주식에 관한 권리를 실질적으로 행사하고 있는 주주임을 전제로 한 이 사건 처분은 위법함[국패]
Cho Jae-2013-west-4715 (Law No. 19, 2014)
The disposition of this case on the premise that the shareholder is a shareholder who actually exercises rights to shares is unlawful
In full view of the fact that it seems somewhat little to view that a person who operated a corporation as wages received from the corporation (it does not seem that the corporation paid dividends to the shareholders), etc., it is reasonable to deem that the Plaintiffs are difficult to view the Plaintiffs as the actual owners of stocks, and that the trust
Article 39 (Secondary Liability to Pay Taxes by Investor)
2014Guhap76042 Revocation of Disposition of Corporate Tax Imposition (Revocation of Secondary Tax Liability)
Lee 00 et al.
00. Head of tax office
June 19, 2015
July 17, 2015
1. The Defendant’s imposition of value-added tax of 2009 on October 24, 2013 against the Plaintiff Lee 00, respectively, of KRW 30,660,280, corporate tax of KRW 29,282,570, and value-added tax of KRW 8,389,090 for the year 2010, and the imposition of KRW 37,570,680 for the earned income tax of 2009 as of November 1, 2013, and the imposition of KRW 17,709,910 for the earned income tax of 2010 for the year 200.
2. The costs of the lawsuit are assessed against the defendant.
Cheong-gu Office
same as the entry.
1. Details of the disposition;
A. 00 Co., Ltd. (hereinafter referred to as the “instant corporation”) was established on October 10, 2006 as a corporation engaged in musical instruments, wholesale and retail, and trade business, and the details of the shareholder change in the shareholder registry of the instant corporation are as follows (hereinafter referred to as the “instant shares”).
number of shareholders during the period (%)
From October 10, 2006 to August 8, 2010, Plaintiffs 100 to 10,000
From August 9, 2010 to April 17, 2012, Plaintiffs 100 to 10,000
From April 18, 2012 to April 18, 2012 00 to 10,000
Tax items to be reverted (unit: 200 won) for secondary taxpayers;
Corporate tax of 2009 31,917 Plaintiff Lee 00
B. The instant corporation did not pay 142,110,000 won in total, including seven corporate tax in the business year 2009, as follows.
Value-added tax for one year 2009 33,419 Plaintiff Lee 00
38,256 Plaintiffs 00, 200
Value-added tax 9,609 Plaintiff Lee 00 for one year 2010
Value-added tax 9,144 Plaintiff Lee 00 for one year 2010
Labor Income Tax 18,878 Plaintiff 00 in 2010
Value-added tax for 2 years 2012 885 00
Total 142,111
C. The Defendant: (a) deemed the Plaintiffs to be an oligopolistic shareholder of the instant legal entity; and (b) on October 24, 2013 and December 24, 201 of the same year, issued a notice of payment of KRW 105,902,620 to the Plaintiff Lee 00, and issued a notice of payment of KRW 17,709,910 to the Plaintiff Lee 00 on November 1, 2013 (hereinafter “instant disposition”). The Plaintiffs filed an objection against the Defendant on January 9, 2014, but was dismissed on April 28, 2014; and (c) was requested by the Tax Tribunal on April 30, 2014, but was dismissed on October 21 of the same year.
[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 5, 6, Eul evidence 1 to 7
Serial number, including number, hereinafter the same shall apply), the purport of the whole pleading
2. Whether the instant disposition is lawful
A. The plaintiffs' assertion
The Plaintiffs merely obtained title trust from 000 the shares of this case, and since the actual shareholders of the shares of this case are 00 million, the instant disposition is unlawful.
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
1) Article 39(1)2(a) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201; hereinafter “the Act”) provides that a person who actually exercises the rights to shares exceeding 50/100 of the total number of shares issued by the relevant corporation among oligopolistic shareholders shall be subject to secondary tax liability. In light of the legislative intent and the process of amendment, etc. of the aforementioned provision, the exercise of rights to shares exceeding 50/100 of the total number of shares issued by the relevant corporation does not necessarily require that the exercise of rights must have actual exercise of rights, but it is sufficient that the exercise of rights to the shares held as of the date of establishment of tax liability is deemed as a shareholder. Meanwhile, in determining whether a person is an oligopolistic shareholder under Article 39(2) of the Act, the fact of ownership of shares should be proved by data such as a list of shareholders, a statement of stock situation in stock transfer or corporate register, etc. However, even if it appears to be a shareholder in light of the above data, it should not be deemed that the nominal owner.
