제2차 납세의무를 지는 과점주주는 주주 1인이 100분의 50을 초과하는 주식에 관한 권리를 실질적으로 행사할 것을 요구하는 것은 아님.[국승]
The oligopolistic shareholder with secondary tax liability does not require a shareholder to exercise substantially the rights to the shares exceeding 50/100.
An oligopolistic shareholder who has secondary tax liability as an investor does not require one shareholder to exercise rights to the shares in excess of 50/100, and it is sufficient that the shareholder is in a position to exercise shareholders' rights to the shares currently owned.
Article 39 (Secondary Liability to Pay Taxes by Investor)
2014Guhap20290 Revocation of the designation of the person liable for secondary tax payment and the notice of payment.
CHAPTER A
00. Head of tax office
November 11, 2014
December 5, 2014
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
On September 12, 2013, the Defendant: (a) designated the Plaintiff as the secondary taxpayer by BBBB; (b) revoked the Plaintiff’s imposition of value-added tax of KRW 9,200,310 for the year 2012; (c) imposition of KRW 8,318,930 for the year 2013; (d) imposition of KRW 2,933,530 for the year 2012; (e) imposition of corporate tax of KRW 2,930,910 for the year 2012; and (e) imposition of KRW 1,724,290 for the year 2012.
1. Details of the disposition;
A.BBB Co., Ltd. (hereinafter “instant company”) is a corporation operating an industrial machinery manufacturing business, etc. in 00:00:00 Eup/Myeon 442-5. The instant company was in arrears with the total amount of KRW 134,285,570, including corporate tax and value-added tax (hereinafter “amount in arrears”) as follows:
Taxation Period
Sub-Items :
Amount in arrears ( won)
Stock ratio (%)
Branch Amount (won)3)
Final 2, 2012 (Reverted to year 2012)
Value-added Tax
50,141,660
20
10,028,332
Scheduled 1, 2012 (Reversion 2013)
Value-added Tax
43,840,740
30
8,768,148
2012
1) Corporate tax
15,635,730
3,127,146
2012
2) Corporate tax
15,270,070
3,054,014
2012
Earned income tax
9,397,370
1,879,474
Consolidateds
134,285,570
1) 2) The portion of corporate tax is based on the Plaintiff’s submission of a corporate tax base and tax return on March 30, 2013 and filing an application for the payment of corporate tax for the year 2012.
3) The difference between the designated amount and the amount imposed on the Plaintiff is the additional charges.
B. Accordingly, the defendant, a representative director of the company of this case, and the plaintiff, a partner of the company of this case.
Article 39 Subparag. 2 of the Framework Act on National Taxes, on the ground that each of the total number of issued and outstanding shares holds 40% and 20% of the total number of issued and outstanding shares constitutes oligopolistic shareholders who actually exercise their rights thereto, is designated as the secondary taxpayer pursuant to Article 39 Subparag. 2 of the Framework Act on National Taxes. On September 12, 2013, value-added tax 9,200,310 won for the above delinquent amount of the company of this case is divided according to their shareholding ratio, and on September 12, 2013, value-added tax of 8,318,930 won for the year 2013, corporate tax of 2,933,530 won for the year 2012, corporate tax of 2,930,910 won for the year 2012, and earned income tax of 1,724, and 290 won for the year 2012 (hereinafter collectively referred to as "each of the above dispositions").
C. The Plaintiff filed an objection, but the Defendant dismissed the objection on November 11, 2013. The Plaintiff filed an appeal with the Tax Tribunal seeking revocation of the instant disposition, but the Tax Tribunal dismissed the claim on March 10, 2014.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-5, Eul evidence Nos. 2 and 6, the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
In the process of establishing the instant company, the Plaintiff was arbitrarily registered as the auditor of the instant company in the corporate register, and the Plaintiff was subsequently acquired 2,000 shares of the instant company. The Plaintiff was not a substantial shareholder of the instant company, but was not in the position to exercise shareholder rights. Accordingly, the instant disposition of imposition against the Plaintiff by the Defendant designating the Plaintiff as the secondary taxpayer of the instant company is unlawful.
B. Relevant statutes
It is as shown in the attached Form.
(c) Fact of recognition;
1) On March 17, 2005, the instant company completed the registration of incorporation by designating the representative director as 10,000, total number of outstanding shares, total capital as 100,000 won, and the total amount of capital as 10,000,000 won. At the time of the instant disposition, the instant company’s corporate register was registered as DoD and auditor as the representative director.
