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(영문) 체납법인의 과점주주로 보아 제2차 납세의무자로 지정한 처분의 당부(기각)

조세심판원 조세심판 | 2008-09-19 | 조심2008서2375 | 기타

[Case Number]

Cho High Court Decision 2008Du2375 (Law No. 9, 2008)

[Items]

Other

[Types of Decision]

Dismissal

[Summary of Decision]

Since shares are owned by the representative director of the delinquent corporation as a lineal descendant and are living together with the same person, it falls under the oligopolistic shareholder.

[Related Acts]

Article 39 of the Framework Act on National Taxes / [Secondary Tax Liability] Time when the Special Act on National Taxes / Article 21 of the Framework Act on National Taxes establishes Tax Liability

【Disposition】

I dismiss the appeal.

【Reasoning】

1. Summary of disposition;

A. The claimant holds 10,000-2,500-2,000-25% of the total number of shares issued by the corporation under the specification of changes in the tax base and amount of tax for the 2006 business year of the OOOO 1-1 (ju), OOOOO (hereinafter “OOO”), and the claimant is registered as an oligopolistic shareholder who holds 80% of the total number of shares issued by the OO as the representative director and the claimant’s father, together with 5,500-2, 100-5% of the total number of shares issued by the corporation.

B. When a delinquent corporation fails to pay any of 309,390,4920, corporate tax of 2006, corporate tax of 202,257,210, and earned income tax of 2006 and 27,93,370,581,070, which belongs to year 2006, the disposition agency designated and notified the person liable for tax payment of the amount equivalent to 25% of the total amount of 539,581,07, which is the amount equivalent to 25% of the ratio of the claimant's shareholding in the amount of delinquent local taxes on June 12, 2008. < Amended by Presidential Decree No. 200623, Jun. 12, 2008; Presidential Decree No. 2074,90, Jan. 1, 2006; Presidential Decree No. 200564,280, Feb. 2, 2006>

C. The claimant appealed and filed an appeal on July 1, 2008.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

Although the claimant graduated from a high school at the location of the OOOO and was working at the OO, the father's OO was required on the house, and there was an entry that the father's OO requested the certificate of seal impression, seal, and identification card, but later, he was forgotten such fact. After the military service of the claimant, the claimant continued to work at the OO without living in the same house as his father because he did not have good competition at the beginning of 2008, and the father did not know that he did not know about the claimant. However, even though the claimant and O resided in the high school after the applicant graduated from the high school, he did not have the same livelihood, and the claimant may not have any fact that he was registered as a shareholder of the delinquent corporation, this disposition must be revoked.

(b) Opinions of disposition agencies;

As of the date on which the liability to pay delinquent amount is established ( February 28, 2006 through June 30, 2007), the claimant owns 2,500 shares (25%) of the delinquent corporation as the lineal descendants of the representative director of the OO of the delinquent corporation, and the fact that the claimant resides and resides in the same area between February 13, 2006 and August 29, 2006 and OOOOOOOOOOOOOOOOOOOO 157-12 is confirmed by the resident registration card, so the claimant is an oligopolistic shareholder of the delinquent corporation and the evidence presented by the claimant alone is objectively verified. Therefore, the initial disposition is justified.

3. Hearing and determination

(a) Points in dispute;

Applicant who owns 25% shares of the total number of shares issued by the representative director shall be deemed oligopolistic shareholders of the delinquent corporation and shall be deemed as the secondary taxpayer and the disposition in which the notice of arrears is given.

(b) Related statutes;

(1) Where the property of a corporation (excluding corporations listed on the Korea Stock Exchange) is insufficient to cover the national tax additional dues and disposition fee for arrears imposed on or to be paid by such corporation with the property of Article 39 of the Framework Act on National Taxes, the persons falling under any of the following subparagraphs as of the date on which the national tax liability is established shall be subject to the secondary tax liability for such shortage: Provided, That in the case of oligopolistic stockholders under the provisions of subparagraph 2, it shall be limited to the amount calculated by multiplying the amount obtained by dividing the shortage by the total number of stocks issued by such corporation or the total amount invested by such corporation, by the number of stocks owned by, or the amount invested by, the oligopolistic stockholders (in the case of oligopolistic stockholders under subparagraph 2 (a) and (b),

1. General partners;

2. An oligopolistic stockholder who falls under any of the following items:

(a) A person who exercises a substantial right over the stocks or investment shares in excess of 51/100 of the total issued stocks or total investments of the relevant corporation;

(b) A person who actually controls the management of the corporation, regardless of the title, such as the president, vice president, managing director, and managing director;

(c) The spouse (including the person in de facto marital relations) of the persons under items (a) and (b) and the lineal ascendants and descendants sharing their living

(2) The term “ oligopolistic stockholder” in paragraph (1) 2 means a person who is a relative or has other special relations with a stockholder or partner with limited liability as prescribed by the Presidential Decree, and whose total amount of stocks held or investments is 51/100 or more of the total number of stocks issued or investments of the juristic person concerned

(2) Article 21 of the Framework Act on National Taxes: (1) The obligation to pay national taxes arises at the following time:

1. For income or corporate tax, when the taxable period is terminated;

7. For value-added taxes, when a taxable period is terminated;

C. Facts and determination

(1) The claimant, who had been registered as a shareholder, submitted the confirmation document, etc. of the team leader, the team leader, the team leader, and the head of the team at the address of the claimant, by asserting that the claimant did not know that he had been registered as a shareholder, and that he did not have resided in the same address after graduating between the representative director, the team leader, or the high school at the same address, does not constitute

(A) The representative director of the delinquent corporation is the actual owner of 2,500 shares (25%) in the name of the claimant registered as the auditor of the delinquent corporation (208 June 27, 2008) and exercising the right to shares of 5,500 shares (55%) and 8,000 shares (80%) in total. The delinquent corporation and claimant are all unrelated to the delinquent corporation and the claimant confirm that they will be responsible for the delinquent amount of taxes and the delinquent amount of taxes under the name of the claimant as soon as possible, and the KOO has confirmed that the head of the OOO as the head of the Ban on June 26, 2008 did not actually reside in the name of the claimant, but he did not present any specific and objective evidence as above.

(B) On the other hand, according to the statement of changes in stocks, etc. submitted by the delinquent corporation by attaching the tax base return for the business year 2006, the claimant is registered as a shareholder holding 2,500 shares, which is 25% of the total number of outstanding shares of the delinquent corporation. According to the resident registration card of the assistance agency and the claimant, the claimant appears to have been residing in the same domicile as the assistance agency (OOOOOOOOOOOOOOO) during the period of November 7, 2005, including the date when the liability for tax payment of the delinquent amount was established (28~2007 June 30, 2007).

(2) Therefore, the disposition agency deemed the claimant as the oligopolistic stockholder of the delinquent corporation and deemed that there was no error in designating the claimant as the secondary taxpayer and giving the notice of payment on the amount corresponding to the ratio of the claimant’s shareholding (25%) among the delinquent amount of the delinquent

4. Conclusion

This case's request for a trial is without merit, so it is decided as ordered in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes.