of first instance is unfair on the grounds of its conclusion, it is so decided as per Disposition by accepting the plaintiff's appeal and cancelling the disposition of this case.