2) On March 17, 2005, the director’s book of the inaugural general meeting and the director’s book of the ordinary general meeting as of March 17, 201, stating that the Plaintiff was appointed or reappointed as an auditor, and that the Plaintiff consented thereto. In addition, the purport of “I consent to the appointment as an auditor at the ordinary general meeting of shareholders as of March 17, 2008 and March 17, 2011,” which read “I consent to the appointment, because I have been appointed as an auditor at the ordinary general meeting of shareholders, I have affixed the Plaintiff’s name on the written appointment consent as of March 17, 2008 and affixed a certificate of personal seal impression on March 21, 201.
3) According to the detailed statement of changes in stocks, etc. in 2005 and 2011, statement of transfer of equity shares, and list of shareholders, the current status of shares held by the instant company is as follows (the shares held by the instant company at the time of establishment of the above obligation to pay national taxes is deemed to be equal
Shareholders (Relationship)
April 1, 2005 and December 31, 2010
March 17, 2011
Number of shares held (State)
Number of shares held (State)
Equity ratio (%)
ParkCC (other)
4,000
0
0
D. Dud (Person)
4,000
4,000
40
(S siblings)
2,000
2,000
20
KimE (other)
-
1,000
10
F. F.(other)
-
1,000
10
ThisG (other)
-
1,000
10
HaH (other)
-
1,000
10
guidance.
10,000
10,000
100
[Ground of recognition] Facts without dispute, Gap evidence 2-1, Gap evidence 3, Gap evidence 5, Eul evidence 1, 3, 4, and 5, and the purport of the whole pleadings
D. Determination
1) An oligopolistic shareholder who is an investor and has secondary tax liability pursuant to Article 39 subparagraph 2 of the Framework Act on National Taxes and Articles 20 and 18-2 subparagraph 1 of the Enforcement Decree of the same Act does not require one shareholder to actually exercise his/her right to shares in excess of 50/100 (see, e.g., Supreme Court Decision 2006Du19105, Jan. 10, 2008). The exercise of the right to shares does not require that the exercise of the right must have actual exercise of the right to shares. It is not sufficient that the exercise of the right to shares in the shares held as of the date the tax liability is established if the shareholder is in a position to exercise the right to shareholders (see, e.g., Supreme Court Decisions 2003Du8418, Oct. 15, 2004; 201Du5354, Jul. 8, 2003).
However, even in cases where a single shareholder appears to be a single shareholder in light of the above data, where there are circumstances, such as where the actual shareholder was stolen or registered in the name other than the real shareholder’s name, the actual shareholder cannot be deemed to fall under the shareholder merely by the name thereof, but this ought to be proved by the nominal owner who asserts that he/she is not a shareholder (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9,
2) According to the facts found earlier, the Plaintiff was registered as an auditor in the corporate register from 2005 to the time of the instant disposition, and the Plaintiff was registered as a secondary person liable for tax payment of the instant company from the time of incorporation to the date of the establishment of the company’s liability for national taxes in arrears, and was registered as holding 20% of the total number of outstanding shares of the instant company in the corporate register. Since the sum of shares owned by Dop and the Plaintiff exceeds 50% of the total number of issued shares if all shares owned by Dop were combined with shares held by Dop as representative director of the instant company exceeds 50% of the total number of issued shares, the Plaintiff cannot be exempted from liability as a secondary person liable for tax payment of the instant company, unless it proves special circumstances that the Plaintiff is not a de facto shareholder of the instant company, and only
3) We examine whether the Plaintiff is a shareholder of the instant company only under the name of the Plaintiff. Each entry in the evidence Nos. 7-1 through 3 is deemed to be a shareholder of the instant company. The phrase “the Plaintiff shall not have engaged in all the management of the instant company” is signed or sealed by the WhiteJ, KimK, and White, the director of the instant company, the vice head, and it is difficult to believe that there is no objective data to recognize the above confirmation contents. According to each entry in the evidence Nos. 4, 8-1, 2, 3, and 9, from March 1, 1998 to October 201, 2013, it is recognized that the Plaintiff was working as a freezing equipment and an associate professor at the EastM university located in the instant company, but the above fact of recognition alone cannot be readily concluded that the Plaintiff’s act was restricted as a shareholder of the instant company, and there is no evidence to acknowledge that the Plaintiff was merely the Plaintiff’s acquisition of the Plaintiff’s shares under the name of the Plaintiff.
4) Therefore, the Plaintiff’s assertion is without merit.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.