과점주주는 과반수 주식 소유집단의 일원인지 여부에 의하여 판단함[국승]
It is determined by whether the oligopolistic shareholder is a member of a group of shares owned by the majority.
Although it is not an oligopolistic shareholder because it does not participate in the management of the company, it cannot be determined that it is not an oligopolistic shareholder, and the claimant is the representative of the company, the fact that he/she has served as the representative of the company, the fact that he/she has received benefits, and
Article 12 (Payment Notice to Person Liable for Secondary Tax Payment)
Article 39 (Secondary Liability for Tax Payment of Contributors)
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
On June 26, 2007, the Defendant designated the Plaintiff as the secondary taxpayer of ○○ Batech Co., Ltd. and revoked all the disposition imposing corporate tax and value-added tax on the Plaintiff.
1. Details of the disposition;
A. On October 15, 2001, 2001, ○○○ Company (hereinafter “Nonindicted Company”) was established and run the management and security business of multi-family housing, etc., and closed on October 31, 2007, and was in arrears with value-added tax and corporate tax as stated in the separate tax assessment list.
B. Accordingly, on June 26, 2007, the Defendant, along with three persons, including the Plaintiff’s siblings, constitutes oligopolistic shareholders holding 100% of the shares issued by the non-party company (25% of the Plaintiff’s shares). On June 26, 2007, the Defendant designated and notified the Plaintiff as the secondary taxpayer by the non-party company, and issued the instant disposition imposing corporate tax and value-added tax on the total amount of KRW 21,161,840 equivalent to the Plaintiff’s shares in the corporate tax and value-added tax imposed on the non-party company as shown in the attached
[Ground of recognition] Facts without dispute, Gap 1, 2, Eul 1, 7
2. Determination on the legitimacy of the disposition
A. The plaintiff's assertion
1) Grounds for procedural illegality
Since the defendant did not give the plaintiff an opportunity to state his opinion through prior notice prior to the disposition of this case and did not give specific indication of the method of appeal, the disposition of this case is unlawful in light of Articles 21(1), 22(3), 26, and 27(1) of the Administrative Procedures Act.
2) Summary of substantial illegality
The non-party company is under the control of the plaintiff's death penalty, and the plaintiff is not an oligopolistic shareholder because it has no specific fact about the management of the company, and thus, the disposition of this case is unlawful.
B. Determination
1) Determination as to the assertion of procedural illegality
According to Article 3 (1) of the Administrative Procedures Act, as stated in the relevant Acts and subordinate statutes, the procedures for dispositions, reports, administrative pre-announcement of legislation, pre-announcement of legislation, and administrative guidance (hereinafter referred to as "administrative procedures") shall be governed by the Administrative Procedures Act except as otherwise expressly provided for in other Acts, and Article 3 (2) 8 of the same Act provides that the Administrative Procedures Act shall not apply to matters based on the request for examination, maritime safety tribunal, tax trials, patent trials, administrative appeals, and other procedures for objection. In relation to the second taxpayer, Article 12 of the National Tax Collection Act separately provides for the method and contents of notification thereof, and Article 5 of the Framework Act on National Taxes separately provides for the procedures for objection related to the imposition of national taxes. Thus, the cases of taxation disposition following the designation of the second taxpayer shall be excluded from the application of the Administrative Procedures Act pursuant to Article 3 (1) of the same Act and Article 3 (2) 8 of the same Act. Therefore, the plaintiff's assertion on the premise is without merit.
2) Determination as to the assertion of substantial illegality
Whether it constitutes an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes shall be determined by whether it is a member of a majority of shares owned, and even if there is no specific fact involved in the company management, it cannot be determined that it is not an oligopolistic shareholder. The fact of ownership of shares is proven by the tax authority through the shareholder registry, the statement of stock transfer status, the corporate register, etc. However, even if it appears to be a single shareholder in light of the above data, if there are circumstances, such as the fact that the shareholder was stolen or registered in the name other than the de facto ownership, it cannot be viewed as a shareholder only in the name of the shareholder, but the nominal owner who asserts that he is not a shareholder (see Supreme Court Decision 2003Du1615, Jul. 9, 200). However, according to each of the above statements, the Plaintiff and its representative director, the representative director, and the non-party company established and operated by the non-party 1, 200 and the non-party 1,250 shares issued by the Plaintiff respectively.
3. Conclusion
Thus, the plaintiff's claim is dismissed as it is without merit.