제2차 납세의무자는 주식의 실제 소유자인 과점주주가 되어야 함[국패]
Cho High-2013-Seoul Government-0100 (O. 30, 2013)
The second taxpayer must be an oligopolistic shareholder who is the actual owner of the shares.
The designation of the secondary taxpayer shall be imposed on a person who operates the corporation with the real shares owned by a person who is not a nominal owner.
Article 39 (Secondary Liability to Pay Taxes by Investor)
Seoul Administrative Court-2013-Gu Partnership-22413 Revocation of Disposition of Imposing Corporate Tax
AAA Foreign Affairs
aa
on March 26, 2014
on April 25, 2014
1. Aaa:
(a) each imposition of KRW 7,060,940, value-added tax of KRW 45,023,720, imposed on Plaintiff A on September 14, 2012;
B. On November 6, 2012, the imposition of corporate tax of KRW 2,671,60, value-added tax of KRW 25,917,930, and wage and salary income tax of KRW 1,787,160 shall be revoked.
2. The costs of the lawsuit shall be borne by aa.
The same shall apply to the order.
1. Details of the disposition;
A. (1) AA is registered as a representative director from November 26, 2010 to December 31, 2012, 201, the total number of 28,000 shares issued by BB Engineering Co., Ltd. (hereinafter referred to as “BB Engineering”) established for the purpose of installation and manufacture of screen air from May 18, 201 to December 31, 201. < Amended by Presidential Decree No. 22009, Mar. 8, 2004; Presidential Decree No. 22000, Nov. 26, 2010>
(2) BB owns all 20,000 shares issued by CC (it was established on March 8, 2010, hereinafter referred to as "CC") established for the purpose of installing elevators, and is registered as the representative director continuously.
B. (1) BB does not left corporate tax, etc., (a) on September 14, 2012, on which Plaintiff A was designated as the secondary taxpayer, and (b) imposed a notice of the imposition of corporate tax of KRW 7,060,940, value-added tax, and KRW 45,023,720 (b) (the remaining overdue tax due to the payment by BB) equivalent to 70% of Plaintiff AA’s share in the remaining tax amount of CB as follows.
No.
Items of Taxation
Legal date;
Amount of tax (unit: source)
1
Value-added Tax
October 25, 2011
19,976,820
2
Value-added Tax
December 31, 2011
9,852,180
3
legal person:
December 31, 2011
7,060,940
4
Value-added Tax
April 25, 2012
15,194,720
Total
52,084,660
2) On November 6, 2012, cC did not pay corporate tax, etc., and Aa designated Plaintiff BB as the secondary taxpayer of cC on November 6, 2012, and imposed corporate tax of KRW 2,671,600, value-added tax of KRW 25,917,930, and labor income of KRW 1,787,160,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,000,00,00
No.
Items of Taxation
Legal date;
Amount of tax (unit: source)
1
Value-added Tax
October 25, 2011
11,391,340
2
Earned income tax
December 31, 2011
171,820
3
Earned income tax
January 31, 2012
102,080
4
Corporate Tax
December 31, 2011
2,671,600
5
Value-added Tax
December 31, 2011
3,252,430
6
Value-added Tax
April 25, 2012
11,274,160
7
Earned income tax
March 31, 2012
127,650
8
Earned income tax
April 30, 2012
413,680
9
Earned income tax
May 31, 2012
477,610
10
Earned income tax
June 30, 2012
494,320
Total
30,376,690
C. AA, etc. requested on December 17, 2012, and was dismissed by the Tax Tribunal on May 30, 2013.
[Matters in which there is no dispute over recognition, evidence Nos. 1, 3, 14, 5 (including the following number), evidence Nos. 1 through 11 (including the paper number), the purport of the whole pleadings.
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
AA, etc. is a name shareholder listed in the register of shareholders in the form of CCC, and did not participate in the management of BB and CC. Therefore, the instant disposition that deemed the Plaintiffs as the secondary taxpayer is unlawful.
(b) Related statutes;
It is as shown in the attached Table related statutes.
(c) Fact of recognition;
(1) On June 14, 2013, the public prosecutor of the ○○ District Public Prosecutor’s Office located in the △○ District Public Prosecutor’s Office rendered a disposition that does not have suspicion of violation of the Labor Standards Act with respect to AA for the following reasons.
(2) (A) On October 25, 2012, 2012, an employee status of bbb was issued by the ○○○○○○ Office of Labor and Labor, and received confirmation of overdue wages as follows:
(나) ccc의 직원 △△△, ☆☆☆, ♡♡♡은 2012. 11.경 서울지방고용노동청 서울북부지청으로부터 각 아래와 같은 체불임금확인원을 교부받았다.