[See Supreme Court Decision 2008Du983]
2) According to the facts found earlier, the Plaintiffs owned 100% of the shares of the instant corporation and were in the position to exercise shareholders’ rights. Accordingly, the Plaintiffs constitute oligopolistic shareholders of the instant corporation as of the date on which the liability to pay delinquent national taxes was established.
On the other hand, since the burden of proof for the circumstance that a shareholder is registered as a shareholder in the register of shareholders but is stolen, or registered in a name other than the name of the actual owner is not a shareholder, the following is examined.
In full view of the entries in Gap 3, 7, 9, 11, 12 evidence and the purport of the whole pleadings, 00 won is stated that the actual shareholders of the shares of this case are themselves, 00 are the accounting officials working for the corporation of this case, and 00 are lent the name of the shares of this case at the time of incorporation of the corporation of this case, and since 00 retire, 00 are written several confirmations that the name of the shares of this case was changed again to 00, which were employed by the corporation of this case, 50 million won was loaned from the corporate bonds company of this case and 1.5 million won was paid as interest to 1.5 million won, 200,000 won was used from the corporate bonds company of this case, 200,000 won was transferred to 20,0000 won, 10,0000 won was transferred to the corporation of this case at the time of 19,199 X, 19,00000.
The following facts revealed according to the above facts: (i) it appears that 00, who was a bad credit holder, could not own the shares of this case under his own name; (ii) it appears that there was a clear purpose of title trust with the plaintiffs to acquire all the shares of this case on March 8, 2012; (iii) it was actually exercising the rights to the shares of this case on April 18, 2012; (iv) even though it could be anticipated that the disposition of this case against the plaintiffs would be imposed upon them if the disposition of this case is cancelled, it has been submitted a confirmation document unfavorable to them; (iv) the plaintiff 00 did not have registered the business until now, but has registered the business as the representative of the corporation for the same purpose; and (v) it appears that the corporation was established with a relatively detailed explanation as to the initial capital and operation of the corporation of this case; and (v) it appears that the plaintiff 100 or 600 won was not the actual owner of the benefits of this case.
3) Therefore, the instant disposition based on the premise that the Plaintiffs are shareholders who actually exercise their rights to the instant shares is unlawful.
3. Conclusion
Therefore, since the plaintiffs' claims are well-grounded, it is decided as per Disposition by admitting all of them.
Relevant statutes
director Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201)
Article 39 (Secondary Liability to Pay Taxes by Investor)
(1) A corporation (stocks are issued as securities pursuant to Article 9 (13) 1 of the Financial Investment Services and Capital Markets Act).
A corporation listed in the Chapter shall be excluded from a corporation listed in this Article; hereinafter the same shall apply)'s property
If the corporation fails to pay national taxes, additional charges and disposition fees for arrears, the payment of national taxes shall be made.
A person who falls under any of the following as of the date on which the obligation is established shall not be deemed to fall short of the amount:
A secondary tax liability: Provided, That in cases of oligopolistic stockholders under subparagraph 2, the relevant insufficient amount shall be the corporation.
the total number of issued stocks (excluding non-voting stocks; hereafter the same shall apply in this Article) or the total amount of investment;
Number of stocks owned (excluding non-voting stocks) or amount of investment (excluding non-voting stocks) by an oligopolistic stockholder with the amount divided by division;
In the case of an oligopolistic stockholder under items (a) and (b), the stocks practically exercised by such oligopolistic stockholder.
The amount shall be limited to the amount computed by multiplying the number or amount of investment.
1. General partners;
2. An oligopolistic stockholder who falls under any of the following items:
(a) Stocks or investments in excess of 50/100 of the total number of issued stocks or investments of the relevant corporation;
Persons who exercise de facto rights to shares;
(b) Honorary chairperson, chairperson, president, vice president, managing director, managing director, director, and other corporations, regardless of their titles;
a person who has de facto control over management;
(c) The spouse (including a person in a de facto marital relationship) and the person prescribed in items (a) and (b);
Lineal ascendants and descendants living with such lineal ascendants and descendants
(2) " oligopolistic stockholder" in paragraph (1) 2 means a stockholder or one limited partner and his/her parents prescribed by Presidential Decree.
A person with any other special relationship, whose total amount of stocks held or investment is owned by him/her, or whose total amount of investment
Persons exceeding 50/100 of the total number of issued stocks or the total amount of investment of a corporation (hereinafter referred to as oligopolistic stockholders
(c) means the end;