(3) The name of bb and cc is marked as the representative, and the plaintiffs are on the wage ledger.
In addition, the address of bb and cc is '○○○○○○○-dong 148-44'. On the other hand, on February 24, 2010, 200 million won was deposited into the account under the name of Plaintiff BB on March 8, 2010, which is the date of establishment of cC, was transferred to the account of cC on March 24, 2010. After that, on March 24, 2010, KRW 130 million out of cC was deposited into bB account and deposited into bB account in the name of cbb.', b. (4), cc. Kim Jong-type, the Plaintiffs are nominal, and the representative director and ccc is the representative director.
(5) On September 2013, 2013, the Plaintiffs submitted a complaint to the Seoul ○ Police Station stating that “the Plaintiffs hold the nominal shares of a company, and the actual operator is CCC. The CCC embezzled the Company Fund.”
(6) EE, FF, andGG have stated in this Court 2014, 3.26, as follows:
【Matters in which there is no dispute over recognition, as described in the Evidence Nos. 2, 6, 7, and 8 (including Gai Nos. 2, 7, and 8): The purpose of each of the testimony and the whole of the pleadings
D. Determination
(1) Determination of whether a shareholder is an oligopolistic shareholder shall be based on whether a group of stocks owned by a majority shareholder is a member, and in detail, even if there is no fact about the management of the company, it shall not be determined solely by the fact that it is not an oligopolistic shareholder, and the fact of ownership of the stocks shall be proved by the data, such as the register of shareholders, the statement of stock movement, or the register of corporate register, etc. However, even in cases where a shareholder appears to be a single shareholder in light of the above data, if there are circumstances, such as where the name of the shareholder was stolen or registered in a name other than the name of the real owner, it shall not be deemed as a shareholder, but it shall be proved by the nominal owner who asserts that he is not a shareholder (see Supreme Court Decision 2003Du1615,
(2) The instant case is about health, and ① ○○○ Regional Employment and Labor Administration, Seoul, ○○ Branch Office, bb and cc.
Considering the fact that the actual business operator was determined as CCC, and that the plaintiff AA was subject to a disposition that there was no suspicion about the violation of the Labor Standards Act from the public prosecutor of the △○○ District Public Prosecutor’s Office, and that the funds for acquiring the plaintiff AA shares and the funds for establishing the cC were raised by CCC, and that the statements and accounts of Han Jin who is the accountant in charge of the CCC were supported by CCC, and that CCC used the name of the representative, and reported the work of bbbb and cc, and (d) operated at the same address and business type of bbb and ccc, and cc, and that there was no change in working conditions, such as wages, etc. after the fact that the plaintiffs were employed by CCC, it is reasonable to deem that the plaintiffs were the actual person in charge of CCC.
(3) Therefore, the instant disposition that deemed the Plaintiffs as secondary taxpayers is unlawful.
3. Conclusion
Thus, the claim of this case is reasonable, and it is decided as citing it, and it is ordered as ordered.
section 3.
Related Acts and subordinate statutes
director Framework Act on National Taxes (amended by Act No. 11845, May 28, 2013)
Article 14 (Real Taxation)
(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall apply to the actual income, profit, property, act or transaction, regardless of its title or form.
Where the property of a corporation (excluding a corporation whose stocks are listed on the securities market under Article 9 (13) 11 of the Financial Investment Services and Capital Markets Act; hereafter the same shall apply in this Article) under Article 39 is insufficient to cover national taxes, additional dues and disposition fee for arrears that the corporation imposed or pays, with the property, any of the following persons as of the date on which the liability to pay national taxes arises shall assume secondary tax liability for the amount imposed on the corporation: Provided, That in cases of oligopolistic stockholders under subparagraph 2, the limit of the amount calculated by dividing the insufficient amount by the total number of outstanding stocks (excluding non-voting stocks; hereafter the same shall apply in this Article) of the corporation or the total amount of investment, which the relevant oligopolistic stockholder exercises a substantial right (excluding non-voting stocks; hereafter the same shall apply in this Article):
1. General partners;
2. A stockholder or one limited partner and a person prescribed by Presidential Decree from among his/her specially related persons, whose total amount of stocks held or investments exceeds 50/100 of the total number of stocks issued or investments made by the relevant corporation and who actually exercise the rights thereto (hereinafter referred to as " oligopolistic stockholder").